It sucks to be homeless in Brownsville, Texas.  First, because you’re homeless, which isn’t a great way to be under any circumstances. Second, because a non-profit agency, the Good Neighbor Settlement House on East Tyler Street, has cut a deal with the police to give you up.  From the Brownsville Herald :

Officials believed Jeffrey Paul Cutlip to be like any other homeless person roaming the streets of Brownsville looking for a place to shower and to get a bite to eat.

Then Cutlip made local and national news when, according to police, he confessed in Brownsville to various murders dating as far back as the 1970s in Oregon. Furthermore, a search revealed that Cutlip was listed as a sexual predator in Oregon’s sex offender inquiry system for convictions in 1982.

“He (Cutlip) had slipped below the radar,” Rosales said. “We did not know who the gentleman was. We had no idea he was wanted.”

In an attempt to identify people wanted by the law, the Brownsville Police Department and Good Neighbor Settlement House have signed an agreement whereby the police department will install a system to ID people going through the non-profit agency for services, officials said.

The system will help identify people wanted by local, state and federal law enforcement agencies. It also will help identify people if they are injured and require assistance, Rosales said.

St. Louis lawprof  Eric Miller discovers a problem that lawyers have faced forever: Scholars see the law from the top down, while lawyers see the law from the bottom up.  From  Prawfsblawg (with apologies for the incredibly excessive length and needlessly pedantic tone):

In the words of a friend of mine, who worked for years at a very prominent public interest law firm in the South, “everyone is overlooking everything.”  By this, I mean that the adjudication portion of the criminal procedure syllabus for the most part leaves students with no idea what goes in the sorts of low-level criminal courts so nicely described by Amy Bach in her book “Ordinary Injustice,” which might be thought of as a journalistic follow-up to Malcolm Feeley’s pathbreaking work, “The Punishment is the Process.” 

I’m going to hazard the thesis that the reason we have no idea what goes on in the courts that process the bulk of our criminal cases is an “elite” focus on doctrine.  First, these courts are largely invisible to “doctrine.”  They do not produce many opinions, their other operations are hard to access from the comfort of a law-school office or library, and so there is a paucity of materials readily at hand produced by the courts. Because of our reliance on “well reasoned opinions” (or at least pedagogically-useful-badly-reasoned ones), the gold standard for teaching criminal procedure is either the elite federal court system, or the differently elite state appellate court system, which do produce opinions that are readily accessible from a computer or library. 

Second, state trial and (especially) municipal courts are often bereft of “doctrine.”  There is little doctrine in municipal court, where lawyering depends upon interpersonal interactions between members of the court “workgroup” (as the sociologists put it).  In these courts, appeals to doctrine may actually be counterproductive: a nuclear option utilized only when workgroup relationships break down or do not yet exist. 

It started for mundane reasons. Two Cleveland officers, David Siefer and James Hummel, wanted to stop a 1979 Chevy Malibu because they suspected that it held drugs. They claimed the driver failed to use a turn signal, which is all that’s needed these post-Whren days.  Had the driver pulled over, this wouldn’t even be a footnote in the law. He didn’t, and a chase ensued.

From the Cleveland Plain Dealer :

Officers David Siefer and James Hummel were following the Malibu near Clark and Quigley avenues when they broadcast over police radio that they saw the passenger turn in her seat, get onto her knees and extend both arms toward the rear window as if she was holding a gun. They also thought the passenger was a man.

“He’s pointing the gun. He’s pointing the gun out the back window. Heads up. Heads up. Passenger is pointing a gun out the back window. Everybody be careful,” Siefer said.

At Popehat, Ken does something that needed to be done in his post delightfully entitled Crime: Whale Sushi. Sentence: ELEVENTY MILLION YEARS. A bit hyperbolic, since everyone knows that the sentence for whale sushi is never longer then 90,000,000 years, but Ken is allowed to stretch the truth a bit to make a point.

People reporting on federal criminal justice — whether journalists or bloggers — routinely report on the statutory maximum sentence that a defendant could hypothetically get, an oft-ridiculous figure calculated by taking all the charged crimes and adding up the maximum punishment for each. This is usually followed by some sort of pronouncement that THIS PERSON CHARGED OF MINOR CRIMES FACES MORE JAIL TIME THAN YOU’D GET IF YOU BEAT A TODDLER TO DEATH WITH AN UNCONSCIOUS NUN WHILE RAPING A BLIND LIBRARIAN, or words to that effect.

The problem is this number — the sum of the maximum sentence for all the crimes charged in a federal case — usually bears almost no relation to the sentence the defendant actually faces.

Since Ken’s busy, I’m just writing to thank Instapundit, Boing Boing, Volokh, Will Wheaton, John Scalzi, Something Awful, Mark Cuban, Radley Balko, Gawker, Deadspin, Ars Technica, Hot Air, Zero Hedge, and James Taranto at the Wall Street Journal’s Best of the Web Today for all the links to this post. We hope your readers will stick around.

Special thanks to Paul at the New York Times (you know who you are) and all the guys at Reddit who pushed this post to the front page. Keep rockin’.

It’s not clear when exactly it happens. Some of my younger buddies on twitter and in the blawgosphere tell me that a lawyer is “pretty good” because they’ve become friends with them, followed their twits, read their posts, and, well, like them.  Maybe it’s age 40? 50?

As the sage curmudgeon, Mark Herrmann writes at Above the Law, there comes a point when the glass is no longer half full.

I don’t live in Lake Wobegon.

I live in Lake WoeIsMe: All of the children are a little below average.

Or maybe I just have a bad attitude.

I’ll be frank: If I just met you, I assume that you’re inept. Not because you necessarily are inept, but because I’ve been blindsided too often in the past by the mistakes of people who I foolishly believed to be competent. That ain’t gonna happen again.

I live next door to Mark. The other day, a lawyer asked me for some advice on where to take his practice. We spoke on the phone for a while, during which I asked a bunch of questions about where his practice was and how he got there. It did nothing to answer his questions, but then, it wasn’t my purpose. Before discussing where he wanted to go, I needed to know who he was, how he thought, what his motivations were. I could not simply assume he was a great young lawyer who had a clear understanding of his purpose.  As it turned out, his answers made it clear to me that this was a lawyer with a great future, and someone I wanted to help.  But I didn’t take it for granted.

As I’ve written before, I don’t assume that you’re inept because I know that you’re inept. When we first meet, I don’t know you at all. Rather, I assume that you’re inept because you’re haunted by the ghosts of incompetents past, whose memories stick in my craw. I don’t have to hedge against you being good; that would be a welcome surprise. I have to hedge against you being bad; that would ruin my life (as has happened too often in years gone by).

Nearly every young lawyer attributes fabulous skills to herself.  Just ask and they’ll tell you how awesome they are.  When you question their self-assessment, they get angry. Old jerk. Douche. Mean curmudgeon. It’s understandable, as no one has ever doubted their awesomeness before, and every young lawyer knows how stupid and incompetent old lawyers are.

But Herrmann’s message isn’t that you aren’t a great lawyer; it’s that old lawyers have been burned by self-proclaimed geniuses too many times to assume it’s true. We don’t take it for granted with each other. We don’t take it for granted with new lawyers. We assume the worst. Horrible.

When confronted by a young lawyer whose skills are unproven, and whose reaction to my questioning their abilities and work ethic is to inform me how much better she is than all those miserable, lazy, incompetent old lawyers she’s seen, I pose a question: If inexperienced lawyers are so smart and hardworking, far more so than old lawyers, how does it happen that the young lawyer grows so much stupider and lazier after a decade or two of experience?  They hate this question. 

The guy (or gal) who I’ve worked with before and who has proven (as opposed to asserted) that he’s a fine lawyer. Assertions don’t mean anything; the proof is in the summary judgment papers.

If I don’t know the right lawyer for a matter, then I locate someone who’s proven himself to be competent, and I ask that person for a recommendation. It’s true this makes me nervous, but it’s far better than the alternative of trusting some unknown clown who tells me that he thinks he’s a good lawyer.

Curmudgeons call people “guys” and “gals.” It’s not sexist, just the language we were raised with.  But some old lawyers, this one included, has no plans to refer a case to anyone I know from twitter. I take referrals seriously, and won’t send a human being to a lawyer I assume to be inept. So your twits are cute? Informative? Cool?  That’s wonderful, but it doesn’t make you a good lawyer. 

This isn’t a slap in the face to new lawyers. I know it feels that way, but it’s really not. You haven’t suffered the experience of the screw-up that should never happen, the simplest of things that can never go wrong going wrong.  Stick around for a while and you will. When you look into the eyes of a client and offer solace by saying “I thought she knew what she was doing,” there will be no comfort taken. The rest of the world won’t be as forgiving of your mistakes as you are.  The rest of world doesn’t really care about you. Just like you, people really only care about themselves.

And so the glass will be half-full, and you will be inept, and something will go wrong, and curmudgeons expect it, anticipate it, and do everything in their power to stop it from happening.  This means we nudge you, tell you stuff that you think is obvious and make you feel as if we’re treating you like some monumentally dumb fool.  “You don’t trust me?” you say. No. I don’t. I can’t afford to trust you, and I have no intention of letting things go south and then, after the mistake that can never happen happens, have to clean up your mess.

Does this happen to a person at age 40? It’s hard to say, but it comes with the experience of having seen too much go wrong to assume that things will go right.  The sooner this realization happens, however, the sooner you can be trusted. Once you recognize that Reagan was right about one thing, hope for the best but prepare for the worst, you have half a chance of getting things done right.

Until then, when you’re still filled with your awesomeness, you can’t be trusted and curmudgeons, like me, will assume the worst.

In his State of the Judiciary message, New York Court of Appeals Chief Judge Jonathan Lippman announced a proposal to overhaul New York’s bail scheme, long castigated for keeping poor defendants charged with trivial offenses in jail for the inability to make bail. 

The current bail structure has pushed defendants to agree to guilty pleas to nonincarceratory sentences as a quicker way to get out of jail than fighting the charges.  Better to be guilty and free than innocent and in jail for the year or more that it takes to win. From the New York Law Journal :

“Our overriding goal must be to ensure that pretrial detention is reserved only for those defendants who cannot safely be released or who cannot be relied upon to return to court—and to do all we can to eliminate the risk that New Yorkers are incarcerated simply because they lack the financial means to make bail,” Lippman said.

But as so often happens with any proposed “correction” to criminal law, one hand giveth and the other taketh away.  The takeaway here, unfortunately, is huge.

The chief judge urged passage of an amendment to the bail statute that would allow judges to consider the risk that defendants will commit additional offenses while awaiting trial in addition to the risk that they will not appear in court.

The current bail statute, Criminal Procedure Law §510.30(2)(a), only permits judges to consider whether bail is needed and sufficient to secure a defendant’s return to court.  The new proposal authorizes judges to enjoy psychic powers, seeing into the future to divine whether a defendant will commit crimes while out. 

On the plus side, the chief judge proposes a presumption that nonviolent defendants be released:

At the same time, he called for the creation of a statutory presumption to make clear that where defendants are charged with non-violent offenses they will be released pretrial with the least restrictive requirements possible unless prosecutors demonstrate they poses a legitimate risk to public safety or of flight.

While a statutory presumption is a step forward, the caveat sucks much of the wind out of its sails. While it’s unclear what showing would be needed to overcome the presumption, it’s fairly easy to imagine that most low-level defendants have a rap sheet in the land of Stop-and-Frisk that will make it easy to show a persistent life of crime, petty though it may be. 

Aside from the problem of more than a few judges lacking the mystical power to do so, for a great many of the same defendants now held inappropriately, who are drug addicts held on possession, the answer is almost invariably going to be that they are extremely like to go out and buy more drugs. They’re addicts. What else are they going to do?  And thus, the new criterion suggests that they be subject to bail again. Problem solved.

The impetus for these changes appear to be the elimination of bail bondsmen, who Lippman sees as a blight on the system.

Critics of the current system complain that it effectively keeps poor people accused of low-level, non-violent offenses in jail because they cannot get bonds for relatively small amounts, such as $1,000 or $2,000. It is unprofitable for bondsmen to deal with such clients, said Steven Banks, attorney-in-chief of the Legal Aid Society.

In his address, Lippman said his reforms would lessen the reliance of the criminal justice system on a bail bond industry that exercises “enormous influence over who is released pending trial and who stays in jail” with “precious little public accountability.”

While the point about bail bondsmen is well taken, the focus seems misdirected. The concern ought to be the defendants held on $1,000 bail rather than the bondsmen who won’t bail them out.  Poor defendants are often considered poor risks, given a lack of sufficient community ties, unstable residences, unemployment, few family ties. 

Even when charged with low-level nonviolent offenses, bail is commonly set at $500 or $1,000, far more money than they can possibly make. Why? These aren’t hardened criminals determined to flee justice, but just poor. The solution has always been at hand, to stop knee-jerk setting bail without any real basis to believe they’re going to abscond. If they can’t make $1,000 bail, chances are they won’t flee to a Caribbean paradise to avoid the consequences of public urination.

Notably missing from CJ Lippman’s explanation is a concern that these same defendants happily plead guilty just to get out.  When faced with $500 bail, which they can’t make, and three days community service and they’re free in minutes, opting for the latter is a no-brainer. Far better to avoid a year in jail awaiting trial than to take a trivial hit. Guilt or innocence? That’s only a concern for people who can afford such luxuries.

And after a plea of convenience or two, the same defendant who would otherwise be subject to the presumption of release now falls into the recidivist category, where the arraignment assistant holds up the rap sheet to demonstrate his risk of committing additional offense. We’re right back to where we started.

One of the pieces of the system that’s too often ignored is that complaints about the current state of affairs doesn’t necessarily mean change will be better. While this proposal certainly means change, particularly by adding a previously unavailable consideration as a reason to impose bail (no doubt as a hat tip to the constant public fear for safety) that will make reasonable bail increasingly more difficult for any defendant charged with a violent crime, and thus a potential threat to community safety, it doesn’t necessarily mean change for the better.

While there is no doubt that something needs to be done about dubiously-needed bail set for the poor that coerces guilty pleas, the problem isn’t evil bail bondsmen and the solution has nothing to do with their elimination.  Judges have always had the ability, indeed the obligation, to set reasonable bail or release, and the answer lies with the use of that authority to stop punishing the poor to keep the wheels of justice grinding. 

As for the new community safety prong, that’s a disaster waiting to happen, where pseudo-omniscient judges and prosecutors will enjoy untestable magical skills to see into the future, making challenges to crimes that have yet to happen impossible to sustain. 

So we have change. It’s just not good change. In fact, it’s likely to be pretty bad change. Happy now?

Ever get that run down feeling?  You know, the one where a police car going very fast without its lights or sirens on runs you down.  It’s happening with some frequency in Wichita, Kansas lately, and apparently the locals aren’t entirely thrilled about it.

Since 2007, three people in Wichita have been killed in accidents with officers who were allegedly speeding and did not have their lights and sirens on. The city has paid out $500,000 to settle two lawsuits. A third lawsuit, filed in December, is pending.

Two attorneys representing families of the people killed and one attorney defending one of the officers involved say the department needs to recognize that officers speed and change its policy to allow officers to use lights and sirens more often to warn other motorists.“Why can’t we just acknowledge that there’s a tendency to speed … sometimes a tendency to speed greatly, because they’re out there doing a service?” asked Wichita lawyer Craig Shultz, who represented the family of a person killed in 2007.

In reality, they speed.

“We know that officers speed, we don’t like it, and we will aggressively pursue officers that are speeding,” said Lt. Doug Nolte, a department spokesman.

The department limits the use of lights and sirens because it can distract motorists and officers and cause accidents, Nolte said. Lights and sirens aren’t always effective because sometimes motorists don’t see, hear or heed the equipment, he said.

The department wants the public to report officers who are speeding without lights and sirens or driving unsafely, he said.

There are so many ways in which the Department could address the problem, whether from a policy against their officers speeding with a sufficient sanction in place to make it in the cop’s interest to slow down, to technological solutions such as GPS or “snapshot” type registers of speed and equipment usage. But instead of doing what they can on their end, they’ve chosen the pacify the public solution of telling people they should report cops to cops for speeding.

At least they will have a good laugh about it back at the stationhouse, but the problem remains that cops speed:

One of the root problems is that “police routinely speed,” said Geoffrey Alpert, a University of South Carolina professor of criminology who has studied traffic issues for 20 years. In a world where police don’t get ticketed by fellow officers when they break traffic laws while off-duty, it gives officers a “sense of impunity,” Alpert said.

Apparently, they have a GPS system in place to monitor police driving already:

A lot of departments have GPS capability to check speeds of their patrol cars. “It’s a problem that needs to be monitored,” he said.

The Wichita Police Department uses a countywide system that allows supervisors to check patrol car speeds and officers’ driving, and some officers have been disciplined as a result, Nolte said.

What apparently isn’t happening, despite the systems and alleged discipline is that the root problem of police culture, that they can break the law with impunity, has not changed.  So what if they run down a few people from time to time. Them’s the breaks.

There are certain risks inherent in police work, which many refuse to accept and most don’t like one bit. But as police perform their function, they are entitled to be defensive rather than allow themselves to be put at risk of harm.  As much as people fear the police entering a location where a potentially dangerous suspect may be with their guns drawn, and as experience dictates they should, there is a sound reason for permitting them to do so, and we can only hope they have the training and experience not to pull the trigger first and determine who they’re shooting at second.

But there is no excuse for running people down.  Much as cops consider the right to speed a perk of the job, killing people for the sake of your convenience is just plain stupid and sick.  That Wichita shifts the duty to the public, as if there is any chance of that changing things, is foolish and reflects a lack of concern and respect for their citizens. 

If they want to stop improper speeding by cops, just do it. This is public pacification, which will last only until they run down the next person.

H/T FritzMuffKnuckle

NBC has obtained a  New York Times :

Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.

It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”

Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense.

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual’s citizenship would not immunize him from a lethaI operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person’s interest in his life. But that interest must be balanced against the United States’ interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q’aida or an associated force of al-Q’aida and who is engaged in plotting against the United States.

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, called the paper “a profoundly disturbing document,” and said: “It’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority — the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”

Old school American philosophy was that necessity is the mother of invention, which explains why Zappa’s admonition about yellow snow remains true to this very day.  Yet, at the Legal Whiteboard, Bill Henderson subscribes to a very different philosophy.  Perhaps this is due to ornithological challenge, as he mistakes vultures for blue jays.

Bill posts a big picture of the list of exhibitors at Legal Tech New York:

It’s a long list. A very long list, which is a testament to the great number of enterprises ALM’s Sheila Brennan was able to get to pony up the exhibitor fee. She is good, far better than ALM deserves, but I digress.

From this very long list, Bill concludes:

There was a lot of money sloshing around this trade show.  What do these companies sell?  How do they make money?  Who are their clients? Who founded these companies and who financed their growth? Are lawyer-employees a key part of their business models?  These are the questions I am asking.
If you think that the ethics rules (MR 5.4) are keeping nonlawyers out the legal industry, you need to come to LegalTech.

I’m here to help, Bill. The long list doesn’t so much reflect nonlawyers engagement in the legal industry, but vultures feasting on a dying carcass.  The scent of death is in the air, and they flock. They are failed lawyers. They are lawyers tired of scratching for a buck and coming up empty. They are the philosophy majors in college who couldn’t find work. They are the tech wonders who were told that this billion dollar industry is floundering, but with some fancy software they can skim a few pennies off the top.

As long a list as this might be, it’s puny in comparison to the number of lawyers in this fine nation.  As every venture capitalist has heard a million times, all they need do is get one-tenth of one percent to buy their product to make themselves filthy rich.  What product that might be isn’t nearly as important, since none of us know what lawyers will be doing in ten or twenty years from now. What is well known is that lawyers, struggling to be part of whatever the new normal turns out to be, are grasping at straws in the hope that they can remain viable and survive whatever is happening to the profession.

The next question Bill needs to ask, but doesn’t, is whether the future lies in embracing the vultures who want to suck the life out of the legal profession, his nonlawyer’s skimming a piece off the top so they can get rich on money that used to go toward legal representation, or fighting them off.

When I look at this list, I have questions too.  How many of these enterprises offer services that lawyers actually need?  How do their services help us to serve our clients better than we can serve them now?  Does the cost of these bells and whistles provide value to what we do?

There has always been an industry serving the legal profession, from the makers of law books to the purveyors of legal forms.  The ones that fulfilled needs survived, but we never confused them with lawyers.  They served us; they didn’t replace us.

Has this changed?  Certainly e-discovery and predictive coding require a skillset that lawyers aren’t taught, but that’s one niche among many.  Are all the enterprises who put up booths e-discovery sellers?  If so, then I would suspect two, maybe three, to be around ten years from now. Nobody needs 100 e-discovery companies.  And if that’s all they do, they only serve a niche of the law, and Bill’s suggestion that the philistines have already broken down the gates is a bit exaggerated.

It’s not that I disagree with Bill’s view that things are changing, and in need of change, but that we’re a long way off from understanding what those changes will ultimately be.  We are at the infancy of technological involvement in the law, and there will be no shortage of vultures who think they can get their piece, only to find out that their services are unwanted and unneeded.

Of the many claims to fame of the new normal, the end of the guild mentality is a strong one.  There are many who see the future of the law with lawyers and laypeople working hand in hand to end the monopoly and turn the profession into just another business, selling new and improved laundry detergent next to trusts and estates.

That may come to pass, because my crystal ball is awfully cloudy and I can’t tell where we will be in a decade or two.  But by no means am I prepared to declare a learned profession dead, and give up the carcass to the vultures.  The panacea that others see, where non-lawyers can reduce the cost of legal representation through computer programs that are close enough to replace thinking lawyers may be good enough for others, but not me.

So while Bill may see that cool picture of exhibitors and think, this shows that the legal profession has succumbed to the business of lawyering involving, perhaps even dominated, by laypeople replacing lawyers in order to bring about the new legal order, I see yellow snow.  And until I find out that it serves my clients better than what I do now, I have no plan to eat it.