Slate has started a new sub-blog by Kathryn Schulz on what it means to make mistakes, called The Wrong Stuff.  Naturally, the first place she looked was criminal defense lawyers, who (as opposed to any other discrete group on the planet) are universally wrong more than any other.  So why is her first interview with Alan Dershowitz?

Do you think lawyers have an unusually hard time admitting that they’re wrong?

Oh, yeah. I think that lawyers are terrible at admitting that they’re wrong. And not just admitting it; also realizing it. Most lawyers are very successful, and they think that because they’re making money and people think well of them, they must be doing everything right.

There is possibly no individual who dabbles in the field of criminal defense who less reflects the mainstream of criminal defense than Dershowitz, Harvard lawprof and perpetually available guest whenever there’s an open microphone.  This opening Q&A smacks of his disconnect from reality.  I bet you didn’t know that your problem is that you’re making too much money.  I bet other people didn’t know that they think well of you.  I bet.

Dershowitz is one of the few in criminal law to attain the status of household name.  Whether it’s Larry King or the Jewish Daily Forward, Dershowitz is the go-to guy to espouse the criminal defense lawyer’s point of view.  The only problem is that he doesn’t have the slightest clue what it means to be a criminal defense lawyer in the trenches. 

It comes as no surprise that when Schulz needed a criminal defense lawyer to pontificate, Dershowitz would be there.  There’s no state of being that he prefers to sound emitting from him, and he does so with abandon.  Ironically, while he’s clear about how terrible we are at admitting mistakes, the same doesn’t apply to him.

I worry about it. That’s why I always have young people around me; I insist on my students and the people who work with me telling me about my mistakes. And I think I learn from them.

If the rest of us surrounded ourselves with young people, we’d worry about allegations of pedophilia.  Not Dershowitz.  He’s better than us, immune from the reality that surrounds our work. 

The problem is that we are terrible about admitting mistakes, but hardly for the reasons he floats.  But the wrong stuff has been discussed here many times, and this post isn’t about why criminal defense lawyers react as they do, but about how exemplars like Dershowitz as the voice of criminal defense creates so many of the misimpressions, misunderstanding, mistakes, that frame people’s understanding of our work and our nature.   This was the same voice that propounded that the secret to successful white collar defense was hiring some Biglaw kid who was an AUSA last week to help the defendant to become a rat before the next guy.

Can you give me some examples of instances where you’ve been wrong?

I had an experience early in my career where I was working with a young woman who insisted on putting an argument in the brief. I thought the argument sucked and I didn’t want to put it in the brief, and she said, “Well, you’re the boss.” I said, “No, that’s not the way we do things. You’re going to persuade me to do it or you’re going to persuade me not to do it.” She ultimately didn’t persuade me, but she came so close and she was so committed to the argument that I actually put it into the brief — very reluctantly. I really thought I was making a mistake. And we ended up winning the case on that argument. I was just dead wrong and she was completely right.

Remember the old joke where a fellow is asked if he ever made a mistake, and he replies, “No, I thought I did once but I was wrong.”  Meet Dershowitz.  How many of us are so fortunate as to be dead wrong and yet always the big winner?  Even his screw-ups are better than ours.  How fortunate for his clients that right or wrong, Dershowitz is never wrong.  But then, we are a profession of people incapable of admitting failure because we’re too fabulously wealthy.

The theme of Schulz’s blog is interesting, and she does an admirable job of trying to pin down Dershowitz when it comes to the “discomfort”  endured in being a criminal defense lawyer.  But Dershowitz isn’t an easy man to pin down.  Fortunately, as Dershowitz explains, the trauma of criminal defense is something he only sees from the outside:

It was for thinking about what would happen if I ever got to that position. I’ve never been in the position where a client that I’ve gotten acquitted—and I’ve gotten a lot of people acquitted—has ever quote “done it again.” I’ve never had that. But it could happen, and I’ve thought about it a lot. I’ve had nightmares about it. But my biggest nightmares are cases where my client is innocent and where I think I might lose.

It must be wonderful to be Dershowitz, always self-aggrandizing and never suffering the “discomfort” that permeates the work done by the rest of us.  Rarely has anyone been held out as an example of the criminal defense lawyer who less reflects what we do.  There is absolutely nothing in his answers to Shulz’s questions that suggests the he has the slightest appreciation of what real lawyers do every day in the trenches.  But then, we’re often wrong and fabulously wealthy, so why should Dershowitz care?

And this is the understanding that the public has of our efforts.  It must be great to be a superstar criminal defense lawyer.  For the rest of us, who haven’t managed to meet Dershowitz’s norm, it’s just hard work in the trenches.  At least we’re all fabulously wealthy.

While there is a growing correlation between issues arising with students in schools and the immediate resort to the criminal justice system as a solution, there are situations which just make one wonder who is more disabled?  From Fox in Atlanta comes this story of Shane Finn, a 14 year old autistic student with an IQ of 75 at Ridgeview Charter School and not a particularly good artist.

Shane Finn’s mother said he was in a special needs class when he drew a picture of two stick figures, and one had a gun.

The eighth grade boy’s picture depicted a stick figure with a gun that was labeled “me.” The figure was shooting another figure that had his teacher’s name above it.

The picture led to Finn being suspended, and he is now facing criminal charges.

“They’ve pressed felony charges for terroristic threats,” said the teen’s mother, Karen Finn. “It’s that sweeping zero tolerance and I think it’s ridiculous.”

There is certainly good reason to have a talk with the student about why this isn’t a good thing to do, what he meant by it (if anything), and how it makes his teacher feel.  But all of this needs to come within the context of his comprehension. 

Finn said her son drew the picture on the page of a school assignment where his teacher would easily see it. Finn says her son doesn’t really understand why he’s in trouble. Finn said her son is autistic and has the mental capacity of a third grader.

Even if the teacher’s peculiar sensibilities are offended, and assuming the charter school, like so many others, has the dreaded “zero tolerance” policy that compels it to act in monumentally foolish ways toward conduct that reasonableness suggests would be better dealt with by the exercise of thoughtfulness, what kind of prosecutor would charge a kid like this?

One can only assume that eventually, someone will decide that this young man, whose limitations already present enough of a challenge in life, really isn’t a threat of any sort, no less a terrorist one. 

As long as this absurd story is on the table, however, it’s worth considering a different angle.  Why is this a “terrorist” threat?  The use of the word “terror” as almost Pavlovian, conjuring up the image of the twin towers collapsing and compelling otherwise reasonable people to blindly forego basic liberties to protect themselves from Jihad.  Will Shane Finn be described as a “homegrown terrorist” perhaps, or will there be allegations of his having been trained in drawing by the Taliban?

The word “terrorist” has become one of the most abused words in the criminal justice system, and its Orwellian impact is no doubt intentional.  If nothing else, the absurdity of this case offers an opportunity to recognize just how crazy this has all become, and how it is used to manipulate public perception.  I would like to suggest that this is about as bad as it gets, but somehow we all know that there will be a worse example down the road.  There always is.

H/T Turley

When Cy Vance became the first new District Attorney in New York County in a millennium, a change of guard was inevitable.  One fixture at risk was the Chief of Appeals (and SJ reader), Mark Dwyer, one of the smartest guys to ever grace Hogan Place.  When the changing of the guards took place, I wondered what would become of Mark.  By accident of Legal Blog Watch’s Eric Lipman, the answer appeared.

Governor Paterson, in a fit of thoughtfulness, appointed Mark Dwyer to the Court of Claims, and he’s been assigned as an Acting Supreme Court Justice in Kings County.  ADA Dwyer is now Justice Dwyer. 

Before anyone indulges in the knee-jerk prosecutor-to-judge-pipeline reaction, consider Justice Dwyer’s decision in People v. Abdul-Akim, suppressing the stop, search and seizure of a handgun and body armor,   In this extremely thorough decision, Justice Dwyer went through the entirety of the interaction, noting at each level where the police conduct failed to comport with constitutional mandates.

The police must be alert to possible violence and must safeguard the community from criminal activity. But crime prevention may not be effected at the expense of disregarding the constitutional requirement that citizens be free of unreasonable searches and seizures.

Of course, fine statements like this are one thing.  Backing them up with the goods is another. 

Justice Dwyer initially held the the police arrest of the defendant for mistakenly believing that the driver possessed only a Virginia learner’s permit rather than a temporary license was unreasonable, finding that

In short, in view of the “driver’s license” notation on the Virginia document, it was unreasonable for the police to conclude that defendant Ayala was not a licensed driver. All the evidence corroborated the conclusion that the document was a license, not a learner’s permit.

This is the “nobody could be that stupid” part of the decision, in which the court holds that if the “Temporary Driving Permit” says “driver’s license” rather than “learner’s permit,” that means it’s a driver’s license rather than a learner’s permit.  The “texting” excuse similarly falls, since it wasn’t unlawful at the time of the arrest.  But then comes a very interesting nuanced aspect of the decision, where Justice Dwyer rejected the reasonableness of using the purported cellphone/learner’s permit excuse to justify a full custodial arrest, and subsequent inventory search:

A custodial arrest may not be employed as a pretext to conduct a search. True, an objectively reasonable traffic stop is not invalidated because the primary motivation of the police was to investigate some other matter (see Whren v United States, 517 US 806 [1996]; People v. Robinson, 97 NY2d 341[2001]. However, the scope, duration and intensity of a seizure, and any subsequent search, “remain subject to the strictures of article I, §12, and judicial review” (People v Troiano, 35 NY2d 476 [1974]; People v Marsh, 20 NY2d 98 [1967]). A custodial arrest and impoundment for using the cell phone was not called for under the circumstances in this case.

To anyone offended by the Whren decision, approving pretext stops, this portion of the decision offers a fascinating counterpoint, that while the pretext stop may be authorized, that doesn’t necessarily mean that a pretext search follows, a critical distinction and one that serves to return sanity and integrity to constitutional doctrine.

Ironically, when Eric Lipman brought this decision to my attention, it was part of his snarky approach, reflected in his opening paragraph at LBW :

If you find yourself riding with a couple of your buddies around the Brooklyn neighborhood where your brother was recently murdered, wearing a bulletproof vest, with a loaded handgun in the glove compartment, well, I’m comfortable calling you a “bad guy.”

Not that it would occur to Eric that maybe the defendant feared he would be harmed by whoever killed his brother and had a weapon and vest for his own protection, but the whole constitutionality thing doesn’t seem to affect his comfort level in the slightest.  And Eric Lipman was never a prosecutor (though he was an associate at Cahill Gordon).  What does that tell you?

It would have been a terrible waste for someone with the experience of Mark Dwyer to end up in some Biglaw firm drawing millions in salary, as if money was something that might interest for him anyway.  But for anyone who thinks that a career prosecutor can’t make a good judge, I’ll take a brilliant mind and an honest man on the bench any day.

Congratulations, Justice Mark Dwyer.  It’s funny how people end up where they can do the most good.

While I don’t write about my cases, Norm does , and he offers a painful appellate outcome in State v. Pentland.

Mr. Pentland pleaded under the Alford doctrine to two misdemeanors, was given a suspended sentence and was told by his lawyer and the judge that he would not have to register as a sex offender. (The state merely stood by and said nothing, a form of adoption of omission.) The client had every reason to believe he would face a future unclouded by the manifest cruelty and absurdity of the new sex offender regime: humiliating “treatment” by half-ass probation officers bent on humiliation, and, perhaps titillation; registration as an offender, a felony conviction; imprisonment.

A plea bargain, at its core, is merely a deal.  And a deal’s a deal.  If not to enforce the contractual relationship, whether it’s the social compact or an everyday handshake bargain, what purpose do courts serve?

Many clients are ill suited to face the risk of trial. Many choose to work out a deal of some sort. Even innocent men, like Mr. Pentland, can choose to avoid the risk of conviction by taking a deal. Mr. Pentland thought he had scored a hollow win of sorts with his plea: just a brief period of probation. Indeed, he never admitted to committing a crime at all: An Alford plea permits a client to enter a plea merely by acknowledging that the state’s evidence, if believed by a jury, could carry consequences far worse than those for which he bargained.

Once the deal was cut, the bargain made, and everyone walked away, the defendant learned that the deal had changed, that the understanding spoken out loud in the courtroom, agreed to by all whether expressly or implicitly, that would be written in stone, was suddenly not.

Imagine Mr. Pentland’s surprise when the state claimed he violated his probation by not registering as a sex offender. Didn’t his lawyer and the judge tell him he did not have to register? Didn’t the state stand by silently as this information was relayed to him? Wasn’t this a condition of the plea he entered?

Deal or no deal.  Norm took it up and the answer was “no deal.”

Graciously, the court offered Pentland the opportunity to withdraw his plea, thus not merely undoing the bargain he made but putting him in the worst of all possible positions.  The absolute last thing he wanted to do was go to trial.  As alternatives go, the idea of going back to the starting gate fell slightly behind sticking a needle in his eye.  But this is the means of extortion courts use to give the appearance of relative fairness.  It’s not like they didn’t offer the defendant an option.  He doesn’t like it?  So, go to trial and take your chances.  I can hear the laughter coming from chambers ringing still.

When it comes to bargains between defendants and federal prosecutors, the courts have understood it to be a matter of contract and enforced it as such.  Why should it be different when the deal is between the defendant and the state?  Is there no interest in promoting the integrity of the law when it’s the newest flavor in the state’s smorgasbord against crime?  Does the notion of responsibility, finality, adherence to the law mean nothing when the state is involved?  Apparently so.

As Norm points out, there was a bit of a failure at the time of plea, when the defendant’s lawyer could have, and should have, done more to lock up the deal, or at least inform the defendant that they were trying to fly under the legal radar and might ultimately crash.  Norm was left to try to pick up the pieces afterward, always a difficult thing but very much part of a lawyer’s job.  We’re janitors at times, cleaning up someone else’s mess.

But there is much to commend the idea of a plea bargain as an enforceable contract rather than a game of Russian Roulette for the defense.  The state demands much of its citizens, not the least of which is fidelity to its obligations. Let the state be subject to the same.  And let the defendant be able to fully rely upon the words of a judge when compromising his life.  To do less is not merely disgraceful, but reduces the law to a farce.

There has long been an allure in New York State when it comes to local government control, a throwback to colonial days when all politics was local.  It remains in our courts and legislature’s refusal to rid us of lay judges in local justice courts, despite the rampant impropriety and abject ignorant demonstrated regularly.  It’s part of our heritage, no matter how pathetically badly local governments are run.

Welcome to Jackson, New York.  Via the WSJ Law Blog, meet town councilman Roger Meyer, 76, who apparently regrets not having moved to Arizona.

“For too long, the federal government has shirked its duty by not passing English as the official language of the United States,” said Roger Meyer, 76, a town council member in Jackson, N.Y. “So seeing as this law couldn’t be passed from the top down, I felt I’d start a grass-roots movement to try to get it passed from the bottom up.”

The Jackson law, writes the NYT, designates English as the town’s official written and spoken language, “to be used in all official meetings and business conducted by the elected officials and their appointees.”

There are few who suggest that the ability to speak English isn’t important, if not the sine qua non, of living the American dream.  It’s a common thread amongst the many who have come to the United States over the years to seek a better life.  But it doesn’t necessarily happen overnight, or upon demand.  As prior generations of immigrants have shown, assimilation happens, but it takes some time.  At 76, Meyer may not feel that he’s got enough time left to wait.  He wants it now.

But Meyer said the law was in support of English, not in opposition to any group. “It’s not prejudicial or anything like that,” he said.

Or anything like that? Very folksy, and nobody who speaks in a folksy way means any harm.  Or maybe just stupid, lacking the ability to recognize why something that seems abundantly obvious to him, given his circumstances, is so damaging to others. Let’s take the example of the 22 year old Swedish female tourist who comes to beautiful Jackson for a visit, gets a little lost, and asks a local officer for directions.  He’s forbidden from offering any assistance in the Swedish language in which he obtained his doctorate?  Okay, a bit farfetched.

But what of the Salvadorean legal (I add that for those who invariably question whether anyone not fluent in English is here legally) immigrant wants to ask a question of those who tax his home at a town council meeting.  Yes, the ability to speak English would certainly be helpful, but is he to be denied the ability to challenge those who spend his money because he has yet to master the Jackson mother tongue?

“People come here because it’s better than the place they were in,” he said. “If that’s the case, you should be adapting yourself to our ways. We shouldn’t be adapting ourselves to your ways.”

It would be great if Americans, like people in so many other countries around the world, were capable of speaking multiple languages.  We tend to be barely capable of speaking English, which appears (per the television commercials currently airing) to be because we don’t pay teachers enough money to actually do their job.  But this isn’t a reason to pass a law making English the official language, or prohibiting local government from communicating with people who aren’t assimilating quickly enough to meet the demands of Roger Meyer.

I still believe that everyone who aspired to hold a position of public trust, no matter how small or inconsequential, should be required to pass a test in civics.  In Meyer’s case, the test should be given in English.  Want to bet he still won’t pass?

That there are too many students entering law school, and thus too many leaving three years later to try their hand at becoming fabulously wealthy as a first year lawyer, is a given.  But is meanness the appropriate way to vet the weak from the profession?

From the ABA Journal, Sarah Allen had a dream, to go to law school and (if you’re going to dream, dream big) survive debt-free.  She made a video to win $10,000 in tuition from a contest, and started a blog to solicit funds to pay the balance.

Allen’s video explaining her pursuit of a debt-free life—and a debt-free legal education—is no longer on the Upromise site. Her blog, Going to Law School Debt Free, is no longer live. “I’ve just shut everything down,” Allen tells the ABA Journal.

Allen withdrew from the contest on Monday because stories about her quest drew mean-spirited comments on several blogs. “When I read certain things, it was just so much hate, and coming from nowhere,” she says. “It stunned me.”

Allen had hoped that donors would pay the $105,000 cost of her legal education at the University of North Carolina, and had set up a PayPal account for the purpose. She had explained in the Upromise video that she hoped to use any money she raised not only for herself but also to fund scholarships for others. Her thinking was that thousands of donors, each contributing a small amount, could together make a big difference.

Reporting of Allen’s efforts brought out the knives at JD Underground, where failure is celebrated daily.  Naturally, those who attend or graduated law school but have nothing to prevent them from spendingtheir days making fun of others, took unkindly to Allen’s dream, and ripped her to shreds, suggesting that if she wants money for law school, she had the wherewithal to earn it quickly on her own.

At Above The Law , Allen explains what came next.

Since the story was first published in the Raleigh News and Observer, a wave of extremely unkind and at times quite vulgar criticism has appeared online – some of which has been by attorneys and current law students (the most vulgar and completely inappropriate has been by law students on JD Underground at http://qfora.com/jdu/thread.php?threadId=10622). Both articles completely under-emphasized my intentions to start a debt-free scholarship fund and made me out to be a beggar – which I am not.

The media attention has been eye-opening, however, it has also made me realize how lucky I am to have already have job that I love and that affords me a good quality of life. For now I am better off enjoying my life and pursuing things that will bring further joy to my life and that of others. I have since returned the 3 donations that I received, deleted my blog and Facebook sites, abandoned any plans to attend law school at any time in the near future, and withdrawn my entry from the Upromise contest…

It’s no wonder that she drew the fire of the Slackoisie, who suffer the dual indignities of debt service and unemployment, since her quest to make it through law school debt free would have made the crowd at JD Underground look awfully foolish.  If only they were as good at law as they are at snark.

On the other hand, Allen’s Pollyanna vision of what it means to be a lawyer likely would have made her future one of misery, had she in fact become a lawyer and served outside the small coterie of online lawyers who wear the happy face of self-promotion and technophilia, remaining aloof from the hardscrabble life of lawyers who actually practice.  Practicing law is hard, and suffering some abuse in the process is part of the deal. 

That the attacks were vulgar and certainly unkind was unfortunate, and inappropriate.  It’s more a reflection of childishness than anything having to do with the legal profession.   But the ability to withstand attacks and endure is a key character trait that any decent lawyer must possess.  There’s no crying in baseball.  Or in court.  Better to find that out before wasting $100,000, an absurdly high sum of money whether it’s yours, the bank’s or the donations of 100,000 friends.

As with most lawyers, I’m asked fairly regularly by students (or their parents) whether they should become lawyers.  I always say “no, absolutely not,” and give them a laundry list of reasons why they should reject the law and consider becoming cowboys or such.  Others do the opposite, and think I’m dead wrong.

My reasoning is that if a person wants to become a lawyer because they truly want to be a lawyer, their zeal will compel them to ignore me and do it anyway.  If they have sufficient desire to be a lawyer, who cares what some old guy says?  But if they are really asking for my advice, and inclined to be persuaded by what I say, chances are good that they will be miserable if they become lawyers.  The purpose of my negativity is to save them from a life of misery.  If you don’t really want to do this, you’re not going to be happy.

Sarah Allen went through the ringer for wanting nothing more than to beat the tuition system, itself a perfectly reasonable goal.  That anyone should leave law school carrying more than $100 grand in debt is nuts.  But that a bunch of yahoo losers at JD Underground put her through the wringer, the gauntlet of vulgarity and so dissuaded her from her “dream”, while ugly and nasty, inured to her benefit.  If she couldn’t take the abuse, she would have been miserable as a lawyer. 

Since law schools won’t do it, and lawprofs are busy blowing baby kisses at law students lest their feelings be hurt, somebody has to let these kids know that it’s not all sunshine, lollipops and rainbows.  Maybe the jerks at JD Underground serve a purpose after all?

Today’s New York Times reports: New York Minorities More Likely to Be Frisked.
 
And Francisco Franco is still dead.

“These are not unconstitutional,” Paul J. Browne, the Police Department’s chief spokesman, said of the stops. “We are saving lives, and we are preventing crime.”

Since when are these mutually exclusive? 

Sorry, but we’ve been over this turf already.  The only difference is that the total number of people subject to stop and frisk for nothing has increased from 469,000 (2007) to 490,000 (2009) to 575,000 this year, all but 53,000 being black or Latino.  The good news, however, is that of the more than half a million people stopped and frisked, the cops recovered 762 guns.

We’re really getting our money’s worth out of cops this year. 

The National Police Misconduct Statistics and Reporting Project is the rather lengthy name given the efforts of Packratt at Injustice Everywhere.  It’s a labor of love and personal conscience on his part, and it’s a gift that he gives the rest of us.  Yet, even Packratt has to eat, as does his family, as he put in an enormous amount of time and energy toward a project that no one else had done.

This might have been a fine project for one of the Think Tanks to fund, but that would take money away from pundits who were busily trying to cover their own family meals.  One particularly viable source remained, a grant from the Open Society Institute, funded by George Soros.  This source seemed particularly well suited to what Packratt was doing, and they had sought my input and help in locating worthy projects.  None struck me as worthier than Packratt’s.

Packratt applied for funding.  His application was excellent, well prepared and thorough.  He was rejected.

It’s Packratt’s belief that the Soros Criminal Justice Fund wants nothing to do with police misconduct.

Of course, upon further review it was even more of a long shot than I first thought since the OSI seems to have a very heavy pro-police bias. Out of the 337 grant listings for “Law & Justice” projects that they’ve supported, not a single one had to do with police misconduct or brutality.

He may be right.  Perhaps recognition of a police misconduct problem would subject the fund to claims of anti-police bias, a potential controversy that they prefer to avoid.  Perhaps they don’t agree that police misconduct is an issue in America.  There’s no way to tell, since they don’t explain their reasons for rejection of a request for funding.  They send the typical rosy rejection letter.

It’s one thing to be rejected, but it’s another to see what’s been funded.  In the past, the OSI has funded such important efforts as Amy Bach’s book, Ordinary Injustice, a must-read for anyone interested in criminal justice issues.  So, as Packratt rightfully wonders, what was more important, more worthy than his project?

Well, today, the OSI finally released its list of 2010 Justice Fellowship winners and among the projects that were deemed far more important that trying to determine the extent and causes of police misconduct in the United States were:

• A book of poetry about mass incarceration
• A support group for families of juvenile offenders
• And a project defending pleasure clubs in Louisiana

…and, yet again, not a single project that deals with the issue of police misconduct.

Really… a book of poetry beat out the NPMSRP for funding?

Not exactly a book of poetry, though it may well be the case.  More precisely,

Reginald Dwayne Betts, Bowie, MD

An author, poet, and juvenile justice activist, Betts will write a book about the ways that crime and mass incarceration affect the families of both victims and incarcerated, social workers, teachers, and others who will never see the inside of a jail cell.

He will write a book.  Whether or not it’s poetry remains to be seen.  Not to denigrate this, or any of the other recipients of grants, but there seems to be a theme throughout.  They appear to prefer projects that put band-aids on wounds rather than doing anything to stop the wound from happening in the first place.  Many of the projects seem, well, painfully obvious, having been done (and done, and done again).  Others have huge potential for dangerous messages, such as this one:

Jesse Wegman, Brooklyn, NY

Wegman, a lawyer and journalist, will write a series of articles about jailhouse lawyers. Every day, in prisons across the country, these lawyers do the work of their counterparts on the outside: they conduct legal research, draft legal briefs, oppose government motions, and scramble to meet filing deadlines, all in the service of their clients.

In the service of their clients? Apparently no one explained to the board handing out cash what exactly that means in a prison, where “service” is a euphemism. 

On the pleasure side, there’s this interesting project:

Alison McCrary, Safe Streets / Strong Communities, New Orleans, LA

McCrary will challenge law enforcement practices that criminalize New Orleans’ Social Aid and Pleasure Clubs and Mardi Gras Indian tribes. The centuries-old cultural groups, which number almost 150 citywide, are persistent victims of racial profiling, police abuse, harassment, illegal arrests, and intimidation.

This, of course, tends to suggest that Packratt’s view that OSI won’t fund police misconduct projects is mistaken.  At least when it comes to misconduct affecting “social aid and pleasure clubs.” 

Upon reviewing the proposals that received grants, however, another aspect stood out.  There seems to be a tendency to favor the “liberal arts,” proposals that seek to produce a book, articles or social service.  Packratt’s proposal was entirely internet related.

In my prior discussions with the Soros people, I noted their failure to recognize the medium of the internet as a way to broaden the reach of their projects.  Was it better to sell 1000 copies total of a dead tree book or to reach out to 10,000, 100,000 people a day, every day?  They had heard of the internet, but had yet to appreciate how far and wide a message could spread online.  Technology had yet to make it onto their radar as an effective means to an end.

I realize that old school mentality dismisses the internet as a serious medium, worthy of the attention of serious people.  This is exacerbated by the overwhelming use of the media for crass commercialism, deception and self-promotion, not that those of you who believe in your hearts that there can be no higher purpose to life than putting a buck in your pocket care.  But if the OSI folks think that a book of poems about how families are affected by mass incarceration is going to accomplish more good than Packratt’s project, they’re clueless.

There are some hardcore efforts being made to change things that cause pervasive harm, and some of them are happening online. While some books, like Amy’s, have made a difference, most will amount to nothing more than bit of vanity by people who really don’t know their ass from their elbow.  Which explains why they are funded by people who are similarly knowledgeable. 

In the meantime, maybe Open Society Institute funds will eventually find their way to the internet, likely the day after everyone shuts their computers down for good.  But hey, It’s George Soros’ money and he can waste it any way he wants.

Wholly unrelated, but there have been a number of posts lately on the subject of crazies.  Norm Pattis complains of the Connecticut Trial Lawyers Association’s attempt to deny defendants the opportunity to assess the craziness of a plaintiff who alleges that defendant made him crazy.  As Norm says, that’s just crazy.

Over at Popehat, Ken complains of the sort or clients sent his way via Martindale-Hubbell.

This afternoon we got a cold call from a man who wanted us to sue the county for implanting a microchip in his head. On contingency, of course.

That was fairly representative of the 3-4 cold calls a day we get recently. Most of which I have to deal with.

Somebody remind me — why did we decide to pay a ridiculous amount for a Martindale Hubbell profile again? If I wanted to meet crazy deadbeats, I could do it with a $20 and a short walk to Pershing Square.

Anyone who has been in this business for a while has received inquiries like this.  These are the tin foil hat folks (used to deflect the gamma rays that the government is shooting at their brains), who want us to deal with the government conspiracies against them, from the implantation of microchips to the CIA watching them in their bathroom. 

There are a surprising number of people who believe in such things, and they want lawyers to make their paranoid delusions go away.  The reason they seem to find lawyers via such online means as M-H and Avvo is that they’ve worn out their welcome locally and need to expand their search for a lawyer who truly appreciates their situation.  Real clients don’t need online sources for lawyers.  Clients no one wants do.  Ken was right, of course, to turn down the case.

But what made this post curious was that only a few days ago, Ken posted a query  about the ethics of accepting another case.

Say a client comes to you and says that they believe they are being watched by various law enforcement agencies, and that they want you to do something about it — say, send letters to the agencies asking what’s up, or file Freedom of Information Act requests with the agencies. Say that based on your interactions with the client, you’re pretty sure that there is no surveillance and no investigation, and that the whole thing is part of a delusional structure. Say that what the client wants you to do — send a letter or a FOIA request — does not impinge upon anyone else’s rights: it’s not like suing somebody or sending a threatening cease-and-desist letter. Say that doing this for the client might even give the client some peace of mind. Say that the client is not a danger to himself or others, and would not be made subject to a conservatorship if somebody tried that.

Is it ethically wrong to do the service for the client?

While it’s arguably different that this client, as opposed to the microchip client, comes with a delusion that’s slightly less absurd, though Ken states he’s “pretty sure” that there’s no basis for the client’s fears.  And there’s one other big difference.  This client is willing to pay for services rendered.

The comments to the query are very interesting.  While some note that, from a practical perspective, crazy clients are almost always the ones who end up being very unhappy clients (likely because of their certainty that the ultimate determination that “no, the government is not surveilling you,” makes the lawyer part of the conspiracy), resulting in grievances, maybe even a lawsuit, lots of wild telephone calls and perhaps a screaming match in the waiting room (assuming you have a waiting room). 

Most of the comments, however, reflect a “situational” ethics approach, or moral relativism based on the fact that the client has the wherewithal to pay.  When the client has cash, they aren’t quite so crazy.  In fact, maybe they are right, as even paranoids have enemies.  There are some interesting gymnastics played to justify taking the money of a potential client when the lawyer is “pretty sure” that there’s nothing to be done.

As lawyers, we have an amazing ability to rationalize ourselves into pretty much any hole we choose.  We know what we believe to be right and wrong, and then argue a way around it so that we can grab the loot.  If we don’t believe that we are providing a meaningful benefit to someone, then we’ve answered the question. 

Could we be wrong?  Of course.  Sometimes crazy things happen, and sometimes the tin foil hat person really has gamma rays being shot at him.  Well, maybe not gamma rays, but something.  And no one should be denied access to counsel if they have a legitimate need or grievance.  But that doesn’t mean that any lawyer they call has a duty to take on a client, no matter how crazy they seem.  Or if they have cash. 

Notice that there was no hesitancy, no effort to rationalize, taking on the microchip case on contingency?  Suddenly, no concern for the crazy case and denial of access to counsel?  Of course not.  It’s only about money.  Contingency means they have none, and that makes them crazy and broke.  Crazy with money makes them eccentric.  Eccentric sounds so much better.

When we ask questions like Ken’s, it means we already know the answer.  If it were otherwise, we wouldn’t ask.  We get retained and get to work.  We need no one’s approval or permission to represent our client.  At the same time, when someone we believe to be crazy calls, we similarly need no one’s permission to say no.  If we can distinguish the crazy seeking representation on contingent fee, we can do it when they have cash in hand.

Times are still hard out there for many lawyers.  Turning away a potential client who can pay a fee is like taking a meal away from your beloved child.  When we need to go through rationalization gymnastics to justify taking on a client, when we believe them to be delusional, we are offered an opportunity to decide whether we are lawyers or mercenaries.  There are plenty of crazies out there, and you will have the opportunity to decide whether to take their money.  This isn’t a test of them, but a test of you.

The jury returned a verdict of not guilty.  At least that went in her favor, as Tonya Craft sat in the Catoosa, Georgia courtroom of Brian House, now her judge but previously a lawyer for her ex-husband.  Gideon at A Public Defender offers an in-depth look at the trial from the pre-trial remove. Circumstances have borne his assessment out.  From the Atlanta Journal-Constitution :

The Catoosa County Superior Court jury found Tonya Craft, 37, not guilty on each of 22 charges of child molestation, aggravated sexual battery and aggravated child molestation.

The defense claimed that the children were manipulated by parents and investigators into falsely believing they were molested.  The jury agreed.  But it’s been two years in coming.

Since her arrest in May 2008, Craft has been fired from her job at Chickamauga Elementary School, lost custody of her daughter, lost her Georgia home and moved with her husband to Soddy-Daisy, Tenn., about 30 miles north of where she was on trial in Ringgold.

The community was deeply divided, as allegations of sexual molestation of children tend to do.  Those in the community who believe that the molestation happened see the verdict as a failure of the system.  Those who believe that the allegations were false feel vindicated. 

There is no argument that Tonya Craft is not innocent.  She carried into trial a presumption of innocence, and the State failed to strip her of it.  While the jury only said she’s “not guilty,” the law says she’s innocent.  That won’t change the beliefs of those who are certain that three little girls were molested, but the discussion is closed on that subject.  Of course, the three little girls were molested, if not by Craft than by the adults trying to get Craft.  Either way, the children suffer.

As for Craft, she will be perpetually tainted by the trial and its attendant publicity.  When accused of molesting children, there’s no place to recapture one’s reputation, no matter what the verdict.  No job. Lost custody of her daughter.  No home.  What a great win, right?

The only thing that would have made it worse is a wrongful conviction.  Keep telling yourself that it may not be perfect, but it’s the best system anywhere.  Tonya Craft was acquitted, and every person touched by this case has suffered.  The people who build courthouses like to chisel platitudes over the doors.  I’m not aware of any courthouse, however, that bears the phrase, “It could have been worse.”