Quietly, some joker in the editorial department of the New York Times is snickering, having snared another law dean or professor in the trap of offering a soapbox upon which the dean can conclusively prove to the legal community that he’s got no clue about the real world of lawyering.  And given the chance to get on the box, they just can’t resist.

This week’s contestant was Rutgers Law Dean John Farmer, who has come up with the idea that new lawyers should apprentice after law school, an idea that many have suggested and has some merit along with many problems. In the process, however, Farmer reveals that he has no clue what the problem is.

Consider this: Nearly half of those who graduated from law school in 2011 did not quickly find full-time, long-term work as lawyers.

Quickly? How about not at all. Not long-term. Not short-term. Not slowly. As for the ones who did, how about at salaries that can’t carry the debt-load while feeding themselves, no less their families, or terminal positions that run dry when the case is over, or dead-end positions that will never provide a future?

Yet the need for legal representation has never been greater. In New Jersey, where I teach law, 99 percent of the 172,000 defendants in landlord-tenant disputes last year lacked legal counsel.

Might that have something to do with the fact that these are non-payment proceedings, as in they can’t afford to pay the rent? And if they can’t afford to pay to put a roof over their head, do you think they’re reluctant to raid their trust fund to pay for counsel to fight the non-payment proceeding?  Or perhaps they can cut the kids down to one meal every three days so that a Rutgers Law grad can get paid?

Nationwide, judges decry not a surplus of lawyers, but a lack of competent representation for those who aren’t rich individuals and corporations.

Judges focus on what comes before them in a courtroom, and it’s no surprise that they sit on the front line of people lacking counsel.  Law deans, on the other hand, sit in the Ivory Tower and apparently don’t see much of anything.

Lawyers cost too much in part because of rates established during the economic bubbles of the past 15 years. No less than in the dot-com or real-estate or derivatives markets, the cost of legal services became unsustainable.

Ignoring the wiggly caveat, in part, the choice of highlighting “rates established during the economic bubbles” is Dean Farmer’s way of saying that law is Biglaw. The lawyers who represent tenants in Landlord-Tenant court didn’t set rates based on the real-estate boom. The rates of lawyers who work for corporations in Biglaw have zero to do with what small firms and solos who represent individuals charge, and never did. It’s not that they wouldn’t have loved to charge anything remotely approaching Biglaw rates, but that fantasy never happened.

Lawyers cost too much because people can’t afford to spend anything remotely close to what a solo lawyer needs to earn to pay for his office, debt and leave a little over to feed the kids. Lawyers cost too much because people’s wages are stagnant while the cost of living has skyrocketed. Lawyers cost too much because people are unemployed.  Lawyers cost too much because they want to earn a living just like the people who might otherwise retain them.

Except the lawyers have given away three years of opportunity and over $100,000 for the pleasure of being a lawyer, a burden that other people don’t necessarily share.

The recession worsened, but did not cause, the predicament now: a mountain of student debt and dearth of legal jobs, even as there is a crying need for legal services.

Why yes. How nice of you to notice.

That disconnect relates to how lawyers are hired. Big firms have been hiring a few graduates from a few select schools, and paying them exorbitantly.

This is where Dean Farmer’s motives reveal themselves. While the vast majority of law school graduates never saw the inside of Biglaw, he wants to get his Rutgers Law grads a chance to cross the East Hudson River.

Let’s scrap this system. We need, at its entry level, the equivalent of a medical residency. Law school graduates would practice for two years or so, under experienced supervision, at reduced hourly rates; repaying their debts could be suspended, as it is for medical residents.

Gee whiz! So who would be the teaching hospitals for law grads, where they could be taken under wing “at reduced hourly rates”?

Law firms would be able to hire more lawyers, at the lower rates, and give talented graduates of less prestigious institutions a chance to shine. The firms, at the end of the residencies, could then select whom to keep. Even for those who don’t make the cut, the residency will have provided valuable experience. The law firms should be required, under this proposal, to offer stipends to help those residents who don’t make the cut but have debt burdens.

Less prestigious institutions? Like, oh, I dunno, Rutgers?  And these firms, because they’re rolling in dough, would be essentially nationalized for the benefit of law students, even to the point of providing a stipend to further support the debt incurred by law school tuition?

Every form of legal practice could benefit, not just pro bono work. The largest firms would use the legal residents on large institutional matters and use the savings to lower hourly rates for clients. Large and small firms could afford to serve people who can’t afford legal services but don’t qualify for pro bono aid: the middle class.

Well, that would certainly benefit those poor, maligned large institutions who are suffering foreclosure and eviction. Oh wait.  And large and small firms, well really small firms because large firms don’t tend to represent tenants facing eviction very much, should be part of this scheme, obliged to take in your debt-burdened students “at reduced hourly rates,” spend their days teaching and supervising them, dealing with the mess they leave behind, the personnel issues, the cost of real estate to warehouse these younguns, and when they don’t hire them on a partnership track, pay them a severance?

And this does what for the 172,000 tenants who can’t pay the rent?

In fairness to good Dean Farmer, I can’t blame him for trying to get his grads into jobs, even if he’s compelled to write an op-ed in the New York Times as utterly inane and bizarrely unrealistic as this.  Maybe he’s not being disingenuous, but really has no clue what it costs to survive, as a lawyer or as a human being on the bottom rung of over-educated society. Small firm economics may not be his strength, and chances are pretty good that he’s never spent time with poor people in need of legal representation.

What compels this dissection is that the legal profession is near implosion, and yet the New York Times gives space to such nonsensical approaches as this, as the academy perpetuates self-serving solutions that seek to shift the problem onto practicing lawyers so that they can offer the promise of a financially rewarding career to their students without addressing the growth of tuition they charge and the debt their students take on.  Law schools want lawyers to shoulder the cost so they can continue to charge with abandon.

But what is really insulting is the attempt to justify this by publicly suggesting to the unwary that it will provide legal services to those who can’t afford a lawyer. Putting aside the giving them lawyers who don’t know their ass from their elbow, the premise is false to begin with.  Biglaw doesn’t represent indigent tenants or mom and pop start-up businesses. They don’t do simple wills for new parents. Give Biglaw 1000 baby lawyers and they may have document review nailed down, but nothing else.

But as law schools continue to churn out tens of thousands of grads every year, there aren’t enough desks in Biglaw hallways to subsume these grads. Where would they go? How many solos have an extra desk in their office, time to spend overseeing a n00b who is thrown into the deep end, and the extra money to finance his law school mistake?

This is why we can’t have nice things, but that doesn’t stop the Times from giving space to law deans who will write anything to protect their turf.  Are lawyers ready to get involved in this discussion, or would you rather find out about the new rule requiring you to take on baby lawyers at your expense?  Because you don’t have enough problems already? Hope your malpractice is paid up and your kids don’t need dinner every night.

So if Dean Farmer really wants to play the Apprentice, then I’m going to play Trump. You’re fired.

When Casey Anthony, the most hated person in America until Justin Bieber released his new song, was acquitted, her lawyer, Jose Baez, was similarly despised for having done his job too well. Forget that this hatred came from a public that didn’t hear the evidence. Americans know who they love and hate, and that’s good enough.

Apparently, this isn’t just an American invention. Across the pond, Nigel Poole, QC, felt compelled to speak out on behalf of his colleague, Kate Blackwell, for having cross-examined too well.

It seems necessary to give that defence of my profession because a fellow barrister from Manchester has found herself at the centre of a storm of protest as a result of what the trial judge called a perfectly proper cross-examination of a witness at a criminal trial. Tragically the witness, Frances Andrade, committed suicide some days after giving evidence. She had alleged that as a teenager she had been raped and indecently assaulted by a teacher and his then wife. The defendants were acquitted of rape but found guilty of some of the charges of indecent assault.  Much public criticism and even personal abuse has been heaped on the barrister. It is no exaggeration to say that on Twitter the barrister seems to have received more adverse comment than the convicted defendants.

Frances Andrade, a highly regarded violinist and past pupil at Chetham’s, took her own life last month after being subjected to harsh cross-examination during the trial of Michael Brewer, a former director of music at the school and an internationally recognised choirmaster. Mrs Andrade, 48 years old and a mother of four, had dreaded giving evidence against Brewer, whom she accused of raping her at the age of 18 and indecently assaulting her between the ages of 14 and 15. Brewer, 68, was cleared of rape but convicted on five counts of indecent assault. His former wife Kay, 68, was found guilty of indecently assaulting Mrs Andrade at the time of the alleged rape.

Barristers exist to represent clients – whether the client is the state, a company or an individual. They advise clients, usually at times of stress for them, and help them reach decisions about their cases. Barristers do have responsibilities to others as well but their core role is to act in the best interests of their clients. They must do so with integrity but fearlessly.

Everyone is one false allegation away from being at a jury’s mercy. Imagine you were accused of an offence from decades ago and that you believed your accuser was giving false evidence in court. It is their word against yours. What kind of justice would be served by your barrister refusing or failing to challenge that witness’s evidence in the most effective way she can?

This is not an homage to strangulation. It is not okay. It is very wrong, as is punching, kicking, or any other harm done in the course of domestic violence. It is a crime, and should be treated as a crime, and it reflects a deeply troubled person. I do not take it lightly.

But that said, it should neither be exempt from the rationale of aggravating factors in the determination of the severity of a crime, nor the next crime to manufacture its own mythology of “expert proof” to facilitate convictions.

The  New York Times reports that a 2010 law making strangulation a class “D” felony, where it would otherwise be a misdemeanor assault isn’t panning out as well as prosecutors and advocates against domestic violence hoped:

New York’s law, like dozens of choking statutes across the nation, is popular with law enforcement officials. In 2011 in New York City, 1,458 domestic violence assaults that would have been considered misdemeanors under the old law — more than 9 percent of them — were charged as felony strangulation.

But second-degree strangulation — choking to the point of injury, impairment, stupor or unconsciousness — can leave ambiguous marks or no marks at all, making it tricky to prove. “If you don’t know how to follow the bread crumbs it’s very easy to miss,” said Gael Strack, chief executive of the National Strangulation Training Institute, an anti-domestic-violence group based in San Diego. Of the thousands of defendants charged in New York City, fewer than 20 have gone to trial, state officials said. Experts say that thousands of police and medical professionals around the country have not been trained on how to execute the new statutes.

The idea for the law is grounded in the argument that choking, because it doesn’t involve a weapon (and no, the use of hands is not a weapon, at least for now), is a gateway crime to murder.

Choking, experts say, is one of the most pervasive forms of domestic violence, with its overtones of power and control, and one of the best predictors of more serious violence. “A woman who has been choked is seven times more likely to be the victim of a domestic violence homicide later,” Ms. Strack said.

The problem, for the purpose of charging and prosecuting, is that if choking doesn’t result in serious injury, it’s fails to fulfill the elements of a felony, absent a law that specifically makes it a felony. Is it true that a woman choked is seven times more likely to be murdered? It’s hard to say, as the article offers nothing but the bald assertion, and statistical claims in domestic abuse, like sexual assault, are notoriously unreliable. They play well to audiences, though.

This gives rise to two very deep concerns. First, that an industry will pop up to teach police and “experts” how to follow the bread crumbs and see evidence where no one else can find it. We’ve seen the same with bite marks, dog sniffs, arson patterns. Forensic science that was once believed conclusive, such as fingerprints and shaken baby syndrome, are now being recognized as scientifically questionable.  So why not create yet another “science” dedicated to proving guilt where mere mortals can find no evidence?

The second concern is that laws targeting strangulation depart from the scheme of aggravating factors that provide a consistent and rational structure for the severity of crimes and, therefore, punishment. There are three paths by which laws increase the severity of a crime, the first being the use of weapons in the course of the commission of a crime, the second being the mens rea and the third being the extent harm done.  The concept behind them is to both provide a disincentive to exacerbate a wrong and to tailor, as narrowly as possible, the crime so that conduct that is less harmful or morally culpable won’t be swept in unintentionally.

In the case of choking, this is particularly problematic, both in terms of proof and severity.  The argument is that evidence of choking, primarily bruising about the neck (the article talks about “petechiae,” broken blood vessels, as “suggestive” of choking, there being no observation of bruising), will exist if it occurs for real. By that, I mean it’s not merely touching the neck, or some hold that falls short of choking, but an actual attempt at strangulation.  In the absence of any physical evidence that it happened, choking is no different than any other claim. While advocates against domestic violence don’t like hearing this, the fact is that false claims happen. This is why evidence is needed.

The other question is whether it should rise to the level of a felony when there is no consequential injury. Certainly, no one is arguing the pounding a person’s head against a bath tub is a good thing, and yet if it causes no injury, it’s a misdemeanor. What makes choking different?  The answer apparently goes back to the allegation that it is “one of the best predictors of more serious violence.”  which would support both a deterrent purpose as well as an anticipatory retribution purpose. Whether it’s true that it’s a “best predictor” and whether it sweeps others who would never again engage in violence into its clutches, is a problem.

There is no advocacy group for Guys Who Choke Women to challenge these claims, thankfully. But that means that claims go unquestioned, and laws are enacted without consideration of how they fit into the scheme of criminal law or their unintended consequences. This is particularly true when the crime relates to an interest group, such as gender related crimes, that is so concerned with its focus that its willing to ignore or deny the factors militating against its position. They are willing to sacrifice the innocent to convict the guilty. They accept the conviction of a person who culpability falls short of its mark to get the guy they want.

Cherry picking crimes to be elevated in severity and punishment because of trends and political concerns, despite the inconsistency with the scheme of crime, is a slippery slope. The case can be made that all acts of violence, whether against women or against anyone, are bad, but that’s why they’re crimes to begin with.  There are people who would favor life in prison for anyone who engages in violence, unconcerned with the details that form the basis for a rational scheme of criminal law.

Worse still would be the creation of another dubious forensic science designed for the purpose of facilitating convictions because they just aren’t convicting enough people. We all love babies, and yet look at the damage shaken baby syndrome has done.  Eventually, there will be advocates for the wrongly convicted who will stand up against bad laws and junk science, but that comes only after the harm is done. 

Who would be stupid enough to question and challenge something so awful and despised as choking women beforehand? Yet that’s the only way to prevent the tragedies that come later.  As awful as choking another person may be, wrongfully convicting someone of a felony for it isn’t the answer.

The aphorism is “once bitten, twice shy.” Apparently, that’s not part of the instruction at the police academy in Gresham, Oregon, of Officer Taylor Letsis might have chosen not to flex his muscle. Again.  The first time, a video recorded Letsis and some pals  beating and tasing a 68-year-old man for not having a ticket on the transit system. Don’t scoff. It’s a gateway crime.

This happened last November, 2012, and naturally resulted in a significant investigation and repercussions for the needlessly violent conduct of police officers nothing, which could contribute to the absence of pain from having been once bitten.  Nonetheless, Letsis decided to double down when he saw Carrie Medina taking video of a bust.  And Carrie Medina caught it on video. How cool is that?  Via  Carlos Miller at Photography is Not a Crime :



To his credit, Letsis doesn’t pull out his taser, apply a chokehold or even throw Medina to the ground, then ram his boot into the small of her back. You know, for his safety because he was in fear.  Rather, he is merely insistent that he’s going to do as he pleases because, well, he is in a uniform, has a gun strapped to his hip and can, if he was so inclined, beat the living daylights out of Medina.  

Keeping her cool as well, Carrie Medina asks why Letsis thinks he has the authority to order her to let him see, or have, her cellphone.  This is an important lesson as well, as one of the frequent problems that arise from such interactions is that the person doing the recording gets nervous, behaves poorly and provides an excuse, regardless of whether it’s sound, but subsequent police conduct.  While it may not be of legal consequence, to the extent videos serve to make people understand better the impropriety of police exceeding their authority and violating people’s constitutional rights, they will look for any excuse to dismiss the victim as having asked for it. Carrie Medina gives Letsis nothing.

But doesn’t the police officer have the right to seize “evidence”?

A spokesperson for the Gresham Police Department told KATU News officers are not supposed to seize phones used on public property but declined further comment Wednesday night.

“Ma’am, do you want to hand me the phone or would you like to show it to me?” the officer asks.

“I don’t want to show you …,” Medina begins to respond. At that point the officer snatches the phone from her while it is still recording.

Under the withering cross-examination of Bloomberg Law’s Lee Pacchia, Case Western Reserve Law School Dean Lawrence Mitchell played his trump card:

It’s not clear to me there’s an oversupply [of lawyers] problem at all.

With so many legal needs of the poor going unmet, “finding different paths for people who truly want to be lawyers opens up all sorts of possibilities” for law graduates to find jobs, he maintains.

The answer omitted the most salient detail that lingered in the minds of new lawyers. How are they supposed to eat?  Seven years of school, meaning seven years of tuition and seven years of not earning a living, add up. And then they still need to eat anew every day. The numbers don’t work.

The academic concern for the segment of society for whom competent legal representation is too expensive is admirable, but the lack of realization that there is no possibility that lawyers can satisfy this underserved need unless society subsidizes the cost or supermarkets start giving lawyers free food remains a problem.  There is plenty of unrealistic chatter, but little effort at a real solution.  The promise of “pie in the sky when they die” hasn’t made many converts.

This may well change, and change very quickly. If so, it’s going to start in Washington State.

 Limited License Legal Technicians

 Admission to Practice Rule 28

The Washington Supreme Court adopted the Limited License Legal Technician (LLLT) Rule, effective September 1, 2012. This rule authorizes non-attorneys who meet certain educational requirements to advise clients on specific areas of law, which have yet to be determined.

WSBA’s role is to maintain the high standards set for the legal profession while serving as the regulators of this new rule. The goal is to ensure quality implementation aimed at supporting WSBA members and upholding protection of the public. There is no other state with a similar LLLT rule. This rule provides Washington the opportunity to lead the nation in expanding legal services for the people of our state.

Sound familiar? It should, if you’ve been a regular reader here. While the language is different, the concept is remarkably similar to my proposal for the creation of the position of Legal Practitioner,  While Washington is first fleshing out the details of its new position, with the flashy title of LLLT (which I, if I were them, would call 3LT), the concept is nearly identical to mine. Smart guys on that Washington Supreme Court.

One of the greatest fears of legal academia is that law school will be turned into auto mechanic school in an effort to make it practice oriented. In fact, a  bizarrely  disingenuous  debate over this is raging at PrawfsBlawg, reminding thoughtful people how fortunate we are that some of our smarter brethren become scholars rather than advocates. Unlike lawyers, a 3LT will be far more auto mechanic than doctrinal theorist.

Guess what? When your car breaks down, an auto mechanic is what you need. You don’t want a discussion of the effluvia of the law. You want someone who can inexpensively, quickly and properly replace your fan belt.  It doesn’t take Harvard to gain this know-how.

While this will certainly suck some of the low-level, bread and butter work out of lawyering, the fact remains that a generalist education isn’t required to perform more discrete legal services. It doesn’t alter the problem of oversupply, which must eventually be confronted by those profiting off the law school cash machine, but it finally addresses fulfillment of the needs of an underserved population in a society where legal requirements touch nearly every aspect of life.

Will the 3LT be capable of fulfilling that niche? Don’t they need to eat too? Well, sure, but then, they won’t need a working knowledge of Friedrich Nietzsche or European literature to do so. Picture, if you will, a technical school, along the lines of what  Sanford Brown College does for medical technicians, inexpensively  and expeditiously turning out 3LTs fully capable of handling simple wills and trusts, uncontested divorces, UCC and corporation filings. Forget about seven years, and think two years. At night. Over the internet. In their bathrobe.

While they may not be privy to the magic of Kingsfield’s having been taught to “think like a lawyer,” they are more than adequately equipped to distinguish the needs of a client within a niche of law practice. These are not mindless commodity positions, but sufficiently limited so that 3LTs will possess adequate knowledge and discretion to provide excellent legal representation within a very tight practice area.

And the best part of this concept is that it actually has the potential to work, to serve the needs of people who aren’t flush with expendable income, but are capable of paying a reasonable fee for the services they need, if only lawyers would be kind enough to charge a fee that meets their financial situation while sufficing to cover the lawyers’ costs.

Since the downturn has conclusively proven that this will never happen, and as experiments in inexpensive legal representation will never get any better than the current situation of gross oversupply and still no one will to serve the financially modest American, the time has come to recognize that society doesn’t need more Harvard trained lawyers, but could really use some damn good auto mechanics.  And Washington State plans to make sure the every citizen’s car is running like a dream. That’s the future.

While the futurists keep pontificating about how the internet brings transparency to the “opaque” law, I keep seeing entrepreneurs trying to find new ways to glom a few shekels off the top by marketing lies to the unwary. A series of shameless twits came across my screen yesterday for a new co-op advertising scheme called Campus Lawyer.  An underserved niche?



So this is transparency?  “They’ll be sure to get you off”?  Nothing misleading there, right?

What disturbs me most is that college kids who get in trouble, and it certainly happens, are a particularly vulnerable group.  Old enough to be treated as adults. Immature enough to do stupid things.  Smart enough to realize that they don’t want mommy to know they screwed up while dad is working two jobs to pay the tuition, yet stupid enough not to realize that this is just a marketing scheme.

The scheme is run by Sergio Smith, a marketer of sorts out of Boca Raton.  It strikes me that he’s onto a pretty good idea in terms of a group of people who will need the help of a lawyer.  It also strikes me that his approach is appalling.



There is a click-through disclaimer at the very bottom of the page, which no one will find or read. In the meantime, the ad copy makes it appear that Campus Lawyers is the firm with “experience attorneys nationwide,” who are “top rated lawyers.”  Top rated? By Sergio?

One of the typical responses to such schemes, voiced by those who use or support the use of co-op advertising schemes, is whether there is any proof that anyone is fooled by deceptive marketing.  The answer is self-evident: to the extent anyone falls for it, they’re fooled.

Nowhere does the page inform a reader that this is merely a co-op advertising scheme, where attorneys who want/need the business pay to become part of the group. At the same times, it’s deliberately framed in a way designed to give a false impression, that it’s a firm, that the attorneys are somehow vetted for quality and appropriateness and that the larger entity, Campus Lawyers, has some connection to law. Sergio may be a smart marketer, but he’s no lawyer. Did you happen to see Sergio’s name anywhere on the page?  In fact, did you happen to see any entity other than the amorphous Campus Lawyers?

So having come up with the (admittedly smart) realization that there is an untapped group out there who may well need legal representation, has no clue where to turn and is particularly naive and vulnerable, Sergio has crafted a business, is promoting the daylights out of it and, apparently, is signing up lawyers. 

Whether the lawyers are great or horrible is neither known nor the point. The point is that this fabulous future of legal marketing isn’t honest and takes advantage of kids.  I can’t blame Sergio for his failure to adhere to the ethical obligations of honesty that are demanded of lawyers. He’s no lawyer.  But I can certainly question how any ethical lawyer, taking even a casual view of the scheme (and that horrendous video), can feel comfortable being a part of this.

I know, you’re a wonderful lawyer who provides excellent representation, so joining up with a somewhat questionable co-op advertising scheme is just a way to bring clients through the door where you can perform your magic.  Are this makes being party to this scheme cool with you, right?  And this is transparency?

An  old friend of mine twitted at me in the hope of getting my goat:

Greenfield silent on ADA plea bargain in EMT assault? Is voluntary intoxication a defense for intentional conduct??

I can’t imagine his profs at Columbia J-School would have thought well of his double question mark, but he was chiding me into a fuller discussion than twitter can afford. Even though a twit is limited to 140 characters, there’s always room for excessive punctuation.

He was referring to the case of former Brooklyn Assistant District Attorney Michael Jaccarino, who got so blotto on night that he was found wandering the Brooklyn Bridge. Contrary to romantic movies, this isn’t a good idea, and nobody unfortified or unsuicidal would do such a thing.  He was picked up by an ambulance, where the story got even uglier.

The prosecutor, Michael Jaccarino, had been seen wandering, intoxicated, on the roadway of the Brooklyn Bridge in November. An assistant district attorney from Manhattan said that after the ambulance picked him up, he unbuckled himself from a gurney, struck an emergency medical technician, Teresa Soler, held her down with his forearm pressed against her neck and choked her.

Jaccarino has no memory of the event. Having avoided choking EMTs prior to the incident, it doesn’t appear that he had a violent nature or was inclined to EMT beating. Yet it happened. 

He was charged with 2d Degree Assault, but the case ended with a plea to misdemeanor assault and ten days of community service? 

Mr. Jaccarino was initially charged with second-degree assault, a felony, but the assistant district attorney, Sherita Walton, told a judge in Manhattan Criminal Court that her office had decided to charge Mr. Jaccarino with reckless assault, a misdemeanor and allow him to resolve the case by pleading guilty to that charge rather than to a felony.

Mr. Jaccarino was so drunk, Ms. Walton told Judge Melissa A. Crane, that it would have been difficult to prove that he meant to assault Ms. Soler. She added that if Mr. Jaccarino’s “intoxication was of such an extent and nature to render him incapable of forming the particular criminal intent, then he would not be criminally responsible for committing this crime.”

My buddy was confused, wondering how voluntary drunkenness could get him a pass on the attack. The problem wasn’t that being drunk meant you get to attack people with impunity, but that when crimes require specific intent, as was the case with Assault 2, the ability to formulate the intent is affected by drunkenness.

Penal Law 15.25 codifies the point:

§15.25 Effect of intoxication upon liability.

Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence  of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

The  jury charge provides that it’s left to the jury to determine whether intoxicants affected the defendant’s mind to such a degree that he was incapable of forming the intent necessary for the crime.

The courtroom was filled with EMTs, who were terribly dissatisfied with the perceived “slap on the wrist” given Jaccarino. He did some damage to one of their own, and they wanted payback.  My buddy, who’s job it is to impart wisdom to that aging segment of society who gets their wisdom from TV news, found it hard to imagine that voluntary drunkenness could be a defense to an assault. Was this an instance of one prosecutor doing a solid for another?

The way crimes are structured (or at least should be, provided there was no recent death of a child) is that aggravating factors increase the level of severity, and hence punishment.  Was drunkenness a defense to assault? No. But it does mitigate the degree of culpability, as evidence that the defendant couldn’t form the specific intent to commit the crime.  Does that make it less of an assault? No, but it does make it difficult (and in this case, likely impossible), to prove Assault 2 with its intent element.

Jaccarino lost his job. Jaccarino will carry a misdemeanor conviction, which is no big deal if your future is a life of crime, but is a pretty big deal if you’re a lawyer.  The ten days community service is a throwaway sentence, and it wouldn’t be a surprise to get a split sentence, anywhere from 30 days to 6 months, if he hadn’t been a prosecutor, for the misdemeanor assault.  It appears that the collateral consequences weighed on the sentence, and they should.

Did Michael Jaccarino mean to harm EMT Teresa Soler that night? Does anyone really think there was a violent nutjob hiding in the prosecutor’s suit, waiting for the opportunity to attack in the back of an ambulance?  Or was this an anomaly, a drunk who did something he would never otherwise do?

It seems as if an attack as violent as that perpetrated on Soler by Jaccarino ought to carry a heavier price, not because he was an evil, violent guy, but because he did some real harm to a person who was there to help him, a person whose career was dedicated to helping others and who was vulnerable to attack. It’s ugly, and no one can blame the EMTs from wanting Jaccarino to be made an example so that others would know that you don’t attack an EMT and get a slap on the wrist.

It’s not that anyone, Jaccarino included, gets a free ride on an assault because he was drunk.  He didn’t, whether the ten days was sufficient or not.  But the scheme of severity and sentence that goes with aggravating and mitigating factors is intended to provide lines not to be crossed. Would a sober Michael Jaccarino have assaulted Teresa Soler? If not, then the aggravating element of intent wasn’t met.

And as to whether the prosecution cut a break to one of their own, perhaps. Or perhaps this is how the system is supposed to work, but too often the prosecution doesn’t sufficiently take into account mitigating factors, such as the inability to formulate specific intent, and fails to offer a sentence that is properly suited to the moral culpability of the defendant.  The point isn’t to be needless harsh to the former prosecutor, but to me more merciful toward all.

Hope that helps, pal. And if I didn’t mention it before, one of the things I’ve long admired about your reporting is your desire to get it right. It’s why you’re one of the best around.

Hot on the heels of the  Obama administration’s white paper on its authority to kill at will, the  New York Times offers an editorial compromise.  Remember, even when something is inherently wrong, there is always someone happy to compromise principle rather than just say “no.”

No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas, particularly in the case of American citizens.

A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones.

A special court, which we first proposed in a 2010 editorial, would be an analogue to the Foreign Intelligence Surveillance Court that Congress set up in 1978. If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list.

The FISA court, a model for the future because it has worked out so very well.

The surveillance court is often considered a rubber stamp; out of 32,000 wiretap applications presented by the government from 1979 to 2011, it rejected only 11. But its presence has helped ensure that the administration’s requests are serious. In 2002, it ruled that the Department of Justice had overstepped its bounds, giving prosecutors too much authority. (That decision was later overturned by an appeals court.)

The position of the Neo-Warriors, while anathema to those of us disinclined to adopt the view that calling something a “war” makes it so, at least has the benefit of being a principled position. They believe in an imperial presidency, and that the authority to safeguard the public entitled the president to kill at will. As strongly as I may disagree with the view, at least I can respect the consistency of the position.

The Times, sadly, tries to split the baby.  Of the many blights on the legal system, the FISA courts is one of the worst.  It is reminiscent of the star chamber, where one side (lemme guess, the prosecution?) gets to go in, on its own, present its evidence and, without anyone to dispute its claims, gets its order. This is the appearance of process without any substance. Can you imagine how utterly awful and baseless the 11 wiretap applications must have been to get rejected?

When word got out that Congress had set up secret FISA courts back in the late 70’s, there was outrage among a select group of lawyers (lemme guess, criminal defense lawyers?) that such a thing could exist in the United States. Secret courts? Totally one-sided, throwing the constitutional rights of Americans under the bus without anyone to question, or even know, what was happening? 

Time heals all wounds, and this one scabbed over nicely.  The FISA courts have become an accepted part of the wiretapping landscape, and their existence doesn’t raise a peep anymore. What was once unthinkably outrageous is now just another piece of the least dangerous branch. 

So if the FISA courts, the rubber stamp of the prosecution’s arsenal, has become so widely accepted, why not create more secret courts?  Why not create a secret court to provide judicial authorization for the executive to execute our enemies?  For crying out loud, these are the enemies of America!  The president says so, and he wouldn’t lie.

Maybe not, though he could be wrong. But the secret court being asked to rubber stamp the kill order would never know because there would be no one there to offer a contrasting view, to question the assumptions, to challenge the evidence.  And there would be no one even aware that Sam Smith was just rubber stamped until the proud announcement that he was no longer with us, terminated with extreme prejudice.

If it’s acceptable that the executive branch maintains a kill list of those it perceives to be enemies of our nation, then why create another secret court to put on a dog and pony show that creates the appearance of legitimacy without the substance of due process?  Are Americans so vapid as to be satisfied with theater in lieu of actual adversarial scrutiny?  Will this be Real Housewives of the Judiciary?

Worse still, one secret court was bad. Very bad. And yet it’s become a part of our judicial fabric. For whatever reason, our acceptance of this singular blight hasn’t given rise to some scholar screaming that we should have secret courts handling all of our sensitive issues since the FISA court has done so spectacularly well in stamping wiretap orders.  But now the New York Times does what others have been too ashamed to do, promote the idea of secret courts as a solution.

No more secret courts, and if it were up to me, the FISA court would go too. But no more. If the President has the authority to kill Americans he deems enemies, as the Neo-Warriors would have it, then no judicial intervention is needed, and the judiciary should refuse to become an actor in the president’s show. 

And if the Chief Executive cannot kill Americans at will because the Constitution of the United States of America does not permit him (or her, when the time comes) to redefine war to mean whatever the Neo-Warriors want it to mean, then no secret ex-parte court order can make it constitutional. 

Just as no one can be half dead, no compromise can make the kill lists more palatable. It’s one of those things that is either right or wrong, and the New York Times’ attempt to split the (alleged) terrorist is completely misguided.

At My Shingle, Carolyn Elefant takes note of a website, Docracy, that has the technology to track changes to  terms of service at sites such as Facebook and Twitter, so that they can’t slip something in there (like use of their service permits them to seize your first born at will) without you knowing. Cool, right?

But the TOS Tracker also got me wondering about another lawyer-related question:   should bar regulators employ technology to monitor or audit law firm websites?

Docracy’s TOS tracker makes fairly clear that the technology needed to track changes on websites is readily available and not all that difficult to develop or implement.  Presumably, designing a site crawler for lawyer websites would be even easier for a bar regulator since it could require lawyers to pre-register their sites, and therefore, the tool would not even have to locate the sites, but simply monitor and ping any changes.  Eventually, states might refine a tracking tool so that it would not simply report changes and updates for review by a regulator, but could evaluate compliance and highlight violations.

Still – even though the concept of techno-driven ethics enforcement intrigues me, don’t think for a minute that I would ever endorse it. Putting technology tools in the hands of a state enforcement agency is risky business. One need look no further than the way that municipalities have converted red light cameras into cash cows to fill their coffers  to get a sense of where technology-enabled ethics enforcement might lead if applied to lawyers.  Plus, I can’t think of anything other than a 6 month stint in Antarctica that would chill lawyers’ First Amendment protected speech as much as a techno-driven ethics oversight program.

This concern is certainly valid, but seems fairly easy to address. While Carolyn is thinking of the bots as not only identifying potential ethical violations, but evaluating compliance on their own, it seems to me that the role could be far more limited, just raising red flags of potential violations, which would then be kicked to the disciplinary staff for review. In other words, the red-light camera issue wouldn’t arise because there would never be a violation found based solely on a bot’s say-so.  Indeed, without a due process component, which is wholly missing from red-light camera violations, nobody should be found to be in violation of anything.

Of course, this may still prove to be too onerous for disciplinary staff, given the ubiquitous nature of dubious marketing content from lawyers.  That raises a different problem, whether ethical violations (and bear in mind that ethical violations are the bare minimum demanded of a lawyer, reflecting such low ethics as to require sanction) are so numerous as to defy evaluation.  That doesn’t speak well of us, kids.  The question is whether it’s too late, whether there are too many violators out there in the ether, to undo the damage now.

My thought is that it’s going to be hard to change the course of internet marketing as it’s been deemed an ethics-free zone for so long, and so many new websites and flawgs are popping up daily, as to make it extremely difficult, if not overwhelming, to clean up the mess.  But we’ve got to try, and if handled both adeptly and with clarity, and results in either sanctions or shaming of sufficient severity as to make lawyers fear being the next one caught so that they go back and straighten out their own house, we may be able to right this ship.

On the other side, the internet could be viewed as freshman year away at college, where all the children get wild and crazy because they’re on their own for the first time in their life.  By the middle of sophomore year, they’ve gotten much of it out of their system and are ready to hunker down, eat properly, get a good night’s sleep and stop binge drinking.  Maybe lawyers will mature and grow beyond the wild, undisciplined nature of internet marketing.  Maybe lawyers will embrace a culture online of honesty and integrity, making the personal choice not to walk the streets in hotpants in the hope of a $20 retainer.  Maybe?

As President Reagan said, hope for the best but prepare for the worst.  While I hope that lawyers grow up and stop binge marketing, having the bots around to keep them honest won’t hurt.  Marketing lawyers will hate the prospect of being outed by techno-school marms, but others will welcome the return of a little integrity and something to stop the race to the bottom. I certainly will.

I didn’t realize it until this afternoon. Waiting for maple bacon donuts from Voodoo in Portland to celebrate, but not holding my breath. Just sayin’.