As the decision in Stevens  came out yesterday after I’d gotten down to work, and has since been announced and discussed everywhere in the blawgosphere, there’s no point in mentioning that the Supreme Court, in a case that presented (hopefully) the most extreme example of speech unworthy of protection, upheld the First Amendment anyway. 

Need proof that people can be truly sick?  Watch a “crush film” and know that there are people who get sexual gratification from it.

For non-lawyers, it’s hard to comprehend why the Supremes would, by 8 to Alito , find a law prohibiting, criminalizing, this to be unconstitutional.  Doug Berman  has plucked the sentence from the opinion that explains.

We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

While the law would criminalize the wrong of these sick, disgusting films, its sweep covers expression that isn’t wrong.  Our government’s answer is “trust us, we would never use an overbroad law to go after people who didn’t deserve it.”  Even a Supreme Court that’s moved so far right as to make Justice John Paul Stevens the leading liberal couldn’t tolerate that justification.  This is why “plain English” laws can’t work, despite their superficial appeal to those who blame obfuscating lawyers for all that ails society.

But this line presents another interesting problem.  While the Supreme won’t tolerate a law that’s overbroad merely because the government says “trust us,” they willingly, no happily, tolerate, no enable, men and women with guns, batons, tasers, moving amongst us with no real check on their conduct beyond the promise to use their weapons, their authority to seize and imprison, their ability to make people do as they say upon pain of . . . pain, based solely on their promise to use it responsibly.

While we applaud the Stevens decision for upholding the First Amendment in the face of such sickness as crush films, we ignore a gap of monumental proportions that falls into the same category. 

What good is scrutinizing laws to this extent when the reality on the street, when, as commenter Alan  put it so clearly,

the police do what they need to do to get the job done. Right or wrong, the police sometimes need to circumvent the letter of the law an instead use the spirit of the law to get these scumbags off the street.

The legitimacy of our entire system of criminal law depends not on the decision of member of the Harvard or Yale Clubs, but on the decision of one cop to raise his weapon and bring it down on the head of a human being.  This is the real crush, and it happens every day across this country.  There are a thousand battles fought in the war of government responsibility, and the Supreme Court shuts its eyes to them, too trivial for their notice.

It’s wonderful that the Court held that constitutionality can’t be left to the government’s promise to act responsibly.  It’s a shame that they do so anyway.  To any person who was stopped and frisked for no reason, or beaten, tased or shot because they comply with some cop’s demand, or sent to prison for lifetimes because a cop lied on the stand knowing that he can say anything, and as long as there’s no videotape to prove it, will get away with it and get a medal, this line from Stevens brings no comfort.

The government’s promise is only as good as the integrity of every cop on the street.  If only the Supreme Court realized this.

Update: Yesterday, a judge in Glendale did the California version of an ACD in the case of a woman , traveling with her 93 year old, wheel-chair bound mother, who tried to stop a TSA agent from seizing her cooler with applesauce so that her mother would have something that she could eat on a plane ride to a family wedding.  She was arrested, strip searched and prosecuted.  No word on what happened to the 93 year old mother left at the airport.

Los Angeles County Superior Court Judge Fred Rotenberg said he would dismiss the case against Nadine Kay Hays only if the grandmother of six stays out of trouble for the next six months. Prosecutors had no objections during the hearing at a Glendale courthouse.

The case generated national attention, drawing the ire of talk-radio hosts who railed against the TSA agents and challenged how confiscating a disabled woman’s applesauce would improve national security.

A TSA supervisor told officers that Hays made a fist and struck her on the hand as they tugged at an ice chest containing the snacks, according to the arrest report.

Hays has denied hitting the agent, maintaining that she brought down her hand to keep agents from taking away her mother’s applesauce, cheese and milk.

This is being reported as a victory for sanity over an overbearing abuse of authority by the TSA.  How many government agents, prosecutors and a judge had an opportunity to exercise that promise to use its power responsibly?  And after a year, the best they could come up with is an ACD?  Yet this aspect of the promise of responsibility eludes our Justices.

Norm Pattis posts the news from Butner, North Carolina.

When the nominee stood to address the assembled press corps, there was an eerie silence. The man was on no short list of candidates. Indeed, he was a man few present had ever considered.

“I am flattered and humbled by this honor, Mr. President,” Gerry Darrow said. “In all my years at the bar, I never dreamed that I would be considered for such a post. I’ve represented folks at the margins of society for so long, I had begun to think of myself as an outcast.”

Thus began the improbable confirmation battle of a former plaintiffs’ lawyer turned mid-life public defender.

Court watchers and legal academics were stunned by the nomination.

Norm has captured something truly important in this post, and I implore you to read it in its entirety.  But the last sentence quoted above was the one that got me.  With all the punditry by “right in the center of the box” thinkers, Norm nailed it.  We look to the Lithwicks, the Liptaks, to tell us what we think.  That big pool of possibilities, consisting of federal appellate judges from Harvard or Yale, from which to choose.  Why?  Well, these are the people who know, and that’s what they say.  No one asked Norm what he thinks.

Years ago, Baskin-Robbins announced that it had 31 flavors.  Today, we have a choice of chocolate or vanilla, and both frankly taste the same.  We’ve become a nation of followers and cowards.  Presidents are cowards too.  Senators are cowards.  We are cowards for voting for cowards.  We are cowards for taking the path of least resistance, for indulging ourselves with rationalizations of the practical and predictable. 

“I promised hope when I asked for your trust during the last election. And you heard me. Together we transformed hope into a new and audacious reality. Today I redeem a part of my promise by naming a man who is no stranger to the suffering of ordinary Americans as the next Justice of the United States Supreme Court,” the president said.

It’s my turn to make a prediction.  We will never again have a president with the guts to make this statement.  We will never have a Senate that would consent to such a selection.  How many of you, dear readers, will think to yourselves that you’re satisfied with this future, that vanilla suits you just fine and, besides, it’s the easiest way to go, and, well, why bother since nothing ever changes.

Cowards.

Expect nothing and your expectations will always be met.

Goldman Sachs is possibly the biggest boy in town these days, with the town being every power hub in America, which makes the SEC investigation into its ABACUS subprime mortgage deal curious, both that it’s happening and it’s such a small part of the problem raised by GS’s business practices.  Mike at Crime & Frederalism has been well ahead of the curve on Goldman for a long time, and it’s nice to see the SEC catch up to Mike, if only a little bit.

The details of the deal aren’t all that interesting, except to finance geeks and lawyers paid to care, but the defense  run up the flagpole to see if anybody salutes is worth a look.  Via Ashby at WSJ Law Blog :

all participants were highly sophisticated institutions that were knowledgeable about subprime securitization products and had both the resources and the expertise to perform the due diligence, demand any information that was important to them, analyze the portfolio, form their own market views and negotiate forcefully at arm’s length.

The Big Boy defense, that the others involved in the transactions were big boys, knew what they were doing, and if they got burned, well, it’s their own fault.  It’s a defense with some superficial appeal.  After all, GS’s point, that it wasn’t selling “subprime securitization products,” a description that makes one wince, on the street corner like hot dogs, and no doubt the purchaser won’t come back by arguing that it was far too unsophisticated, incompetent and ignorant to know what it was spending other people’s money on.

Moreover, what difference did it make that Paulson & Co. was betting that the speeding Mack truck was heading straight for a huge brick wall?  There’s no guarantee that somebody wasn’t going short, so why shouldn’t it be Paulson?  Every Big Boy knows that someone out there may be against the thing you’re betting in favor of.  Maybe Paulson wins. Maybe you win. Big boys take risks, which is why they get the big rewards.

The problem with this argument is that even Big Boys get burned.  Big boys may not really be so big, so smart, so sophisticated, which is why an argument like the Big Boy defense has appeal.  A not-so-big-boy will never admit to not being a Big Boy.  They don’t want anybody to know that they really aren’t all that smart, that they got burned.  It would be humiliating.  And Goldman Sachs’ argument plays on this desire to conceal that the “victim” won’t admit to being the dope in the room.

The other problem is that it ignores that it’s a scam from the start.  The objective is to make a beautiful pig, whether by a little lipstick, or more.  Paulson bet against the risk because it knew the ABACUS product was a pig.  The gig was all about making the pig sufficiently beautiful that it would pass scrutiny (to the extent any actual scrutiny happens) with others.

Even if buyers were indeed the sophisticated Big Boys that Goldman, and the victims themselves, would profess to be, you still can’t run a scam on the theory that the victims should have known better.  It’s enough that the seller of the securities knew that it was a pig under all that lipstick, whether the make-up job was good enough to slide it past the victim or not.  Even if no one was fooled, running scams is a wrong.  Even on Wall Street.  Even if you’re Goldman Sachs.

But the real flaw of the argument is that the ultimate victim is never the Big Boy.  The Big Boy plays with the money of the little pipsqueaks, put together in a really big pot.  That’s out money, that was aggregated and shipped in a single electronic transfer to Goldman Sachs.  Millions of our little pipsqueak dollars were aggregated to make a check big enough to interest GS. 

We thought the guys we handed our money to were Big Boys as well, which is why we trusted them with it.  They told us they were sophisticated.  We believed them.  They told us they did their due diligence. We believed them.  They told us to trust them with our money, and we did. 

When the Big Boys get burned, so do the pipsqueaks.  The only Big Boy here was Goldman Sachs, and it was a bad boy too.

The Supreme Court denied cert.  yesterday to Charles Dean Hood, the latest joke played by the Texas Court of Criminal Appeals.  You may remember it as the one where the judge, Verla Sue Holland , was deeply in love with the prosecutor, and, well, stercus accidit.

Scott Henson at Grits for Breakfast  spells out the details, so no need to do so again here.  It’s enough to know that the justices of the Supreme Court are romantics at heart, and not even an execution can stand in the way of true love. 

The good news is that Hood will get a new trial, purportedly because of erroneous instructions.  The bad news is that there’s no impropriety if the judge is screwing the prosecutor in an entirely different way than everyone else.  It’s almost like  they’re librarians .

Ain’t love grand?

The Supreme Court heard oral argument in City of Ontario v. Quon, providing the perfect opportunity for criminal defense lawyers to get a bird’s eye view of the folks into whose hands the future of the Fourth Amendment is placed, should Orin Kerr’s tech neutral  approach become the format for future of search and seizure law.

The point isn’t the Quon case per se, which is about the Stored Communications Act, a boring yet unconstitutional law that circumvents the Fourth Amendment because Congress says so, but about how tech neutrality plays out.  The notion is that the myriad of issues raised by developing technology and the digital world under the Fourth Amendment should be addressed by applying the rules developed over the past century for brick and mortar searches and seizures to electrons by analogy.  Orin explains it in his article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010), but that’s my shorthand version.

Just in the nick of time comes this post from Ashby Jones at the WSJ Law Blog .  Meet the tech savvy justices who will be deciding which analogy to use to deprive you of your constitutional rights.

According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

No doubt this will make you feel a whole lot more comfortable putting the future of our freedom from unreasonable searches and seizures into their hands, appreciating their firm grasp of technology and the ability to discern which exceptions to the Fourth Amendment to apply by analogy under any given circumstances.

I bet you’re shocked to find out that Supreme Court Justices probably didn’t pre-order the iPad, desperate to be on the cutting edge of cool.  And yet, let’s place our faith in personal freedom in the ability of Luddites to apply horse and buggy rules to the digital world.  It would be a shame to waste a century of exceptions, right?

H/T Orin Kerr , who loves irony as much as I do.

Update:  And here’s some more exchange  via Orin:

CHIEF JUSTICE ROBERTS: Do any of these other people know about Arch Wireless? Don’t they just assume that once they send something to Quon, it’s going to Quon?

MR. DAMMEIER: That’s — that is true. I mean, they expect –

CHIEF JUSTICE ROBERTS: Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.

MR. DAMMEIER: Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And –

CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.

And that, tech neutral types, is how the law and tech intersect.

There’s nothing unusual about a defendant being on trial for his first arrest.  What is unusual is when that he’s the person who made the arrest, and it was his first as a police officer.  The trial of Patrick Pogan  for his assault on bicyclist Christopher Long during the Critical Mass rally in Manhattan has opened, which I like to call the “Big Shove.”

As it turns out, Pogan, who has since resigned from the force, was a mere baby cop when he become a video star of the internet.  According to his lawyer, Stuart London, Pogan was just following orders.

But Mr. London said during his opening statement that Mr. Pogan, who had been on the force for just 11 days when the confrontation happened, was naïve and simply following the orders of his superiors. At a briefing earlier that evening, a captain told Mr. Pogan and other young officers that they needed to issue summonses, Mr. London said.

“How do we stop them?” an officer asked, according to Mr. London.

“Do what you have to do to get them off their bikes,” the captain responded, according to Mr. London.

So Pogan ran over to Long and slammed him off his bike as Long tried to pass.  A bit literal, but it did serve to get Long off the bike.  Still, this fails to explain why Pogan decided that Long would be the person to be debiked.  London explains that too in his opening.

Mr. Pogan’s lawyer vigorously attacked Mr. Long, 31, as a reckless, pot-smoking miscreant who was the provocateur that night.

“Christopher Long is a bike rider that conned Pogan in this whole situation,” Stuart London, Mr. Pogan’s lawyer, said in his opening statement. “Christopher Long is a bike rider who knew exactly what he was doing.”

So it was the crafty criminal mastermind, bicyclist Long, who played agent provocateur to naïve rookie Pogan, compelling the officer to run toward Long and body slam him to the ground as part of his scheme as a reckless, pot-smoking miscreant.  This wasn’t immediately clear from the video  that’s been around since the incident, or apparently a second video taken by a cyclist behind Long.

(Addendum: At the request of readers too lazy to click on the link to see the video, here’s a reprise)

Now that London cleared that up, what of the criminal complaint  filed by Pogan alleging that Long attacked him (and it should be noted that police officers, in the heat of performing their stressful work, sometimes confuse who attacked whom.  No seriously, it can happen).

The arrest was Mr. Pogan’s first, Mr. London said, and his sergeant was the one who filled out the report. Mr. Pogan merely signed off on it, and was not trying to cover anything up, Mr. London said.

There you have it.  Pogan wasn’t being evil, but just didn’t read the complaint when he swore it was truthful.  I mean, does anybody serious buy into that whole swearing to tell the truth thing?

There is a monumental schism between the defense of a cop and the defense of anyone else in America.  When defending a cop, as London regularly does on behalf of the PBA, you can make outrageous claims and allegations that would be absurd when defending anyone else.  This is because people want to believe that the police are here to protect and serve, are really the good guys, would never do what is clearly shown on the video.  People struggle to find excuses, no matter how far-fetched, for their wrongdoing.  They need to believe.

London’s allegations about Christopher Long are ridiculous.  That doesn’t mean that they won’t fly, although this particular case presents one of the longest stretches to reach for a not guilty verdict we’re likely to see.  Whether it flies will be told when the verdict is returned.

Until then, it’s worth bearing in mind that had there been no video of the Big Shove, it would have been Christopher Long on trial for assaulting rookie cop Jason Pogan.  And the verdict would have likely been a foregone conclusion.

Orin Kerr announces  that his latest law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010), is now online.  This is the abstract.

This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.

My eyes burn as they absorb each word.  Oh, the horror. 

As courts, invariably reaching to grasp a way to deal with the intersection of technology and the Fourth Amendment, look to a credible source for guidance, Orin has emerged as one of the foremost thinkers.  His works are regularly cited, and serve to provide a foundation for consideration of the constitutionality of search and seizure law as applied to the digital world.  He’s a player.

It’s been clear for some time that Orin’s “net neutrality” approach, the application of existing “brick and mortar” Fourth Amendment precedent to evolving technologies and the digital world by analogy meant that we are doomed.  Same black letter law.  Same 17 million exceptions to cover every search.  Same judges using the “file cabinet” analogy to explain why suppression is denied. 

Don’t believe me?  Then do what every cautious lawyer does on Sunday night.  Watch the Celebrity Apprentice, Rod Blagojevich  edition.  He’s turning a laptop computer upside down, looking for a pencil perhaps.   Granted, Blago was a governor, not a judge, but neither post has a test for computer literacy.  Do you really think judges are inherently more savvy than Blago.

Ultimately, the technology neutral approach leaves it up to the only person in the room who can’t distinguish a text message from twitter to decide which inapplicable analogy strikes him as most appealing.  At least when we went from Conestoga to Packards, you could see that one had chrome and the other didn’t.

Since Orin first floated his tech neutral approach, I’ve tried to persuade him that it was the wrong way to go.  I’ve failed.  Now that his latest law review article is out there for all to see, it’s too late to undo the damage that Orin Kerr has done to the future of the Fourth Amendment.

There is, however, one saving grace.  No one who would use his misbegotten theory to justify suppression can find it, because they don’t know how to turn on the computer, and even if they did, would never be capable of formulating a viable Google search.  Now, if only we can rid them of their law clerks, there may still be hope.

When Dwight David Eisenhower appointed Earl Warren to be the Chief Justice of the Supreme Court of the United States in 1953, it was the “biggest damn fool mistake [he] ever made.”  The Warren Court did not perform the way President Eisenhower expected, and he wanted his money back.

Adam Liptak explains that recently retired Associate Justice David Souter was the last of the stealth appointees.

When liberal groups analyzed Justice Souter’s record as New Hampshire’s attorney general and as a justice on the state’s Supreme Court, they concluded that he was a hard-core conservative.

It didn’t quite turn out that way, though some may question whether it was Justice Souter who shifted a little to the left, or the court that shifted a lot to the right.  Since then, we’ve had no big surprises:

But 1990 probably marked a turning point in the confirmation process. The six justices appointed in the two decades since have performed largely as expected, probably thanks to increased scrutiny of more robust paper trails and less ideological drift.

The contemporary nominee’s résumé yields so much valuable information, legal scholars say, that unexpected judicial decisions are much less likely now. Nominees’ backgrounds these days often include work for the executive branch in Washington and substantial service on a federal appeals court.

The reason for the accuracy is that candidates are drawn from one of two places, either federal appellate courts where they have long records of written decisions demonstrating their views, or service in the executive branch, where formal and informal discussion clarifies their true leanings, at least to others in the executive branch.

The talk that the only criteria for appointment is competence is sheer and utter nonsense.  That’s not to say that anyone suggests that appointees are not competent, but competence alone will get you a seat in the gallery, provided you wait on line.  It’s competence plus agenda, the clear and demonstrable showing of adherence to a political and philosophical view upon which a president, and senate, can depend. 

This means that the pool of candidates for the Supremes won’t include a trench lawyer.  Not for Republicans, and not for Democrats either.  Not now, and now in the future.  Never again.  And if you lawprofs think that’s funny, you aren’t in the pool either, unless you are able to get a gig on the circuit bench.  Of course, there’s a far better chance for a lawprof to wind up in a robe than your typical trench lawyer, so maybe you get a chuckle or two.

The problem is that the pool of potential appointees is so small, and so insular, that our third branch of government is comprised of an elite within an elite.  For anyone who believes that the Supremes are, by virtue of their job, detached from the reality of society in general, and even the practice of law in the trenches, consider that the desire to make absolutely certain that no one gets the nod without having an absolute lock on their views means that the broadest segment of the legal profession, no less society, will never again be represented on the Court.  That’s an awful lot of experience to be ignored.

Given that Supreme Court appointments are for life, in order to immunize the court from transitory political whims and empower justices to make bold decisions without fear of impact, the limitation of future appointees to be drawn from this incredibly narrow pool of federal appellate judges and top executive branch staff is frightening.  These are the people who make the rules by which the rest of us live, and few of them, if any, have every actually lived life on the streets like the poor schnooks who have to abide their rulings.  Their decisions describe a view of reality from on high, like the “new professionalism” of cops, or the incentives/disincentives for alleged criminals.  As if they have a clue.

The irony is that presidents, who are elected based upon transitory political whims, get to name folks to the court who will sit in their seats for decades after the presidents are turned out of office.  While the appointments may reflect the public’s will at the time of their appointment, that doesn’t mean that their political and legal agendas are still suited to the good of the Republic decades later, and that leaves one branch of government with potentially poor choices for a generation to come. 

Of course, this cuts both ways, and whether one sees the court as too liberal or too conservative, it’s political foundation is firm and predictable.  Considering how many 5-4 decisions have come from the Supremes since Justice Souter took the bench, how tenuous the basic law of the land has become with a single vote sufficient to change the rule of law 180 degrees, the Supreme Court has become little more than a proxy for political hardball based on the guy naming names.

What the American people won’t be getting is a court comprised of men and women who bear any resemblance to them, or have much more of a feel for their lives, and hence the impact of their decisions, beyond the way it looks from the heights of an appellate bench.  No matter how brilliant or well-intended, there may never be another Supreme Court Justice who knows anything about life on the street again.  And that won’t stop them from telling us what it’s all about.

In preparation for sentence, a defendant charged with financial crimes (the erstwhile “white collar” criminal) will do everything possible to show the court four things.  First, that the crime was an aberration, and that he’s otherwise lived an exemplary life, committed to helping others and charitable causes.  The defendant is sincerely remorseful for his conduct, often borne of some psychological defect or trauma that diminishes his moral culpability.

Second, that people depend on him, both personally and professionally, and incarceration will cause significant harm to others who are innocent of any wrongdoing.  Usually, there will be letters from friends, family, employees, clergy, attesting to the positive impact the defendant has had on their lives, and the negative impact his imprisonment will have. 

Third, that there is no purpose to be served by imprisoning the defendant, there being no likelihood of recidivism, no threat to society, no need for rehabilitation.  Fourth, that the defendant has already suffered devastating consequences, from the loss of his savings, often home, career and reputation. 

Done well, the presentation at sentence can be a moving experience, particularly for the defendant and his family and friends.  It humanizes the person called “defendant” and the life summed up in counts in an indictment.  Yet, it doesn’t necessarily produce the empathy that defendants expect, much to a defendant’s anger and amazement, and to the heartbreak of his spouse and family.  The inevitable question is why?

Sam Fishman  was a lawyer with Latham & Watkins, who threw in a little for himself when billing for his firm.  As billing partner, he changed expenses, charged them off to clients, and pocketed the small change.  In the scheme of financial crimes, this one was embarrassingly petty, amounting to a loss of $350,000 over 13 years.  It ended one day, and he pleaded guilty to mail fraud.  At sentence, Fishman tried to show that he was, aside from his crime, a “distinguished, reputable, highly-esteemed model citizen.”  He sought a sentence of probation.  Instead, he was sentenced to 15 months.

After imposing sentence, Southern District of New York Judge Victor Marrero did something very unusual.  He explained himself.  His explanation, of why all the wonderful reasons offered by Fishman’s lawyers at Littman, Asche & Gioiella, failed to achieve their intended purpose.  It’s a remarkable explanation of the flip side of a life of virtue, marred only by a life of crime, and it’s incredibly instructive in understanding why, all the fine sentencing arguments aside, the court may not be inclined to be as sympathetic to the defendant as he might hope.

In seeking the Court s leniency, Fishman has made an impassioned case here and in his extensive written submissions that raise several significant issues. The professional thoroughness and diligence evident in counsel’s preparation, the strength of advocacy and the level of support expressed for Fishman by friends, family and business associates, call for a correspondingly detailed explanation of the Court’s ruling.

As a point of departure, the Court notes that Fishman’s presentation, though stressing points that argue for uniqueness, distinction and individual consideration, in fact is not uncommon. The Court has heard much of the argument in echoes from similar pleas for mercy frequently urged in this courthouse, indeed in courtrooms across the country. In particular, Fishman’s argument falls into a pattern advanced by a subset of the white collar criminal. This category encompasses a select class: distinguished, reputable, highly esteemed model citizens such as Fishman. The list of their achievements and virtues is long and impressive. At home they are good family men and women, caring spouses, loving parents, loyal and reliable to friends. At work, they are looked up to as outstanding professionals and business partners. To their community’s charities and public causes they are generous patrons and sponsors. And as worshipers they are devout, often rising as leaders of the congregation.

Yet, for all of their outward rectitude, these otherwise good people suffer a fatal flaw: they sometimes lead a double Iife.  Somewhere at the core, in a distorted dimension of the soul, the public image they present is as false as the lies they tell to sustain the appearances of an exemplary life. And somehow, for reasons that always defy reason, they fall into crime, doing wrongful deeds that seem aberrational, selfish and greedy acts that, when caught, they claim are entirely out of character with their otherwise law-abiding lives.

A copy of Judge Marrero’s sentencing memo  was sent to me yesterday, and I read it for the first time.  It’s worth a full read, for a excellent appreciation of how the court will look at your presentation, as well as something to offer defendant’s so that they can better understand why their life of virtue (aside from their crimes) doesn’t guarantee them a pass.  Judge Marrero’s reasoning is enormously instructive in explaining the applicability of the sentencing criteria and the nature of mitigation for the financial crime defefendant.

But more to the point, the client who views himself as a “distinguished, reputable, highly esteemed model citizen” often finds himself incapable of appreciating that when he stands before the court for sentencing, he’s a criminal defendant.  No matter what he’s done before, there remains a crime for which a sentence will be imposed.  Both the defendant and his counsel need to be prepared to face this challenge and reality.

Like some early risers, coffee is an important part of my morning routine. After five or twelve cups, I’m ready to greet the new day. Having done this for many years, I’ve grown rather attached to the vessel that holds the brown elixir of life.

It was purchased on a lark in 1977 at a store in Ithaca, New York. The name of the store has long since faded from memory, as have so many other things from that era. But the mug remained. It was the mustache shield that caught my eye, a way to keep the bristles dry while sipping. Ironically, it’s a right handed mug, and I drink my coffee with my left hand, but that didn’t matter. It struck me as a cool cup at the time.

No one else around the house, whether fraternity, apartment or single-family, since would drink from it. It was my mustache mug, and there was no mistaking it. It’s not that anyone else particularly wanted to drink from it, but it was sufficiently peculiar that it was reserved for me.

The mug remained intact, but for some fading to the blue field of Old Glory and some darkish stains in placed where my cleaning fingers couldn’t fit, for many years. Then my daughter reached her teen years and was ready to share in the dishwashing duties. On her very first night at the sink, there was a sound of a small crash. Nothing huge, but enough to be heard from the next room. We smiled. This was to be anticipated, as the feel of soap suds through one’s fingers gave rise to rookie slips.

When I walked in to sooth her, I saw in her eye a tear, and in her hand, a mug. It was my mug. There was a chip in the rim where once there was only the remnants of coffee. I told her it was okay, it happened to everyone and not to worry about it. She looked at me, doe-eyed, and said, “but Dad, it’s your mug.” I kissed her forehead and told her it was fine. She smiled and went back to work.

I walked in the other room in shock. For decades, I drank from one mug. One. What would I do now?

The next morning gave me the answer. I drank from the sides of the mug without the chip. More chips, and a crack, developed since then. I had to be more cautious about where the mug and my lips met, but I was up to the task. Dr. SJ thought I was ridiculous, using this broken down old mug every morning. I added it to the list. Until a suitable replacement could be found, it would have to do.

A package arrived at my office about a week ago. I wasn’t expecting anything. It was from Colin Samuels of Infamy or Praise fame. Inside was something he thought I would enjoy.

I can’t bring myself to throw out the old mustache mug. I know it will eventually wind up in the earth, but not today. But my morning coffee comes to me in a new vessel. Thank you, Colin.