Every time Apple opens the doors to the loading dock, the digital world goes nuts.  Yesterday, a device called an iPad found its way into the hands of consumers.  From my very limited understanding, an iPad is akin to an iPhone, but bigger and with a few more bells and whistles.  I may be wrong, but I don’t care.

Love gadgets?  That’s cool.  Need to get the iPad NOW.  Whatever makes you happy.

My father in law loves gadgets.  He used to get everything that came out.  He had 8 track before anyone else.  He was very proud.  About 12 minutes later, he got himself a CD player.  He was very proud.  We got him a Blue Ray player one year.  It changed his life. 

There’s much confusion about why some feel the need to knock the iPad and be snarky to all who want one and are sincerely excited by this innovation.  Brian Tannebaum has been called a blathering idiot by Rick Horowitz.  Tannebaum wears the mantle with honor.  Niki Black is distraught over all this criticism and snarkiness.  “Why,” Niki asks.  Why can’t they just leave us alone?

I don’t much care.  I don’t have a Kindle because I can read books without it.  I don’t have an iPhone because I don’t really want to stare at a little screen while standing face to face with living, breathing, real people.  All my emails will be waiting for me when I get back to my computer.  The world won’t explode if I can’t do every single thing that pops into my head the very instant I think of it.

Having lived through a lot of technology, I found some of it good and most of it okay.  A few things are so important that I can’t live with them.  I need my computer.  I do not need a cellphone.  This will alienate most of you, but it’s true.  I don’t really like talking on the phone all that much, and would be just as happy if cellphones were never invented. 

The question, to me at least, isn’t whether the iPad is cool, or can download movies so you can enjoy them anywhere (and Lord knows how society survived without the ability to watch a movie upon demand).  I’m sure the iPad is cool, at least to many of you.

But it’s not necessarily a part of Batman’s belt, without which Gotham will succumb to the Joker.  It’s just a new toy, a variation on an old toy and some people enjoy.  If that’s what you want to spend your money on, good for you.  Enjoy it.  It’s like when someone asked me what I thought of law student business cards.  A silly affectation, but ultimately harmless if that’s what they want to spend their money on. 

The iPad is just today’s shiny new toy. Apple will have another version out in a week or two at half the price and twice the function, but by then it will be an old toy and nobody will care.  If it turns out that the iPad serves enough of a purpose to be worth buying, I can wait.  I’ve survived this long without one, and will do just fine.  The cool kids may laugh at me for walking around iPad-less, but then I laugh at them for being bit too slavish for the newest, shiniest toy.  They say you can’t survive without it. I say I can.  It doesn’t matter whose right.  The shine will wear off in a few hours, and we will have to wait for Steve Jobs to tell us what we want next.

So if people stop making it sound like every time the doors at the Apple loading dock open the world will change, then there will be no need for techno-curmudgeons to announce that the shiny new gadget didn’t cure cancer.  Enjoy your toys, have some fun and I hope that no one ever gets cancer again, because there is still no cure.

Jury consultant Harry Plotkin offers up some sounds advice for a troubling situation in his tip of the month.  The problem is that today’s venire ain’t what it used to be.

Ten years ago, Generations X and Y were a growing minority of the jury pool. According to data from the 2007 census, they make up 52% of the jury pool nationwide, and that number is growing every year. Think about their numbers and their expectations. More than 50% of today’s jury pool was 15 or younger when CNN Headline News began presenting the news 24 hours a day, every 30 minutes. 30% of today’s jurors were 15 or younger when CERN released the World Wide Web in 1991. 22% of today’s jurors were 15 or younger when online dial-up to the internet became available and 17 or younger when cell phones became widespread. The younger jurors just entering the jury pool were just ten years old when text messaging became widespread and iTunes allowed users to immediately download music.

Let’s be clear about what this means.  These aren’t job applicants, or emerging lawyers, but the “peers” to whom we try our cases.  Like it or not, they are here and sitting on our juries.  While under other circumstances we can fight the Slackoisie mentality, it’s both impossible and insane to try to change the basic attitudes of our jurors; they are not ours to mold, but ours to persuade. 

And their expectations of a trial are different.  They are easily bored and intolerant of presentations that don’t get to the point.

What matters most, more than ever these days, is that you keep your jurors engaged in the trial and focused on the things you want them focused on. Jurors try their best, but they won’t pay attention to everything you present to them in a trial, and they’ll remember even less by the end of the trial. So your jurors’ attention spans are limited, their memories are limited, and–perhaps most importantly–their patience is limited, and that’s the main focus of this month’s tip.

If you thought the MTV generation was difficult, the computer generation is worse.  At least the former watched whatever video appeared on the screen.  The latter has Youtube, and believes that they are entitled to be in constant control of their environment and experience.  They are not inclined to tolerate sitting quietly while a lawyer spoon feeds them.  They know better.

So what should you do differently? First, never present your case in an entirely spoken format–jurors don’t listen to the radio much these days, they expect to see things, and they learn as much visually as they do aurally. Jurors expect to see your case–documents, emails, maps, schematics, photos, or whatever you’re talking about. You don’t have to wow the jury with a high-tech presentation, but jurors want to see, not just hear, your case. If you’re talking about a car accident or an eminent domain dispute or a machine in a product liability or patent case, make sure to SHOW the jurors a traffic map of the lanes and roads, or a property map with boundaries, or a schematic of the machine, immediately. Once you start discussing and describing something that your jurors want to visualize, you’ll frustrate and confuse your jurors if you wait before showing them a picture. Anticipate what the jurors want to see, because once the jurors want or expect to see something and don’t get to, they’ll become very frustrated and lose focus.

This presents a significant problem for criminal defense.  Rarely do we have visual exhibits to offer, as it’s the prosecution that has to make its case and has evidence to fabricate and offer.  We have no obligation to put on a case, and, indeed, typically have no case to put on.  We can use the prosecution’s documents, exhibits, etc., but then we have no control over what they create and offer, and, more importantly, don’t want to highlight their exhibits which tend to be bad for our clients.  After all, that’s the point of the prosecution, to prove guilt.

In short, we’ve got a bunch of jurors who expect us to show them something, and we’ve got nothing to show.  While we focus our efforts on cross-examination, picking apart the testimony of the prosecution’s witnesses, it’s just boring noise to these jurors.  They want us to put on a show for them or they will grow bored and lose interest.  And they want the trial over in an hour so they can check their emails, text messages and twitter. 

Even if we have some visuals to offer, we have the problem of getting them before the jury.  We need a witness, and unlike the prosecution, don’t have a bunch of cops at our disposal to use.  We might be able to call an expert, but are frequently rebuffed in those attempts as being unnecessary given the jury’s scope of knowledge, even assuming that our clients can afford to pay the witness.  It’s a stretch at best.

While not addressed, Plotkin’s views suggest that these jurors will not be satisfied with an instruction by the court that the defendant has no obligation to testify, and that they cannot draw any inference from his remaining silent.  While we have long known that jurors want to hear defendants take the stand and deny they did it, these jurors may well be totally incapable of processing the judge’s words and unwilling to accept the notion that a person who doesn’t want to be convicted would fail to testify.  They want to see the defendant deny his guilt, and won’t accept anything less.

And if that’s not problematic enough, Plotkin takes it farther:

Aside from how quickly they demand information, Generation X and Y jurors are generally more cynical than older jurors. They grew up in a world with lawsuits, corporate scandals, and written contracts for every agreement instead of handshakes and trust. They’re not necessarily more prone to favoring plaintiffs or defendants, but they tend to be more critical of plaintiffs, less trusting of defendants, and tend to have higher expectations of what the litigants “should have done” better.

While this cynicism cuts both ways, the defendant will be the one left without any showing to satisfy their demand for evidence.  If they come into court cynical, then there is little expectation that they will honor the presumption of innocence or the burden of proof.  They will sit back and demand that both sides satisfy their curiosity, and do it on their terms.

Harry Plotkin makes some important points about the changing dynamic of the jury pool, and how the expectations and demands of the digital world are changing the way jurors think.  Unfortunately, this bodes poorly for the criminal defense lawyer, as we have very little to offer to counter their demands. 

If Plotkin is right, and I suspect he is, our mastery of words may not be sufficient as our jury pools grow younger and demands grow higher.  It may do well to include a class in tap-dancing in the law school curriculum, because that may be the only show we’re able to put on.

Lawyers are behind the times, he wrote. They are technologically backward and fearful.

-Jamison Koehler, describing the statements of an Avvo spokesman on the ABA’s Solosez listserv.

There has been much ado between the forces of tech and lawyers who are not hellbent on promoting technology as the goal in itself.  Jamison Koehler, transitioning from his former life as a public defender in bespoke suits behind the wheel of a BMW, to private practice, was looking for answers.  He’s a smart guy, so he sought out the best means of pursuing a successful practice in the face of competition all around.  Bear in mind, he was no kid fresh out of law school, but an experienced trench fighter ready to take his show on the road.

He hit a wall. 

Last December I agreed to pay $147 a month to become an “Avvo Pro” member for DWI/DUI in the Washington, DC area. It is currently the only paid advertising I do. For this monthly fee, I get to have a “Pro” written next to my name on my profile. I liked that the designation suggests that my competitors are mere amateurs.

My profile is featured prominently at the very top of the list with two other D.C.-area lawyers who have paid the same fee. The Avvo salesman promised me all sorts of good things when I signed up for the service. None of these things has come true.

The salesman promised that the Avvo Pro designation would greatly increase phone calls and traffic to my website. I actually get fewer calls now than before I agreed to participate in the service. I used to get one or two calls a month. Now I don’t get any, despite all the activity Avvo claims my designation is generating. And I have never gotten a single client through Avvo, at least that I know of.

It just can’t be possible.  I know this because I’ve been told by a hundred people who blawg for profit, who go from conference to conference, explaining how the power of the internet can bring any lawyer success.  Technology, they say, is the key to the future of law.  These are all nice people, and they make a very convincing case.  It’s repeated over and over, and they use words that inspire.

But then, former Jones Day partner and fellow curmudgeon, Mark Herrmann, says so too.  Heck, I says so.  But when we question or challenge these things, we’re pooh-poohed as technology haters, dinosaurs, nasty old men who stand in the way of the new wave of technology that’s going to change everything. One new lawyer even labeled me part of the boreletariot (great new word, by the way) for writing about stuff that he found boring, apparently thinking that my purpose here is to amuse him.  He knows a lot about me, more than I know about myself, he says.

But what about Jamison?

Unlike us nasty, cruel, old dinosaurs, he’s doing everything right according to the marketers. Instead of hanging up on the salesmen, he took the call, bought the service and paid the bills.  No fear?  Absolutely.  No business?  Unfortunately.  Money flushed down the toilet?  Unless Avvo plans on giving it back, yup.

This isn’t a slam on Avvo, but another (boring) magic bullet alert.  It’s all wrapped up together with such dreamscapes as the ABA TechShow and IgniteLaw and all those confusing the means and the ends.  That it didn’t work at all for Jamison doesn’t mean that it hasn’t worked for anyone, or won’t work for you.  It does mean, however, that it isn’t the magic bullet, the secret to wealth and success.

As I type this very morning, there are people waiting on line to be the first to purchase the iPad.  Some just want to have the newest, coolest gadget.  Some believe that it’s the gadget, not the person behind the gadget, that will change their lives.  There will be apps that allow you to do plenty of tech stuff, like read your email or twit, all from a touchpad.  What this will do for your clients isn’t at all clear for me.  What it will not do is make your arguments more persuasive or impress the judge.  Not a single defendant will be released on his own recognizance because his lawyer has an iPad. 

That’s not to say that you shouldn’t get an iPad, or whatever new device Apple develops three months from now to replace it.  If it’s what you want, buy away.  If you think that becoming an Avvo Pro will get you more clients than it did for Jamison, sign up.  If you accept the concept of Kevin Chern, Total Attorneys CEO teaching ethical marketing, buy your territory and split your fees with them.  And if you’re bored with my writing about these issues, then turn away.

If you want to paint like Picasso, don’t worry about buying the newest brushes or the highest tech canvases and stretchers.  Worry about how you paint.  The stuff won’t hurt you, but it won’t make you a better painter.  Ultimately, people will admire the best paintings rather than the paintings on the best canvas.

I am too late to warn Jamison, and he’s already found out for himself that Avvo Pro won’t make him rich and successful.  Every day, someone new comes online to see what they should do to become successful.  Chances are relatively slim that they will find my blawg, my posts, because there are 10,000 marketers shouting buy me for every post I write on the subject.  And my old posts on the subject fade away, lost behind newer posts on other subjects.  I certainly don’t expect anyone to read all my old posts, and for most readers they never existed and never happened.  So it strikes me, as I read yet another pitch for technology as the solution to the future of lawyers, or a post like Jamison’s recognizing that not all solutions are solutions, that it bears repeating.

Sorry if I bore you, but maybe some new lawyers will hunker down and work on their lawyering instead of signing up for the latest marketing gimmick in our high tech world.  I make no excuses or apologies, and if you don’t like it, too bad.

The Supreme Court decision in Padilla v. Kentucky has generated plenty of heat, but this post by WindyPundit generates a bit of light on the why a burden, that may appear fairly simple from both a distance as well as very close up, doesn’t always play out so easily.

Windy tells the story, via the New York Times, of 28 year old nurse, Jerry Lemaine, who left Haiti at 3

ELMONT, N.Y. — When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.

The article goes on to discuss how a split between the federal circuits, some holding that two drugs cases of any sort “equals” one aggravated felony mandating removal, put Lemaine into immigration clutches, where he was spirited away to Texas, under the auspices of the 5th Circuit, a jurisdiction that would deport him when the 2d Circuit in New York wouldn’t.

The underlying problem was the combination of Lemaine’s teenage marijuana arrest, which the article describes as “dismissed”, combined with his simple possession in January, 2007.  While the article lacks the level of detail that would enable a hard legal analysis, it provides enough to venture some educated guesses about what happened.

While the teenage pot case is described as having been dismissed in the first paragraph, it’s later described as a conviction. It can’t be both, but it can, as Windy surmises, be an adjournment in contemplation of dismissal (called an ACD in most places in New York, an ACOD on Long Island, just because the locals prefer to call it that).  The underlying charge of unlawful possession of marihuana (another New York quirk is the odd spelling of marijuana), in violation of New York Penal Law 221.05, is a “violation”,  defined as an offense that is neither a misdemeanor nor a felony.  There is nothing lower than a violation, and it is not a “crime” as defined by New York law.

While an ACD is a fine disposition as far as local law is concerned, requiring the defendant to stay out of trouble for 6 months (or 1 year in the case of drugs), after which the case is dismissed and sealed, it is not a disposition “in favor of the accused,” a characterization that makes sure that the defendant can’t turn around and sue for the arrest or prosecution.  The defendant does not plead guilty, but rather the prosecution moves for the ACD and the defendant does not object.  An ACD is purely a gift from the prosecution; the defendant cannot otherwise get such a disposition.

There’s one additional quirk to consider, that a dismissal, under New York law, gives rise to a legal fiction that the arrest and prosecution never happened.  While it may remain on the defendant rap sheet, ironically noting that it’s dismissed and sealed but still there, it may also magically disappear as if it never happened.  From Criminal Procedure Law §215.40:

Upon dismissal of an action, the arrest and prosecution shall be deemed a nullity, and defendant shall be restored to the status he or she occupied before his or her arrest and prosecution. All papers and records relating to an action that has been dismissed pursuant to this section shall be subject to the sealing provisions of section 160.50 of this chapter.

A defendant can accurately state, upon dismissal, that he’s never been arrested, though he obviously has.  It’s one of the few legal fictions that inure to a defendant’s benefit.

Cut to age 28 and Lemaine gets popped for another unlawful possession, this time with $100 fine. Again, not a crime, but also not an ACD.  Definitely a conviction, but legally not a conviction of a crime.  Moreover, this is Lemaine’s first conviction since the prior arrest resulted in an ACD, which resulted in a dismissal, which resulted in the arrest and prosection being deemed a nullity.

The bottom line is that in New York, Jerry Lemaine’s life of crime was slightly less significant than a guy with a couple of speeding tickets.  For a sense of the price he paid given the things ICE does to protect us from non-citizens like Jerry, read Windy’s post and the article.  Three years in immigration jail, near starvation and on a handful of blankets to be shared by 50 people in the cell.  That, of course, happened in Texas.

Calls come in with some regularity from lawyers in other jurisdictions about their clients who had a case in New York.  They want to know what it means, what’s an ACD is a big question.  What type of offense is unlawful possession of marihauna?  The problem is that prosecutions and cops in other jurisdictions work off of a NCIC rap sheet, It’s maintained by the FBI and is intended as a cross-jurisdictional source of criminal history.

The problem with NCIC is that it’s notoriously wrong.  Bad information goes in and never comes out.  Nor does the good stuff, like a case being dismissed, manage find its way into the report.  And of course, it offers no explanation as to the meaning of its contents, so that it’s thrown in the face of a defendant, defense counsel and a judge in some faraway place, to be interpreted in a vacuum and left to the participants, unaware of what they are looking at or dealing with, to dispute.  As everyone knows, you can’t cross-examine a piece of paper, so the NCIC wins.  At least for the moment.

The penal schemes of different states vary widely.  The New York scheme, to the extent described here, is somewhat complicated and sufficiently strange so that it doesn’t strike outsiders as obvious or intuitive.  When it conflicts (and it often does) with their own interpretation of law, other jurisdictions tend to throw out those parts of the New York scheme that don’t conform to their way of doing things.  Like the “violation” denomination, the dismissal and nullity aspects, all vital components of the New York scheme but either ignored or rejected by courts in other states trying to make sense of a defendant’s prior criminal history through the prism of their scheme.

And one of the grandest ironies is that, in Jerry Lemaine’s case, his lawyer tried to go back into court to get the case dismissed outright, but was rebuffed because the case, as far as New York was concerned, was already dismissed so the court had no jurisdiction to dismiss it twice. 

The lawyers who defended Jerry Lemaine did their jobs, or certainly did nothing wrong.  Yet it ended up in unforeseen disaster for Lemaine because ICE decided to take him to Texas.  What were they to tell Lemaine about the immigration consequences of his case, his ACD and his plea, which in the 5th Circuit meant that two speeding tickets equal an aggravated felony?

Even if the lawyers could predict the future accurately, cover every jurisdictional quirk across the country, and, ultimately, leave their client in a state of confusion based on the variety of possibilities arising from the potential understanding/misunderstanding of New York law, would it have added to Jerry Lemaine’s intelligent decision making or just confused the heck out of him?  It’s just not that simple.  Few things are.

Yes, it was an April Fools Day gag.  And a pretty good one, if you ask me.  Eric Turkewitz will not be the White House Law Blogger.  Hey, don’t blame me. I was just doing my part in the conspiracy.

But we did have some fun.  The New York Times got nailed:

But the New York Times didn’t bother to fact check. Not with me. Not with the White House. And not with Google, which already had the stories from both the ABAJournal and the WSJ by the time they ran the story at 2:05. The Paper of Record blogged in it’s City Room this piece on When Lawyers Blog :

 

…After all, as Mr. Turkewitz, a Manhattan lawyer, writes on his New York Personal Injury Law Blog, he is about to be sounding off on all manner of legal issues as the Obama administration’s new White House law blogger.

“Excited about new blogging gig as White House law blogger,” he tweeted this morning. “But hope I don’t have to spend too much time in D.C.”

Spoken like a true New Yorker.

At 4:45, I received a phone call from an infuriated “Andy Newman” from the New York Times demanding to know if this was an April Fool’s joke. Unlike the classy Ashby Jones, Newman had zero sense of humor and demanded that I answer “as an officer of the court” or he would pull the post down.

I tried not to laugh, and told him that due to concerns in the White House about me jumping the gun on the story (as per Orin Kerr’s post @ Volokh), I really shouldn’t say anything and would clear it up tomorrow. This clearly wasn’t good enough for him as he hung up on me, and down came the NYT post. The Times, I guess, doesn’t like being punked on April Fool’s Day.

The part that gets me is where Andy Newman from the Times demands that Turk answer “as an officer of the court.”  I can’t even type those words without laughing.  (I’ve actually taken a break from writing so that I can stop laughing.  Okay, I’m back.)  What is it with non-lawyer who think that invoking the officer of the court language makes them think that we’re required to get all serious and tell them what they want to know?  Come on, Andy.  Are you in third grade?

I applaud the efforts of my co-conspirators, Patrick at Popehat, Orin Kerr at Volokh Conspiracy (obviously, Kerr is a much more experienced conspirator than the rest of us), David Lat and Kash at Above the Law , Doug Mataconis at Below the Beltway, and Walter Olson at Overlawyered, who was there in reserve.

And to the leader of the conspiracy, Eric the Turk, it was an audacious effort and you are a brilliant prankster.

If I sometimes think that comments here get a bit inane, it’s worth noting that the comments to Orin’s post ended up in a raucous birther debate, as did the comments to Patrick’s post.  How it went down that path is beyond me, other than the sheer, unmitigated hatred that some nutjobs have and their compulsion to express it at any opportunity.  Here’s a bit of inside baseball for blawg readers: Some of you are just totally nuts.  For the ones who aren’t, you’ve got no idea what blawgers put up with behind the scenes.  If it wasn’t for the vast wealth and fame this brings us, it wouldn’t be worth it.

For anyone who finds all this too frivolous for their taste, particularly in light of the multitude of serious issues confronting the world, lighten up.  There’s room for a little fun.

It’s not that there’s no place for the Taser in the arsenal of weapons available to police.  It’s that the Taser has made cops lazy and, for those lacking the brains required of a server at Dairy Queen, stupid.  Don’t believe me?  See Exhibit A :

MARTINSVILLE, Ind. — Two Martinsville police officers have been suspended after they were accused of using a Taser to subdue a 10-year-old.

A news release from the mayor’s office and the Martinsville Police Department said the officers responded Tuesday evening to Tender Teddies Day Care on reports of a 10-year-old who was out of control.

The release said that the officers, trying to prevent the child from hurting other children, staff members and himself, slapped the boy and then used a Taser to subdue him.

It’s often facile for those who blame the “criminal” to retort that any force used against them was deserved.  “They brought it on themselves,” they say.  Whether that’s so depends on the situation, and may in fact be true at time.  But what do you say to a 10 year old who is slapped, then tased?

A bad seed?  Child predator?  We’ve developed language to turn children into animals, to excuse adults from using force against them as if they were vicious criminals.

Officials said officers had been called to the day care before about the same child.

“One of the police officers came out here and said they have trouble with him all the time because he is a problem child,” said neighbor Stephanie Hamilton. “He was kicking and screaming … and he wouldn’t quit.”

Kenneth Frazier said he believes the boy needs help.

“I don’t think that should have happened. I’m sure they could have detained him some other way,” he said. “They take big grown ups down without tasing them … why a 10-year-old?”

What gave rise to this 10 year old’s behavior is unknown.  It would certainly appear he needs help, and maybe a lot of it.  Dealing with children who are out of control requires a great deal of thought, patience and restraint.  This is a child.

The point is often best made by asking a question, what would they have done if they didn’t have a Taser?  This time, however, it’s not the best question as the cops smacked the child before tasing him.  It suggests that they might have just beat the living daylights out of him instead.  Maybe batons?

So what were the cops thinking?  In all likelihood, they were thinking that even a 10 year old “kicking and screaming” can inflict a painful blow to the shins.  If there is anything that motivates a cop to act, it’s avoidance of a blow, even when that blow comes from a 10 year old.  Better to beat him into submission than suffer a blow.  A well-landed blow can be really painful.

Of course, risking a potential bruised shin to grasp a child, physically subdue him, stop him from lashing out and doing so in a way that will not involve the use of force on a 10 year old, was an option.  Some cops, maybe those who are father or mother to a 10 year old, would consider taking such a risk.  Most cops won’t.  No 10 year old is worth the risk of a painful shin.

And why should a cop take a risk when he’s got a Taser?  Problem solved.

The two officers involved have been suspended pending an investigation.  Maybe they’re investigating whether the 10 year old was really a very short adult serial shin kicker, or they are checking for prior drug convictions in his background to smear the victim and justify police action. I dunno.

H/T Turley

            It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country.  The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

            These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere.  This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

            Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States.  You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

            Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice.  It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington.  It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled. 

            Experience, however, has demonstrated that some measure of centralized control is necessary.  In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy.  Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts.  To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

            Our problem, of course, is to balance these opposing considerations.  I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts.  At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

            Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor.  Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.  Although the government technically loses its case, it has really won if justice has been done.  The lawyer in public office is justified in seeking to leave behind him a good record.  But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance.  Reputation has been called “the shadow cast by one’s daily life.”  Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.  Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

            The federal prosecutor has now been prohibited from engaging in political activities.  I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.  There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.  I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

            There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.  Law enforcement is not automatic.  It isn’t blind.  One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.  If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.  We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.  What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

            If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor:  that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

            In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.  Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”  They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny.  Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby.  Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration.  Some of our soundest constitutional doctrines were once punished as subversive.  We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

            In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions.  Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

            Another delicate task is to distinguish between the federal and the local in law-enforcement activities.  We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses.  Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

            But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals.  And the moral climate of the United States is as varied as its physical climate.  For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely.  The same variation of attitudes towards other law-enforcement problems exists.  The federal government could not enforce one kind of law in one place and another kind elsewhere.  It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment.  In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may.  Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

            The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman.  And those who need to be told would not understand it anyway.  A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Robert H. Jackson
Attorney General of the United States
April 1, 1940

This comes courtesy of Professor John Q. Barrett, St. John’s Law School, who runs the Jackson List.  If you aren’t on the list, you should be. 

It can sting.  But, like Cher in Moonstruck, it can also snap someone out of their complacency, or self-absorption, or personal fantasy.  You don’t have to like it, but that doesn’t mean it’s not appropriate.

A segment of the blawgosphere produced some serious criticism of the ABA’s myopic adoration of technology.  There was Brian Tannebaum, Venkat Balasbrumani, Antonin Pribetic.  I, too, offered some thoughts.  Carolyn Elefant, who was one of the six-minute presenters, responded that she had no regrets.

Each of the critiques offered a somewhat different take on what went wrong with Ignite Law, but Carolyn chose to put Tannebaum at the head of the pack, relegating the rest of us to “Tannebaum’s colleagues” as if it was a bunch of “me toos.”

I spoke at Ignite because like Brian Tannebaum and his colleagues, I also have fear – though my fears are entirely different.  Brian wrote in his post:

What I fear, is new lawyers who listen to non-practicing lawyers go from conference, week in and week out to tell them all the wrong ways to get business, and that the way they are doing everything, is wrong. I fear many of the people who spoke here. I fear that I have witnessed a live version of everything I criticize.

That’s what I fear.

As for me, I fear that without a little bit of encouragement, our profession will lose talent; that promising lawyers will depart the legal profession because they don’t realize the myriad of paths that can carry them to success and personal fulfillment.

What’s ironic about Carolyn’s self-defense is that she was amongst the small group who spoke at IgniteLaw who were not the target of criticism.  She’s a real lawyer with an agenda that promotes the alternative of solo practice.  I took no issue with her brief talk, and I’m fairly certain that no one else did either.  She was one of the high points of an otherwise troubling evening.

Still, Carolyn obviously felt the slap or she wouldn’t have felt the need to explain and defend herself.

On another front, Jamison Koehler wrote a very complimentary post about me yesterday, the sort of post that borders on embarrassing even though it’s not entirely accurate.  While saying nice things about me, Jamison notes that he’s got his differences.

Yes, Greenfield can occasionally be cranky, and I don’t always agree with him. I don’t share, for example, his distaste for the “slackoisie.”

I prefer prickly to cranky, but that’s just my personal preference.  But a comment to the post offers an opportunity that I would be remiss to pass up in any discussion of a good slap.

TPorterfield

Thank you for an interesting piece on Scott Greenfield and Simple Justice. While I am a fan of Simple Justice, I have mixed feelings about Scott personally. He can be warm and funny. He can also be extremely cruel, particularly to new lawyers who venture onto his site or whose website comes to Scott’s attention. And I have yet to see him concede an argument when challenged on an blog piece through the comment section.

Out of the mouths of babe’s comes the response to Jamison’s support of the Slackoisie.  To the new lawyers who venture onto my site, or whose website comes to my attention, and who feel that I’m extremely cruel, tough nuggies.  I’m not your mommy.  It’s time that somebody informed you (and this is not directed at TPorterfield, as I have no clue who that is, but use the comment as the embodiment of the point) that idiotic tripe, replete with emotions and feelings, is childish crap.  Grow up. 

There will be no trophies for everyone.  There will be no ice cream parties.  You will be told that your butt is fat if that’s the case.  There are plenty of other blawgs that will stroke your brow and tell you that you aren’t butt ugly to make you feel better about yourselves and to grow your love.  But not here.

Jamison describes my feelings for the Slackoisie as “distate”.  He’s wrong.  It’s intolerance.  I’ve watched teacups grow up into young lawyers.  I’ve watched them in court as they argue to judges about how they “feel” about a client, an issue, a case, and saw the tears well up in their eyes as the judge blew them off.  I’ve heard them whine and complain about how unfair it is that no one thinks as highly of them as they think of themselves.

And I’ve seen how the online community coddles the slackoisie, courting their readership and love.  So go to those blawgs that are nice to you, if that’s what makes you feel “special”.  Does that make me “extremely cruel?”  If that’s what you think, then that’s what it does.  Run, little slackoisie, run.  Run into the waiting arms of your mommies, to stroke your fevered brow and tell you how wonderful and brilliant you are.  Run far away from here, for here you will only get the cruel reality that you aren’t special, wonderful or brilliant.

I’ve been told by many that I’m wrong on a wide variety of subjects, by people I respect, who have earned the right to say so. You haven’t.  But even so, what missing synapse makes you think that I’m required to change my opinion to please you?  If I didn’t believe in what I write, I wouldn’t have written it.  And if I do believe in what I write, I will hold my view.  Did you think that because you “feel” differently, that changes anything? 

What you perceive as vitriol is not a reflection of me, but a reflection of your vision of life as distorted by your self-esteem.  Read Theodore Dalrymple and learn a little truth.  Your problem isn’t low self-esteem, but that you get the esteem you deserve.  Talk about a slap in the face.  Wake up and smell the coffee, kid.  No one owes you a happy meal.

Sometimes, you just need a damn good slap in the face.  Sometimes, you feel the slap even if it’s not directed at you.  It’s a cruel world out there.  If you can’t handle it, go back to the couch in your parents basement and play gameboy, where you can pretend to shoot up all the people who are mean to you and feel omnipotent.

It’s all I’ve been hearing about for the past few days, and I am, without a doubt, jealous as all get-out.  Eric Turkewitz is going to be the official White House Law Blogger.  Yes, the Turk, and not me. So much for that “hopey thing,” right? Still, to be the first official White House Law Blogger is, well, something big. Huge actually.

It’s not going to be all peaches and cream, however.  I’ve heard from an old pal inside the White House press secretary’s office that they are none too pleased by the newest member of the administration.  They are scared to death that they now have a loose information canon on their hands after reading his body of work.  They probably don’t realize that Turk couldn’t think of anything else to blog about, now that his usual staple of fantasy baseball, personal injury law and Findlaw masturbation are off the table.

It seems that the core problem is that the enlistment of Turk as digital law flack for the administration puts him outside the grasp and control of Robert Gibbs, the President’s press secretary and secretarial school namesake.  As any good PR pro knows, you can’t control the noise coming from those outside your grasp, and when it comes to the dissemination of information, there’s nothing more important than control..

The equation, I’m told, is that because “law blogger” includes the word “law”, Turk will be under the watchful eye of the White House Counsel rather than the press office.  I guess the word “blogger” didn’t match any word on the current White House press secretary’s grocery list. 

But Gibbs isn’t fooled.  He knows that blogger means that Turk gets to spread information, and information (even about law) comes back to him.  This is being seen as a seriously mess by the Gibbs folks, enough so that Gibbs would pull his hair out if it wouldn’t impair his otherwise stylish coif.  The message sent to me was that Gibbs wants Turk to quietly go away, as if it never happened.

It remains unclear why the Obama administration would have selected a second tier blogger, and a writer whose talents are more suited to lame humor or tepid critique, to fill what strikes me as a critical niche. From what I hear, it’s largely because Eric is seen as a straight shooter, someone who is trusted in the blawgosphere to be an honest broker, if not a particularly insightful or foreful voice. 

Can Obama really be that naive?  How hard is it to be straight shooter on subjects involving deposing the Pope?  If it wasn’t for his brother’s ability to get Justice Antonin Scalia all chatty, chances are that Turkewitz would have folded up the old blawgospheric tent by now and been off to twitter-marketing land.  Nobody in the Obama White House would have even known who he was.

There will no doubt be enormous pressure for the Turk to toe the party line, but since Eric won’t be answering to Gibbs, there’s no telling what might come out of his keyboard.  Let’s face it, circumspection is no more his strength than the strict adherence to talking points, especially when they make no sense at all.  I can see Turk collapsing in a puddle of goo during his first interview and giving away the nuclear codes, as if they would let him know them.

On the other side, Gibbs will be left to stand up in front of that nasty White House press corp to explain why the official White House Law Blogger wrote . . ., well, whatever he’s going to write.  Seriously, let’s just hope Turk can keep it clean.  This country has enough problems.

So yes, I’m jealous that Turk got the gig, even though my longevity in an official blogging capacity would have made a fruit fly laugh. But I’m surely not too upset about being out of the crosshairs of the White House press secretary.  Turk may get to create this brand new office in his own image, but any appreciation that may come his way may well have to be delivered posthumously.  They are that angry in the White House press office.

Update: According to the political blog, Beyond the Beltway, Turk came to the Obama administration’s attention when he caught a little goof in Sonia Sotomayor’s description of her law practice as “law offices (plural).  And like me, Orin Kerr at Volokh, questions the sanity of selecting Turkewitz for the post.  Of course, Kerr prefers somebody named Marty Lederman, whoever he is.

If only there was a Vegas line on the outcome of Supreme Court cases, I would have made a killing on Padilla v. Kentucky, decided yesterday.  When in doubt, shift the burden onto the criminal defense lawyer.  It’s not the outcome I wanted, as discussed when cert was granted and again when oral argument rolled around.  What else is new?

There was never any question that immigrants should be advised that a plea of guilty to an “aggravated felony” had immigration consequences.  The question was who was responsible for doing so.  The wrinkle in this case, of course, was that Padilla had been affirmatively misadvised that his plea would not have consequences, which every defense lawyer should know was dead wrong.

This has been a long-standing issue, and one that has been batted back and forth within the criminal defense bar.  The problem arises from the fact that the criminal conviction stemming from a plea triggers immigration consequences separate from criminal consequences.  Criminal defense lawyers aren’t immigration lawyers, and often lack the background to provide adequate advice on the impact of a criminal plea on immigration status.  On the other hand, it is definitely a significant consequence, sometimes more so than the criminal punishment itself, and it’s absolutely reasonable to expect a person making a life-changing decision to have all necessary information about the consequences of his actions before he decides.

As argue, the court, in taking the plea, provides a laundry list of rights and impacts that affect the defendant.  This should be among them.  Now, it’s not.  Now, it’s another burden on defense counsel.  But the Supremes went a step farther in Padilla, not merely requiring defense counsel to be responsible for advising the defendant that it may have consequences, but advising the defendant of what those consequences will be.  And getting it right.

Clearly, a good lawyer will advise his client of these things, regardless of whether the Padilla decision forced the burden upon him.  He will do it because his duty compels him to serve his client, and no defendant can make a knowing decision to plead guilty without understanding everything, including immigration consequences, it entails.

What’s unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less.

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.  There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.  The duty of the private practitioner in such cases is more limited.  When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

How does one distinguish between knowns and unknowns?  The answer invariably comes afterward, when an immigration judge or court decides.  It is true that most felonies will result in near certain deportation or removal, and it can’t hurt to inform the defendant that their plea means they’re out of here.  But it still won’t necessarily be accurate.  And the fault for inaccurate advice falls on the criminal defense lawyer rather than the court because, well, it’s always easier to lay blame on the lawyer.

The decision also holds an interesting tangent in its discussion of collateral consequences, where it suddenly blows the smoke away from the legal fiction that separates criminal from civil consequences.

Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982).

Yup, it is most definitely “intimately connected.”  And isn’t that precisely the same for civil asset forfeiture?  And doesn’t that reasoning extend to habeas corpus as well?  The false dichotomy between civil and criminal proceedings and penalties is a foundational legal fiction, used to deny the full panoply of rights assured the defendant by the Constitution whenever it makes the government’s job easier.  The Supremes have now pulled back the curtain and shown it to be a fraud.  Just as immigration consequences, though given the name “civil” and collateral, are now part of the bag of duties of criminal defense counsel, let’s keep that ball rolling to all the other fictional proceedings that are equally a part of the criminal process but hidden behind legal fictions.

As for the Padilla decision, the most likely impact will be that every criminal defense lawyer will advise every noncitizen defendant that he’s going to be deported, whether that’s the case or not.  The plain truth is that, to the extent there’s a potential way out of the fix, it’s far too distant to figure out and any suggestion to that effect will open the door to being the target of a subsequent ineffective assistance of counsel accusation.  Tell them the worst case scenario and you can’t go wrong.

But there is another angle here, that the Supreme did not consider.  What if every criminal defense lawyer advises his client, with a wink and a kind smile, that the conviction won’t result in deportation based on an excess of optimism and a hope that the absurdity of our immigration laws will be changed once Congress wakes up from its nap?  Might every plea be subject to vacation, with an admonition to the lawyer that he has ill-served his client by providing a backdoor to America?