Some readers may make the mistake of leaving a post up on their screen so that their kids may see it. Bad move. If they think too much about the law, they may never get over the trauma. That said, this was the image this morning at Above the Law, a far better blog for young readers. And it’s something your kids will not only enjoy, but may help them when the day comes…
It’s never too early to teach your children well.
Category Archives: Uncategorized
Dying To Get Out of Buffalo
What’s wrong with the Erie County Holding Center that people would rather kill themselves than remain there? Since December, there have been 5 suicide attempts, three of which were successful. That’s an extraordinary number, both for the number of people trying to commit suicide as well as the correctional facility’s inability to stop them.
The problem is that no one can say what the cause of this is, because the sheriff won’t let inspectors into the facility. He tells the Buffalo News that he welcomes them, but then bars them from entry. The inspectors were forced to get an emergency order from federal court to let them inside the facility.
At the bottom of this appears to be the County Attorney, Cheryl Green, who is under fire all around:
The problem is that no one can say what the cause of this is, because the sheriff won’t let inspectors into the facility. He tells the Buffalo News that he welcomes them, but then bars them from entry. The inspectors were forced to get an emergency order from federal court to let them inside the facility.
At the bottom of this appears to be the County Attorney, Cheryl Green, who is under fire all around:
Republicans and Democrats in the Legislature approved a statement, 11-4, imploring the sheriff, County Executive Chris Collins and County Attorney Cheryl A. Green to, among other things, open the jails to the suicide-prevention expert. So did Comptroller Mark C. Poloncarz, who repeated his call for Green to resign, saying she has given poor advice in the matter.“It is time for the confrontational stance of this administration to end,” Poloncarz said, “and for the county to allow the federal and state governments complete and unfettered access to the jails to help the county address the issues and problems at each facility.”
What does Green think about the problems at the Holding Center?
The allegations have been vehemently denied by County Executive Chris Collins, Sheriff Timothy B. Howard and County Attorney Cheryl A. Green. Collins last October contended that the federal lawsuit is based on “hearsay and fictionalized events passed off as reality.”
Green said the federal government is trying to force the county to provide jail prisoners with “the amenities, conveniences and services of a good hotel.”
Maybe those really aren’t dead bodies, just fictionalized events passed off as suicides.
When our hinterlands correspondent, Kathleen Casey, first told me about the problems at the Holding Center, my first reaction was to pass it off as a joke; they’d rather be dead than in Buffalo. But as the bodies began stacking up, this was clearly no laughing matter.
Green’s reaction, reminiscent of the old welfare queen argument against providing food to the starving, is designed to play the locals at a time when cupboards are bare and people are hurting. The old lie that life in jails is better than that enjoyed by law-abiding, hard-working folk, got a lot of mileage when it came time to making sure that people held against their will, convicted of nothing, managed to live long enough to make it to court.
The idea that state inspectors are unable to see what’s happening inside this facility is shocking. That they would require a federal court order is incredible. And what if the sheriff refuses to honor the order. His people have guns. The state inspectors don’t. It clearly appears that something is horribly wrong in Erie County, and has been for quite a while. It is unfathomable that they won’t let inspectors in. It’s merely offensive that the County Attorney describes efforts to keep their inmates alive as “the amenities . . . of a good hotel.” Maybe Green needs to stay at better hotels if she finds suicides that commonplace.
When our hinterlands correspondent, Kathleen Casey, first told me about the problems at the Holding Center, my first reaction was to pass it off as a joke; they’d rather be dead than in Buffalo. But as the bodies began stacking up, this was clearly no laughing matter.
Green’s reaction, reminiscent of the old welfare queen argument against providing food to the starving, is designed to play the locals at a time when cupboards are bare and people are hurting. The old lie that life in jails is better than that enjoyed by law-abiding, hard-working folk, got a lot of mileage when it came time to making sure that people held against their will, convicted of nothing, managed to live long enough to make it to court.
The idea that state inspectors are unable to see what’s happening inside this facility is shocking. That they would require a federal court order is incredible. And what if the sheriff refuses to honor the order. His people have guns. The state inspectors don’t. It clearly appears that something is horribly wrong in Erie County, and has been for quite a while. It is unfathomable that they won’t let inspectors in. It’s merely offensive that the County Attorney describes efforts to keep their inmates alive as “the amenities . . . of a good hotel.” Maybe Green needs to stay at better hotels if she finds suicides that commonplace.
Defending The Skinner Conviction
When I received an email from the Skeptical Juror Project, imploring me to get behind the efforts to exonerate Hank Skinner. The email informed me that he was factually innocent, but Texas was going to kill him anyway. I knew nothing about Skinner, having somehow missed Radley Balko’s post at Reason about him.
The email told a saga that’s both hard to believe and easy to accept. It told the story in detail:
The email told a saga that’s both hard to believe and easy to accept. It told the story in detail:
Announcing it would do “whatever it took” to “shut up” those who doubted Mr. Skinner’s guilt, the State of Texas submitted fourteen pieces of evidence for post-conviction DNA testing. None on the results inculpated Mr. Skinner. To the contrary, the results either excluded him or were deemed “inconclusive.”
Notably, a hair found clutched in the victim’s hand, a hair declared by the district attorney prior to testing to have been grasped from the murderer as the victim struggled for her life, excluded Hank Skinner as the donor.
Without shame, the State quickly secreted other test results, particularly those for bloody and broken fingernail clippings and those for a rape kit. The fingernail clippings are especially significant because Hank Skinner had no fingernail scratches on his body. Nonetheless, the State refuses to reveal those results, the status of the testing, or the physical location of the evidence. Indeed, the State refuses to acknowledge even the existence of the evidence which, prior to testing, was well-kept and allegedly probative. The State’s behavior is particularly egregious since it announced with confidence beforehand that the testing would “put a few more nails in that man’s coffin.”
And finally, the State refuses to release for testing additional probative DNA evidence, though David Protess of the Medill Innocence Project has offered for more than a decade to fund it. Items which remain untested include a bloody knife and a bloody axe handle (the likely murder weapons), a bloody dish towel (found in a trash bag with a handprint from an unidentified third party), and a foreign windbreaker (contaminated with hairs, blood, and sweat.)
As Radley notes, the system takes pride in its work, and fights hard to make sure a conviction stays that way. After all, it would present a terrible burden if we were forced to second guess every conviction, deal with the open issue, accommodate the demands for testing. If we keep finding out the innocent are being convicted, people will lose faith in the system. That would be a travesty, as faith in the system is paramount. Without faith, we would feel awfully bad about executing people. Some of us, at least.
What stands about Skinner’s case is the fact that it falls into that very narrow category of cases where DNA exists, can be tested, and can serve its purpose of providing far better proof than a facile theory or well-tuned argument. When the state fights it, the DNA starts to emit an unpleasant odor that permeates the conviction. Why fight it, Texas? What are you afraid of?
I appreciate a good use of rhetoric as much as the next guy, and the state’s “nail in the coffin” language is particularly apropos. It’s tough and manly, as one would expect from Texas. But after the chest thumping, the tough guys of Texas have to put up or shut up. Now they just look like a bunch of sissies, afraid of a little DNA.
Not knowing enough about Hank Skinner’s case, it’s impossible for me to come out and say that he’s an innocent man. I haven’t a clue. Even with the respect I have for Balko’s view, and he’s no doubt more familiar with the case having written about it and asserted that Texas is about to execute an innocent man, I hesitate to declare a position.
But I do not hesitate to state that the lawmen behind the Skinner execution are all hat and no cattle. If you want to put a man to death, then allow the defendant to test the DNA. Disclose the full results of whatever testing you’ve done. As the email concluded:
They’re right about that. Just because this is happening in Texas doesn’t mean that the rest of the nation doesn’t care. Protecting your conviction isn’t a good enough reason to put an innocent man to death. Even in Texas. Let’s see if there’s anything under that big, macho, ten-gallon hat of yours before you push the plunger.
What stands about Skinner’s case is the fact that it falls into that very narrow category of cases where DNA exists, can be tested, and can serve its purpose of providing far better proof than a facile theory or well-tuned argument. When the state fights it, the DNA starts to emit an unpleasant odor that permeates the conviction. Why fight it, Texas? What are you afraid of?
I appreciate a good use of rhetoric as much as the next guy, and the state’s “nail in the coffin” language is particularly apropos. It’s tough and manly, as one would expect from Texas. But after the chest thumping, the tough guys of Texas have to put up or shut up. Now they just look like a bunch of sissies, afraid of a little DNA.
Not knowing enough about Hank Skinner’s case, it’s impossible for me to come out and say that he’s an innocent man. I haven’t a clue. Even with the respect I have for Balko’s view, and he’s no doubt more familiar with the case having written about it and asserted that Texas is about to execute an innocent man, I hesitate to declare a position.
But I do not hesitate to state that the lawmen behind the Skinner execution are all hat and no cattle. If you want to put a man to death, then allow the defendant to test the DNA. Disclose the full results of whatever testing you’ve done. As the email concluded:
With a robust and collective condemnation against the practice of executing factually exonerated individuals, the innocence community will help curtail the abuse of our government’s power to take from its citizenry their inalienable right to life.
They’re right about that. Just because this is happening in Texas doesn’t mean that the rest of the nation doesn’t care. Protecting your conviction isn’t a good enough reason to put an innocent man to death. Even in Texas. Let’s see if there’s anything under that big, macho, ten-gallon hat of yours before you push the plunger.
The Line Between Right and Money
Watching one of those new gadget segments on NBC this morning, because ABC is no longer available on Cablevision until they resolve who will get the lion’s share of the next cable price increase, one of the newest “cool things” was a beach safe. It’s a box to store one’s valuable while at the beach. I turned to Dr. SJ and said, “that’s a good idea.” Dr. SJ, as is her wont, disagreed.
“I don’t want to live like that. I won’t carry a safe with me wherever I go. At some point, you have to believe that people aren’t that untrustworthy.”
She can be so naive. For those of you who have foolishly subscribed to Simple Justice, you have endured what I have endured with the deluge of spam comments from backlinkers who bought Angela Edwards’ list of high pagerank URLs that have “do-follow” comments. You’ve read the arguments these backlinkers, as well as Angela herself, make in support of what they are doing. On a forum where , Angela offered more of vision.
Since I’m getting so many emails about it, I thought I’d bring it back up publicly. Folks get concerned when a website doesn’t like links and calls anything done for a backlink “spam”.
This particular site that you brought up, Sonia, is owned by a criminal defense attorney in New York, Scott H. Greenfield. This person, so up-in-arms by what he’s calling “high quality spam” (meaning that the comments are great and on-topic, but he doesn’t like the motivation for WHY the comments are being made) who called me a “scary sick woman” for having my backlinks program had this to say about the Lori Drew case, where the mother of a high school girl caused the suicide of 13-year-old Megan Meier after disguising herself as a teenaged boy on MySpace and luring the girl into a “cyber relationship” and then later telling her “The world would be a better place without you.”Quote:
Again, if a site is “bristling” at leaving links, don’t leave links on the site. It’s not respectful. But the “spam argument” is ‘in the eye of the beholder’. If a site allows a link then it is to be assumed that folks are allowed to leave a link on the site, regardless of their motivation for doing so. The folks who commented on Greenfield’s blog weren’t even being “inaccurate”. They were simply putting a link into the allowed spot for one.
To her credit, Angela does tell her acolytes not to leave links at a site where they are not wanted, as “it’s not respectful.” Of course, Angela’s advice comes just a tad late. She doesn’t find out before she sells the URL whether her mercenary endeavors will be unwelcome, leaving the “owner” to suffer her advances first, fending off the throngs of backlinkers. It’s easier to say I’m sorry than ask permission, but the harm is already done.But it’s the failure of her comprehension that speaks loudest. First, she equates “high quality spam” with “great and on-topic” comments. That many, though hardly all, of the comments left by her backlinkers were better than the typical spam comments that blawgers ordinarily receive, doesn’t make them great or on-topic. It merely makes them better than the awful crap typically received. This may be her spin, or the assumption of someone for whom language remains a mystery, but the implication is that comments, even if quasi-relevant, are themselves a sufficient payback for the backlink.
The failure of this self-justification is clear: The deal is cut by the backlinkers alone, without asking the blawger’s permission or approval. They find it sufficient, and I have no say in the matter. Or more precisely, Angela finds it sufficient and collects money by selling my URL. No cut for me, Angela? Don’t I get to wet my beak too?
Her other argument is more intriguing, relying on a little research on Angela’s part to learn what I’ve written on the Lori Drew case. I’m glad she had to work, if only a bit, to learn something, and would hope that the fact that she found such a substantive point might somehow help her to grasp that this blawg (or marketable URL, in Angela’s world) is about substance.
Angela points to my Lori Drew quote to suggest some sort of hypocrisy on my part. I can understand why she might think that, given her limited comprehension and twisted perspective. Granted, this is a somewhat nuanced argument, so it’s understandable that it would be beyond the grasp of a spammer.
Angela simplistically equates doing wrong with criminality. She does wrong, as do her followers. That doesn’t mean I believe she should be imprisoned for it, but it also doesn’t mean that anything not prison-worthy is fine. There are norms of behavior that don’t rise to the level of criminality but are still unacceptable. That Angela can’t understand this is at the root of the problem, and is clear from her rationalization of her behavior. The crux of her position is:
If a site allows a link then it is to be assumed that folks are allowed to leave a link on the site, regardless of their motivation for doing so.
It’s as though people are arguing that they should be allowed to come into your Dunkin Donuts franchise and pass out Starbucks coupons just because you’re open for business and the door is unlocked.
Worse, it’s like they’re coming into your house (since this is not a “firm” blog set up in the hopes of commerce) and demanding that they be allowed to sell your guests life insurance. It’s cheesy, it’s amateur-hour and you have the absolute right to deny them entry (or thrown them on their ass if they get past the front door). I can’t fathom how they think otherwise – and maybe I shouldn’t try.
In short, this goes to the sense of entitlement to take whatever one thinks one can get away with. There’s no issue of propriety or integrity involved. If one can swipe it without getting caught, then it’s perfectly acceptable. Indeed, there is a right to do whatever is in ones pecuniary interest, as long as you can get away with it.
Another backlinker, Jim Patterson (who says he doesn’t nearly as well of Angela and her ilk as she does of herself), writes:
The vast majority of Angela’s spammers are promoting commercial websites. The only purpose for their being online is to sell something, and hence the only reasonable perspective they would have as to what they are doing, and why the internet exists, is commercial. There is no reason why they would know, or care, about the norms that are expected of a blawg like this. It’s just fodder for their marketing efforts. Nothing more.
But some were lawyers. Lawyers trying to enhance their page rank to get on the first page of Google so that when a potential client looks for a lawyer in their niche or area, they will find them. This is what lawyer marketers are telling lawyers they must do to survive. This is the means by which clients are obtained. This is the future of a successful practice.
Is this who you want to be? Is this why you became a lawyer? To be a spammer to get on page one of Google?
While I can’t say that it’s been pleasant deleting posts every morning, and a few times throughout the day as well, I will survive it. But will those lawyers who are selling their integrity for pagerank survive what they’ve done to themselves for a buck? We are at a professional crossroad. Angela’s people sell everything from used cars to viagra. Are you merely another viagra seller?
Dr. SJ wants to believe that people aren’t that untrustworthy. I want to believe that lawyers aren’t. I want to believe that when you step back and look at what you are doing in the name of a buck, at the company you keep, that you will take a deep breath, a long shower and remember that you became a lawyer for a higher purpose than to make the first page of Google.
For those of you have been forced to endure this along with me, I’m sorry. Hopefully, we can salvage something useful from this unfortunate situation, and enlighten some lawyers who have fallen into the clutches of the marketers. Hopefully, some people will chose doing right over money.
Another backlinker, Jim Patterson (who says he doesn’t nearly as well of Angela and her ilk as she does of herself), writes:
The real question for me is pretty basic. Does the person leaving their link behind also leave value. If not, then Yep! It’s spam!This is an honest reflection of a fundamental difference in perspective between those on the internet who see it as a purely commercial medium and those who do not. This is where this discussion becomes more consequential for lawyers.
The vast majority of Angela’s spammers are promoting commercial websites. The only purpose for their being online is to sell something, and hence the only reasonable perspective they would have as to what they are doing, and why the internet exists, is commercial. There is no reason why they would know, or care, about the norms that are expected of a blawg like this. It’s just fodder for their marketing efforts. Nothing more.
But some were lawyers. Lawyers trying to enhance their page rank to get on the first page of Google so that when a potential client looks for a lawyer in their niche or area, they will find them. This is what lawyer marketers are telling lawyers they must do to survive. This is the means by which clients are obtained. This is the future of a successful practice.
Is this who you want to be? Is this why you became a lawyer? To be a spammer to get on page one of Google?
While I can’t say that it’s been pleasant deleting posts every morning, and a few times throughout the day as well, I will survive it. But will those lawyers who are selling their integrity for pagerank survive what they’ve done to themselves for a buck? We are at a professional crossroad. Angela’s people sell everything from used cars to viagra. Are you merely another viagra seller?
Dr. SJ wants to believe that people aren’t that untrustworthy. I want to believe that lawyers aren’t. I want to believe that when you step back and look at what you are doing in the name of a buck, at the company you keep, that you will take a deep breath, a long shower and remember that you became a lawyer for a higher purpose than to make the first page of Google.
For those of you have been forced to endure this along with me, I’m sorry. Hopefully, we can salvage something useful from this unfortunate situation, and enlighten some lawyers who have fallen into the clutches of the marketers. Hopefully, some people will chose doing right over money.
Upon Reflection, The NYSACDL Speaks
Closing the loop on the 18b issue, discussed earlier here, President George Golzer has issued this unanimous resolution from the NYSACDL:
NYSACDL unanimously resolves:
A strong and independent defense bar is an integral component of New York’s delivery of indigent defense services. From Hamilton’s defense of John Peter Zenger, to John Adams’ impassioned defense of the British soldiers after the Boston massacre to Clarence Darrow’s defense of Leopold and Loeb, the criminal defense bar has been indispensable to the effectiveness of our nation’s criminal justice system. As New York’s largest criminal defense bar association, NYSACDL strongly opposes any effort by New York City to reduce the participation of private lawyers in the defense of New York’s less fortunate. The implementation of New York City’s Request for Proposal potentially undermines the right to counsel announced by the Supreme Court of the United States in Gideon v.Wainwright in 1963.
NYSACDL vigorously urges the New York Legislature to adequately fund our state’s criminal defense system to comply with the mandate of Gideon.
As I was angrily informed by Board Member Michael Shapiro the other day, after noting that the NYCBA, the Queens County Criminal Bar Association and the NACDL had announced their positions while the NYSACDL had yet to do so:
By the way, what’s your rush for a NYSACDL position in advance of its Board meeting? Is the RFP about to take effect momentarily? Might not debate, thought and reflection be warranted? While you sometimes write first and think later, I would prefer that NYSACDL do it the other way around.
This is the product of their collective “debate, thought and reflection.” A simple “ditto” to the NACDL statement would have worked, but that would have denied the Association to speak its own mind. Now that they have, let’s parse the resolution.
A strong and independent defense bar is an integral component of New York’s delivery of indigent defense services.
Whether this is a truism or a slap in the face to public and institutional defenders, it begs the question “why?” It sounds as if it should mean something, but exactly what that is remains unclear. One would assume, as I must, that they are speaking of 18b lawyers, but it does not distinguish between private criminal defense lawyers and others.
From Hamilton’s defense of John Peter Zenger, to John Adams’ impassioned defense of the British soldiers after the Boston massacre to Clarence Darrow’s defense of Leopold and Loeb, the criminal defense bar has been indispensable to the effectiveness of our nation’s criminal justice system.
Fairly inspirational, in a vague sort of way, how this either distinguishes the need for 18b lawyers from either the private bar (as neither Hamilton, Adams nor Darrow were assigned by the panel) or public defenders remains unclear. Up to now, there is little to suggest that this isn’t a typical backslap for criminal defense lawyers.
NYSACDL strongly opposes any effort by New York City to reduce the participation of private lawyers in the defense of New York’s less fortunate.
We finally come to the meat of the resolution, where the Association, after “debate, thought and reflection,” arrives as the words it chooses to state the depth of its position: Strongly opposes. It’s impossible not to hear Demi Moore’s “strongly object” from A Few Good Men echoing in the background. Is this a clear and unequivocal statement or a tepid compromise? Obviously, stronger language was available for purchase at the gift shop, but these are the words chosen. What follows, therefore, becomes critical to flesh out the meaning of these two words.
The implementation of New York City’s Request for Proposal potentially undermines the right to counsel announced by the Supreme Court of the United States in Gideon v.Wainwright in 1963.
Lawyers are, by skillset, wordsmiths. While it might be said that I’m looking far closer at this than was ever intended, and this is more than likely true, the words do matter. By starting with the word “implementation”, the sentence suggests that the problem isn’t in the concept, but in its execution. Do they mean to say that they are fine with the concept of eliminating 18b, but that there is some unspoken implementation issue that bugs them?
Next, the sentence states that the unspoken implementation issue undermines Gideon. Not that it will undermine the strong and independent private criminal defense bar, but Gideon. This suggests that neither public defenders nor institutional defendants are competent to provide counsel to indigents. It might be worse but for the inclusion of the equivocal word “potentially”, suggesting that there may be no problem at all.
What this has to do with the statement isn’t at all clear, since the issue at hand isn’t state funding or funding adequacy. This is likely a toss-in relating to issues from the past, a state defender system, the adequacy of 18b compensation and the fact that the putative purpose of the RFP is to save money.
Normally, I wouldn’t have so cruelly parsed the resolution, line by line and even a word here and there. But it’s what comes when pedantic apologists fabricate excuses for a massive failure in focus and mission. After all other criminal bar associations have made the time to take positions and express them, only one stood silent and confused. It sounds awfully reasonable to claim that it needed time for “debate, thought and reflection,” until one realizes that every other criminal bar association managed to accomplish its mission. Or perhaps all the others acted rashly, acting first and thinking later? Maybe the NYCBA and NACDL are insignificant organizations as compared to the very important NYSACDL?
I doubt that this was what Shapiro meant, but it’s the message that comes from making thoughtless excuses. And it leads to heightened scrutiny when they finally get their act together and take a position.
The better way to view this resolution is to step back and ask, what does it accomplish. On the plus side, it takes a stand against the RFP, which by no means was a given. The NYSACDL has been conflicted in recent years as to who it represents. While it was founded as the voice of the private criminal defense bar, indigent defenders have gained a great deal of influence amongst the Board and officers, making it difficult to maintain a clear vision when internal conflicts of interest abound. When the issue is criminal defense versus prosecution, the answers come more easily than when the issues are intramural.
On the down side, beyond coming late to the party, there is no call for action, nor even a thought that action was in the offing. It’s a resolution that, at its bottom line, says the association strongly opposes the change. Who cares? It offers neither compelling reasons for the position, particularly reasons that might be persuasive to the City, nor a meaningful challenge the change. Did the association suspect that the City thought 18b bar would be happy about it and will now, learning that they are not, drop the change? Does the association believe that vaguely inspirational words are going to change anyone’s mind?
There is serious doubt that the NYSACDL could say or do anything that will alter this situation. It may be a lost cause already. But of the positions taken by the NYCBA, QCCBA and NACDL, it is by far the weakest, least rational and most irrelevant position. That’s what comes, I suppose, from too much “debate, thought and reflection.” Or maybe this is just a horse designed by a committee of very important lawyers.
At least the other associations have demonstrated the will to fight the elimination of 18b in New York City, and with it the resource that sustains the private criminal defense bar. Maybe a lawsuit against the City will fail. Maybe the call for study of the impact of this seismic change on the provision of indigent defense services before the evisceration of 18b will be ignored. Maybe nothing will save 18b. But at least they won’t let it happen without a fight.
Next, the sentence states that the unspoken implementation issue undermines Gideon. Not that it will undermine the strong and independent private criminal defense bar, but Gideon. This suggests that neither public defenders nor institutional defendants are competent to provide counsel to indigents. It might be worse but for the inclusion of the equivocal word “potentially”, suggesting that there may be no problem at all.
NYSACDL vigorously urges the New York Legislature to adequately fund our state’s criminal defense system to comply with the mandate of Gideon.
What this has to do with the statement isn’t at all clear, since the issue at hand isn’t state funding or funding adequacy. This is likely a toss-in relating to issues from the past, a state defender system, the adequacy of 18b compensation and the fact that the putative purpose of the RFP is to save money.
Normally, I wouldn’t have so cruelly parsed the resolution, line by line and even a word here and there. But it’s what comes when pedantic apologists fabricate excuses for a massive failure in focus and mission. After all other criminal bar associations have made the time to take positions and express them, only one stood silent and confused. It sounds awfully reasonable to claim that it needed time for “debate, thought and reflection,” until one realizes that every other criminal bar association managed to accomplish its mission. Or perhaps all the others acted rashly, acting first and thinking later? Maybe the NYCBA and NACDL are insignificant organizations as compared to the very important NYSACDL?
I doubt that this was what Shapiro meant, but it’s the message that comes from making thoughtless excuses. And it leads to heightened scrutiny when they finally get their act together and take a position.
The better way to view this resolution is to step back and ask, what does it accomplish. On the plus side, it takes a stand against the RFP, which by no means was a given. The NYSACDL has been conflicted in recent years as to who it represents. While it was founded as the voice of the private criminal defense bar, indigent defenders have gained a great deal of influence amongst the Board and officers, making it difficult to maintain a clear vision when internal conflicts of interest abound. When the issue is criminal defense versus prosecution, the answers come more easily than when the issues are intramural.
On the down side, beyond coming late to the party, there is no call for action, nor even a thought that action was in the offing. It’s a resolution that, at its bottom line, says the association strongly opposes the change. Who cares? It offers neither compelling reasons for the position, particularly reasons that might be persuasive to the City, nor a meaningful challenge the change. Did the association suspect that the City thought 18b bar would be happy about it and will now, learning that they are not, drop the change? Does the association believe that vaguely inspirational words are going to change anyone’s mind?
There is serious doubt that the NYSACDL could say or do anything that will alter this situation. It may be a lost cause already. But of the positions taken by the NYCBA, QCCBA and NACDL, it is by far the weakest, least rational and most irrelevant position. That’s what comes, I suppose, from too much “debate, thought and reflection.” Or maybe this is just a horse designed by a committee of very important lawyers.
At least the other associations have demonstrated the will to fight the elimination of 18b in New York City, and with it the resource that sustains the private criminal defense bar. Maybe a lawsuit against the City will fail. Maybe the call for study of the impact of this seismic change on the provision of indigent defense services before the evisceration of 18b will be ignored. Maybe nothing will save 18b. But at least they won’t let it happen without a fight.
Fees and the Internet Client
Brian Tannebaum posts about legal fees, and the factors that comprise what a lawyer is lawfully entitled to charge. As he explains,
People say to me all the time – “the economy must be great for you – people are probably getting in trouble more.” (domestic violence, DUI, theft).
Maybe, but here’s the obvious – when people don’t have money, they don’t have money. When people have no access to credit, they have no access to credit. And when people are looking to save whatever money they don’t have, they pay more attention to where they spend it.
One of the things lawyers are doing, and doing in ways that bear the stink of desperation, to counteract this situation is to try to find new sources of business. Enter the internet. It’s impossible to turn around without someone telling you that you’ve got to be online, have a website, blog, if you want to survive. Other, less ethical or discerning voices, urge lawyers to spam and lie their way to success. One way or another, many lawyers are listening to these voices as the phone rings less and the calendar has more gaps.
Having a fairly strong internet presence, I’ve got some experience with this. Calls come in from people who search for a lawyer online. Many of the calls aren’t particularly relevant, being from distant jurisdictions about cases that I either don’t handle or would be better handled locally. But a few involve the sort of cases that interest me.
The calls pretty much go like this:
Caller: My husband/boyfriend/son/father got arrested and I need a lawyer.
Me: Can you tell me about the case.
Caller: It’s a criminal case.
Me: Can you give me some more information? What court is it in, what are the charges, that sort of thing?
Caller: I really don’t know much more.
Me. I understand, but before I can set up a meeting, I need to know whether this is the sort of case I handle.
Caller: Well, I want to know what you charge.
There’s the real point of the call. And in case you’re wondering, this is the point of almost every call I’ve ever gotten via the internet.
My practice is based on word of mouth referrals. The people who are referred to me already have some understanding of who I am, what I do, how I charge. They come because they seek my representation. This isn’t to say that they aren’t concerned about legal fees. Who isn’t? But they aren’t buying a toaster and shopping around for the cheapest one out there.
Essentially every person who calls me because they found me online, regardless of source, is calling for a price. They may later ask some of the questions that websites suggest they should ask of a lawyer, such as “have you ever done a case like this before?” But that only comes after the primary question: How much will it cost.
Historically, I never discussed fees on the phone, or during an initial call. It made no sense whatsoever, as I could not provide a fee without the requisite case information even if I wanted to. It wasn’t possible. Unfortunately, the internet has changed this.
Imagine receiving a dozen calls a week for people desiring your services, prepared to meet with you and asking for a consultation (note the word, consultation). That’s an awful lot of time spent meeting and greeting. Reading their papers, thinking about what can be done, waiting for them to show when they’re late. Listening to their mother, brother, cousin, friend who is there for support ask an additional 50 or 60 irrelevant questions, then tell you about their legal problems as long as you’re stuck in the same room with them.
And at the end, when you are finally able to give them a meaningful legal fee, the blank stare that says, “I don’t have anywhere near that much money.” It’s not a good way to spend you time.
For lawyers prepared to accept whatever pocket change the client happens to be carrying when they arrive, and isn’t too picky about the types of cases they take on, the internet is the perfect place to build your criminal defense practice. If not, all the hype in the world isn’t going to make that potential client have the resources to pay your fee.
You can hear it from Tannebaum. You can hear it from me. It’s up to you whether you want to believe us. We aren’t saying not to have an online presence, but we’re saying that it’s not all it’s cracked up to be.
Having a fairly strong internet presence, I’ve got some experience with this. Calls come in from people who search for a lawyer online. Many of the calls aren’t particularly relevant, being from distant jurisdictions about cases that I either don’t handle or would be better handled locally. But a few involve the sort of cases that interest me.
The calls pretty much go like this:
Caller: My husband/boyfriend/son/father got arrested and I need a lawyer.
Me: Can you tell me about the case.
Caller: It’s a criminal case.
Me: Can you give me some more information? What court is it in, what are the charges, that sort of thing?
Caller: I really don’t know much more.
Me. I understand, but before I can set up a meeting, I need to know whether this is the sort of case I handle.
Caller: Well, I want to know what you charge.
There’s the real point of the call. And in case you’re wondering, this is the point of almost every call I’ve ever gotten via the internet.
My practice is based on word of mouth referrals. The people who are referred to me already have some understanding of who I am, what I do, how I charge. They come because they seek my representation. This isn’t to say that they aren’t concerned about legal fees. Who isn’t? But they aren’t buying a toaster and shopping around for the cheapest one out there.
Essentially every person who calls me because they found me online, regardless of source, is calling for a price. They may later ask some of the questions that websites suggest they should ask of a lawyer, such as “have you ever done a case like this before?” But that only comes after the primary question: How much will it cost.
Historically, I never discussed fees on the phone, or during an initial call. It made no sense whatsoever, as I could not provide a fee without the requisite case information even if I wanted to. It wasn’t possible. Unfortunately, the internet has changed this.
Imagine receiving a dozen calls a week for people desiring your services, prepared to meet with you and asking for a consultation (note the word, consultation). That’s an awful lot of time spent meeting and greeting. Reading their papers, thinking about what can be done, waiting for them to show when they’re late. Listening to their mother, brother, cousin, friend who is there for support ask an additional 50 or 60 irrelevant questions, then tell you about their legal problems as long as you’re stuck in the same room with them.
And at the end, when you are finally able to give them a meaningful legal fee, the blank stare that says, “I don’t have anywhere near that much money.” It’s not a good way to spend you time.
For lawyers prepared to accept whatever pocket change the client happens to be carrying when they arrive, and isn’t too picky about the types of cases they take on, the internet is the perfect place to build your criminal defense practice. If not, all the hype in the world isn’t going to make that potential client have the resources to pay your fee.
You can hear it from Tannebaum. You can hear it from me. It’s up to you whether you want to believe us. We aren’t saying not to have an online presence, but we’re saying that it’s not all it’s cracked up to be.
Feelings. Nothing More Than Fee-ee-eelings.
Some things need not be explained or justified. Why you love your spouse. Why you prefer chocolate to vanilla. Why red is your favorite color. These are things you feel. That you feel them is sufficient, and there’s nothing more to discuss.
But if you want to persuade someone to see things your way, feelings are useless. Feelings are yours. Feelings are personal. Feelings have nothing to do with logic or reason. They cover up a myriad of sins, since each of us is entitled to feel as we do, without having to provide anyone else in the world with an explanation or meet another’s approval.
Others have their own feelings. They don’t need yours. Aside from the early stages of puppy love, they likely don’t really care what you feel anyway. They are preoccupied with their own feelings.
The distinction is between emotion and reason. The problem is that it’s become a total mashup lately, and the feelers are having some trouble understanding why other people, me for example, don’t respect their feelings. I was reminded of this during discussions of my Slackoisie Litmus Test. While the test worked out wonderfully, providing ample opportunity for people to see the conflict through the prism of their experience and perspective, regardless of which side (if any) they supported. Unfortunately, not everyone was able to appreciate the point of the test.
One commenter assumed that I hate young people, and expounded that this was how I felt. After explaining that I don’t hate young people, and, in fact, care deeply about young people, that being one of the primary reasons why I try so hard to encourage them to get off their duffs, stop whining and become productive members of society, I was informed that I’m wrong. Why? Because, that’s how she felt.
This isn’t the first time I’ve dealt with people who believe their feelings on a subject that demands reason are sufficient. The first it struck me square between the eyes was when I was teaching a CLE, and a new attorney informed me that she felt that she need not be concerned with how her argument played to a jury, as long as she felt it was a good argument. Try as I might, she refused to accept the notion that her feelings were irrelevant, the jury being the decision maker. Though the issue was one of reason, her position was one of emotion. She wouldn’t be moved. That the problem, as I pointed out, was that her satisfaction with her argument didn’t do her client much good when he was convicted. No dice. She still wouldn’t budge.
The beauty of reliance on feelings is that it not only trumps all else, but it requires no further justification. When I explained that her “feelings” were illogical, that they ignored reason and experience, it was like talking to a wall. I was informed that I didn’t get it, much like the old adage that everyone is entitled to an opinion. Except it’s untrue; only those who have a basis for an opinion are entitled to one. The rest are just making noise.
In the olden days, the difference between feeling and thinking were fairly well understood. It’s become commonplace today for young lawyers and law students to believe that their feelings are inherently worthy, a fine substitute for reason, and they are hardly reluctant to express them and demand that you acknowledge them. In ten years, they will look back (hopefully) and laugh (hopefully) at the childish silliness they spouted.
For now, they wrap themselves up in the inherent belief that their feelings, about themselves, about others, about their work, about ideas, are self-justifying. It’s a cocoon that protects them from having to face the fact that they don’t know everything, that their limited life experience has not yet prepared them to comprehend the world around them. Rather than recognize their limitations, they try to squish the world around them into their limited, often simplistic paradigm, It’s far easier to make sense of the world by pretending that everyone else is as limited as them, projecting their feelings onto others, assuming whatever serves their understanding without knowing much of anything.
I was told that I failed to “respect” this young woman because of my failure to understand and appreciate her feelings. I responded that I showed her the utmost respect by virtue of discussing the issue with her. This infuriated her, though she denied it. I treated her like an adult, having a real discussion with real explanations. That it was worth my time to engage in this discussion was as clear a show of respect as one person can give another. If I didn’t respect her, I wouldn’t have bothered to engage her at all.
This was not merely an inadequate response on my part, as far as she was concerned, but an affront. As if I was so arrogant that my deigning to talk to someone as lowly, as inconsequential as her was more than she deserved. She didn’t understand. While she is inconsequential in terms of her agreement or disagreement being of no consequence to me, or to anyone of consequence in my sphere, the most important thing I can offer to her directly is my attention and interest, as shown by my engaging directly in a discussion with her. These are things of value to me, and I gave them to her. It wasn’t enough for her. She wanted to be coddled, to have her feelings shared and appreciated. That I cannot do.
When it comes to your preference for chocolate over vanilla (or vice versa), acceptance decisions as we used to call them, your feelings are a perfectly fine way to go. But when it comes to any idea or position that demands support, or which you hope to convey to another to persuade them that you’re correct, then your feelings have no place. You cannot demand that others ignore reason and logic, or hide behind your (now hurt) feelings to smugly assert that it doesn’t matter what logic dictates, you’re still right.
Spare us your feelings when it comes time to argue your point. Give us your reasons, and be prepared to face the reasons of others. I’m sorry if this hurts your feelings. but that’s how it is.
The Defense Commitment
When a lawyer decides to join the office of a prosecutor, she’s asked to give a commitment. It’s usually expressed in terms of years, that she’ll stay with the office for, say, a three year period before taking the courtroom experience gained and selling it on the open market. When a lawyer decides to defend, the commitment is for life.
There have been many instances where a criminal defense lawyer who seeks a different position, usually elected, later will be attacked for his service. It’s too easy for some mutt without anything to commend him to attack his opponent for defending murderers. You bet. That’s what we do. We defend murderers. Guilty as charged.
And terrorists too, as former head of the Department of Justice’s Office of Legal Counsel, Walter Dellinger, learned to his apparent surprise. This prompted him to write an Op-Ed in the Washington Post :
Ashby Jones at the WSJ Law Blog asks whether Department of Jihad goes too far. Orin Kerr at Volokh Conspiracy thinks this is the sort of attack that Senator Joe McCarthy would have used, according to Ashby though I can’t find any post there that says this. Jonathon Adler at VC, however, noted Dellinger’s op-ed calling the scurrilous attack “shameful”. And it is. And it should be. But…
There are two sides in our system, the prosecution and defense. While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence. We are, at best, a necessary evil.
We are not welcome in their clubs. Our voices are not sought on issues of substance. When a new regime comes to power in our quadrennial peaceful coup, we are not invited to join their ranks. Indeed, when I once tried to offer my services during a fit of naive optimism to a new administration who claimed a sincere interest in justice, I was privately informed that, talking points aside, criminal defense lawyers were not wanted. We are the lepers of the legal system.
In Dellinger’s case, the epiphany came when his colleague at that radical law firm, O’Melveny & Myers, slummed by aiding the defense of Gitmo detainees. Honest work, but not what fills the firm’s coffers. For Biglaw, defense is where they do pro bono, practice up on seldom used skills and feel as if they are doing something more useful than squabbling over how many options the new CEO will get with his golden parachute. It’s the sort of thing they can point to when others complain that they’re just vultures, sucking money out of large corporations to the detriment of mankind.
That they provide these types of services pro bono is a good thing, and Biglaw has done some great work on behalf of the poor and downtrodden, often in death penalty cases where the right to counsel had long since expired and solo lawyers couldn’t possibly dedicate their energies without guaranteeing the starvation of their children. Many have benefited from these efforts, and that’s great.
But they’re just dabblers. This is something they do between mergers and acquisitions, not in lieu of it. You will never find anyone at Biglaw where black sneakers and hoping that no one notices they aren’t really shoes. They wear suit jackets with working cuff buttons, leaving the bottom one unbuttoned so everyone will know. And they aren’t prepared to be tainted permanently by the pro bono hours spent in the service of criminals.
We’ve been living like this forever, Walter. We do honest work. We are as much a part of the system as any prosecutor. Our contribution is vital, for without us there can be no system. Contrary to the attacks of the ignorant and angry, we do not support crime or terror. We support the Constitution. The NACDL calls us liberty’s last champions. You aren’t against liberty, are you?
Now that someone as mainstream as Walter Dellinger has come to the realization that we are not the slimy defenders of evil that almost everyone in government, and then subsequently in partnership at O’Melveny & Myers, believes us to be, maybe the discussion should go a bit farther than the Al Qaeda 8 and ask why criminal defense lawyers are seen as pariahs by the official people of the bar and government. Maybe we have something to offer government, have the same interests and understanding of a nation run well, run safely, run with honor toward both the law and rights.
Walter Dellinger opened the door to a discussion. Let’s make the discussion real and include all who have been tainted by their service in our legal system, and ask why criminal defense lawyers should be perpetually excluded from positions of power or authority because we’re the bad boys of the criminal justice system.
There have been many instances where a criminal defense lawyer who seeks a different position, usually elected, later will be attacked for his service. It’s too easy for some mutt without anything to commend him to attack his opponent for defending murderers. You bet. That’s what we do. We defend murderers. Guilty as charged.
And terrorists too, as former head of the Department of Justice’s Office of Legal Counsel, Walter Dellinger, learned to his apparent surprise. This prompted him to write an Op-Ed in the Washington Post :
It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”The Department of Jihad. Catchy, right? No, actually it’s awfully juvenile and silly. It’s the sort of thing that comes from the people who wear tinfoil on their heads to keep the gamma rays out. Does this describe William Kristol, the conservative in residence at the New York Times, and Liz Cheney, the apple of Dick’s eye? I would like to believe they lent their name to the board, but don’t really show up for meetings, because if they do, they should be ashamed of allowing such a silly phrase. They could have done better.
Ashby Jones at the WSJ Law Blog asks whether Department of Jihad goes too far. Orin Kerr at Volokh Conspiracy thinks this is the sort of attack that Senator Joe McCarthy would have used, according to Ashby though I can’t find any post there that says this. Jonathon Adler at VC, however, noted Dellinger’s op-ed calling the scurrilous attack “shameful”. And it is. And it should be. But…
There are two sides in our system, the prosecution and defense. While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence. We are, at best, a necessary evil.
We are not welcome in their clubs. Our voices are not sought on issues of substance. When a new regime comes to power in our quadrennial peaceful coup, we are not invited to join their ranks. Indeed, when I once tried to offer my services during a fit of naive optimism to a new administration who claimed a sincere interest in justice, I was privately informed that, talking points aside, criminal defense lawyers were not wanted. We are the lepers of the legal system.
In Dellinger’s case, the epiphany came when his colleague at that radical law firm, O’Melveny & Myers, slummed by aiding the defense of Gitmo detainees. Honest work, but not what fills the firm’s coffers. For Biglaw, defense is where they do pro bono, practice up on seldom used skills and feel as if they are doing something more useful than squabbling over how many options the new CEO will get with his golden parachute. It’s the sort of thing they can point to when others complain that they’re just vultures, sucking money out of large corporations to the detriment of mankind.
That they provide these types of services pro bono is a good thing, and Biglaw has done some great work on behalf of the poor and downtrodden, often in death penalty cases where the right to counsel had long since expired and solo lawyers couldn’t possibly dedicate their energies without guaranteeing the starvation of their children. Many have benefited from these efforts, and that’s great.
But they’re just dabblers. This is something they do between mergers and acquisitions, not in lieu of it. You will never find anyone at Biglaw where black sneakers and hoping that no one notices they aren’t really shoes. They wear suit jackets with working cuff buttons, leaving the bottom one unbuttoned so everyone will know. And they aren’t prepared to be tainted permanently by the pro bono hours spent in the service of criminals.
We’ve been living like this forever, Walter. We do honest work. We are as much a part of the system as any prosecutor. Our contribution is vital, for without us there can be no system. Contrary to the attacks of the ignorant and angry, we do not support crime or terror. We support the Constitution. The NACDL calls us liberty’s last champions. You aren’t against liberty, are you?
Now that someone as mainstream as Walter Dellinger has come to the realization that we are not the slimy defenders of evil that almost everyone in government, and then subsequently in partnership at O’Melveny & Myers, believes us to be, maybe the discussion should go a bit farther than the Al Qaeda 8 and ask why criminal defense lawyers are seen as pariahs by the official people of the bar and government. Maybe we have something to offer government, have the same interests and understanding of a nation run well, run safely, run with honor toward both the law and rights.
Walter Dellinger opened the door to a discussion. Let’s make the discussion real and include all who have been tainted by their service in our legal system, and ask why criminal defense lawyers should be perpetually excluded from positions of power or authority because we’re the bad boys of the criminal justice system.
As The Blawgosphere Turns
Having criticized Legal Blog Watch’s n00b Eric Lipman (no blog link for Eric, because, well, Eric has no blog) for his fashion sense (and myopia), it seemed appropriate to follow up with my own stroll through the blawgosphere, kicking the can in the gutter so to speak.
A few days ago, Ed at Blawgreview sent me a link to another of the new genre of Lawyer scam websites, this mutt called . Why call it that? Because Lawyers So Lousy And Desperate For Business That They Will Pay Some Yutz Like Me For A Listing On My Internet Scam Website would not be a big draw, Sadly, before I posted about this new scam, largely because so much of my time this week has been eaten up with fighting another marketing scam, the backlinks comment scheme, Bob Ambrogi beat me to it. The website claims to be
A few days ago, Ed at Blawgreview sent me a link to another of the new genre of Lawyer scam websites, this mutt called . Why call it that? Because Lawyers So Lousy And Desperate For Business That They Will Pay Some Yutz Like Me For A Listing On My Internet Scam Website would not be a big draw, Sadly, before I posted about this new scam, largely because so much of my time this week has been eaten up with fighting another marketing scam, the backlinks comment scheme, Bob Ambrogi beat me to it. The website claims to be
“an independent authority on the best attorneys at law,” and went to say:The independent authority evaluates each attorney at law based several identified factors depending on the field of expertise. An assigned experienced research team reviews case history and firm expertise on the targeted field of practice taking into account specialized state variances on the legal issues. The team analyzes information provided by each firm, and compares that against the market of lawyers throughout the state. Once the evaluation is complete, the team compiles the overall data, and assigns each firm a ranking.So far so good. I decided to check…
Shock. It’s a total scam, listing attorneys as “best” in fields they don’t practice and in states they aren’t admitted. Tell me again how it’s beneficial to the public, to the legal consumer, that there be all these wonderful ways to search for lawyers, while websites and lawyers lie through their teeth about the qualifications and merit? But “we have to advertise” or no one will know we exist, I’m constantly told. If you thought Total Attorneys was bad, they may emerge as one of the cleaner get-rich-quick schemes on the internet.
After all, what’s honesty when there’s a buck to be made. And it’s not like we’re lawyers. Oops. we are lawyers. Never mind.
Over at Concurring Opinions, lawprof Danielle Citron is still pounding the pavement in her quest to turn the free speech issue of online “harassment” (defined as anything that makes some woman feel bad) into a feminist issue. As much as I admire her tenacity, horses across the nation are complaining about the resultant shortage of straw.
This time, the Denver University Law Review has sponsored a symposium to debate the issue. Unfortunately, the trick is to have a debate amongst sycophants, carefully vetting the participants to make sure that no one gets in the door who isn’t wholly wedded to the gender shift. It’s an important lesson for law students, that if you want to win an argument, make sure that nobody who disagrees is around. Smart move, Danielle.
In the meantime, the very nasty, and yet remarkably dubious, trial in the media of 30 year old John Albert Gardner III is proceeding at ABC’s Good Morning America. Gardner is accused of raping and murdering 17 year old Chelsea King, a horrific crime and one which, if he’s proven guilty, surely merits the fullest outrage our system can provide. The piece by Mike Von Fremd, et al., naturally starts out with questions by John Walsh, never one to let proof of guilt precede condemnation, like “Why was this animal out on the streets?” But it gets worse from there.
After all, what’s honesty when there’s a buck to be made. And it’s not like we’re lawyers. Oops. we are lawyers. Never mind.
Over at Concurring Opinions, lawprof Danielle Citron is still pounding the pavement in her quest to turn the free speech issue of online “harassment” (defined as anything that makes some woman feel bad) into a feminist issue. As much as I admire her tenacity, horses across the nation are complaining about the resultant shortage of straw.
This time, the Denver University Law Review has sponsored a symposium to debate the issue. Unfortunately, the trick is to have a debate amongst sycophants, carefully vetting the participants to make sure that no one gets in the door who isn’t wholly wedded to the gender shift. It’s an important lesson for law students, that if you want to win an argument, make sure that nobody who disagrees is around. Smart move, Danielle.
In the meantime, the very nasty, and yet remarkably dubious, trial in the media of 30 year old John Albert Gardner III is proceeding at ABC’s Good Morning America. Gardner is accused of raping and murdering 17 year old Chelsea King, a horrific crime and one which, if he’s proven guilty, surely merits the fullest outrage our system can provide. The piece by Mike Von Fremd, et al., naturally starts out with questions by John Walsh, never one to let proof of guilt precede condemnation, like “Why was this animal out on the streets?” But it gets worse from there.
Former San Diego County District Attorney Paul Pfingst was slightly more objective.
“I am of the view that people who do harm to teenage girls should go to Gitmo and stay there for the rest of their lives and be waterboarded,” he said.
It’s one thing to have a non-lawyer advocate like Walsh ranting, but to have the former San Diego County District Attorney adding to the lynching is an entirely different matter. Bad enough that Lee Stonum, an Orange County PD and one of my favorite commenters here for his glee is making sure to let me know when I’m wrong, shot off an outrage email to Pfingst about his “despicable disregard for the Constitution.” To his (and my) surprise, Pfingst responded:
My comment was that as a parent I would want the most extreme punishment for a rapist killer. The way it was phrased was intended to be so over the top that it would be immediately recognized as hyperbole.
I went on to say that it would be wrong to have a criminal justice system that acted based upon the emotions of the moment. . My point was that anger cannot overwhelm our need to follow the legal processes. I went on to point out that so far we didn’t know a single piece of evidence. Only leaks and rumors. And that he is presumed innocent.
I have long since given up trying to seek corrections from the press.
Nothing like taking the 10 seconds of a quote that leaves the ugliest misimpression, eh Mike? While this serves as a reminder that speaking to the press carries grave risks, it also reminds us that the internet is an unforgiving place, where one out-of-context quote will be repeated enough to wrongly smear someone forever. Even Doug Berman, in his post on the Gardner case, perpetuates Pfingst’s quote. After all, GMA would never lie.
And finally, via Walter Olson at Overlawyered, a truly interesting Reason TV interview with a remarkably youthful looking Eugene Volokh. The best part comes at the end, when Eugene does a rousing rendition of the Phil Ochs classic, Outside of a Small Circle of Friends, accompanied by 9th Circuit Chief Judge Alex Kozinski on the ocarina.
Okay, that wasn’t Judge Kozinski. So sue me.
Taking Down Goliath With A SLAPP
The system may not be perfect, but it’s the best there is. Keep saying this over and over, and it might bring you some comfort if you’re a blogger who criticizes a product manufactured by a major corporation, or spills some information that a wealthy and powerful entity prefers remain confidential, and gets sued. Our perfect system can crush the good guy if the bad guy has enough money to sue.
The problem isn’t who wins in the end, assuming the system doesn’t screw it all up in the process, but who is financially ruined by a lawsuit brought for that purpose alone. Remember, blogging has yet to make anyone fabulously wealthy, and defending oneself costs a few shekels. The party with deeper pockets has a huge advantage in shutting up the party in the right. That’s the American legal system way.
This is why the federal Anti-SLAPP legislation introduced by Rep. Steve Cohen (D-TN), HR 4364, the “Citizen Participation Act of 2009,” merits support. Lawprof Eric Goldman provides the background for SLAPPs, strategic lawsuits against public participation. and why this legislation provides a well-crafted Anti-SLAPP weapon without damaging the right to sue when appropriate.
Naturally, First Amendment Freedom Fighter Marc Randazza has taken up the Anti-SLAPP flag and plans to carry it into battle. At the Legal Satyricon, he and his Satyriconistas (a name that I coined but he claims he did but I really did, no matter what he says) will be providing examples of why this legislation is needed. For those who enjoy the occasional biblical reference, though, consider this legislation the weapon with which David and Goliath had a reasonably fair fight.
While lawyers often argue that it’s not the facts or the law that win a lawsuit, but the party with the best lawyer, the obscure the most important truism. The American system of justice favors the party with the most money. It’s not like they pay the best lawyer with bubble gum and kind words, you know. Anti-SLAPP legislation will level this field, without undermining the ability to bring legitimate suits. It’s time.
And if you get a spare moment, it would be swell if others might post about it to let Rep. Steve Cohen know that we appreciate his efforts, and others in Congress know that it’s okay to take a day off from creating new crimes and do something useful for once.
The problem isn’t who wins in the end, assuming the system doesn’t screw it all up in the process, but who is financially ruined by a lawsuit brought for that purpose alone. Remember, blogging has yet to make anyone fabulously wealthy, and defending oneself costs a few shekels. The party with deeper pockets has a huge advantage in shutting up the party in the right. That’s the American legal system way.
This is why the federal Anti-SLAPP legislation introduced by Rep. Steve Cohen (D-TN), HR 4364, the “Citizen Participation Act of 2009,” merits support. Lawprof Eric Goldman provides the background for SLAPPs, strategic lawsuits against public participation. and why this legislation provides a well-crafted Anti-SLAPP weapon without damaging the right to sue when appropriate.
Key to its effectiveness in stopping suits whose real purpose isn’t vindication of a right but to silence a critic by a deep-pockets plaintiff is the award of legal fees for the successful defendant. How many bloggers have a spare hundred grand in their wallet to toss into beating back a frivolous suit designed to shut them up? Without anti-SLAPP legislation, the best win is still a Pyrrhic victory, and that’s not good enough if, as Goldman explains, if we want to protect the “information ecosystem.”Effectively, defendants can turn the tables on the plaintiffs, file an anti-SLAPP motion to strike the litigation, and thereby ask the court to end the lawsuit much more quickly than under traditional rules. Second, anti-SLAPP laws allow successful defendants to be awarded their legal defense costs.
Thus, anti-SLAPP laws have a number of benefits: they get meritless cases off court dockets early, they force plaintiffs to think carefully about their lawsuits’ merits, and they make defendants financially whole for improper lawsuits. The laws protect online and offline speech equally.
Naturally, First Amendment Freedom Fighter Marc Randazza has taken up the Anti-SLAPP flag and plans to carry it into battle. At the Legal Satyricon, he and his Satyriconistas (a name that I coined but he claims he did but I really did, no matter what he says) will be providing examples of why this legislation is needed. For those who enjoy the occasional biblical reference, though, consider this legislation the weapon with which David and Goliath had a reasonably fair fight.
While lawyers often argue that it’s not the facts or the law that win a lawsuit, but the party with the best lawyer, the obscure the most important truism. The American system of justice favors the party with the most money. It’s not like they pay the best lawyer with bubble gum and kind words, you know. Anti-SLAPP legislation will level this field, without undermining the ability to bring legitimate suits. It’s time.
And if you get a spare moment, it would be swell if others might post about it to let Rep. Steve Cohen know that we appreciate his efforts, and others in Congress know that it’s okay to take a day off from creating new crimes and do something useful for once.