Frankly, I was quite surprised when Mark Britton, Avvo’s CEO,  asked me to give the closing keynote address at this year’s  Lawyernomics conference.  The reception for  my presentation at Avvo’s last effort at a marketing conference, Avvocating, was luke warm, at least from Avvo’s general counsel, Josh King. who thought it was a bit on the “screed” side.

For those unaware, Lawyernomics is a marketing conference for lawyers.

Generate More Business Online

Learn from technology experts and marketing savvy attorneys

In today’s ultra-competitive business landscape, it’s critical for attorneys to make the most of their digital presence. That’s why you can’t miss Lawyernomics 2013 – a two day legal marketing conference packed with exciting speakers offering the latest online trends and business development knowledge.

So a virtual lawyer walks into a virtual bar…

Most talks begin with a joke to warm up the crowd and get the audience smiling. It’s always better to have a smiling audience than an angry one, especially if there is something to throw close at hand.  But there is no joke that begins with a virtual lawyer walking into a virtual bar.

I suspect there are two reasons for this.  The first is that virtual lawyers have no sense of humor about what they are trying to do.  They spend their time fighting for respectability, and anything that suggests they are joke-worthy cuts them to the quick. 

To be able to embrace a joke with good nature, you have to be reasonably secure in what you do. Virtual lawyers are not.  In the back of their heads, they wonder if the snickers they hear are about them.

The second reason is that there is nothing funny about what they have done to you, my sad and lonely band of brothers, who have the free time to spend in beautiful Las Vegas to learn how to market the crap out of yourselves in the hope that you will soon enjoy the fame and wealth you were promised when that acceptance to Cooley came in the mail.

Last year, I explained to the audience my bona fides, the authority I have to speak to such matters as marketing on the interwebz.  This year, due to the generosity of Josh King’s introduction which attributes such spectacular credibility to me that I stand here blushing, I have nothing more to say.

But I blush up here before you. That makes me stand out among the people who have taken the stage before me.  They don’t blush. There is nothing that could be said, nothing that could be done, that would embarrass them. Call them Thought Leader, Maven, King of the World, perhaps, and they will proudly wear their crown. That is the message of Lawyernomics, that if you don’t seize every opportunity to puff yourself, to make yourself the most greatest lawyer ever, who will?

And that’s where the virtual lawyer comes in.  When I spoke of “virtual lawyers,” you probably thought I was talking about lawyers with a virtual law office, the lawyers who work from their kitchen tables or the local Starbucks, who never meet their clients and share their work in a dropbox in the cloud. 

No, I was talking about something very different. I was talking about the lawyer website, the lawyer blog, the lawyer Avvo profile, who is doing all the things you’ve been told to do to market yourself.  Create a virtual persona that clients will love, will appreciate, will desperate want to hire.  Isn’t that what this is all about? 

Of course, you deserve to have that great marketing profile. You are all fabulous lawyers, dedicated to doing excellent work, dedicated to serving your clients, dedicated to the honor and integrity of your profession.  But those other virtual lawyers, the ones who you think are stealing your clients, taking the food off your table. They are the bad ones, the evil ones, the ones who bring dishonor to your profession.

As we all painfully know, on the internet, nobody knows you’re a dog. They are dogs, but they have websites that make them look like the greatest lawyer since Benjamin Cardozo.  They know nothing about how to represent clients, but ten minutes of skimming a few well-written blogs and they can crank out a post that gives the impression that they have a clue.  Or worse still, they let other people write their posts for them in exchange for a link back to some website that sells Nigerian diet pills. It’s not like potential clients know right from wrong.  But let’s keep that between us, okay?

So these are the bar for each of you, with their search engine optimized anchor text sucking up the google-juice that would otherwise be yours.  It’s breaking your hearts. It’s killing you. These scoundrels are sucking up all the good cases and clients out there. You know they must be, because they good ones certainly aren’t coming to you so they have to be going somewhere.

You’ve heard from speakers here about how they sell laundry detergent and shiny doo-dads. You’ve heard from speakers here who tell you about the cutting edge trends, even though they, like you, can barely feed their children. You’ve heard from speakers who are smart marketers, knowing that if they endear themselves to you, you will trust them enough to give them your last few dollars. 

But what they are all trying to tell you is that the special, hidden secret of marketing yourself as a lawyer on the internet is always position yourself one step below your competition. If they scream, you scream louder. If they stroll the boulevard in hot pants, you stroll it in tighter hot pants. If they claim to have 100 satisfied clients named “Justin T.,” you claim to have a thousand.

And so I have a joke to tell you:

Two men are walking through a forest.  Suddenly, they see a tiger in the distance, running towards them.  They turn and start running away.  But then one of them stops, takes some running shoes from his bag, and starts putting the on.

“What are you doing?” says the other man.  “Do you think you will run fast than the tiger with those?”

“I don’t have to run faster than the tiger,” he says.  “I just have to run faster than you.”

Whatever sleazy thing the virtual lawyer does that angers you, frustrates you, makes you wonder why you checked the “Yes, I’m a’coming” box on the Cooley response card, don’t let it get you down. Just lace up those running shoes and be one step sleazier, one lie better, and you become the winner in the race to the bottom.

Until, of course, the virtual lawyer will then slide in beneath you. But there is always something you can do to go lower.  Just don’t be like me and blush, or you will never make it in the ultra-competitive landscape of internet marketing. 

Now, go out and be the best virtual lawyer you can be. Remember, you can always go lower.

These are the times that test us. Will we prove ourselves worthy?

No one can dismiss that efforts of law enforcement in the capture of alleged Boston Marathon Bomber, murderer of 26-year-old MIT campus police officer Sean Collier, Dzhokhar Tsarnaev. They resisted the opportunity of killing him in a hail of return gunfire and took him alive.  Such patience is unfortunately rare, and to be recognized.

What becomes of him now?  There are angry people who want him to hang high now, while others want to try him first and then hang him high.  But just as the media, and even bloggers who claim to be the savior of the poor and downtrodden, in a rush to be the first to play the fool in the ether, were busy spreading insanely baseless accusations and misinformation without the shame to concern themselves with who they hurt, explanations of the process to come will feed the public’s ignorance and leave them less knowledgeable than they were when they knew nothing.

Within the past 24 hours, a few legal issues arose for public discussion. The first was the authority of the police to conduct warrantless and unconsented house searches to look for Tsarnaev.   Orin Kerr began an analysis of the legality:

Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.

Note that caselaw on these sorts of facts are particularly unlikely for reasons beyond the fortunate rarity of their occurrence. The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. See Rakas v. Illinois , 439 U.S. 128 (1978). As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

An often hidden concealed ploy in the law enforcement arsenal of interrogation is the two-step process, where agents question a person without benefit of Miranda warnings, usually under a pretense, in a deliberate effort to get the target to start talking and, if all goes well, say something he’ll regret. 

Only then, after an admission or confession will they administer Miranda and then get the person to repeat what he’s already said.  It’s incredibly easier to get someone to say it a second time than the first. After all, the harm’s been done. It can’t get any worse, right?

The 9th Circuit provides a pretty clear discussion of the two-step process in United States v. Barnes, What makes this opinion rather remarkable is that the FBI agents who questioned Barnes, a parolee, apparently did the one thing no one ever anticipates government agents doing: they told the truth and admitted what they were up to.

Agent Eckstein testified that he was familiar with Miranda’s requirements, believed Barnes would think he was not free to leave the meeting, and intended to question Barnes about his involvement in a crime. He further stated that the agents played the recorded phone conversation to demonstrate that they “were investigating [Barnes],” because “unless he believed that[,] he would not cooperate” with the agents and “would not talk to [them].” Agent Eckstein explained that he did not give the warnings at the beginning of the meeting because he “wanted to allay any concerns [Barnes] had that he was being arrested that day.”

Rarely will an agent openly admit his purpose was to trick his target into talking, and in furtherance of that purpose, intentionally failed to give Miranda warning because “they think they’re under arrest because they equate being Mirandized with being under arrest.” 

One might think that the intentional failure to provide required notice would be the end of the question, but not quite.  As the remedy for failure to Mirandize is suppression of statements taken during a custodial interrogation without saying the magic words, Agent Eckstein’s tricking Barnes into admitting involvement in a narcotics transaction pre-Miranda was itself inadmissible, but accomplished two critical things: first, the agent obtained the information he sought, and second, he got the words out of Barnes’ mouth.

That’s the key. Once a target tells the agents what they want to know, getting him to repeat it is a breeze. After all, he already said it. They already heard it. It’s too late.

Except there is still that darned Miranda thing.  As Elie Mystal argues at Above The Law, Miranda matters. And so, the second step of the process follows:

There was no break or dividing point in the interrogation. Barnes was interrogated in the same place before and after the warnings. After Barnes waived his rights, the agents immediately resumed the interrogation and continued questioning Barnes for approximately two hours. The agents apparently stopped only long enough to read Barnes the “advice of rights” form and allow him to waive his rights.

So the deliberate two-step process, deliberately used to circumvent the purpose of Miranda, was enough to suppress the statements, right?  Well, still not quite.  Had the agents broken the interrogation into two discrete parts, with a gap between them that would have allowed Barnes to reflect on what he was doing and allow him time for the Miranda warnings to sink in, it could have been sufficiently attenuated so that the second step of the interrogation would have been allowed. Cool trick, right?

But the agents here didn’t bother to take a breather, and plowed ahead.

This timing particularly reduces the impact of the recitation of constitutional rights. See Seibert, 542 U.S. at  3 (“Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent . . . .”). It is clear that Barnes admitted his involvement in the crime before he received the warnings and that his post-warning confession was merely an elaboration on his pre-warning admission of guilt.

And failing to allow the target that gap of time, as if he would deeply contemplate the significance of repeating a confession in relation to his rights under Miranda, as opposed to thinking about how screwed he already was and what he could say now to unscrew himself, meant that the statements would be suppressed, right?  Well, not quite.

Finally, the agents took no curative measures to mitigate their error. They did not, for example, take a substantial time break in the interrogation or warn Barnes that what he had said before the warnings could not be used against him. See id. at 616. (“When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used.”); id. at 622 (Kennedy, J., concurring in the judgment) (“Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient.”); see also Williams, 435 F.3d at 1161 (recognizing that a break in time between two interrogations could serve as an appropriate curative measure). Taken together, these factors demonstrate that the warnings Barnes received were not effective and that his post-warning confession should have been suppressed.

Certainly, the agents could have advised Barnes that his prior statements couldn’t be used against him because of their deliberate failure to give Miranda warnings, but that wouldn’t have been any fun and, similarly certain, wouldn’t have helped the agents to get Barnes to repeat his confession post-warning. And so they failed to “cure” their failure to give warnings, their final chance to circumvent suppression.

Had the agents tailored their testimony at any stage with regard to their extracting the confession from Barnes, and there was clearly no shortage of opportunity, chances are pretty good that they would have gotten the defendant’s statements in and undermined Miranda.  That they told the truth about what they did and why, even if it was done to violate Barnes’ rights.

For those who believe that videotaping confessions is the solution to all coercion problems, consider how this would have played out had the agents only videotaped the post-Miranda portion of the interrogation and not been as forthright about their scheme.  It would have been devastating.

H/T Spencer Neal

Jan 9, 2009: Derrick Jones, 17, Black, Martinsville, Virginia

Jan 11, 2009: Rodolfo Lepe, 31, Hispanic, Bakersfield, California

Jan 22, 2009: Roger Redden, 52, Caucasian, Soddy Daisy, Tennessee-

Feb 2, 2009: Garrett Jones, 45, Caucasian, Stockton, California

Feb 11, 2009: Richard Lua, 28, Hispanic, San Jose, California

Feb 13, 2009: Rudolph Byrd, 37, Black, Thomasville, Georgia

Feb 13, 2009: Michael Jones, 43, Black, Iberia, Louisiana

Feb 14, 2009: Chenard Kierre Winfield, 32, Black, Los Angeles, California

Feb 28, 2009: Robert Lee Welch, 40, Caucasian, Conroe, Texas

Mar 22, 2009: Brett Elder, 15, Caucasian, Bay City, Michigan

Mar 26, 2009: Marcus D. Moore, 40, Black, Freeport, Illinois

Apr 1, 2009: John J. Meier Jr., 48, Caucasian, Tamarac, Florida

Apr 6, 2009: Ricardo Varela, 41, Hispanic, Fresno, California

Apr 10, 2009: Robert Mitchell, 16, Black, Detroit, Michigan

Apr 13, 2009: Craig Prescott, 38, Black, Modesto, California

Apr 16, 2009: Gary A. Decker, 50, Black, Tuscon, Arizona

Apr 18, 2009: Michael Jacobs Jr., 24, Black, Fort Worth, Texas

Apr 30, 2009: Kevin LaDay, 35, Black, Lumberton, Texas

May 4, 2009: Gilbert Tafoya, 53, Caucasian, Holbrook, Arizona

May 17, 2009: Jamaal Valentine, 27, Black, La Marque, Texas

May 23, 2009: Gregory Rold, 37, Black, Salem, Oregon

Jun 9, 2009: Brian Cardall, 32, Caucasian, Hurricane, Utah

Jun 13, 2009: Dwight Madison, 48, Black, Bel Air, Maryland

Jun 20, 2009 Derrek Kairney, 36, Race: Unknown, South Windsor, Connecticut

Jun 30, 2009, Shawn Iinuma, 37, Asian, Fontana, California

Jul 2, 2009, Rory McKenzie, 25, Black, Bakersfield, California

Jul 20, 2009, Charles Anthony Torrence, 35, Caucasian, Simi Valley, California

Jul 30, 2009, Johnathan Michael Nelson, 27, Caucasian, Riverside County, California

Aug 9, 2009, Terrace Clifton Smith, 52, Black, Moreno Valley, California

Aug 12, 2009, Ernest Ridlehuber, 53, Race: Unknown, Greenville, South Carolina

Aug 14, 2009, Hakim Jackson, 31, Black, Philadelphia, Pennsylvania

Aug 18, 2009, Ronald Eugene Cobbs, 38, Black, Greensboro, North Carolina

Aug 20, 2009, Francisco Sesate, 36, Hispanic, Mesa, Arizona

Aug 22, 2009, T.J. Nance, 37, Race: Unknown, Arizona City, Arizona

Aug 26, 2009, Miguel Molina, 27, Hispanic, Los Angeles, California

Aug 27, 2009, Manuel Dante Dent, 27, Hispanic, Modesto, California

Sep 3, 2009, Shane Ledbetter, 38, Caucasian, Aurora, Colorado

Sep 16, 2009, Alton Warren Ham, 45, Caucasian, Modesto, California

Sep 19, 2009, Yuceff W. Young II, 21, Black, Brooklyn, Ohio

Sep 21, 2009, Richard Battistata, 44, Hispanic, Laredo, Texas

Sep 28, 2009, Derrick Humbert, 38, Black, Bradenton, Florida

Oct 2, 2009, Rickey Massey, 38, Black, Panama City, Florida

Oct 12, 2009, Christopher John Belknap, 36, Race: Unknown, Ukiah, California

Oct 16, 2009, Frank Cleo Sutphin, 19, Caucasian, San Bernadino, California

Oct 27, 2009, Jeffrey Woodward, 33, Caucasian, Gallatin, Tennessee

Nov 13, 2009, Herman George Knabe, 58, Caucasian, Corpus Christi, Texas

Nov 14, 2009, Darryl Bain, 43, Black, Coram, New York

Nov 16, 2009, Matthew Bolick, 30, Caucasian, East Grand Rapids, Michigan

Nov 19, 2009, Jesus Gillard, 61, Black, Bloomfield Hills, Michigan

Nov 21, 2009, Ronald Petruney, 49, Race: Unknown, Washington, Pennsylvania

Nov 27, 2009, Eddie Buckner, 53, Caucasian, Chattanooga, Tennessee

Dec 11, 2009, Andrew Grande, 33, Caucasian, Oak County, Florida

Dec 11, 2009, Hatchel Pate Adams III, 36, Black, Hampton, Virginia

Dec 11, 2009, Paul Martin Martinez, 36, Hispanic, Roseville, California

Dec 13, 2009, Douglas Boucher, 39, Caucasian, Mason, Ohio

Dec 14, 2009, Linda Hicks, 62, Black, Toledo, Ohio

Dec 19, 2009, Preston Bussey III, 41, Black, Rockledge, Florida

Dec 20, 2009, Michael Hawkins, 39, Caucasian, Springfield, Missouri

Dec 30, 2009, Stephen Palmer, 47, Race: Unknown, Stamford, Connecticut

Jan 6, 2010, Delano Smith, 21, Black, Elkhart, Indiana

Jan 17, 2010, William Bumbrey III, 36, Black, Arlington, Virginia

Jan 20, 2010, Kelly Brinson, 45, Race: Unknown, Cincinnati, Ohio

Jan 27, 2010, Joe Spruill, Jr., Black, Goldsboro, North Carolina

Jan 28, 2010, Patrick Burns, 50, Caucasian, Sangamon County, Illinois

Jan 28, 2010, Daniel Mingo, 25, Black, Mobile, Alabama

Feb 4, 2010, Mark Morse, 36, Caucasian, Phoenix, Arizona

Mar 4, 2010, Roberto Olivo, 33, Hispanic, Tulare, California

Mar 5, 2010, Christopher Wright, 48, Race: Unknown, Seattle, Washington

Mar 10, 2010, Jaesun Ingles, 31, Black, Midlothian, Illinois

Mar 10, 2010, James Healy Jr., 44, Race: Unknown, Rhinebeck, New York

Mar 20, 2010, Albert Valencia, 31, Hispanic, Downey, California

Apr 10, 2010, Daniel Joseph Barga, 24, Caucasian, Cornelius, Oregon

Apr 30, 2010, Adil Jouamai, 32, Moroccan, Arlington, Virginia

May 9, 2010, Audreacus Davis, 29, Black, Atlanta, Georgia

May 14, 2010, Sukeba Olawunmi, 39, Race: Unknown, Atlanta, Georgia

May 24, 2010, Efrain Carrion, 35, Hispanic, Middletown, Connecticut

May 27, 2010, Carl Johnson, 48, Caucasian, Baltimore, Maryland

May 29, 2010, Jose Martinez, 53, Hispanic, Waukegan, Illinois

May 31, 2010, Anastasio Hernández Rojas, 42, Hispanic, San Ysidro, California

Jun 8, 2010, Terrelle Houston, 22, Black, Hempstead, Texas

Jun 12, 2010, Curtis Robinson, 34, Black, Albuquerque, New Mexico

Jun 13, 2010, William Owens, 17, Race: Unknown, Homewood, Alabama

Jun 14, 2010, Jose Alfredo Jimenez, 42, Hispanic, Harris County, Texas

Jun 15, 2010, Michael White, 47, Black, Vallejo, California

Jun 22, 2010, Daniel Sylvester, 35, Caucasian, Crescent City, California

July 5, 2010, Damon Falls, 31, Black, Oklahoma City, Oklahoma

July 5, 2010, Edmund Gutierrez, 22, Hispanic, Imperial, California

July 8, 2010, Phyllis Owens, 87, Race: Unknown, Clackamas County, Oregon

July 9, 2010, Marvin Booker, 56, Race: Black, Denver, Colorado

July 12, 2010, Anibal Rosario-Rodriguez, 61, Hispanic, New Britain, Connecticut

July 15, 2010, Jerome Gill, Race: Unknown, Chicago, Illinois

July 18, 2010, Edward Stephenson, 46, Race: Unknown, Leavenworth, Kansas

July 23, 2010, Jermaine Williams, 30, Black, Cleveland, Mississippi

Aug 1, 2010, Dennis Sandras, 49, Race: Unknown, Houma, Louisiana

Aug 9, 2010, Andrew Torres, 39, Hispanic, Greenville, South Carolina

Aug 18, 2010, Martin Harrison, 50, Caucasian, Dublin, California

Aug 19, 2010, Adam Disalvo, 30, Caucasian, Daytona Beach, Florida

Aug 20, 2010, Stanley Jackson, 31, Black, Washtenaw County, Michigan

Aug 24, 2010, Michael Ford, 50, Black, Livonia, Michigan

Aug 25, 2010, Eduardo Hernandez-Lopez, 21, Hispanic, Las Vegas, Nevada

Aug 31, 2010, King Hoover, 27, Black, Spanaway, Washington

Sep 4, 2010, Adam Colliers, 25, Caucasian, Gold Bar, Washington

Sep 10, 2010, Larry Rubio, 20, Race: Unknown, Leemore, California

Sep 12, 2010, Freddie Lockett, 30, Black, Dallas, Texas

Sep 16, 2010, Gary L. Grossenbacher, 48, Race: Unknown, Oklahoma City, Oklahoma

Sep 18, 2010, David Cornelius Smith, 28, Black, Minneapolis, Minnesota

Sep 18, 2010, Joseph Frank Kennedy, 48, Caucasian, La Mirada, California

Oct 4, 2010, Javon Rakestrau, 28, Black, Lafayette Parish, Louisiana

Oct 7, 2010, Patrick Johnson, 18, Caucasian, Philadelphia, Pennsylvania

Oct 12, 2010, Ryan Bain, 31, Caucasian, Billings, Montana

Oct 14, 2010, Karreem Ali, 65, Black, Silver Spring, Maryland

Oct 19, 2010, Troy Hooftallen, 36, Caucasian, Punxsutawney, Pennsylvania

Nov 4, 2010, Eugene Lamott Allen, 40, Race: Unknown, Wilmington, Delaware

Nov 6, 2010, Robert Neill, Jr., 61, Caucasian, Mount Joy, Pennsylvania

Nov 7, 2010, Mark Shaver, 32, Caucasian, Brimfield, Ohio

Nov 23, 2010, Denevious Thomas, 36, Black, Albany, Georgia

Nov 26, 2010, Rodney Green, 36, Black, Waco, Texas

Nov 27, 2010, Blaine McElroy, 37, Race: Unknown, Jackson County, Mississippi

Dec 2, 2010, Clayton Early James, Age: Unknown, Race: Unknown, Elizabeth City, North Carolina

Dec 11, 2010, Anthony Jones, 44, Race: Unknown, Las Vegas, Nevada

Dec 12, 2010, Linel Lormeus, 26, Black, Naples, Florida

Dec 20, 2010, Christopher Knight, 35, Black, Brunswick, Georgia 

Dec 31, 2010, Rodney Brown, 40, Black, Cleveland, Ohio 

Jan 5, 2011, Kelly Sinclair, 41, Race: Unknown, Amarillo, Texas

Feb 5, 2011, Robert Ricks, 23, Black, Alexandria, Louisiana

March 15, 2011, Brandon Bethea, 24, Black, Harnett County, North Carolina

Apr 3, 2011, Jairious McGhee, 23, Black, Tampa, Florida

Apr 22, 2011, Adam Spencer Johnson, 33, Caucasian, Orlando, Florida

Apr 23, 2011, Ronald Armstrong, 43, Race: Unknown, Pinehurst, North Carolina

Apr 25, 2011, Kevin Darius Campbell, 39, Race: Unknown, Tallahassee, Florida 

May 1, 2011, Marcus Brown, 26, Black, Waterbury, Connecticut

May 6, 2011, Matthew Mittelstadt, 56, Caucasian, Boundary County, Idaho

May 11, 2011, Allen Kephart, 43, Caucasian, San Bernadino County, California 

June 13, 2011, Howard Hammon, 41, Caucasian, Middleburg, Ohio 

June 22, 2011, Otto Kolberg, 55, Caucasian, Waycross, Georgia 

June 28, 2011, Dalric East, 40, Black, Montgomery County, Maryland

July 5, 2011, Kelly Thomas, 37, Caucasian, Fullerton, California

July 10, 2011, Joshua Nossoughi, 32, Caucasian, Springfield, Missouri

July 19, 2011, Alonzo Ashley, 29, Black, Denver, Colorado 

July 21, 2011, La’Reko Williams, 21, Black, Charlotte, North Carolina 

July 30, 2011, Donald Murray, 39, Caucasian, Westland, Michigan

August 4, 2011, Pierre Abernathy, 30, Black, San Antonio, Texas

August 6, 2011, Everette Howard, 18, Black, Cincinnati, Ohio

August 6, 2011, Debro Wilkerson, 29, Black, Prince William County, Maryland

August 6, 2011, Gregory Kralovetz, 50, Caucasian, Kaukauna, Wisconsin 

August 12, 2011, Joseph Lopez, 49, Hispanic, Santa Barbara, California

August 17, 2011, Roger Chandler, 41, Caucasian, Helena, Montana 

August 21, 2011, Montalito McKissick, 37, Black, Oklahoma City, Oklahoma

August 24, 2011, Michael Evans, 56, Race: Unknown, Fayetteville, North Carolina

August 30, 2011, Nicholas Koscielniak, 27, Caucasian, Lancaster, New York

September 11, 2011, Tyree Sinclair, 31, Black, Corpus Christi, Texas

September 13, 2011, Damon Barnett, 44, Caucasian, Fresno, California 

September 17, 2011, Richard Kokenos, 27, Caucasian, Warren, Michigan

September 24, 2011, Bradford Gibson, 35, Black, Mt. Pleasant, Michigan

September 24, 2011, Donacio Rendon, 43, Race: Unknown, Lubbock, Texas

September 29, 2011, Howard Cook, 35, Black, York, Pennsylvania

October 4, 2011, Glenn Norman, 46, Caucasian, Camden County, Missouri

October 9, 2011, Darnell Hutchinson, 32, Black, San Leandro, California

October 31, 2011, Chad Brothers, 32, Caucasian, Colonie, New York

November 6, 2011, Darrin Hanna, 43, Black, North Chicago, Illinois

November 13, 2011, Ronald Cristiano, 51, Caucasian, Bridgeport, Connecticut

November 15, 2011, Jonathan White, 29, Black, San Bernardino, California

November 22, 2011, Roger Anthony, 61, Black, Scotland Neck, North Carolina

December 16, 2011, Marty Atencio, 44, Hispanic, Phoenix, Arizona

December 22, 2011, Wayne Williams, 27, Black, Houma, Louisiana

January 15, 2012, Daniel Guerra, 24, Hispanic, Ft. Worth, Texas

February 29, 2012, Raymond Allen, 34, Black, Galveston, Texas

March 5, 2012, Nehemiah Dillard, 29, Black, Gainesville, Florida

March 12, 2012, Jersey Green, 37, Black, Aurora, Illinois 

March 19, 2012, James Barnes, 38, Caucasian, Pinellas County, Florida

April 10, 2012, Bobby Merrill, 38, Black, Saginaw, Michigan

April 21, 2012, Angel Heraldo, 41, Hispanic, Meriden, Connecticut 

April 22, 2012, Bruce Chrestensen, 52, Caucasian, Grass Valley, California

May 10, 2012, Damon Abraham, 34, Black, Baldwin, Louisiana

June 9, 2012, Randolph Bonvillian, 41, Caucasian, Houma, Louisiana

June 20, 2012, Macadam Mason, 39, Caucasian, Thetford, Vermont 

June 30, 2012, Victor Duffy, 25, Black, Tukwila, Washington

July 1, 2012, Corey McGinnis, 35, Black, Cincinnati, Ohio

July 5, 2012, Sampson Castellane, 29, Native American, Fife, Washington 

September 1, 2012, Denis Chabot, 38, Caucasian, Houston, Texas 

September 14, 2012, Bill Williams, 60, Caucasian, Everett, Washington

November 29, 2012, Robert Maurina, 46, Caucasian, West Allis, Wisconsin

December 13, 2012, Philip Coleman, 38, Black, Chicago, Illinois

December 25, 2012, Kevin Culp, 29, Black, Richmond, Washington

January 1, 2013, Andrew Layton, 26, Caucasian, Mankato, Minnesota

February 23, 2013, Christopher Parker, 33, Caucasian, Spokane, Washington

This is a list of 186 deaths attributed to Tasers since 2009. Since 2001, the number climbs to 537.  For a non-lethal weapon, that’s a lot of lethal.  Tasers are not a  tool of convenience for cops who don’t feel like running, waiting or calming.  They may be the easy way to bring a job to a quick close, but it may come at the cost of a life. 

Tasers are not an easy way to teach a perp who’s boss, how to behave, how to respect a police officer’s authority.

Tasers have a purpose, it being far better to stun a person who presents a risk of harm to himself or others rather than put a bullet in his chest, but that’s as far as it goes.  They are usually less than lethal. They are not always less than lethal, and no  phony cause of death is going to change the fact that it killed some kid tased a dozen times. 

Is it really so important to make a cop’s life easier by acquiescing in the needless use of force, the infliction of pain, the potential for death?  Tasers are a weapon, and should only be allowed when a use of force is lawfully justified.  Let’s cut the crap and stop sanctioning the use of Tasers because they’re convenient. It’s not a good enough reason to kill someone.

H/T Electronic Village

In a way, it was a huge win for the defense when the Supreme Court rejected a per se rule to allow police to take an accused drunk driver to the hospital to have a blood draw done without a warrant. Smart money was on a bright line rule that would allow blood draws without warrants. Some because they bought the argument that the evidence of blood alcohol was dissipating every second of needless delay, even though that’s not quite the way blood alcohol works. Others, including me, because it wouldn’t matter much, since no judge has ever turned down a warrant for a blood draw anyway.

But the Supremes surprised us, at least a little bit, when it came to smacking the papers with that big, old “approved” stamp.  In what ultimately amounts to a 5-4 decision with some bumps along the road, the majority in  Missouri v McNeely held there was no reason why the natural “loss of evidence” by dissipating alcohol in the blood stream constituted a per se exigent circumstance dispensing with the need for a warrant to draw blood.

Sounds good so far, right?  And it is.  Yet, more so on a doctrinal level than practical one.

The next point made by Justice Sotomayor for the gang was that the Fourth Amendment required a warrant if one could be reasonably obtained (and implicitly, not refused, though no one seriously imagines any judge refusing a warrant).  The opinion speaks to the new normal of telephone warrants and the means to get one pretty much anywhere, whether from the cruiser on the way to the hospital or while the driver is cuffed to the gurney with nurse hovering above, needle in hand.  Tech saved us from the rule, if not the needle.

The Court resorted to the dreaded totality of the circumstances test, where the person who tells the first best story gets whatever he wants.  A warrant is required, Judge Sotomayor explained, unless it was unreasonable to get one under the totality of the circumstances.  So they either get a warrant or, say if a judge isn’t around to sign off on one, they get to do it anyway.  The Fourth Amendment lives.

The core of the prosecution’s argument in McNeely was that the evidence of guilt, the alcohol in the bloodstream that would give them a number to conclusively prove guilt, would be destroyed over time.  The loss of BAC (blood alcohol content) was stated to be between .02% and .015% per hour based on the gender, weight and alcohol experience of the person.  While drunk driving isn’t an area of my expertise, my understanding is that it doesn’t exactly work that way, and in fact the BAC may increase for a period of time, even up to six hours, from when the last drink was had. The decision mentioned nothing about this, and suggests (again) that the Supreme Court specialists were more expert in arguing than drunk driving.  Any DUI experts out there should put in their two cents on this point.

The problem is that a driver may have, in fact, had a lower BAC at the time he was driving than at the time the blood was drawn.  If a guy downs a dozen shots in an hour, hops into his Chevy, takes off and is stopped minutes later, his BAC at the time he’s stopped may well be below the legal limit, while a few hours later, after warrant is obtained or the cops come up with a good enough story to justify their failure to get one, his BAC will be sky high.

There was no good to come of this case no matter what. There is no suggestion that the Court had any qualms about the forced use of needles stuck under the skin, into the bodies, of people for the purpose of collecting evidence to convict them.  While they didn’t quite make light of it, they also noted that blood draws are so routine and painless that it’s not a big enough deal to break a sweat over.  

The language offers some hope that the majority won’t be as sanguine about blood draws by police at roadside, having noted what a good job trained hospital staff do taking blood as opposed to just anybody.  The question of whether cops trained to take blood on their own, strapping the defendant across the hood of the cruiser while sticking needles into them, will eventually reach the court, and hopefully this language reflects a reluctance to let just anybody do it.  It also bodes well for the use of forced catheterization, which will likely make for a very awkward statement of facts some day.

But the bottom line is that the use of blood draws for the sole purpose of obtaining evidence of drunk driving will continue unabated.  The police will be required to get a warrant unless they can’t, but either way the needle goes in and the blood gets drawn.  In the absence of a warrant, the defense can move to suppress and test whether the cop’s story is good enough, but the totality of the circumstances test will control, with the determining factor being the reasonableness of the officer’s belief that he could not obtain a warrant within a reasonable period of time.  Don’t hate the double “reasonable.” 

Of course, if you don’t like the way this decision went, there is always the alternative of not driving drunk. Of the many tests that can be done to prove guilt, the blood draw can also prove that an individual’s BAC was below the legal limit. Then the cop is reduced to the usual descriptions and worthless field sobriety test, like the old days.  But with the evidence of a BAC below the legal limit on the defendant’s side, the test could go something like this:

At the New York Times editorial notebook, Brent Staples offers three lessons from the cheating scandal in Atlanta.

The first is that overemphasizing scores is a mistake.

The second is that teacher evaluation systems — now under development in most states — will be of little use unless they include mechanisms for showing teachers who receive average ratings how to become great, or at least good, at what they do.

And finally, the country will not build a first-rate teacher corps solely by threatening to fire people who are less than perfect early in their careers.

The Sand­wich The­ory has become social con­ven­tion because it works. It works because most human beings—not just law students—are frag­ile; by sand­wich­ing con­struc­tive crit­i­cism between slices of praise, the teacher sends the mes­sage that the crit­i­cism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sand­wich The­ory is a teach­ing tool—perhaps an effec­tive one—and if you want to teach peo­ple you’ll use what­ever tools come to hand.

Apparently, the plan was to make sure no one could ever challenge an accusation of sexual misconduct in college. Lest there be any question, this was not because of some intrinsic hatred of due process, confrontation, all those nasty technicalities that criminal defense lawyers hurl about in criminal courtrooms.

This was about promoting the feminist agenda that no woman who alleged that she had been sexually abused, no matter what evidence she had or existed to the contrary, should ever, ever, lose.  This isn’t a contrarian view, or a secret scheme, but as open and apparent as could be.  It affected the serious and foolish alike.  It was a policy choice. They would rather ten innocent male students be expelled than one false accusation of sexual misconduct fail.

And it not only seemed like a good idea at the time, but was  bolstered by legal scholars who ridiculed the notion that the rights afforded to criminal defendants, due process, reliable evidence, confrontation, double jeopardy, have any place in university discipline when a claim of sexual abuse was on the table.  Anyone who thought the accused deserved half a chance was a misogynist, which is one step above a rapist and deserving of whatever pain was inflicted anyway.

In the Wall Street Journal, lawyer, feminist and mother Judith Grossman tells of her son being the accused.  Key to her commentary is that the young man with his butt in the hot seat was hers.  Not mine. Not yours, but hers. Nothing clarifies issues as well as being personally touched by them, and nothing touches a mother more than her child being in the line of fire.

Until a month ago, I would have expressed unqualified support for Title IX and for the Violence Against Women Act. with alleged acts of “nonconsensual sex” that supposedly occurred during the course of their relationship a few years earlier.

What followed was a nightmare—a fall through Alice’s looking-glass into a world that I could not possibly have believed existed, least of all behind the ivy-covered walls thought to protect an ostensible dedication to enlightenment and intellectual betterment.

To the extent we blink so that we don’t need to see the ugly details of larger concepts we adore, like Title IX and the Violence Against Women Act, the people forced into battle have no choice but to look them square in the eye.

I recall a client, whose politics were very Republican, very conservative, charged with a very serious crime back when Dukakis was running against the Elder Bush, asking me why the government wasn’t offering him a slap on the wrist because of “revolving door justice,” harkening the pervasive Willie Horton advertisement of the time.  I just smiled as he realized that he might have been a little too blinded by his politics, and the TV advertising was not a sound basis for his expectations of the criminal justice system.  I enjoyed the irony, though I knew how painful his epiphany would be.

So too was Grossman’s epiphany.

There was no preliminary inquiry on the part of anyone at the school into these accusations about behavior alleged to have taken place a few years earlier, no consideration of the possibility that jealousy or revenge might be motivating a spurned young ex-lover to lash out. Worst of all, my son would not be afforded a presumption of innocence.

In fact, Title IX, that so-called guarantor of equality between the sexes on college campuses, and as applied by a recent directive from the Department of Education’s Office for Civil Rights, has obliterated the presumption of innocence that is so foundational to our traditions of justice.

Grossman goes on, in the fashion that happens regularly by the accused and their family, to parse the minutiae of process, excruciating detail by detail, astounded and outraged by the rights not afforded, the ones we spouse in our “tradition of justice” in the “real” legal system.  It’s almost charming in its naiveté.

The evisceration of rights always comes in lockstep with high ideals and good intentions.  Do it for the women. Do it for the children. No one should ever have to suffer the harm, the pain, the indignity of being the victim of whatever flavor of offense we’re striving to eliminate today.  Grossman was all for it, until she wasn’t.

But she better hope that her son is never the target of an accusation in a real courtroom.  Sure, all those rights she touts are chiseled into the courthouse lintels and appear in the first few paragraphs of legal opinions that go on to explain why they don’t apply in this case.  We have a tradition of reciting platitudes of justice, and a tradition of coming up with really good reasons why they don’t apply.

I fear that in the current climate the goal of “women’s rights,” with the compliance of politically motivated government policy and the tacit complicity of college administrators, runs the risk of grounding our most cherished institutions in a veritable snake pit of injustice—not unlike the very injustices the movement itself has for so long sought to correct. Unbridled feminist orthodoxy is no more the answer than are attitudes and policies that victimize the victim.

Or terrorism. Or the war against drugs. As sympathetic as we may be with the plight of Judith Grossman’s son, her vision is still limited to that which touched her life.  The evil she sees is “unbridled feminist orthodoxy,” because her son was charged with sexual misconduct.  But it’s no more evil than any agenda stoked by the “current climate” of fear.

I hope she is never forced to come to the larger epiphany because her son has been accused of some other offense against some other orthodoxy.  This may be a huge step forward for Grossman, but she still has a very long trip ahead of her before she realizes what the “tradition of justice” really means.

H/T Walter Olson at Overlawyered

Rarely is there an opportunity to understand the sensibility that distinguishes what a marketer sees from what a lawyer sees, but courtesy of Gyi Tsakalakis at  The Puddle, it’s hard to miss.

Lawyers are always asking. “who has the best law firm website?” And I always answer, “that’s easy, Saul Goodman.”

But what makes attorney Goodman’s website the best?

Wait for it…wait for it…

To the experienced legal web designer’s eye, the effectiveness of Saul’s site is immediately apparent from the home page.

Anyone familiar with Plutchik’s wheel of emotions will immediately recognize the intentional use oranges (vigilance), yellows (ecstasy) and reds (rage).

BOOM!



How much would you pay a legal marketer, a website designer, any vulture who tries to make a living off the desperation of lawyers, for a website like this?  A thousand dollars? A million dollars? Absolutely nothing?

If this is what Saul is shooting for, to be a clown on the interwebz, to get the thousand phone calls that the rest of us would pay money not to get, the tire-kickers, the pro bono seekers, the I’m-innocent-so-why-do-I-have-to-pay? crew, the clients that ten lawyers sent packing who need an attorney with “courage”?

If you want the phone to ring off the hook, then this website is the one for you.  No, you won’t become fabulously rich and famous. In fact, chances are pretty good that if the come-on does its job, you will never get off the phone, spending your days (and nights, because they love to call at night when it’s convenient for them) fielding free answers and the tin-foil hat wearers who want to sue the CIA for shooting gamma rays their way.

And if this is how Saul Goodman wants to run his law practice, so be it. Best of luck, Saul.

It’s nothing I would do. Ever. But then, Gyi not only likes this, but likes it so much that he holds Saul’s website out as the best there is.  And unlike me, Gyi is a legal marketer.

As Turk said long ago, when you outsource your marketing, you outsource your ethics.  A corollary is that you outsource your sensibilities as well.  As a curmudgeon, I maintain a view that lawyers, as member of a learned profession, do better to maintain a level of dignity.  We do not sell ourselves like laundry detergent.  Unlike Saul, offering two-fer misdemeanor defenses isn’t the way I choose to conduct my practice.

But it’s not just the website. As Gyi notes, Saul also does TV ads to grab potential clients by the throat.



Classy, but as Gyi notes, “real lawyers know these just work,” provided by “work” he means attracts eyeballs and ridicule.

So is this what you want to pay a marketer to do for you?

Does your law firm website suck? Better call Saul.

Was this what you dreamed about when you went to law school?

Update: As I’ve now been informed by every person under 40 who reads SJ, Saul Goodman isn’t a real lawyer, but a character on some television show called Breaking Bad, and I just didn’t know it. I’ve been punk’d.

Well played, Gyi. Well played.

Of the many leeches in the cottage technology industry feeding off the legal system, one of the most disturbing is the criminal records business.  With all those pop-up ads that appear when you try to get a telephone number or a resume, offering to run a criminal records search, there must be somebody buying as there are plenty of people selling.

While there may be some justifications for selling criminal history of adults, though there are far more reasons why they shouldn’t be sold, the paradigm shifts when the records being sold are those of children.  You did realize that some state legal systems sell the records, didn’t you? It’s not like they give them away and pass up a revenue raising opportunity.

Eight states make juvenile records publicly available. Three sell them, including Washington State.  And they go cheap.  Via MYNorthwest :

In selling juvenile records, [Bailey] Stober [executive assistant of the Washington State Commission on African American Affairs] says we’re trading a young person’s life for pennies.

“About 27,500 records a year are sold and we only make $19,000 as a state in revenue off of it, so we’re talking about 69 cents per name for a kid’s future,” he says.

Companies have contractual agreements with the state to be able to gather felony records in a mass download. Those companies then make the information available on the Internet. Landlords, employers and educational institutions can do a simple search and find the information.

But surely the records of juvenile can be sealed or expunged so that they disappear into the ether, right?

“Within days of your 18th birthday, we sell those records online. So you can get your record sealed all you want to. We’ve already sold your record and it’s online,” Stober says. “Sealing it does nothing. When those employers, apartments and landlords go to do the records checks, they’re pulling what’s on the Internet, not what the state has sealed or hasn’t sealed.”

This is a problem for anyone, but a far greater, and more outrageous, problem for kids.  On the one side, the ostensible purpose of a juvenile justice system is that we recognize that their brains aren’t fully developed, that they make mistakes, do dumb things and consequently have created a system designed for the specific purpose of limiting the consequences to distinguish them from adults, and allow them to move beyond their wayward childish conduct so they can move forward toward a useful, law-abiding life as an adult.

These are good things. These are the things we hope to encourage.  We want children to have a second chance, an opportunity to leave their juvenile mistake behind them so they can go on to accomplish great things as an adult.

Except the internet doesn’t forget.  Once a company purchases a criminal history dump from Washington State, it’s in there forever.  Every sentence becomes a life sentence, because the crime will follow the person for the rest of his or her life.

Is it really a big deal?  Well, yeah. It really is a big deal.

“I was talking with a girl who has a juvenile record for something that happened in her house when she was a teen,” says Representative Ruth Kagi. “It was a very violent household and she spat at her father. Her father called the police and she was charged with assault. She is now finding that that is a real barrier for her to get a job as a 20-year-old.”

“I met a young man who was 16 years old and he stole his mother’s car. He wanted to go on a joy ride with his friends around town. Mom called the police and said, ‘Can you find my kid, scare him, and bring him home because I don’t want this happening again?’ The police found her son and arrested him for auto theft and he spent two years in a juvenile prison. While he was in prison, he was able to get his GED and his associate’s degree”…
 
When the young man started applying to private colleges, he couldn’t get financial aid because of the felony on his record.

He finally got into a college without financial aid. He now has a bachelor’s degree in communications yet can’t get a job or an apartment because his juvenile record lists him as a felon.

This gives rise to a permanent underclass that will have constant problems getting an education, a job, a home, all for some dumb move made as a kid.  Maybe even for something that should never have resulted in a conviction at all, but for lack of parental love and assistance, an assembly-line system and even judges looking to make their own buck off them.  But once it’s sold to some vulture business, it follows them forever.  All for about 69¢ per child.

While there is legislation pending to limit the sale of criminal histories to juveniles who were convicted of “serious” crimes, as if nothing could go wrong with that because government records are so well maintained, people would never be confused between the crime charged and the crime convicted and the same faults of tainting a child for life for something they did when they were 12 were outweighed by the public’s curiosity, this is a disaster in the making. 

Not only have they “paid their debt to society” assuming there was really a debt to pay, but have been tarred for life for conduct committed when they were too immature to understand the significance of their acts.  And so we ruin lives for fun and profit.  Is the 69¢ worth it?

H/T FritzMuffKnuckle

No, not the Slackoisie, who are just going to hate this, but the employer. Via Reviving Work Ethic.



H/T Stephanie West Allen