In the never ending saga of bar associations trying desperately to put on a program that will attract the scarce free cash of lawyers in a poor economic climate, combined with the trend of idle hands believing that there’s money to be made by defending the devil, the New York City Bar Association is offering a three hour CLE for a mere $205 on a subject near and dear:

YOU DON’T PRACTICE CRIMINAL LAW &

YOU GET THAT MIDNIGHT PHONE CALL…

NEW YORK CRIMINAL PRACTICE 101

Who is this program for?

If you haven’t thought about criminal law since you were required to take it in law school,what can you expect to encounter when a client calls you in the middle of the night about a criminal matter? What questions do you ask? How do you counsel your client? What should you do—or not do? This program is a must for any attorney unfamiliar with the practice of criminal law.Find out everything you need to do to preserve the rights of your client (whether dealing with a minor problem or a serious matter) from the first minute your telephone rings.

Not ready to hand over your credit card yet?  Consider the expertise of the program chair:

Frank R.Dudis 
Deputy Bureau Chief
Kings County District Attorney’s Office
Investigations Bureau/Public Assistance Crimes Unit

Who better to teach how to defend an accused than a prosecutor? Talk about an insider, and as we all know, it’s all about being an insider, with the little wink and nod as the backroom deal is cut.

The program covers everything from the initial phone call through disposition.  Trial isn’t mentioned in the program, but collateral consequences are.  And there’s even a Q&A period before your three hours are up.  Imagine, a mere three hours of your life and you can then confidently represent individuals accused of crimes, who may spend many years, perhaps even their life, in prison should things not go well.  Is this a great program or what?

There is a perception amongst civil lawyers that criminal law is sexy, and compared with what they do, it is.  There’s a perception that criminals are worthless, so they have few qualms about trying to take every penny they can grab.  Heck, it’s almost a duty to redistribute money from the bad guys to the good, and they are most assuredly the good guys.  Remember, in the world of civil litigation, it’s only about money.  No one’s life is on the line, and the only question is how big a pie will provide their third.  With that in mind, and business slow, the notion of passing up the midnight phone call (perhaps with the knowledge that two-thirds of the pie remains in their escrow account) or handing it off so someone else can make a fee is just, well, ridiculous.

It’s one thing to disabuse civil litigators who think they can pretend to be criminal defense lawyers by feigning a swagger and a sneer, but it’s another altogether to have bar associations place their imprimatur on the idea.  Who came up with the idea that a three hour tour course makes someone competent to defend a human being accused of a crime?  Brilliant and idiotic at the same time.

As a public service, I will teach that course in seven seconds.  What to do if you don’t practice criminal law and you get that midnight phone call?

Immediately refer the case to a competent criminal defense lawyer, then go back to sleep.

That ought to be worth 1 CLE credit in ethics.

H/T Andrew Lavoott Bluestone at New York Attorney Malpractice Blog.

Via Radley Balko, a Wisconsin prosecutor has decided that he will wield his power to indict and prosecute teachers for teaching students about contraceptives.  His theory is that since children aren’t allowed to have sex under Wisconsin law, providing sex ed about contraceptives encourages students to break the law.

The problem is that teachers are required by law to teach students about contraceptives if they teach sex education at all.

The law doesn’t force any schools to teach the sex education classes, but it sets out strict guidelines on what should be taught in the schools that choose to do so. The law passed narrowly in the legislature and was the topic of a fierce battle between Republicans and Democrats: No Republicans voted for it, and it was signed by a Democratic governor.

The legislature passes a law, the governor signs it. The district attorney prosecutes for complying with it. 

Because the law requires teachers to instruct children not only about contraceptives but about how to use them, Juneau County District Attorney Scott Southworth said, schools are forced to encourage students to “engage in sexual behavior, whether as a victim or an offender.”

In his letter, Southworth said the law would convert sex education classes “into a radical program that sexualizes our children as early as kindergarten. This, in turn, will lead to more child sexual assaults.”

Putting aside, for the moment, the question of whether one agrees with the law or the teaching of contraceptive measure in sex education classes, an issue that may well be controversial for some, DA Southworth has, by his threats of prosecution, undermined the fundamental structure of government.  Forget those silly roles played by the legislative and executive branches; local district attorneys now posses the super-veto to quash compliance with a law with which they disagree.

This reflects a change in mindset in the scheme of criminal law.  Clearly, subjecting teachers to prosecution is, in itself, a substantial harm.  Where the law mandates it, then the prosecutor’s imposition of that harm is justified.  Where the law does not mandate it, then the prosecutor has gone rogue.  Where the law mandates the opposite, the prosecutor goes beyond rogue into the realm of threat to society. 

The power to prosecute is awesome.  It’s a power that can be easily abused, with devastating results.  But when it’s flagrantly abused, deliberately and purposefully to undermine the process of government, what little integrity the system maintains is lost.

While Southworth’s threats may be viewed as mere grand-standing shenanigans by some, it strikes me as ample demonstration that he’s incapable of handling the authority that comes with his position.  He is a threat to both law and order.  That he feels empowered to threaten prosecution based upon his political sensibilities, about what he thinks should not be taught to children, reflects a clear inability to be trusted with the authority to prosecute.

Rep. Kelda Helen Roys, a Democrat, told the Wisconsin State Journal that she believes there’s no problem with the law.

She said Southworth, a Republican, is a “zealot” who wrote the letter to try to scare people out of teaching the sexual education classes.

Whether accurate or not, this is a woefully inadequate response.  The question isn’t whether there’s “no problem with the law,” but whether the State of Wisconsin will be held captive by the Juneau County District Attorney.  Is it acceptable to this representative, to all the reps, to the Governor, that laws duly enacted meet with Southworth’s approval?  And what of the other prosecutors?  Must the laws meet with their approval as well?  Must the legislature and governor go begging for permission to pass laws in the State of Wisconsin.

That a prosecutor would be allowed to remain in power, while threatening prosecution of those who not only commit no crime, but comply with the law, reduces the state government to a farce.  This abuse of power cannot be tolerated, and this attempt to usurp the power of the state must be quickly and decisively brought to an end, lest we end up with prosecutors running the world and using their power to engineer society to their liking.

Bruce Carton twitted yesterday about this latest barrage from scam lawyer website BestAttorneysOnline..  You may recall that Bob Ambrogi called it out, as did I.  But it’s still out there, and still puliing stunts designed to mislead and deceive.  Hey, anything for a buck.  Isn’t that why the internet exists?

This time, the scam lawyer website announces the .  How did they arrive at this venerable list?

A research team reviews thousands of applicants, and performs an evaluation of each firm based on established criteria. A series of questions are posed, such as “Do they represent each client fairly providing the best possible defense and representation?” or “How extensive is the firm’s knowledge of case law when it comes to an individual’s rights?”.

Seriously, that’s what this scam site says.  I wouldn’t make this up.  I couldn’t.  And thus, the list:

The nation’s 10 best criminal attorneys for April 2010 are:

1. Kochhar & Co.
2. Marks, Golia & Finch, L.L.P.
3. Malaby & Bradley, LLC
4. Jackson Lewis LLP
5. Vogel Law firm
6. Garbarini & Scher
7. Ziegler, Metzger & Miller LLP
8. Schrader Byrd & Companion, PLLC
9. Sirkin Pinales & Schwartz LLP
10. Barrett Daffin Frappier Turner & Engel, LLP

Anybody want to take a wild guess what’s wrong with this list?

The deluge of crap that permeates the internet is never-ending and utterly shameless.  It’s out of control.  For any lawyer who tries to do right, there are a hundred, a thousand, maybe more, doing anything they can to lie and deceive. 

For those who appreciate lawyer marketing as a means of leveling the playing field, offering the small firm and solo lawyer the opportunity to get their name out to the public, this is the flip side of the argument, that the public is being scammed unmercifully by those inclined to do anything for a buck.  It’s tiring and tedious to deal with this day after day.  And it never seems to stop.

For those who argue that all this information helps consumers, what do you say about these scam websites?  What do you say about the lawyer websites that deceive?  Where does it stop?  And what are you doing to stop it?

Or are you too busy promoting yourself to bother?

The imbroglio started when a fellow named Jack Marshall, an unknown and inconsequential quantity in the blawgosphere, leveled an accusation against Eric Turkewitz, a well-known, highly-regarded New York personal injury lawyer and blawger.  It was a direct charge that Turk violated Rule 8.4. 

This wasn’t about discussing whether conduct was violative, but that a specific lawyer violated a specific rule with specific conduct that could result in sanctions ranging from suspension to disbarment.  It’s the lawyer equivalent of yelling rape.  And Jack Marshall was the yeller.  And the sole basis for accusation was that Marshall pronounced it to be so, because Marshall, per Marshall, was an ethics expert.

He was told he was wrong.  Over and over and a variety of ways by a variety of people over a period of days.  During that period, he had the time to write two additional posts, The April Fool Lawyer and His Defenders: Ethical Dodges on Display, and then, amazingly, decided that Jack Marshall was important enough to write the rules for everyone else, April Fool’s Day Ethics.  He called a lot of people names.  I was one for having stood up to his accusation against Turk, but the bloodletting went on for quite a while.

I watched in morbid fascination as the comments came in, trying nicely, angrily, sweetly, attackingly, to tell Marshall he was wrong.  He attacked in response.  He was right.  He was absolutely certain he was right.  He was the expert and everyone else was a fool, an idiot, all manner of stupid, because he was right. More than 100 comments at his blog (note spelling).

Then suddenly, he wasn’t.  Jack Marshall announced I was wrong, you were right.

He apologized to Turk, which Turk gracefully accepted.  Others praised his willingness to admit he was wrong and apologize.  The “hoary” (to borrow a word) chestnut that it takes a big man to apologize was floated.  Kumbaya was heard in the distant background.  The train stopped wrecking itself, over and over, and we could all return to our normal blogospheric viewing.  Who cared that some idiot named Marshall flung a false accusation, raised a ruckus against a respected lawyer, smeared many of the most respected members of the blawgosphere, then skunked off with his tail between his legs, admittedly wrong?

Despite watching for the past two days, mostly laughing at the antics of one of the most pompous, narcissistic ignoramuses I’ve yet to see online, I’m not satisfied with this conclusion.  Marshall proceeds to “explain” the error of his ways.

I’m not going to spin this. My conviction that the web hoax engineered by trial lawyer/blogger Eric Turkewitz violated the legal ethics rules was the product of a toxic mix of factors, prime among then being that I didn’t review my own files.

Yet spin is all it is.  Even this opening sentence, claiming that his fault was not reviewing his own files, is a outrageous lie.  Does he have files that inform him not to accuse others falsely of wrongdoing first, then think later?  What file does he need to tell him not to falsely accuse someone?  What a load of crap.

I had been wallowing in obscure clues from other jurisdictions–Tennessee, for example, which has the ABA wording but an odd Comment that begins…

[4] Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law…

This could be taken to mean that all such conduct reflects adversely on fitness. The problem is, I don’t believe that, and I don’t believe that Tennessee means that.

Spare me.  The old “obscure Tennessee caveat” defense?  At no time did Marshall “reveal” his argument that he was relying on the Tennessee interpretation.  In fact, at no time did Marshall say he was relying on any obscure state rule.  In fact, he disavowed, numerous times, that there was a need to rely on any interpretation, caselaw or otherwise, smacking those who tried to tell him otherwise that they were wrong.  They were idiots who didn’t get it like he did, because he was the expert and they were morons.  It wasn’t that Marshall just got it wrong, but that he viciously attacked back at every chance.

Run through the list of adjectives used by Marshall in this post and his response to comments.  Anybody see a reference to an obscure Tennessee interpretation?  But now there’s no spin? 

I picked Eric’s hoax, moreover, for another bad reason: I was rubbed the wrong way by his post criticizing the New York Times for falling for it. But that’s not ethics, that’s style. I let it warp my judgment.

Notice that it’s still a hoax rather than an April Fools Day joke or prank?  Notice that he’s still justifying his reaction, despite the backdoor concession?  It may not have been an ethical violation, Marshall now says, though Turk was still wrong for criticizing the Times, which is what compelled me to do it.  He’s wrong, but not blameworthy.

So, with incomplete disregard for my accumulated research and my prior positions, I wrote that Eric’s fiction was an ethics Rules violation. Then I compounded the blunder by focusing on the counter-arguments initially chosen by Eric, Carolyn Elephant, and Scott Greenfield, which were more emotional and abusive than analytical, rather than considering whether they had something to be emotional and abusive about. It was a good platform to write about how lawyers and others resort to rationalizations, and I took the bait…

And the “counter-arguments” (which by definition elevate Marshall’s original attack from false accusation to argument) were “emotional and abusive.”  Marshall still doesn’t grasp that his false accusation was utterly baseless, the narcissists dream of alleging a wrong because Marshall, the center of his own universe, says so.  This malicious, self-aggrandizing narcissist still doesn’t get that the responses were geared to his baseless, ignorant, false accusation.  The false accuser whines that those who called him out were “abusive”?  Do you think that the “abusive” attacks against you might have something to do with the fact that you began this mess by falsely and baselessly accusing Turk of unethical conduct?  Does that detail not enter into your warped psyche?

Without question, it’s better that this worthless, pontificating, ignoramus finally conceded that he was wrong, even if he does so in a vain attempt to salvage what remains of his reputation only after the universal condemnation of the blawgosphere.  We tend to be a fairly forgiving bunch, and the amount of energy put into dealing with this otherwise inconsequential self-promoter far exceeded his worth.  But I don’t buy his apology.  Not in the slightest. 

I believe the apology is wholly disingenuous, replete with spin at every turn.  I believe that Marshall is trying to resurrect himself, only because he now realizes that he committed marketing suicide with the universal condemnation.  His apology is nothing more than a carefully crafted rationalization of his misconduct.  His apology continues his attack, merely from another angle.  Even wrong, he’s still right.

Since Marshall never offered an apology to me, I have nothing to accept or reject.  If he had done so, I wouldn’t have bothered with it.  He’s unworthy of my concern either way.  But Turk is.  Carolyn is.  The myriad blawgers who tried to straighten this jerk out are, and this post is for them, and me. 

You do not falsely accuse someone of wrongdoing first, then figure out whether you’ve got any basis later.

You do not justify your accusations by claiming to be a false prophet of ethics, while attacking others as ignorant fools.

You do not spend days viciously attacking those who are telling you that you’re wrong, when you’re wrong, then claim that you were only wrong because you didn’t have the time to “review your files.”  There is no justification, none, for your attacking first then thinking later. I can’t imagine a more pathetic, disingenuous, claim.

You do not get to apologize after having done all of this and then expect to get a trophy for being a big enough man to admit your error.  The best you get is minor mitigation for your many wrongs.  And they were many.  But even the minor mitigation is undermined by your attempt at self-aggrandizement and rationalization in the apology. You net out zero.

Jack Marshall, the owner of ProEthics, a company that sells CLE courses, has destroyed his credibility.  Jack Marshall, blogger at Ethics Alarm, has engaged in rampant unethical conduct, based upon his own claims of what constitutes ethical conduct.  Jack Marshall cannot pretend it was just a big, silly mistake and expect to be welcomed back into the fold as an ethics expert.   Anyone who listen to Marshall is a bigger fool than he is. 

This fight has come to a conclusion.  Eric Turketwitz has done nothing, repeat, nothing unethical.  The baseless accusation against him was false.  And false accuser Jack Marshall’s 15 minutes are over, and he should never be heard from again.

If others forgive him, that’s their choice.  Some may think that he deserves a second chance.  That too is their choice. I believe he’s a danger to ethics.  He can have a second chance being a dog catcher, not an ethicist (if he ever was one except in his own mind).  I have deliberately used a wealth of ad hominem attacks on Marshall because I believe he should be attacked for what he’s done and how he’s done it. I am deliberately harsh.  That’s what Marshall deserves.  It’s unfathomable to me that anyone would pay heed to this worthless twerp on any subject, no less ethics.

When I received the email announcing a study of plea bargaining by a doctoral candidate at John Jay College of Criminal Justice, a part of the City University of New York, and seeking participants, there was no hesitation.  Not only did I want to participate, but I wanted very much to see more about the study.  I emailed immediately.

Within minutes, I received the information and was ready to jump in.  It began with some basic case/investigation information and then launched into questions.  I won’t provide any background on the information, as some readers will also participate in the study and, to the extent it’s to have any validity, disclosure here would spoil it.  I won’t do that.

The first question to be answered in the study was:

1. If you were the defense attorney in this case, would you recommend that the defendant accept a plea bargain if one is offered by the prosecutor?

                  NO                YES

Oh my God.  It was only question number one and already I was stumped.  There was no possibility of answering a question like this question.  Stymied, I called the number provided for any questions about the study.  No answer, so I left a message. 

Could this be a trick?  Maybe a test for tolerance for ambiguity?  Maybe the legal version of Stanley Milgram?  Was there some secret hidden meaning in this being the first question, a test perhaps of whether defense lawyers were so incompetent, thoughtless, uncaring, that they would respond without any of the hundreds, no thousand, maybe more, bits of information on the variable factors that go into such a complex decision as to whether to recommend that a defendant accept a plea bargain.

I quickly decided that anyone who answered this question should be disbarred.  Possibly tarred and feathered after being disbarred. First maybe.  Whatever, it was an absurd question.  After waiting a few minutes, and having other things to do, I decided that it was a trick and answered “no”, my reasoning being that I could absolutely not recommend a plea bargain without having all the reason to aligned to do otherwise.  “No” was my default. 

A few minutes later, I received a call back.  After niceties, I explained that I called because I was stumped by the first question.  She was concerned.  This wasn’t a trick question.  It was just a question, one that she thought would be rather straightforward.

I explained to the doctoral candidate that it was an impossible question and gave her about a dozen variables that would have to be answered, at absolute minimum, to formulate an opinion.  She had not thought about the variables; she was very much interested in studying plea bargaining, an area she informed me that was terribly understudied, but wasn’t familiar with legal processes.  Instead, her study sought to isolate particular factors in plea bargaining, such as a weakness in a specific aspect of evidence, and its impact on the willingness to take a plea. 

It was a fine idea, but without isolating the element she sought to study, rendered her study kinda, well, goofy and pointless.  It wasn’t easy to do, I recognized, and it was extremely unlikely that her study was going to accomplish much.

John Jay isn’t a law school, but one dedicated to the study of criminal justice.  I’ve never been entirely clear what that means, but I expect it turns out a lot more cops and corrections types then, say, criminal defense non-lawyer occupational-types.  There are likely many who are involved with criminal justice on both sides of the fence, as well as neutrals, but not many who could offer the perspective of a criminal defense lawyer to a doctoral candidate. 

That nobody suggested that the decision to accept a plea bargain required, at minimum, a fact (like what the deal might be) is pretty surprising.  That somebody is trying to get a doctorate without knowing this is, well, surprising.  That the committee that approved this study didn’t find this troubling is, well, surprising.  Interdisciplinary is one the buzzwords throughout academia these days, and while the study was being done under the auspices of the forensic psychology department, there had to be a lawyer or two they could have asked to take a look at it.  I know they have some lawyers working the adjunct side of the street, and Jeremy Travis, the President of John Jay, used to be an aide at the Legal Aid lawyer before he went all official.  They could have asked somebody.

The blawgosphere often discusses the results of studies that bear upon what we do.  This scares me.  While I was never so naive before as to believe that any study should be taken as gospel, I could easily push aside the nasty details of construction to get to the bottom line, anticipating that smart people had gone over the structure of the study to make sure that it had some validity from inception. 

But this study passed through the normal rigors, and still it began with a question that couldn’t be answered.  At least not by me.

Over at Crime & Federalism, Mike urges defendants to put it all on the table at trial because of the futility of criminal appeals.  He supports his position by pointing to  the odds of winning, together with the egregious decision in People v. Milosavljevic, 
affirming a conviction despite the appellate court finding the victim’s story

may seem highly unusual, if not improbable, to many people, we cannot conclude her testimony was inherently improbable or unbelievable.

While I agree wholeheartedly with Mike’s primary position, that the best chance of prevailing is at trial, and that’s where every defendant needs to focus all his energy, not to mention financial resources, his reasoning troubles me.  As to the Milosavilievic decision, it’s one example of a bad, no make that horrible, rationale that exposes an unfortunate tendency amongst appellate courts to render result-oriented decisions. 

This is often what comes of cases with bad facts and worse evidence, where the proof may suck but the panel feels that the bad guy got what he deserved, and so the court stretches to sustain the verdict.  When the decisions are fact based, it’s of no precedential value and does nothing more than skim over the law to reach the desired result.  But it’s one case, and that’s not enough to prove much of anything.

More significant are the odds of winning an appeal: 

Ruggero Aldisert, author of Winning on Appeal and one of the finest federal appellate judge, offers these sobering statistics :

United States Court of Appeals—National Average of Reversals
[for 2002]

 

 

 

ALL APPEALS……………………. 9.5%
Criminal…………………………………5.6
U.S. Prisoner Petitions…………..9.5
Other U.S. Civil Cases…………..11.0
Private Prisoner Petitions……….9.9
Other Private Civil Cases……….12.2

From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court:

• All appeals: 1 in 10
• Criminal cases: 1 in 18
• Private civil actions: 1 in 9

These numbers reflect federal appeals, which are a harder win than state appeals in most jurisdictions.  They also reflect all criminal appeals, meaning those that have little or no chance of winning, but are filed pro forma because people have the right to appeal even when they lack any grounds.  Some are Anders briefs (which state that there are no non-frivolous issues on appeal) and others are just mailed in, sounds without fury.   Still, this isn’t to say that the chances of winning on appeal are decent, or even reasonable.

There are a host of reasons why otherwise good cases fail on appeal.  Some, like Milosavilievic, may reflect a results-oriented failure.  Others fail for lack of preservation by trial counsel, where a great appellate issue might exist but for the trial lawyer’s having dropped the ball and failed to object, or having made a strategic choice to go for the acquittal at the risk of losing an appellate issue.  It may also reflect a artful trial judge who sanitizes the record to cover any potentially reversible issue.  There are lots of tricks available that will frustrate an appeal.

Another problem stems from the defendant’s inability to understand the concept of an appeal.  Defendants often think that an appeal is a new trial, a do-over if you will, where they get to present new evidence, argue the opposite of what was argued at the first trial, or at least some variation on a theme.  When they learn that an appeal is based solely on the trial record, that there will be no new testimony or evidence, and particularly that they won’t be brought into court, shackles or not, to sit beside their lawyer, anger and frustration ensues.  It doesn’t matter that they’ve been told all of this already, as clearly and emphatically as possible.  Somewhere in their head is a bone that blocks out the noise emanating from a lawyer’s mouth and hears only those sounds that comports with their deepest desires.

Despite all these reasons why appeals should fail, they don’t.  At least not always, and not when there is the combination of good appellate issues, advocacy and effort.  There’s a fighting chance.  It’s neither a joke nor a waste of time.  Reversals of convictions happen, and the only better feeling than reading that the indictment is dismissed is to hear the jury foreman utter the words “not guilty.”

The point is that the first, and best, opportunity to win is at trial, and no effort or expense should be spared if you’re putting your life on the line before a jury.  Try a case to win, and nothing else.  Of course a lawyer should preserve appellate issues, as it’s just a part of good lawyering, but unless you’ve reached the point in trial where you are certain that the verdict is going to be guilty, decisions must be made to win at trial rather than to create the best appellate record ever.

But if the trial goes south, and the verdict is guilty, that doesn’t mean all hope is lost.  Your appeal may not be a winner for many reasons, and most won’t be for lack of legal basis, no matter how badly the defendant wants to win.  But there are winners, and they are often the product of excellent appellate lawyering.  Don’t save for them, but should appeal be the only avenue remaining, don’t despair either.  There is a good fight to be had, and it is worth the effort.

It’s a new trend.  It’s funny, at least the first few times you see it, but does revealing the reality behind the fantasy make you want to buy?

Or this one?

And what would a criminal defense lawyer have to say that would make someone want to retain her?

Would it be true?  Would it distinguish her from everyone else? 

Then what would she have to say to make the client want to retain her rather than any of a hundred others while still being honest and truthful?

If you recall the TV commercials by Trolman, Glaser & Lichtman, which were quite cutting edge, where do we go from here?

I’ve been called prolific, with good reason.  I don’t care for it, but that doesn’t make it inaccurate.  But today, nothing moved me enough to formulate an opinion or compel me to write.  It happens.

Whenever I don’t post something, readers send emails asking why, what happened.  Nothing happened. I just had nothing that I felt like writing about, so rather than write for the sake of keeping the reader occupied, I took a pass.  I was up late last night watching the end of the Butler/Duke game (and I’m not a basketball fan at all).  I slept late this morning. 

I’m still spending a lot of time every day cleaning up the spam comments, which have continued unabated while becoming increasingly more worthless and spammy.  You would think that the spammers would figure out that their comments don’t make it to the screen and would take their game somewhere else.  But these aren’t the brightest folks online, and come back night after night by the hundreds to post about how they agree with me and (coincidentally) have the cure for toenail fungus or best man speeches.  The crap they sell is unbelievable.  There’s a hypster for every problem.

I started to write a post about Gideon’s latest at A Public Defender, Guilty of being poor, but a few minutes into it realized that I had nothing particularly worthwhile to add.  Like Shakespeare, I don’t always know what I think until I see what I write.  Sometimes, I learn that I don’t think much of anything, which is usually a good reason to stop writing.

And for anyone who happens to notice, this post is all about me.  Norm would chastise me for navel gazing.  Mike would make sure I realized that I was a pathologic narcissist.  I don’t mind.  It’s just an explanation for the void, with far too many “I’s” for comfort.  That’s what happens when you navel gaze.

This may all change later today, should something strike me as worthy of writing.  Or maybe tomorrow. Or maybe not.  Either way, have a nice day.

I’ve gotten some ribbing from lawyers because of my representation of the defendant in Stern v. Bluestone, the New York Court of Appeals case that held that lawyers still had first amendment rights, even when their writing could be construed as marketing.  After all, few in the blawgosphere have argued against lawyer marketing as much as I have, and here I am with my laboring oar stroking as hard as I can.

The two positions are not, at least as far as I’m concerned, inconsistent in the least.  Ironic, sure, but not inconsistent.

This leads me to Jack Marshall’s Ethics Alarms. where he argues that Eric Turkewtiz’s April Fools Day joke isn’t merely ethically dubious, but:

No doubt about it, the Times was fooled, and should have checked the story. Then again, lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct,

Well, not exactly.  Actually, not even close.  To avoid any potential allegation of misrepresentation, let me be more specific: Marshall’s dead wrong. 

Eric offers his own explanation for why Marshall missed the boat, but because such knee-jerk punditry so completely misapprehends the nature of the a lawyer’s ethical duty, and itself is likely to mislead people, some further discussion seems warranted.  I didn’t fight to establish that lawyers don’t give up their right to free speech upon admission to the bar only to have self-proclaimed ethicists seek to turn us into truthy automatons.

We’re still human.  We are not, by dint of Rule 8.4, forbidden from telling our spouse that those pants don’t make her butt look fat.  And we can have some fun by playing April Fools jokes without risking disbarment.  Marshall’s absolutist assertion is just plain wrong.

As lawyers, we may not make material misrepresentations for the purpose of deceiving others.  Not that this doesn’t happen all the time, but getting nailed for it isn’t the sine qua non of our obligations.  But that doesn’t extent to our every breath.  As Eric notes, we can pretend we advise space aliens, because no reasonable person would believe it to be factual.  We can tell someone how much we like their tie even if it’s butt ugly, because it’s not a material fact even though it may be an outright lie.  Heck, we can even use the word “respectfully” to judges we don’t truly respect, even though we’re “officers of the court.” 

We maintain the right to express ourselves, to use the rhetorical mechanisms available to the rest of society, to have opinions and to be silly and frivolous, as in having some fun.  We retain the right to be human, even though we’re lawyers.

Marshall lays at Eric’s feet the responsibility to behave “professionally and ethically” toward the Times because the Times trusted him.  That it was April Fools Day doesn’t enter into the mix for Marshall.  That Eric is a notorious April Fools prankster is ignored.  The Times trusted Eric, so Eric is now obliged to wipe that silly smile off his face? 

I am a huge proponent of ethical behavior by lawyers.  But I am not a proponent of those who would impose bizarrely unrealistic and simplistic ethical proscriptions that would strip lawyers of their human nature, not to mention their freedom to have some fun.  No one was harmed, nor was there any potential for harm.  It might be argued, as did Eric Goldman in reaction to the Turk’s prank, that it doesn’t help the credibility of the blawgosphere to engage in practical jokes like this, but that’s a pragmatic argument.  I disagree, and suggested that Eric needed to lighten up, but I can’t fault his reasoning.

That Jack Marshall may not have found Turk’s prank funny is another matter. I did, but humor is personal and not everyone finds it in the same place.  But his complaint isn’t that the joke was lousy, but that it was unethical.  That’s a horse of a different color.  Marshall, whose bio says he’s a graduate of Georgetown Law and a former criminal defense lawyer, is the proprietor of a business called ProEthics, Ltd.,

an ethics training and consulting firm based in Alexandria, Virginia. The firm emerged to counter the widespread belief that ethics had to be boring and technical, and stands for the proposition that most people are engaged by ethics and care about the resolution of right and wrong when the issues are discussed directly and dynamically.

It’s unclear what makes Jack Marshall an ethicist, beyond the same qualifications that make someone a social media guru.  But if one is going to set oneself up as an authority on a subject like ethics, then it’s incumbent upon such an expert to do a far better job of thinking than appears here.  Of course, if Marshall is only posting these provocative half-baked accusations to draw business to his ethics consulting firm, well then, maybe his superficial and mistaken opinion on the Turk’s prank can be better understood.

But would that be ethical?

One of the primary responsibilities of police following an arrest is the preservation of evidence.  You would think they would be pretty good at it.  And indeed, they usually are.  After all, without evidence, the prosecution has a problem and the bad guy goes free.  For this reason, when the police fail to preserve evidence, it must be presumed that something is seriously wrong.

In the case of Ronald Carter, a former Milwaukee city employee with a history of burglaries, something went very wrong.  From the Journal Sentinel, Det. John Behning had some ‘splaining to do:

Specifically, Behning let the city crush the defendant’s car. The off-duty officer had fired up to nine shots at the gold 2001 Kia Rio – striking the driver twice in the hand – after the cop said he confronted the defendant alone in his garage after dark. The off-duty officer said he was acting in self-defense.

Behning, the lead detective in the case, told the judge it slipped his mind that he had OK’d the release of the vehicle. He also forgot to mention this fact during more than two dozen conversations with a couple of prosecutors over 1 1/2 months.

“That’s definitely some egg on my face,” Behning conceded at the December court hearing.

Egg on his face, not to mention a variety of other body parts.  Carter’s lawyer, Eric Brittain, has requested all evidence, and had tried to set up a time to inspect the vehicle.  He even went to the impound yard, where he waited for an hour and a half to see the car, before finally being told that it had been crushed more than a month and a half earlier.  No word on whether anybody told Brittain they were sorry for wasting his time,

It might seem that Behning did the right thing by taking the stand and conceding that it was all his fault.  Except that Behning made it out to be just one big, silly mistake.  So what if he had been meeting with prosecutors all along, this being a significant case where the defendant was shot by an off-duty officer, and where the defendant’s position was that the cop made up the story of the burglary post hoc to justify the shooting of a black man by a white cop late at night.

What was rare was that the judge, Jean DiMotto, not only didn’t buy the Behning’s golly-gosh routine, but ripped him a new one in her decision dismissing the case:

“The Court determines that MPD’s concealment of the car’s release and destruction over a period of six weeks with affirmative misrepresentations to both the State and the defense is not only egregious but permits the conclusion that MPD through Det. Behning knew of the potential exculpatory value of the car,” DiMotto wrote in December.

The veteran judge didn’t stop there.

DiMotto accused Behning, his superiors and the Police Department of acting “in bad faith” by giving up custody of the car and not telling anyone for weeks. She added: “The egregiousness of the violation, demonstrated by its lengthy continuing concealment with accompanying misrepresentations, warrants dismissal.”

Despite efforts by the prosecution to get Judge DiMotto to tone down her decision, as this would follow the good Detective for some time to come, undermining his credibility and providing some great cross-examination fodder (remember, credibility is always material), the judge stuck to her words.  For all those times when courts bend over backwards to tread lightly on police misconduct to avoid subsequent taint, Judge DiMotto was having none of it in this case.  Behning deliberately destroyed evidence, concealed it, lied about it, and knew it would be exculpatory to the defendant.  The judge wasn’t cutting Behning a break.

Great story about official misconduct and justice served, right?  Well, yeah, but the story isn’t over yet.

Brittain repeatedly leveled strong allegations against prosecutors and police in the case. After a heated exchange, he even asked DiMotto to remove herself from the case because he believed she couldn’t be fair to his client. Two days later, she tossed the criminal charge against Carter.

In an interview, the defense attorney said he stood by what he said in court and his filings.

If ever there was a case where “strong allegations” seem warranted, if not mandated, this would be it.  This case was ugly and nasty, with Det. Behning’s “honest mistake” claim and the defense counsel’s response that the cops are covering for one of their own.  Indeed, that certainly seems to be the upshot of Judge DiMotto’s decision.  If Brittain used strong language, he was in good company as the judge did as well.

Apparently, while the court felt strongly about Behning’s destruction of evidence, Judge DiMotto reserved the right to herself.

But that may end up costing [Brittain].

Last month, the judge filed a complaint against Brittain with the Office of Lawyer Regulation, the disciplinary arm of the Supreme Court, accusing him of “unprofessional and contumacious” conduct in her court. Her complaint says the bailiff in her courtroom even asked whether he should arrest the defense lawyer if he kept up his bad behavior. Brittain maintains he was simply acting as a zealous advocate for Carter.

The article fails to offer any specifics about what Eric Brittain said or did that evoked such extreme ire in Judge DiMotto.  Was it the accusation that the cops were lying? Covering up?  It seems hard to imagine, given that the judge’s decision said so as well.  Was it that Brittain moved for the judge’s recusal, presumably because he believed that she would not be impartial?  Isn’t that why the law provides for recusal?

It might be that Eric Brittain spoke too loudly, or used particular words that were inappropriate and offensive to the judge.  It could be that he was order to shut up and didn’t.  It could be any number of things that could give rise to a legitimate referral, though one might wonder whether the defense attorney, in a case as egregious (the judge’s word) as this, might be given a little extra latitude for outrage.

On the other hand, it doesn’t appear that Judge DiMotto referred Det. John Behning to the district attorney for prosecution for perjury. 

H/T Packratt at Injustice Everywhere