I hadn’t thought about the DiGuglielmo case in a long time, until I saw Nathan Burney’s post on the outcome of the appeal of Richie DiGuglielmo’s 440.10 motion to vacate the conviction based upon two witnesses who, naturally long after the trial, came forward to say that the police had pushed them to change their testimony.

This was a highly racially charged case, with DiGuglielmo accused of shooting a black man, Charles Campbell.  To make things worse, Richie DiGuglielmo was an off-duty cop.  Nathan’s post provides a detailed description of the facts of the case, but the crux of the defense was that DiGuglielmo claimed that he shot Campbell as he was about to swing a bat and strike DiGuglielmo’s father.  The problem was that two neutral witnesses watching the incident testified otherwise.

Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The then-Westchester County District Attorney, now TV judge of the slimiest sort, Jeanine Pirro, seized the opportunity to try the case in the media, as was her wont.  It was lurid, racist, horrible.  Every cliche that could be used to obscure the facts was.  Pirro had big plans for herself, especially after her husband went to prison.  Apparently, his was the only crime about which she was totally unaware. How odd.

The Appellate Division, Second Department, is one of those very strange courts, where the outcome can vary wildly based on the composition of the bench.  This bench wasn’t a good one for DiGuglielmo.  Nathan sums up the decision:

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

I’m not as clear that I would describe the reasoning as circular, as much as they’ve written the significance of witnesses out of the script.  The implicit finding that the senior DiGuglielmo was the aggressor, not Campbell, isn’t troubling in itself, but troubling in that the jury arrived at it based on less than truthful testimony at the hands of the police. 

The Second Department’s conclusion, that the truthful and accurate testimony of witnesses on the central point of the defense, wouldn’t change the outcome, seems horribly (or typically, according to your perspective) cynical.  These independent witnesses provided testimony that not only failed to support the defense, but supported the prosecution.  While there’s no ironclad guarantee that it would have resulted in acquittal, that’s not the test.  It need only offer a reasonable probability.  Given the critical nature of the testimony, and its importance to the defense at trial, this seems manifest.

Yet the court held :

In sum, considering the trial and newly discovered evidence in combination, the circumstances did not support an objectively reasonable inference that a deadly strike with the bat was imminent. Had the jury heard the evidence of undue police pressure on witnesses and fully credited the October 3rd statements of Dillon, O’Donnell, and White, the People still would have disproved the defense of justification beyond a reasonable doubt. The defendant, thus, failed to meet his burden of establishing the probability that, had the newly discovered evidence been received at trial, the verdict would have been more favorable to him

What makes little sense is the conclusion that the prosecution would have disproved the defense, despite the truthful testimony, beyond a reasonable doubt.  There is no basis whatsoever to support this conclusion, since it’s all about the evidence.  The testimony of these two men was the evidence. 

Most troubling about this strange abuse of reason is that the false testimony was induced by the police, a fact avoided by the same reasonable probability test so that the Brady denial can be sloughed off.  This aspect contributes to the reduction of evidence to a farce on the back end of the trial.  It’s oh-so-critical when it serves to impugn and convict up front, and it’s so inconsequential, nearly worthless, afterward.

I’m likely less convinced than others that DiGuglielmo was justified in firing the shots that killed Campbell.  I’m a big believer that shooting and killing people is something to be avoided if at all possible, and I suspect that it was quite possible here that the day could have ended with no one dead.  The sense of imminence and alternatives is largely in the eyes of the guy with his finger on the trigger, and I’m hardly clear that Richie DiGuglielmo’s choice wasn’t terribly wrong.

But I still expect him to be tried on truthful testimony, and it’s incomprehensible that the addition of critical neutral testimony of Campell swinging the bat at the senior DiGuglielmo, and the subtraction of critical neutral testimony that Campbell wasn’t threatening the old man with a bat about to take his head off, can be dismissed out of hand.

Either way, the only person happy about this is TV Judge Jeanine, who dodged another bullet in her quest for validation.

Postscript: A bit of irony is that Marty Tankleff, whose decision is mentioned in passing by the Second Department, is a paralegal in Nathan’s firm.  It appears that he is also a supporter of Richie DiGuglielmo.  While Tankleff, as noted at the end of Nathan’s post, knows a little something about wrongful convictions, and no doubt brings zeal to his efforts, I’m not sure that it doesn’t also bring a lack of detachment when it comes to the ultimate decision of whether DiGuglielmo was right or wrong to pull the trigger.  It’s good, however, that he’s found a place to put his efforts to good use, and I wish him well.

“Do you pray to God to forgive you for shooting that boy down?”

“Yes”

We’ve been down this road before.  Every law students studies the 1977 decision of Brewer v. Williams, where the defendant invoked his 6th Amendment right to counsel.  Yet police continued to try to get Williams to talk, manipulating him with an appeal to his deep religious beliefs, that the parents of the young girl he murdered should be able to have a Christian burial.  Williams led police to the body.

Much is packed into the Supreme Court’s  Berghuis v. Thompkins decision,  Much surrounds it.  It’s a 5-4 decision, thus leaving the rights protected by our Constitution in the hands of a single individual, Justice Anthony Kennedy, whose individual views more than any other dictate the fundamental law of the United States of America.  There was Elena Kagan, whose path from Harvard to the Supremes included her request to step into this case where she was neither needed nor wanted, to take an extreme position against the maintenance of individual rights. 

The way it’s told, the decision is ironic in that a defendant is required to speak to remain silent.  Putting in these terms makes it almost cute, not to mention silly.  It isn’t as vast a departure from our understanding of the tortured use of Miranda to protect police interrogations as some suggest.  Before this decision, defendant’s were required to invoke the right to remain silent or the right to counsel in a clear and unambiguous way.  This alone tripped up most defendants who were otherwise disinclined to heed the warnings.  Most defendants heard and understood the warnings clearly, and talked anyway. 

The change of Berghuis is that a clear and unambiguous invocation of rights now requires a defendant to express it verbally.  He must say something to invoke.  What he says must be a clear and unambiguous invocation, but it isn’t enough to refuse to speak for three hours.  The sweet talk of Johnston v. Zerbst, that it wasn’t the defendant’s duty to invoke, but the government’s duty to prove waiver, is a faint memory.  But the default shifted from the government to the defendant long ago.  Now, they’re only working out the details.

This decision also offers a wonderful example of how courts discuss our constitutional rights in terms of precedent, then inexplicably shift direction as if we were blind-folded, spun around and will have neither idea nor concern how we ended up facing the other way.  The majority will repeat the black letters written by justices long gone, then arrive in a place that can’t be reached from there. 

Slaves to intellectual honesty will be appalled, but it’s not like they overruled precedent, which would get the academics all atwitter.  They just conveniently put it behind the firewall of choices.  The police played the Miranda game by giving the warnings.  The defendant simply made the choice not to invoke his rights.  The obligation of the police to show waiver, rather than the defendant to show invocation, fell by the wayside.  Six of one, half dozen of the other. 

It wouldn’t mean a thing if people would simply learn how to properly invoke their right to remain silent and right to counsel.  Criminal defense lawyers spell it out clearly for people all the time, yet they seem to perpetually have a problem with it.  The Supremes shrug.  Why should it be the cops’ fault that people just can’t seem to get it? 

Just as the Miranda court assumed that its ruling would be the end of confessions obtained by custodial interrogations, subsequent courts have learned that people just can’t stop themselves from talking when the police inquire.  Some believe they can talk their way out of their problems.  Rarely does that work, but whenever that’s said, someone will tell the story of how they did it and walked away froom custody.  Others try to invoke, but in their effort to be polite, or at least not antagonize police, they fail to make it clear and unambiguous by using such tepid phraseology as “I think I should speak with a lawyer before answering any questions.”  As courts tell us, who the heck knows what that means.

And the little appreciated corollary to the problem is that deception, otherwise known as bald-faced lying, is an effective law enforcement tool.  By using the word “effective”, it somehow trumps whatever rights are trampled in the process.

Berghuis v. Thompkins is a decision by Justice Kennedy that somebody has to be the one responsible for saying the magic words, and he thinks it ought to be the defendant, since the defendant is the one least capable of doing so and it’s better for law enforcement, it’s more effective, to get confessions than not.  By allowing people to invoke their rights, if they know the magic words and can manage to get them out properly (and the cops scribble them down accurately when writing their report the next day), they have a chance of safeguarding their constitutional rights.  That’s good enough, even if most will be incapable of doing so. 

As for the promise of the 5th and 6th Amendments, the protection of rights that Miranda v. Arizona had in mind, which now lasts only 14 days at best, it was stillborn.  The sweet words of precedent did nothing to help defendants to overcome the coercion, manipulation, lies and pressure to hear their rights and still utter the words that would convict them.  It provided an easy shield for the police that never worked as a sword for the defendant.  It was dead on arrival.

All Miranda needs now is a decent Christian burial.

As for the handful of friends who’ve become judges and will still talk to me despite the things I write here, they react the same as anyone else when a police officer strolls up to them on the street and makes the good ol’ common law inquiry.  They know better than to play wise guy lawyer (or judge in their case), showing the cop how smart they are by asserting their “rights” and, perhaps, getting a very embarrassing, perhaps even painful, response.  Just cooperate and nobody gets their picture on the front page of the Post.

Yet the creative writing of their decisions perpetuates the myth that civilians could avoid many problems by merely ignoring the police.  One such novella bears the boring title State v. Priddy, out of the Texas 2nd District Court of Appeals (Fort Worth), as reported at Liberty and Justice For Y’all.

In Priddy, the defendant, who was sitting in her car eating a hamburger, was approached by an officer who, after placing the spotlight on her car and running her plates, knocked on her window and requested to see her driver’s license.  The officer was interested in this car, in particular, because it was recently reported that the driver might be under the influence of alcohol.  Based on the facts, however, both the trial court and the appellate court agreed that the officer did not have reasonable suspicion to initiate an investigative detention when he approached the car.

Once the woman rolled down her window, however, everything changed. 

This is where the court engaged in a flight of fantasy. 

So long as the citizen remains free to disregard the officer’s questions and go about his or her business, the encounter is consensual and merit no further constitutional analysis.

Got that?  You are free to disregard the officer’s questions. Free!  Free at last.  And the officer is thereupon free to smack you around a bit for being noncompliant, which in itself provides probable cause to arrest, which will happen after he teaches you a painful lesson about disregarding his questions.

“On what planet do these judges live,” you ask?  The same one as you and I.  They know that this isn’t the way life works; not your life or theirs.  They know that no one, including a judge, expects to disregard the officer with impunity.  And yet the fantasy persists.

We have a constitutional right to be left alone, “too precious to entrust to the discretion of those whose job is the detection of crime” (McDonald v United States, 335 US 451, 455).  Of course, they’ve got a funny way of showing just how precious that right is, by preserving in platitude what rarely exists in reality. 

No one, from beggar to Senator (which may not be a very broad spectrum), feels this way.  We all feel constrained to submit to the badge.  No one feels sufficiently bold to elect to ignore the officer and continue going about our business.  McDonald says we can make that choice, but no cop I’ve ever known would let that happen.  And no person I’ve ever seen believes it to be true.

Decisions like Priddy allow for judges to neatly package their decisions, applying all the precious rights in a way that comports with a constitutional adherence one would expect from a court of law, while arriving at a conclusion that makes for a great punchline, but for the fact that somebody is going to end up prosecuted, and even imprisoned, for the joke.

B.W. Barnett is quite right when he argues that there is no such thing as a consensual encounter initiated by police.  We comply because there is no reasonable person who believes that any other choice exists.  Judges don’t think otherwise.  Nobody thinks otherwise.  When the cop inquires, we respond.  Not because we want to, but because we would really prefer not to have our head bashed in or spend the night in the hoosegow.

This is one of the many legal fictions that really needs to be put to rest, one way or another.  Respect for the law demands that it not perpetuate absurdities.  The contention that we are free to disregard a cop as a matter of constitutional right is absurd, and it’s time to put this fantasy to bed.

Just as Radley Balko has done an exemplary job of chronicling puppycide, the needless knee-jerk killing of dogs by police officers, George Washington Lawprof Jonathon Turley has done the same for police informing people, and often backing up their advice with a big stick, that it’s illegal to video and record them.

Turley had two posts on one day this week, one from Maryland and another from California, bearing witness to the cops’ desire to have no witness to their actions,   That Massachusetts didn’t make the list this week is mere kismet.  The recurring theme is that police are of the view that taping them is a crime.  Sometimes, they tell the videotaper to stop.  Other times, they let their cuffs do the talking.

As Carlos Miller’s aptly named blog says, photography is not a crime.  Nor is videotaping a public officer in public performing his duty.  Indeed, as shown by the But For Video series here, good people would never believe that the age-old complaints of police abuse and misconduct do, in fact, happen, exactly as alleged and despite the facile arguments challenging the accusers, but for video.  In the absence of visual proof, most of us will immediately shrug off accusations of misconduct as being far-fetched and merely an attempt to get back at police for doing their job.  We now know better.

This is why the recording of police in the performance of their job has become a critical component of cleaning up the mess left behind by generations of blind faith in our support of law enforcement and denial that bad things ever happen. It’s less about nailing the individual cop than about changing the police culture that they can do, and get away with, anything they want.  Knowing that we’re watching, the blue wall can no longer shield them from our probing eyes.

This makes the cop lie, that it’s a crime to videotape them, all the more nefarious.  Not only is it false in itself, but serves to conceal the collateral misconduct that must be revealed if change to cop culture is ever to happen. 

That the police are able to perpetuate their self-serving myth speaks to a lack of information to the public.  A few well-placed headlines in newspapers proclaiming that it is not a crime to videotape police in public in the performance of their job would go a long way in putting an end to the cop lie.  Maybe a nice investigative piece on a television news magazine.  There is certainly more than enough video around already to cut and paste a show together.  Heck, they could just cruise through a few months of Turley posts and have a show done in an hour.

No matter how widely read Turley’s blog may be, the countervailing voice to the cop lie needs to be spoken more loudly and disseminated more widely.  People need to know that it’s a lie.  Cops need to know that they are spreading a lie.  Cops need to know that people know they are lying to cover their own behinds.  The lie needs to die.

Then there’s the ironic problem behind the lie, that anyone recording police conduct risks arrest, if not a good tune-up in the process.

As Carlos Miller notes,

The problem with many cops is that they are stupid.

How else can you explain a cop deliberately tripping a bicyclist knowing he is being videotaped?

Didn’t the conviction of former NYPD cop Patrick Pogan have any impact at all?

The answer is self-evident, as the existence of videotape demonstrates.  Some people remain sufficiently brave and bold to let the camera roll despite the risk.  And the police have yet to reach the point of self-actualization, or maybe just self-preservation, to control their impulse to beat the crap out of people and lie about it, even though their conduct is caught on video.  No question about it, it’s stupid. 

It would be great if watching these videos caused a shift in police culture where officers realized that what they do to people is outrageous and unjustifiable.  Imagine the day when one cop would stop another whose baton was raised over his head about the crash down on the skull of some kid who posed no threat of harm to anyone.  That day is nowhere in sight.

In the meantime, the best we can do is continue to spread the word, and the videos, of police misconduct and hope that cops, even if they refuse to control their vicious impulses because it’s wrong, will act in their own self-interest because of fear that someone is videotaping their abuse. 

The first thing that needs to stop is the lie.  Where are the headlines?

My past posts on Memorial Day, 2007, 2008 and 2009, speak of the sensibilities of a child of a World War II veteran, a youth during the Viet Nam War, and a father with a son coming of registration age.  Others have more valuable things to offer.  With the gracious permission of David Giacalone, I offer his haiga.

We come to grips with our mixed feelings over time.  When we were kids, we protested the war in Viet Nam.  Each year since, we better appreciate the sacrifice of our brothers, neighbors, friends who died there. 

The old veteran of the Bulge, a survivor when others didn’t, remembers them more clearly with each passing year.  The years spent paying off the mortgage have given way to the feelings long suppressed.  He hopes that we will continue to remember the war dead, all of them, even after he’s gone. 

I wonder if all the young men and women today will think about others who cared enough to die for something.  I wonder if they can even imagine anything mattering enough to die for.  Soldiers gave no thought to work/life balance.  Those who will never know any risk to their well-being greater than carpal tunnel syndrome should pay particular attention to Memorial Day.  It’s the closest they will ever come to understanding what it means to sacrifice.

Addendum:  Almost as if on cue, I came upon this post by Max Kennerly.  The primary subject, the sale of a home out from under an active duty soldier, was one on my list of things to write about, but never made it to the top.  Max handles the issues adeptly.  But before he ends his post, he adds a little bit on the backend that disturbed me, especially today.  After referencing the New York Times Magazine story about the Slackoisie, he writes:

I normally refrain from reading, much less commenting about, such drivel, but the “nation of wimps” comment deserves a response.

Drivel is how one describes unpleasant reality that one would prefer to ignore than address in the hope it goes away.

The same day that story was published, Army Pfc. Christopher R. Barton, 22, died in Khowst province, Afghanistan, of wounds sustained when insurgents attacked his unit using small-arms fire.

“Nation of wimps?”

Private Barton died.  How Max can extrapolate his sacrifice to bolster the bravery of every flip-flopped kid sipping a latte in Starbucks and brooding over work/life balance is outrageous.  It’s self-aggrandizing connections like this that strike fear in my heart for the future.

“Nation of wimps?”

Yes, and shameless ones at that.  Private Barton’s sacrifie does not make you brave, Max.  And on Memorial Day?

It was bad when it first happened.  Awful after a week.  Nightmarish after a month.  But reality is finally setting in that there is no fix.  They have no answer to the oil flowing out of a pipe in the Gulf.  They can’t fix it.

Colin Powell, former Secretary of State and, more importantly, former chairman of the Joint Chiefs, suggested on ABC’s This Week that it’s time to take this out of the hands of British Petroleum and put it into the hands of the military.  They bring command and control.

The current Chairman of the Joint Chiefs, Mike Mullen, however, noted one problem.  The military may have the organization, but they have no clue what to do.  The oil industry has the technology, he said, not the military.  In other words, there is no answer.

Who cares if this ruins BP.  At the moment, it’s unlikely that any but a few major shareholders could care less whether BP survives this disaster.  Indeed, many would pray for its demise given the harm it’s done.  This is far, far bigger than corporate liability, or politics. 

This is no longer merely a big oil spill.  Not even a huge oil spill.  No one is really talking about the long term impact of what is happening, and continuing to happen, in the Gulf of Mexico.  Current talk is about oil spewing out for months.

An uncontrollable fountain of oil could gush into the Gulf of Mexico until August, the Obama administration warned today, as BP conceded it was moving to a containment strategy after failing to plug the well at the centre of the most environmentally disastrous spill in US history.

As anger and despair grew in the coastal communities of Louisiana, BP began preparations to cut a leaking drill pipe on the ocean floor and attach a containment cap intended to capture at least some of the 12,000 to 19,000 barrels of crude spewing from its Macondo well every day.

People are angry, and looking to find someone to blame, as if blaming will stop the oil from flowing.  Once it’s over, there will be plenty of time to decide who you hate more.  Right now, there is no fix in sight.

Consider the ramifications.  It’s insufficient to talk of an environmental disaster of unimaginable magnitude. Have we finally screwed things up enough to fundamentally alter, maybe even doom, our continued existence on this planet?

Overwrought?  Probably, but I often fear that our faith in a magic solution popping up out of nowhere will one day prove unfounded.  We’ve been awfully lucky up to now that mankind has come up with solutions for the problems we cause.  What happens when our luck runs out?

Assuming the oil continues to spew for a couple more months, how much damage will be done and how can it be repaired?  What if August brings no solution, and the oil continues to spew until it runs dry?  No one wants to consider such a possibility, because the idea is unfathomable.

And in the event that someone comes up with a solution to stop the flow this time, anybody want to bet that we will learn nothing from it?  Forget blaming BP or Obama, or anyone else for that matter.  No one has an answer, and no one can vouchsafe our future. We live in a fantasy world, on a wing and a prayer, that our actions won’t cause irreparable disaster.  One day, we will be wrong.

It’s unclear whether we really blew it this time, but it’s become undeniable that one day, some day, we will finally blow it once and for all.  Who will you blame then?

Having been around here long enough to grow moss (if I didn’t keep moving, I mean), there are some n00bs who want to know how they can become part of the gang.  Some come in through the front door, sending me emails asking questions about blawging.  Others try the backdoor, leaving a comment along the lines of, “I posted about this subject too!!! Here’s my post…”  Well thanks, Skippy, but…

It’s not important what I think (as I’m regularly reminded by my immediate family, extended family, close friends and others whose names I don’t know), since I can only speak to the things that push me to tap on the keyboard from time to time.  But since you asked, let me offer one suggestion: If you care about it, chances are far better that you will make me care.

Most blawgers don’t care.  You write because you think you should, or must, as you’re harangued that the future of the practice of law depends on marketing yourself online.  Do it or die, and nobody wants to die.  Even if your blawg doesn’t have the subtle, “and if you find yourself in cuffs, then you need me, a really cool criminal defense lawyer who’s aggressive yet caring, by your side,” the post borne of necessity nonetheless emits an unpleasant odor.  You’re not likely fooling anyone.

Caring almost always involves having actual thoughts and opinions.  No one needs to have a story repeated in the blawgosphere for the 400th time.  There are more legal news aggregators around than we can shake a stick at.  The niche is full, move along. 

But having thoughts and opinions can be a problem, as anyone who has tried already knows.  First, thoughts and opinions are not always universal.  Have one and someone may disagree with it.  Oh no!  Disagreement is the death of marketing.  Love and happiness is where it’s at, baby.  But if you want to be universally loved, you can’t have any thoughts or opinions.  A vicious circle.

For those of you for whom the words of Sir Joshua Reynolds were intended, thoughts and opinions are a booby trap.  Your thoughts and opinions may be brilliant.  They may be, ahem, less than brilliant.  Consider the possibility that if you put your best and deepest thought online, you may reveal to the world that you’re not the sharpest knife in the drawer.  I realize it’s a long shot, but it could happen.  Just something to think about.

A while back a blithering idiot social media guru informed me that my posts are controversial because I’m trying to gain eyeballs.  Not that I don’t admire people who don’t have a clue what drives me informing me of my purpose as much as the next guy, but he was wrong.  I only write about things that matter to me.  If it should be controversial, so be it, but I care enough about it to put it into words.

If anyone bothers to read it, I hope it’s because they care too.  If they don’t, they’ve wasted their time.  I would hate to think that I am the cause of anyone wasting their time.  If my writing doesn’t make you care, then please spend your time doing something more worthwhile.  And if you want others, including me, to spend my time reading what you write, then make me care. 

If you hate posts about the Slackoisie, then skip this one, even if its genesis is this article in today’s New York Times Magazine.  After all, it’s unfair to generalize.  It’s all the boomers’ fault anyway. Every generation thinks the next is a mess.  And Greenfield is just an old curmudgeon anyway.  But this isn’t me telling you to get off my lawn.

Once described by the trend-watchers Neil Howe and William Strauss as “the next great generation” — optimistic, idealistic and destined to do good — millennials, born between 1982 and 2002, have been depicted more recently by employers, professors and earnestly concerned mental-health experts as entitled whiners who have been spoiled by parents who overstoked their self-esteem, teachers who granted undeserved A’s and sports coaches who bestowed trophies on any player who showed up.

As they’ve entered adulthood, they have inspired a number of books on how unmanageable they are in the workplace, with their ubiquitous iPods, flip-flops and inability to take criticism. Stories abound about them as college students, requiring 24/7 e-mail access to professors and running to Mom and Dad for help with papers or to contest a bad grade. A consensus has emerged that, psychologically, they’re a generation of basket cases: profoundly narcissistic and deprived of a sense of agency by their anxiously overinvolved parents — in short, a “nation of wimps,” as Hara Estroff Marano, the Psychology Today editor at large, has put it.

That’s the editor at large of Psychology Today calling you a “nation of wimps.”  While the Slackoisie isn’t limited to lawyers, or more importantly, criminal defense lawyers, that’s my focus.  You can’t defend the accused if its all about your self-esteem, and the first dirty look will send you scurrying into a hole to cry about how unfair life is.

None of the excuses raised, not a single one, means a thing.  You can be 100% right about all of it, but it does nothing to make you any stronger, bolder, more competent or tougher.  If you’re a wimp, then go sit on the couch in the basement of your momma’s house and whine about the misery of your life.  You’ve got no business standing in the well of the court with someone’s life in your hands.  Heck, you won’t be there, because it would interfere with your tweet-up at Starbucks.  After all, the Slackoisie world is all about “me first,” and nothing goes better with “me” than a vente moca-coca-loca-frappucino.

This past week in Chicago, there was a panel on Gen Why?  A year before, I was on that panel.  A year later, the issue remained one of concern.  Accident?  I think not.  For those generational deniers, there’s a reason this issue keeps popping up on the agenda of SuperConference, not to mention the New York Times, Psychology Today and pretty much everywhere else.  It exists and it’s a problem.

Two reports have emerged on the panel, one from a newbie lawyer for whom twitter captures the essence of deep thought and another from a young lady who wrote that legal success can be achieved through “brilliant tweets” (while I couldn’t make this up, apparently Kash Hill did exactly that when pressed for an example of such a brilliant twit).

Both of the intrepid reporters came back with similar comments from the Chicago panel. Neither appreciated its significance.

“One of our young attorneys approached us and said,

‘I’d like to take a year off to live in New Zealand.  Can you hold the for job for me until I get back?’

“We went back and forth on it, but in the end we decided to grant his request and to hold his position for him.  It came down to the fact that he was a very talented attorney, and we didn’t want to lose him.”

How fun!  How wonderful that work won’t interfere with a year in New Zealand!  Cool!  Who wouldn’t want to take a year off while you’re still young and crazy enough to enjoy it?  But what if everyone in the office said, “what a great idea! Let’s all go to New Zealand!”  The phones would ring and ring, and there would be no one there to pick them up. Actions would be commenced but no answers served.  Questions would arise and languish on voicemail. 

Less obvious, however, is that the corporation allowed the lawyer to have his fun because he was “a very talented attorney.”  This is a warning shot across the bow of all you other lawyers who think you’re the best and brightest.  If brilliant Gen Y lawyers were a dime a dozen, as you collectively think you individually are, then there would have been no leverage to get the corporation to go along.  They would have replaced the lawyer in seconds from the vast stockpile of the unemployed.  Apparently, you’re not all that wonderful. 

The other statement that made it onto both reporters’ radar is:

An older baby boomer lawyer in the audience spoke up to say, “I wanted the same things as Jack, but I was not brave enough to ask for it… It was kind of ‘figure out for yourself.’

While the specific words differ between the two, the gist remains the same.  Boomers understand what you want.  You want everything in your life to be fun, rewarding, fulfilling and easy.  Who doesn’t?  Do you think boomers hate fun?  Well, you probably do, but you’re wrong.  We’re hedonists from head to toe, and have a whole decade of our own to prove it.  But we also have the words of one of our generation’s great philosophers, Mick Jagger; You can’t always get what you want, but you get what you need.

As each narcissistic little slacker actually expects his world to be recreated to suit his personal preference, we run into some problems.  You’re too high maintenance.  You’re not worth the trouble.  There’s not enough world to go around.

I know, I know.  We boomers have screwed up the world, sucked up all the fun, including yours, not to mention whatever disposable income you might have had after your student loans were paid off to cover the cost of our jet-propelled wheel chairs and viagra.  So what do you plan to do after putting mommy and daddy on a sled and leaving them in the middle of the forest in winter?

Eventually, the Cheetos will run out and the electricity will go off in your parents’ house.  How will you recharge your iPad then?

While the situation of Gitmo detainees hasn’t been on everyone’s lips lately, as we bore of all things legal in time as funnier and more pressing stories and decisions arise, that doesn’t mean that the government has forgotten.  No, not at all.  Thus, Steve Vladeck’s search of the bowels of a new authorization act at Balkanization discloses that the government still doesn’t love us nearly as much as we deserve.

Buried in the depths of the National Defense Authorization Act for FY2011 (H.R. 5136) is the latest salvo in the war on lawyers. In particular, section 1037 of the Act [page 403 of the PDF], titled “Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,” instructs the Department of Defense IG to “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.

After all, if you’re having problems convicting Guantánamo detainees, the problem must be their lawyers.  What nefarious things do they suspect?  They’re searching for reasonable suspicion that lawyers, military or civilian,

(A) interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba, relating to [non-citizens detained at Guantánamo];

( violated any applicable policy of the Department;

(C) violated any law within the exclusive investigative jurisdiction of the Inspector General of the Department of Defense; or

(D) generated any material risk to a member of the Armed Forces of the United States

That pretty much spells out the evils our government feels compelled to stamp out.  As Steve notes,

Before turning to the disturbing practical and legal implications of this provision, let me make two quick observations about its scope: First, virtually every lawyer that has represented a detainee at Guantánamo has “interfered with the operations of the Department of Defense” at Guantánamo. After all, from the government’s perspective, the representation itself has caused substantial interference, since lawyers have, among other things, informed the detainees of their rights; petitioned the federal courts for the detainees’ release; obstructed the government’s ability to interrogate the detainees

If the government takes the position that their goal is to make sure that anyone within their grasp is shown to be an evil terrorist, then there isn’t much a defense lawyer does that won’t, at minimum, interfere.  Interference R Us.  Of course, from our perspective, we would prefer to think of our role as defenders of the Constitution, fulfilling the promise embodied in that document for even the most hated, most powerless in the government’s grasp.  But hey, what are constitutional rights in the face of Department of Defense policy? 

Steve questions whether this will have a chilling effect on lawyers defending Gitmo detainees. My guess is that it won’t, primarily because those lawyers bold enough to face down the government on matter that will one day grace the history books (unless Texas has its way) as being this generation’s Japanese internment camps.  That Congress has chosen to put its threats into law doesn’t change the recognition by defense lawyers that they have huge targets on their backs.  Teacups do not represent accused terrorists.

The problem with this law isn’t so much as how it’s applied, but how many pages of details the Inspector General can write before his hand gets tired.  It’s almost impossible to imagine that the lawyer are violating any laws in the defense, knowing that they would be nailed within seconds given how great the scrutiny on them and how limited their ability to interact with their clients.  Not that they would, but they can’t anyway.

As for the rest of the investigation, it’s absurd, since their very job is to “interfere” with the government’s getting its way without any lawyer impeding it.  As for generating a material risk to a member of the armed forces, that’s just a matter of perspective and rhetoric.  Under a loose interpretation combined with chaos theory, everything they do creates a risk.  Materiality is just a matter of sensitivity, and the government can be awfully sensitive when it comes to challenging its authority.

Steve notes that the inclusion of this provision comes as something of a surprise:

I had hoped (perhaps naively) that the dust-up earlier this year over the “al Qaeda 7” (and the emphatic response thereto) had finally put to bed the repeated attacks on lawyers that have arisen since Cully Stimson’s spurious critique of the role of D.C. law firms in Guantánamo litigation in January 2007.

So the attack on Biglaw for aiding didn’t play well, but that’s a little different, since all the former Justice folks expect to get lucrative partnerships there later, and have a vested interest  in protecting their retirement funds.  That doesn’t mean that the legal glitterati will turn out for the trench lawyers who stand beside the accused, have the government’s big guns pointed at their heads, but no jobs to offer government officials in the future.

Just as our War on Terror continues, so does the war on those who stand between the government and those who may or may not have any role in it. It would be a shame if we forgot about them and the risk they take making sure the Constitution remains intact while defending the most despised.  Just thought you ought to know.  It’s not like they’re getting rich and famous on this gig, you know.

H/T Ed at Blawg Review

Most criminal defense involves allegations of a crime committed for personal gain or deliberate harm.  Yet every once in a while, the “criminal” turns out to be a quixotic do-gooder, a person whose strong beliefs in right and wrong compel him to take action against an evil committed by others.  The moral quotient is reversed, and the guy in the dock is an angry man.

Dan Harris, famed for his excellent China Law Blog, finds himself on unfamiliar turf, defending Peter Bethune, the angry man, before a Japanese criminal court.  From TVNZ :

Anti-whaling activist Peter Bethune accepts the facts of most of the charges against him but has not pleaded guilty to any of them in a Japanese court, his defence lawyer said today.

In the first hearing in Tokyo yesterday, the 42-year-old denied he had any intention to hurt anyone while accepting details of the other charges.

Lawyer Dan Harris says Bethune is arguing that the Japanese whaling operations are illegal under international law and that he was justified in trying to stop them.

The argument certainly resonates with those of us who share his concern about environment, conservation and protection of endangered species.  But the Japanese take their whaling very seriously, and don’t share our concern.  They are a sovereign and have their own laws on the subject.  Their laws provide a sentence of 15 to 25 years for Bethune’s conduct, which he doesn’t deny, even though Dan argues that no actual harm accrued.

The defence says nobody was ever harmed or in fear and the whole thing is “much ado about nothing”.

The prosecution says Bethune interfered with Japanese business and that he put the Japanese whalers in danger.

Bethune boarded a Japanese whaling vessel in the Southern Ocean in March and it is alleged he threw a substance at a crew member leaving him with burns.

Whether this falls under the heading of fighting the good fight or environmental vigilantism is a matter of perspective.  While there are obvious differences, the same argument is made by anti-abortion extremists who murder physicians; they are just saving unborn babies.  The problem arises from the conflict between beliefs, priorities and law.  It’s one thing to believe as you do, but another go take to the seas to try and make it happen.

Dan has taken a more aggressive stance with a statement that found its way into Time Magazine as the quote of the day:

For Japan to act like it’s enforcing a criminal law is a little disingenuous, when you look at what Pete Bethune did.

His point is well taken, where Japan eschews international law when it comes to its own self-interest, then justifies its prosecution of Bethune by wrapping itself in the righteousness of its own criminal laws.  Can we think of any other country that does that as well?

Dan’s expectation, according to the TVNZ article, is that the prosecutors will seek a sentence of three years, despite the astoundingly serious potential term of imprisonment provided by law.  But that doesn’t jibe well with the attitude of the locals:

Harris says the defence believes the judges are fair and will look at everything that has transpired.

Harris says more interesting than the feeling in the court, was outside the court where Japanese nationalists were calling for Bethune to be hanged.

I told you the Japanese take their whaling seriously.  The problem we face is that as unreasonable, even ridiculous, as this prosecution may seem, it’s as real to the Japanese as our terrorism hunts are to Americans.  Not the same, you say?  It is to them.  Why do we persist in the belief that when a foreigner does something that violates our sensibilities, it’s horrible, yet when we do something that violates theirs, we’re in the right?  Hello, jingo.

Making quote of the day is a huge coup for Dan and Bethune, taking this matter to the larger public forum in a way that will evoke sympathy from many Americans as well as environmentalists everywhere.  But good PR is just one part of the criminal defense puzzle.  Considering that Dan isn’t a criminal defense lawyer, I hope he’s got something more up his sleeve.  Three years is a very long time for being a well-intended but angry man. 

H/T Ed at Blawg Review

Update:  Bethune has taken the stand in his own defense:

Bethune, 45, admitted he had climbed aboard the Shonan Maru 2 in Antarctic seas to confront the Japanese captain for the destruction of a protest ship that sank during the collision a month earlier.

Bethune described how the sinking of the $3 million boat Ady Gil, which he designed and built, still affected him mentally and financially, suggesting its loss was part of his motive behind his actions.

They said Bethune and other activists threw glass bottles containing rotten butter at the Japanese boat, causing them to explode, splashing a crew member in the face and slightly injuring him and obstructing the whaling mission.

Bethune today acknowledged firing four or five bottles of rancid butter from a launcher but didn’t expect they would break into pieces or spread their content onto crewmembers. He acknowledged that rancid butter could cause skin irritation, but denied his intention of assault.

“Definitely no,” he said, responding to a question if he would have still fired them had he known they could hit whalers and cause injuries. He added Watson told him rancid butter was harmless.

Bethune is also accused of slashing the ship’s protective net with a knife that he illegally carried with him when he sneaked on to Shonan Maru 2.

It would appear that things went far beyond the mere attempt to make a citizen’s arrest.  From the audience, Bethune was called a terrorist, a fascist and a racist.  While it likely that there was no choice but for Bethune to testify, it’s unclear from reports whether he’s helping himself or sealing his fate, the latter looking more likely.