Via Dr. Sunwolf (who wanders around the internet as @JuryTalk), the Ohio Supreme Court reversed a homicide conviction because the trial judge refused to dismiss a deaf juror from the panel for cause in State v. Speer.

During voir dire (pretrial examination of prospective jurors), prospective juror Linda Leow-Johannsen informed the court that she had a hearing disability that prevented her from understanding  spoken words unless she could read the lips of the speaker, and that she would be able to accurately perceive the questioning and testimony of witnesses if the person who was speaking faced her. Leow-Johannsen also indicated that she would “have a problem” understanding the content of an audio tape. Attorneys for Speer moved that Leow-Johannsen be disqualified from serving on the jury “for cause,” i.e. without using one of Speer’s peremptory challenges, because of her hearing impairment. The judge denied the motion to dismiss for cause and Leow-Johannsen was seated on the jury. During the trial, at the time the  audio tape was played for the other jurors, the court arranged for Leow-Johannsen to move to the court reporter’s table and view a real-time transcript of the call on a monitor as the reporter typed it.

Writing for the majority, Justice O’Donnell pointed out that the Supreme Court of Ohio has been a leader in efforts to improve the accessibility of  courts to persons with disabilities; has adopted specific language in its Rules of Superintendence stating that “[t]he opportunity for jury service should not be denied or limited on the basis of  … disability;” and since 2003 has implemented an aggressive statewide Interpreter Services Program that trains and equips local courts to accommodate the special needs of hearing-impaired litigants, witnesses and jurors.  

Nevertheless, in this case, Justice O’Donnell wrote: “Despite the efforts of the trial court to accommodate Leow-Johannsen, Speer did not receive a fair trial. Regrettably, the accommodation made by the trial court in this instance could not help Leow-Johannsen to effectively perceive or evaluate Speer’s demeanor, detect any slurred speech or the lack of it, or consider the loudness or softness of his voice, the patterns of his speech, his tone – whether excited, calm, or passive – or the inflections of the voices on the 9-1-1 tape.  … Here, both the state and the defense relied on the 9-1-1 tape as evidence relevant to whether Speer committed the charged offenses. The state suggested that Speer’s ‘calm tone’ and his ‘demeanor on the 9-1-1 tape’ provided evidence of his guilt.  Speer’s defense counsel denied the state’s contention that Speer had operated his craft under the influence of alcohol by pointing out that the 9-1-1 tape did not show Speer slurring his speech at the time of the call.” 

That the court recognized that the right of a defendant to a qualified jury trumps the theoretical right of a citizen to sit in judgment of another, is good, in the sense that it could easily have upheld the conviction with a few minor changes in the appearance of trial strategy.  And yet, the court’s need to appear politically correct, by touting its effort to be “a leader in efforts to improve the accessibility of  courts to persons with disabilities” when it comes to seating them as jurors demonstrates how this is a time bomb waiting to explode.

At the outset, let me be clear: I do not accept the premise of reverse Batson.  There is no “right” to be on a jury.  The Constitution is not a two way street, but protects the rights of the individual against the power of government.  The defendant is not the government, and has the right to toss anyone off a jury for any reason.  The defendant is entitled to a jury.  The potential juror is constitutionally entitled to nothing.  If a person lacks the capacity, in any way, shape or form, to serve as a juror, then the person should be dismissed for cause.  Political correctness has no place in the jury room.

During the course of trial, one can never be certain what cognitive “skills” will be required of the jury.  The ability to hear?  To sit still? To speak the language of the witnesses, lawyers, court, fluently?  What about the ability to comprehend rational thought and argument?  At what point during a trial does a cognitive deficit in a juror go from being a personal issue to a deprivation of the defendant’s constitutional rights?

This point hurts the feelings of many advocates, strenuously supporting opportunity for those who are challenged.  I agree with them completely, and fully support the need for accommodation of disabilities.  In almost every aspect of endeavor, except not jury service.  I’ve caught enormous grief for my position, from those who argue that people with disabilities (or challenges, or whatever word is used to characterize the condition) can do anything anyone else can do, and shouldn’t be denied their right to fulfill the same role in society as anyone else.  They similarly point out that everyone has some challenge, and it’s wrong to discriminate against those with more obvious or overt issues. 

I get it.  I really do.  And I agree with you. Except when it comes to jury duty.  And maybe ballet dancing, but this post isn’t about ballet.

The harsh reality is that something has to give.  Either an element of a trial is missed by a juror, to the defendant’s potential detriment, or a juror with a disability (though I note that Deaf people do not necessarily agree that they are disabled) is denied a seat on a jury.  In this case, the juror recognized that she might be unable to serve.  Of course, that may have been used as her ticket off the jury.  Oddly, some people would prefer not to sit as jurors.

Thus, it comes down to which interest prevails.  On the one side is a defendant’s right to a jury capable of performing every task that might be required.  On the other is the desire of an impaired person to be treated like anyone else, even if it requires us to pretend that the disability doesn’t exist. 

In this instance, the defendant’s right to a fair jury must prevail.  Qualifications to sit on a jury cannot take a back seat to any secondary societal concerns, no matter how righteous they may be under other circumstances,  The Ohio Supreme Court’s need to qualify its bona fides as a leader in accommodation reflects a wonderful concern for the rights of the disabled, and disturbing lack of recognition of the rights of defendants.  Both cannot be simultaneously accommodated, no matter how badly we wish it to be otherwise.

There’s a cartoon by Peter Steiner that offers one of the most important lessons for the digital world.

It’s a lesson that bears repeating regularly, as people “find” the internet and embrace it as their window to the world.

One rather shocking example was raised by Mark Bennett, who keeps a sharp eye on one of the most dangerous ideas online, Avvo Answers.

Seen on Avvo :

I am a resident physician in Houston, TX. A charge of indecent exposure has been brought against me by a complaining witness- no other witnesses or evidence involved. I had a warrant for my arrest, for which I went it for booking and was released on bail. Pretrial hearing is set for next month. I don’t know what to expect. My attorney believes I might be offered deferment.

Should I take this? How will having deferment affect my professional licensing?
If not, how can I contact the ADA for plea bargaining? at what stage is plea bargaining done? I would settle for a reduced offer but I don’t know how to go about it.

OR should I just take my chances with a trial by jury?

Thank you for your time.

One can only pray he’s going into proctology.  What’s astounding is the fact that someone with sufficient intelligence to make it through med school can be so unbearably stupid as to ask this question of lawyers who give free advice for the primary purpose of self-promotion.  For the record, any attorney who uses Avvo Answers to promote himself should be tarred and feathered, then run out of town on a rail, then stripped naked and placed on an ant hill covered in honey.  And I have a number of friends who use Avvo Answers.  I also have the honey at the ready.

The culture of free advice from people who bear no responsibility for their answers, and are more likely than not to be incompetent to provide viable answers, is the foremost feature of the internet.  When things work out, hooray, aren’t we wonderful.  When they don’t, tough nuggies.  Bad Avvo Answers is a recurring theme, almost a meme within the profession. 

The lawyers who respond to these questions characterize their efforts as some form of pro bono, a public service, They are liars. There are many opportunities for public service, where they can provide hard contributions to those who can’t afford counsel.  This is base self-promotion, No one, and I mean no one, provides Avvo Answers because they’re a great humanitarian.  The proof is at the bottom of many a lawyer’s response. The disclaimer:

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

If further explanation of why this is a joke is needed, than you don’t deserve to be a lawyer.  And if you’re going to try to spin your way out of this cesspool, be prepared for a harsh response. 

On the other side of the internet, a law student is so thrilled with himself that he’s laid out the secret to beating a ticket.  This was picked up by both Volokh Conspiracy  and Above the Law , the sublime to the ridiculous,  Elie Mystal explains:

I talk a lot about what legal education doesn’t prepare you for. You know what it does prepare you for? Any future interaction with police officers. By the time I finished 1L year, I knew the golden rule for dealing with officers of the law: keep your mouth shut. Knowing the law and knowing your rights helps. But whenever you deal with a cop, you should say as little as possible.

You don’t even have to be a practicing lawyer to reap the benefit of these skills. On his blog, Concurrent Sentences (gavel bang Volokh Conspiracy), a Michigan area law student explains how he masterfully handled a recent traffic stop. It’s a skill all lawyers should have…

Masterfully?  Elie, as a black male, would be expected to be a little more circumspect.  This may explain why he’s writing for ATL rather than practicing.  Let’s take a gander at how this law student handled his traffic stop.

APO: Good afternoon
ME: [silent]
APO: Good afternoon sir
ME: [silent]
APO: GOOD AFTERNOON SIR [raising voice]
ME: [silent]
APO: Do you know why I pulled you over?
ME: No
APO: I pulled you over because you have window tint on your front side windows
ME: [Silent]
APO: You ever been pulled over for this before?
ME: No, my car is registered in Colorado.
APO: In Michigan you are not allowed to have window tint on your front side windows.
ME: Officer, I am not trying to argue with you, but I am very familiar with the statute relating to window tint in Michigan and I know that the statute specifically exempts vehicles that are not registered in Michigan.

And if the officer was in a lousy mood, had a fight with his wife, or didn’t like the attitude, at what junctures in the first 30 seconds of the interaction might he have told this kid to step out of his car and given him a darn good tuning up?

There’s no chapter in the Criminal Law hornbook about tuning up.  Interestingly, many of the comments about this masterful handling noted that the law student behaved poorly, that he could have accomplished his goal without being a wiseguy and needlessly antagonizing the officer.  They are absolutely right.  As I suggested  with the far superior Flex Your Rights video, even the well-behaved motorist puts himself at risk by asserting his rights.  The antagonistic motorist is begging for it.  No, that doesn’t make it right, but it’s still brutally real.

Someone will stumble on all of this in their search for answers on the internet, and believe that they can rely on such a “masterful” approach.  Someone will be beaten, arrested, tased or shot for it.  Who should they blame?

It’s not that people try to be inaccurate, though some could care less as long as their name is spelled correctly.  It’s that the medium lends itself to error, mistake and misinterpretation.  If you contribute to this, you are wrong.  It’s bad enough that so many lawyers are willing, no desirous, of putting on hot pants to strut around the internet in search of clients.  Must you also be a mutt on the internet?

Update:  Mike Cernovitch tells the story about his and Norm Pattis’ “flex their rights” moment with a thick necked cop.  Even weathered criminal defense lawyers can appreciate when it’s not a good to give a cop a hard time over nothing.

H/T Dan Markel at PrawfsBlawg

Having roundly ignored the hype surrounding Gizmodo writer Jason Chen’s shenanigans with some secret unreleased Apple iPhone, largely because I just don’t care at all, I’m now constrained to pay attention.  Not because the iPhone is any more interesting than the 8 track once was, but things changed when the police executed a search warrant on Chen’s resident.

Police raided the home of a writer for the technology blog Gizmodo, which showed off photos and details last week of Apple’s newest — and as yet unreleased — version of the iPhone.

Gizmodo said it paid $5,000 for the prototype to someone who found it in a Redwood City bar, where it had apparently been left behind by an Apple employee.

But authorities have questions about how the 4G iPhone became public and a regional computer crime task force searched Gizmodo editor Jason Chen’s Fremont home on Friday night.

The cutting edge issue, raised by Gizmodo , which has the blogosphere abuzz, is whether the warrant was unlawful under the journalist exception.  This is more of a philosophical issue about bloggers being journalists, and I leave that to others to debate (at least for the moment).

What struck me is how they got a warrant otherwise.  There are two words that haven’t been mentioned much: probable cause.  The “authorities have questions?”  So what?  Questions aren’t cause.  Probable cause is that quantum of evidence sufficient to make a reasonable man believe that a crime was committed and that evidence of that crime could be found at the location where the warrant allows.  This was purely a fishing expedition. 

According to the warrant, which was signed by a San Mateo County Superior Court judge, Chen’s property could be seized because, “it was used as the means of committing a felony.” The warrant also gave police the power to look for information on any research done about Apple employee Gray Powell, who reportedly left the phone at a German beer garden.

Yet Chen wasn’t arrested.  You can’t have it both ways, kids.  If there’s cause to seize Chen’s stuff, then there’s cause to seize Chen.  And if you don’t know whether a crime has been committed yet, then you’ve got no basis to go fishing around Chen’s place for answers.

According to the return, the cops seized a bunch of computer stuff, hard drives, phones, digital cameras.  They even got an iPad.  All the stuff that makes for great holiday presents for the children of cops.  Also good stuff for online journalists/bloggers.  Also stuff that contains all sorts of extra materials and information that bears no connection to anything the cops are investigating.  Is there any basis for a neutral magistrate to believe that each of these items contains, or is, evidence of a felony? 

From the face of the warrant, it looks awfully broad, as if whoever drafted it, and the judge who signed it, don’t have a particularly good feel for technology, and consequently gave blanket authority (overbreadth, be damned) to seize anything and everything that might conceivably come into play.  You know, better safe than sorry when it comes to stuff you don’t understand.

I’m sure Gawker Media, Giz’s parent company, will find Chen a really top notch criminal lawyer to fight for his property back.  I’m sure that they will come to the realization that the efforts of their in-house counsel, by providing a very strongly worded letter for Chen to hand the police, demanding that they not violate Chen’s journalist privilege, must have given a bunch of cops a really good belly laugh.  And that’s why the Gawker lawyer should go back to doing Gawker-lawyer-type stuff and stay away from search warrant.

Maybe the next step of this Apple fascination will focus on the unscrutinized questions of why the cops are doing the clean up for Apple, and how exactly a warrant issued before anyone has decided that a crime occurred?  With all the techies types fascinated with anything Apple, maybe we’ll broaden this whole probable cause thingy to the point where even lawyers obsessed with iPads think about it.  It could happen.

Houston criminal defense lawyer Mark Bennett  raised the point that criminal defense lawyers are, for all practical purposes, immune from legal malpractice.  Rick Casey at the Houston Chronicle , who isn’t snarky at all, wrote:

Criminal defense attorneys will tell you that the most important question to ask a potential client is not whether he is innocent or guilty.

It’s how much money does he have.

Casey tells the story of a screw up by a defense lawyer, who pleads his client guilty to a crime for which the evidence sucks, but a subsequent civil action for legal malpractice is dropped because the lawyer has no malpractice insurance.  You can’t get blood from a rock explains it.  Casey notes that the state bar voted down a requirement that lawyers disclose whether they have malpractice insurance.  But he then notes:

The Supreme Court ruled that anyone convicted of a crime couldn’t sue their attorney, no matter how bad the representation, until they had their conviction overturned. It would, the court said, be bad public policy to allow criminals to shift the consequence of their crime to their lawyers.

“The day they issued that ruling was the day I dropped my malpractice insurance,” a criminal defense lawyer told me. “I’ve never been sued by anybody who I got acquitted.”

Hence, lawyers are coddled.  He’s got a point.  But there’s a flip side to the point, as Bennett notes:

But the more I chewed on the idea, the more it seemed that that rule would do more harm than good.

First, anyone who gets mail from prison knows that incarcerated people have way too much free time on their hands. Also, incarcerated people are often unhappy with their lot. Allowing prisoners’ civil claims that their lawyers’ negligence lengthened their sentences to survive summary judgment would create a boom in prison litigation, would tie up lots of criminal defense lawyers (especially those representing the indigent, whose problems are often too deep for any successful defense) in fighting meritless claims, and would drive good and non-negligent lawyers out of the practice of criminal law.

But that’s the argument from the lawyer’s point of view, which Rick Casey might call the “coddle us” argument.

Bennett’s got a point too.  There’s no doubt that people in prison would keep those idle hands occupied with making claims against lawyers.  Heck, federal courts are already jammed with actions over tasteless food and bad haircuts. Imagine what would happen if there was potential money to be made.

The situation lays out that Casey is right, that we’re a coddled bunch, but Bennett is right that Casey’s solution would bring the system to a grinding halt and make it untenable to defend, a worse problem in that those in need of defense would be denied one by lawyers whose every waking moment was spent addressing spurious claims of malpractice.

Prepare for a big unpleasant leap here.  The problem is largely one of our own creation.  Not only do lawyers too often fail to perform satisfactorily, engage in the diligent effort to represent their clients by either “ordinary injustice” or a deeper concern for the fee than the work, but then hide from the outcome of these failures.  Not every lawyer by any stretch, and not in every case.  But it happens, and it happens far more than it should.

Criminal defense is more art than science.  To do the job properly often requires more time than is available.  Lawyers who want desperately to believe that they don’t suck argue that they somehow manage to do a great job defending a hundred defendants a day.  They aren’t fooling anyone.  The problem is that no one wants to be the bad guy and call them out.  Judges don’t want to do it.  Other lawyers don’t want to do it.  Nobody wants to be labeled “mean” and disloyal amongst friends and peers.  We may shake our heads when we see it, but we do nothing about it. 

The likelihood of this changing strikes me as nil.  While criminal defense lawyers portray themselves as gladiators, they’re more like lemmings with low self-esteem.   If there’s any doubt, consider the laboratory of the internet, where lawyers will ingratiate themselves with any fool who twits, laying aside any potential for thought or belief to be loved by children, losers and idiots.  It’s inconceivable that anyone disagree on the internet, lest they become a pariah amongst people whose thoughts are fully expressed in 140 characters.  Perhaps nothing that exists has better demonstrated the verity of Sir Joshua Reynolds’ quote.

The best solution to Rick Casey’s problem comes from ourselves.  As criminal defense lawyers, we are responsible for providing our clients with the best possible defense.  It’s not dependant on how it comports with out personal sense of justice, as children would think, or with the transitory Code of Professional Responsibility.  It’s not about the money.  If you have an issue, don’t take the case.  But once you take it, do it right.

Such a statement, of course, is too simplistic.  Even with best efforts, we do things wrong.  We’re not perfect, and given that most of what we do is fraught with variables beyond our knowledge and control, we are bound to make mistakes.  Mistakes are not a product of incompetence, but of the difficulty of the job and our limitations as human beings.  Stercus accidit.  Get used to it and be (hu)man enough to accept it.

The mistake is a problem, but not the most significant problem.  The one that undermines our integrity, and gives rise to Rick Casey’s complaint, is our inability to admit our error and correct it.  Rather than concede error, lawyers try to bury it.   The deniers and apologists will proclaim that this doesn’t happen, that we’re just the most wonderful thing since sliced bread.  Other lawyers will applaud them for being so bold.  We love it when our peers back us up in our failures.  I’m okay. You’re okay.  Be happy.  No worries.  Nobody is every bad, or wrong, or stupid, or screws up, as long as you will love me for supporting you.

Tell it to the guy sitting in a prison cell because you blew it.  No doubt he’ll care deeply about not hurting your feelings.  It’s probably the most important thing in his life, the one he spends in prison because you screwed up.  But as long as some relatively anonymous 12 year old on twitter tells you that you’re the cat’s meow, everything is just hunky-dory.  Your mistake doesn’t go away because somebody you don’t know twits that she thinks you did just fine.

In the good old days, lawyers without the guts to admit their mistake would put their back against the wall and argue that they were right, right, right, stamping their feet before they ran out of the building.  Today, they just twit about how some mean, nasty person said they did something wrong called them a bad name. A dozen, maybe a hundred, pseudo-anonymous lawyers will comfort them.

Rick Casey’s issue is real, and it’s getting worse rather than better.  It was a problem before, and is more of a problem today.  We are coddled, and we coddle ourselves.  No amount of lip service paid to the defendant we failed, who sits in a prison cell while lawyers ingratiate themselves with others to get more twitter love, cares how many followers we have.  This mutual admiration society with people we don’t even know is not a substitute for having the guts to own up to mistakes so that human beings don’t spend a second longer suffering for them than they should.

The answer isn’t disclosing whether we possess malpractice insurance.  The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang.  Do the hard work that minimizes the potential for mistakes.  But when a screw-up happens, as it invariably will, make it right. 

And to all of you who encourage everything from incompetence to concealment so that you will be loved on the internet, enough.  This sucking up to idiots to get another twitter follower, and bolstering failure and ignorance in the process, will be the ruin of us. 

It’s hard to explain how Lucia de Berk could be convicted of anything, particularly when the very idea that a crime occurred was established theoretically rather than be actual evidence.  But in a sophisticated version of the idiot’s delight, “where there’s smoke, there’s fire,” the Dutch nurse was convicted and spent 6 years in prison until somebody finally figured out that sometimes it’s just smoke.

Via NRC Handlesblad,

The final ruling in the case of Lucia de Berk, who was wrongfully imprisoned as a serial killer for more than six years, is a harsh reckoning within judicial circles. The ruling will long resound with judges, prosecutors, detectives and, to a certain extent, lawyers. How could they have been this wrong collectively?

The appeals court in Arnhem, which on Wednesday finally acquitted nurse De Berk of the seven murders and three attempted murders she was convicted for in 2001, drew some conclusions for the future by pointing out all that went wrong in the legal reasoning. Unexplained deaths of very ill hospital patients in De Berk’s care were treated as inexplicable deaths. All of those involved mistakenly assumed that every death could be explained by human action or inaction. Autopsy was only carried out on two of the dead patients’ bodies, several months after they had died, and failed to prove they were murder victims.

The totality of the evidence  against de Berk:.

An expert witness for the state testified that the chances were one in 342 million that so many suspicious deaths would take place during the shifts of one particular nurse.

Sure, she’s a nurse.  Sure, the patients were very ill.  Sure, ill patients sometimes die.  But what are the chances?  Well, apparently not one in 342 million.

But his data and method of calculating the odds were eventually discredited, as prosecutors finally conceded when they asked for the dismissal of all the charges against Ms. de Berk last month.

On April 14, a court granted the acquittal. In their ruling, the judges said that there was no evidence that any of the patients she had been accused of killing had died of anything other than natural causes.

The Arnhem court came to the conclusion there was no perpetrator, because none of the ten alleged crimes could be proven at all. All ‘victims’ died from natural causes, the court said. It went on to acquit the nurse of all charges.

To their credit, the Dutch prosecutor apologized to Ms. de Berk for the six years she spent in prison for a crime that never happened.  Not much chance of that happening around here, where the best she could hope for is a surly guard telling her not to let the door hit her on the way out.

The failure of this case is one of assumption and over-reliance on expertise.  Courts love experts who shift the burden off of soft evidence, like testimony, onto hard evidence which bears the imprimatur of science.  The initiation of the investigation was smoke, that a bunch of patients weren’t likely to die en masse on the shift of one nurse.  That it happened certainly justifies a very serious look-see.  It doesn’t usually happen that way, no doubt about it.

But the next step is what distinguishes those who think Nancy Grace is just brilliant from thinking people.  You ascertain the cause of death.  If there is evidence that the patients died of something other than natural causes, you figure out what that was.  Here, the deaths were characterized as “unexplained”.  Murder, on the other hand, is well-explained.  The gap between the two means that there is no crime, not that we can shut our eyes real tight and pretend that the absence of explanation proves something.

The clincher here was all in the numbers crunching.  It’s an appealing argument, particularly to those disinclined to math.  A variation of the argument is used all the time here when it comes to proving the identify of a criminal by DNA, which presents huge statistical problems complicated by significant collateral issues in collection, retention, preservation and more.  Yet all the jury hears is that the defendant is the killer because there’s a one in 27,843,256,918.37 chance that he’s not.  Fry him.

For reasons unexplained, someone cared to figure out whether Ms. de Berk was guilty.  Unfortunately, but typically, this interest wasn’t sparked until after the conviction.

Erik van den Emster, the chairman of the Netherlands Council for the Judiciary, said, “in a legal sense, the system worked in the end”. The judiciary corrected its own mistake, he added benevolently in a TV interview.

This statement speaks of complacency. All credit for correcting this judicial blunder should go to skilled outsiders. There were scientists, doctors, statisticians, toxicologists and others whose continuous research and civil opposition forced the trial to be reopened. Nobody doubts the conscience of the magistrates involved. But their skills and professionalism now stand corrected by the court.

“Better late than never,” is one great platitude.  “Get it right the first time,” is another.  There is no platitude that the harm caused by well-intended blunders doesn’t hurt too badly.  No doubt everyone involved in the creation of this monumental screw-up believed, in all sincerity, that they were right.  So what if the strength of their strongly-held mistaken beliefs was largely responsible for their inability to assess the faults in their own reasoning?

It would bring comfort to believe that such a speculative showing, one devoid of actual evidence and based entirely on the fire assumption, bootstrapped into certainty by faith and sincerity, could never happen in a rational court system.  When you find one, let me know.

H/T Ed at Blawg Review

When Brian Tannebaum suggested that unemployed law students might want to rethink approaching their job hunt from a position of desperation, he got the Slackoisie response.

Unfortunately, this is a new era. The jobs just aren’t there. 
Personally, after seven years of school, a six figure loan balance (undergrad and LS), rent to pay, car payments, insurance, gas, etc etc, I cannot afford to cherry pick employment. I would never grovel or sound deseprate either, but I did have to accept emplyoment in a practice area I am certainly not enamored with. This is not a sense of entitlement. This is reality.

Not all recent LS grads are as bad as you paint them to be BT.
Yes, I would love to go solo and do what I love, but my Landlord, the bank who holds the note on my car, and Sallie Mae and a whole host of other creditors don’t give a rats ass about what I want, they want their check every month, so I have to take what the defense gives me and keep my eyes peeled for other opportunities…

He’s right.  The creditors don’t care.  But neither does anyone else, including Tannebaum.  Or me, for that matter. It’s not that we don’t wish happy things for others, including (if not especially) new graduates.  I do and I’ve no doubt Brian does as well.  It’s that our “feeling your pain” doesn’t do much to help your status.  A good, swift kick in the pants is a lot more useful.

When I left law school, the going rate was $32,000 a year.  I’m a bit older than Brian, who says that the rate when he graduated was $55,000.  Big money back then, but not nearly as big as $160,000 is today.  In relative terms, we were pikers.  But many things were different back then, not just the going rate.  There were no Tier whatever law schools.  Some were great and some were lousy, but nobody cared after you got your ticket.  Back then, U.S. News and World Reports did stories about things like U.S, news and world reports.

The other thing that was different was us, the law students.  For one thing, we appreciated the fact that we were a bunch of snot-nosed kids who didn’t know anything.  We weren’t busy demanding that lawyers respect us, and getting all sad and weepy when they treated us like the kids we were.

Since I’m so fascinating (aren’t I?  You certainly are, when you tell me all about you since you’ve no doubt that I want to hear every detail of your lives, so suck it up and read a little something about mine), here are some more reflections of the good old days.

I drove a used ’69 Beetle that had been in a tiny front end collision. If you know anything about the old Beetles, the engine was in the rear and the front crumbled when you looked at it too hard.

I had a 13 inch black and white TV, with rabbit ears.  I was the envy of my friends.

I bought my mattress for $10 from the guy upstairs who was moving out.

My desk was made of a discarded door and two saw horses that I got on sale at Rickles.

I went to Beefsteak Charlie’s  once a month with a package of plastic bags hidden under my coat to take home the free shrimp, on which I would feed for the rest of the month.

I washed windows. I was a warm body for a Tandem Van der Graaff Accelerator. I was towel boy in a low rent sex club. I tended bar. I was a counterman in a deli. I was a law clerk for an old time lawyer. 

I didn’t suffer.  Not one bit.  This was just the normal stuff that one went through to reach a goal.  My goal was to become a lawyer.  It never occurred to me that, once I became a lawyer, I would earn $32,000 a year.  That was crazy talk.  I just wanted to be a lawyer.  Once I was, I would do lawyer stuff.  That’s what I would spend my life doing. That would be my career.

At the beginning of my third year of law school, I took the money that I would otherwise have used to buy books and purchased a blue suit made of the finest double-knit polyester I could afford.  I wore it to a few interviews. The only one who thought I looked snappy was the CIA guy, who kept talking about Ivan and Igor.

And one day I became a lawyer, and I went to work.  I was blessed to have the opportunity to be what I wanted to be.

It’s tough out there?  The hardest thing you had to endure up to now was your Gameboy running out of juice before you saved the high score.  Now you’ve dug yourself into a hole and there’s nobody pulling you out of it.  It’s my fault (as I’m told regularly) since us boomers ruined everything that matters in life.  So what?  If you think complaining about us boomers is going to get you anywhere, you might as well be staring at your dead Gameboy.

You’re lawyers now.  Figure something out.  And stop whining to those of us who try to tell you that whining isn’t going to solve your problems.  Life sucks.  Life is unfair.  And it’s not going to get any fairer.

What do you plan to do about it?

It’s the stuff of fairytales, when the king would wave his arm and the knave would be forever banished from the kingdom.  Or the courts of the hinterlands.  From the Buffalo News :

Brian M. Renaud, who pleaded guilty Wednesday to his second marijuana felony in six years, is being kicked out of New York State as part of a plea bargain approved by Niagara County Judge Sara Sheldon Sperrazza.

Renaud, 31 . . . admitted to a reduced charge of attempted second-degree criminal possession of marijuana. Sperrazza agreed to place him on probation as long as he leaves the state forever.

“Banishment is not something I do lightly or often,” the judge said.

I bet.  Banish people too often and you can get tennis elbow.  Or banish shoulder.  Well, something bad can happen to a part of your arm, though it’s unclear whether a waving motion is required to effectuate banishment.  Judge Sperrazza, already renown  for approving the use of tasers to obtain a DNA swab, must have strong arms if it is.

As pot-sweeteners for probation go, banishment is quite an interesting one.  Many a time, prosecutors have told me that they were particularly displeased with the fact that a defendant committed a crime in “her town.”  Many a defendant would happily go elsewhere rather than sully the town yet further with his presence.  Particularly if his presence was in the local hoosegow.  Leave town?  Problem solved.

But then, it just moves the problem down the road a piece, unless probation is otherwise an appropriate sentence.

Banishment is the ultimate sentencing version of “out of sight, out of mind.”  It solves nothing with regard to the legitimate factors that the law imposes on a court in determining an appropriate sentence, other than general deterrence within the local sphere by dint of removing the defendant from the local sphere.  But it simultaneously injects the putative miscreant into someone else’s local sphere.  Everybody’s got to be somewhere.  If not here, then where?

Renaud apparently informed the court that he’s compelled by manifest necessity to go to California.  No doubt a fine choice for someone whose got a green thumb, at least when it comes to growing marijuana.  If, however, the police, prosecutors and judges on the left coast find Renaud’s activities troubling, the next sentence can always split the difference and banish him to Kansas.

Christopher Jorgenson labors under the worst of circumstances.  He lives in Des Moines, Iowa.  I’ve been to Des Moines. You’ve got to have a sense of humor.

Jorgenson is better known online as Jackass Letters , channeling Don Novello  (a/k/a Father Guido Sarducci), who assumed the persona of Lazlo Toth (of Pieta notoriety) as he wrote letters to celebrities, politicians and corporations to tweak them a bit and see how they responded.  He explains his schtick:

This site is a site dedicated to examining correspondence with real people and companies. It is part spoof, satire, parody and part criticism. New letters are generally published Mondays at 7:00 AM.

So….

Is my motivation greed? Am I just clamoring after free stuff? No. Free stuff is cool, but I also intend to enjoy the process. I fully expect to enjoy the responses more than any of the swag. Daily I make the trip to my mail box only to see it stuffed with junk mail and bills. I want to look forward to getting mail again.

Remember, he’s from Des Moines.  It doesn’t take much to amuse, if you get my drift.

So Jorgenson decided to put me to the test.  He sent me a letter, his FUQ’s (pronounced as would be expected from a guy from DM) notwithstanding, to which I responded by an email attachment, since I don’t have to live by his rules and I saved the price of stamp.  Would he have the ‘nads to publish it?  He then made a dare: He would publish my letter if I would post a drawing that he would send me.  He wanted me to put it on the fridge, which I would happily do if it wasn’t for the fact that I still use an icebox.  But that doesn’t stop me from showing you the picture anyway.

I dunno, but it’s a pretty good likeness if you ask me.

Your turn, Chris.

Don’t be surprised if police in Arizona seem particularly friendly.  And what’s wrong with that, bringing the police closer to the community and generating camaraderie and good will?  Happy police.  Happy public.  Everybody’s happy.  Especially anyone in Arizona with dark skin, who speaks Spanish or maybe just has an accent, who wears work boots and stands on a corner.  They may well be the special friends of cops.

When Governor Jan Brewer signed Arizona’s illegal alien bill into law, it was the dawn of a new age of friendliness.  Via Turley, this is the heart of the law.

FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON’S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

It begins with “any lawful contact.”  There’s nothing unlawful about saying “good morning” to a dark skinned fellow in blue jeans walking down the street.  It’s just being friendly.  Certainly, cops can be friendly.  But now that lawful contact has been made, the response of “buenos dias” may take on new meaning.

The second prong is “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.”  This gets a bit dodgy.  Does looking like a foreigner suffice for reasonable suspicion to believe the fellow is an illegal?  They don’t have scarlet letters on their foreheads, and it’s not clear what part of their appearance, speech or dress would distinguish a legal alien from an illegal.  Or even a citizen from an alien.  From my view, it’s going to be very hard to tell the illegals from others.  But there’s no harm in asking a question between friends.

But there’s nothing wrong with the police officer, after a friendly greeting, asking a fellow if he’s an illegal alien.  I mean, it’s just a question and there’s a common law right to inquire.  He can’t force the guy to answer.  But if he does answer, then the cop can ask for some proof, since the dark skin fellow asserted he’s here legally and the officer would be remiss if he didn’t followup.  On the other hand, if he runs from the officer rather than answer, well, that’s suspicion since a legal immigrant would never do that.  And it’s definitely suspicious if he refuses to answer.

If the Spanish speaking guy says he doesn’t have his proof of citizenship on him, then the officer will be required to determine his immigration status with the Feds.  That could take a while, of course.  A day or two.  The Feds are busy, you know, and can’t always answer the phone, or run the computer check, or care. 

My guess is that there won’t be a lot of Swedes becoming close friends with the Arizona police.  It’s unclear how grave a problem exists with illegal Swedish immigration, but word around Arizona is that they have a big problem with Mexicans coming across the border illegally and, if Senator McCain is to be trusted, purposefully crashing cars.  Nobody wants to be in a needless car crash.

The good people of Arizona don’t seem to like people from Mexico very much, even if the local police become really close friends with them.  I’ve been told in the past that those of us who live in other parts of the country don’t understand how illegal immigrants have overrun their state, causing crime, unemployment and, per the Senator, car crashes.  It’s not that I’m not unsympathetic about the problems endured by Arizonians.  I am.  I wouldn’t want to have my car crashed anymore than the next guy.  But that’s no reason not to get all buddy-buddy with the dark skinned, Spanish speaking guy in work boots on the corner.

And what’s wrong with having really friendly cops?