As 73-year-old Jack McCullough has now  been sentenced to spend the rest of his “natural life” in prison for the murder of 7-year-old Maria Ridulph, one question has never been answered.  What changed between 1957, when the crime occurred, and 2011 when he was arrested for it?  No DNA connected him to the crime. No witness came out of hiding who was previously unknown. But one thing was different.

Had McCullough’s case been tried 55 years ago, the court would have required that the evidence against him comport with the evidentiary rules requiring reliability and confrontation.  Instead, he was tried by the testimony of ghosts. From Fox News :

“He is as evil as prosecutors painted — and some,” said Janet Tessier, McCullough’s half-sister, after he was convicted in September. Her decision to tell police about incriminating comments McCullough’s and Tessier’s mother made just before she died in 1994 played a crucial role in McCullough’s 2011 arrest and subsequent conviction.

The claim is about hearsay from 1994.  At the time of the murder, McCullough was considered, and rejected, as a suspect:

McCullough was one of more than 100 people who were briefly suspects, but he had what seemed like a solid alibi. On the day of the girl vanished, he told investigators, he’d been traveling to Chicago for a medical exam before joining the Air Force.

McCullough ultimately settled in Seattle and was a Washington state police officer.

No cop jokes here, regardless of whether they are well deserved. It’s irrelevant to what came afterward.

Once a new investigation was launched, authorities went to Chapman and showed her an old photograph of McCullough. She told them the picture showed the teenager who came up to her and Maria that snowy day and identified himself as “Johnny.”

That’s Kathy Chapman, who was playing with 7-year-old Maria Ridulph on her last day of life. She’s now 63-years-old.  If identifications are suspect immediately after a crime has occurred, they don’t improve with age.

This isn’t to say that McCullough is innocent, but that the course of his prosecution made it impossible to defend against the charges.  He wasn’t confronted by the witnesses against him, but by stories told by witnesses that came from the now-dead witnesses against him.

A funny thing happens 55 years later. All the rules that limit evidence to the stuff that’s reasonably reliable evaporate. As the quality of the prosecution’s evidence diminishes, the rigor of the rules diminish as well.  When a witness testifies as to hearsay, it’s impossible to challenge the underlying statement, either for accuracy or veracity.  The witness just shrugs and says, “I don’t know, that’s what I was told.”  There is no comeback to that, other than the witness is a liar.

When the case involves murder, witnesses say they will never forget what happened.  That resonates with a jury, as we all want to believe that tragedies aren’t forgotten.  But they are.  Worst still, they aren’t, and in the place of real memories are the imaginings that grow over decades of thinking about such terrible events. Memories once real become enhanced with words we imagine were said, thoughts we imagine we had, but never really happened.  The mind isn’t nearly as fine as we want to believe it is, and memories play awful tricks over time.

There is no statute of limitations on the crime of murder.  It’s not because the compelling arguments in favor of a statute of limitations don’t apply with the same force as any other crime, but because it is considered such a terrible crime that the law has chosen to push the problems aside and let the wheel spin.  But how is a defendant to  prove his alibi 55 years later?

A deathbed accusation by McCullough’s mother in 1994 – passed on to police by his half-sister in 2008 – led to a chain of events that brought about his conviction.

His mother, Eileen Tessier, had lied to police canvassing the neighborhood in 1957 about her son’s whereabouts, buttressing his alibi, prosecutor Julie Trevartchen said Friday.

“She knew what she did and she didn’t want to die with that on her conscience,” she said.

McCullough’s girlfriend in the 1950s also contacted police with evidence that called his alibi into question. She had found his unused train ticket from Rockford to Chicago for the day Maria disappeared.

This all came via his half-sister, who learned of it in 1994 but sat on her mother’s lie for 17 years?  In 1957, there would have been evidence that he was given his Air Force physical in Chicago on the day after the murder, supporting if not proving his alibi.  Try to get that evidence now.

Had the prosecution in 1957 sought to introduce testimony by the defendant’s half-sister as to his mother’s  accusation that he committed the murder, it would have been summarily refused. You can’t put in such blatant hearsay.  But with the mother dead, that’s all they have. Somehow, hearsay evidence that is woefully unacceptable is magically turned into perfectly competent evidence by necessity.  And for the very reasons no judge would permit such unreliable testimony into evidence way back when, it is immune from challenge today while being every bit as unreliable.

While the McCullough conviction raises questions as to the propriety of sentence for a man who has lived the vast majority of his life without harming anyone, and who, arrested from his retirement home, presents no threat, sentence only comes after guilt is found.

Had this ice cold case been reopened because of some scientific discovery that provided substantial evidence that couldn’t have been know before, or had Jack McCullough confessed because he didn’t want to go to his grave bearing the weight of his crime, the 55 years between the murder of 7-year-old Maria Ridulph and the conviction of McCullough would have disappeared.

But that didn’t happen, and instead he was convicted on the accusations of ghosts. No judge should have allowed this prosecution to proceed, but then, few judges would have had the guts to toss it out. No one can defend themselves against ghosts. McCullough, whether guilty or innocent, never had a chance.

Via the Trial Warrior , Antonin Pribetic, Brit Alex Aldridge’s  Legal Cheek flattens the world just a little bit more:

At a seminar last week, one of the most senior judges in India courted controversy by suggesting that “90% of Indians were idiots” . But Justice Markandey Katju hadn’t bargained for the enthusiasm of a pair of “deeply hurt” law students in the audience to put their legal education into practice…

This morning it was reported that Tanaya Thakur and Aditya Thakur have initiated legal proceedings against the judge.

It’s heartwarming to know that there are special little snowflakes, fragile flowers, the Slackoisie, wherever young lawyers can be found. 

“We are deeply hurt and humiliated by Justice Katju’s words,” said the duo, adding that the judge’s jibe “would depreciate the reputation of India and its citizens”.

Is Justice Katju right?  Beats me, but then, I certainly have no basis to quibble. Regardless, the fact that his words are deeply hurtful and humiliating seems to be the issue, because reality doesn’t matter. Even young Indian lawyers are entitled to hear only words of warmth and support, lest their ears burn and self-esteem crumble.

American lawyers tend to think that this is just a local phenomenon, a by-product of our culture of giving every millennial a trophy for participating, where the child who came in last was merely the 37th winner. Nobody is a loser in America.

Apparently, not in India either.

One of the great unspoken fears of new lawyers here is that while they whine about the misery of their unemployed lives, the lack of recognition of their brilliance or appreciation of their total awesomeness, even the crap legal jobs are being shipped overseas to foreign lawyers. It’s not that they want these jobs. They don’t. But when they get hungry enough, they would take them begrudingly.

The belief is that while the work is beneath the dignity of our newest colleagues, there are millions of young lawyers in India who are thrilled to have the work and will work awfully hard to do the best job possible.  Unlike our little darlings, Indian lawyers are happy to labor long and hard, put in their best efforts and would never be so sensitive as cry when their self-esteem is bruised. 

Good news! It’s just a myth. They, or at least some of them just as it’s only some of our own who share their entitlement, are just as whiny.

The bad news is that this doesn’t mean they won’t work for a pittance compared to what young American lawyers need to service their debt or the price of a bag of Cheetos. Or that they won’t take the responsibilities seriously and perform the work with vigor and diligence.  But at least they demand the same validation as do our own.

This, of course, presents a grand opportunity for young lawyers here, now that we know their counterparts in Bangalore are prepared to sue if they don’t get a red balloon.  Fill the gap. As lawyers in other countries become more like us, become less like us and embrace the work ethic, the quest for excellence, that comes with winning the race rather than demanding a trophy for being the 37th winner.

And don’t sue anybody because they hurt your feelings.

At Concurring Opinions, Danielle Citron is hosting a symposium on Virginia lawprof Brandon Garrett’s  Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press 2011).  Coming on the timely heels of a  60 Minutes segment about Chicago being the mother lode of false confessions, it’s certainly a timely topic.

Added to the mix are some other recent books by academics.

Along with Garrett’s book, we will be discussing three new books that intersect well with the problems he tackles in Convicting the Innocent: Stephanos Bibas’s  The Machinery of Criminal Justice (Oxford University Press 2012), Daniel S. Medwed’s  Prosecution Complex: America’s Race to Convict and its Impact on the Innocent (New York University Press 2012), and Dan Simon’s  In Doubt (Harvard University Press 2012).  

In short, our criminal justice system is a broken machine running almost on auto-pilot. It needs to be more transparent and democratically accountable for its failures. We cannot abolish plea bargaining, as we need its ability to handle staggering caseloads. But we can hope that the exposure of factual and moral injustices can prompt rethinking, forcing us to slow down the assembly line, to increase the quality of convictions and punishments even if that means reducing the quantity and doing more triage. Books like Brandon’s, Dan’s, and Dan’s can, I hope, prompt more oversight and public involvement to ensure both factual and moral justice.

In reading Garrett’s book, it was hard for me to shake my own memories of the Central Park Jogger trial in 1990-91.  I was a trial preparation assistant at the Manhattan District Attorney’s Office for the bureau next to the one in charge of prosecuting the case.  In the mornings when delivering files to the various courtrooms, we’d witness the march to the courthouse: prosecutor Liz Lederer’s team, the defendants’ family members, their lawyers, activist Al Sharpton, and Bill Tatum, editor of the New York Amsterdam News. Public conversation was divisive.  The mainstream media cast the defendants as a “wilding” mob of black teenagers who descended on the petite white jogger; the Amsterdam News decried the arrest and prosecution as racial injustice.  Even though forensic evidence exonerated the defendants (the FBI lab conclusively ruled out the semen found on the victim’s sock did not belong to any of the defendants), the jury convicted them.  The justice system failed us: we convicted the innocent.

What do you call a thousand lawyers…

Frankly, I’m convinced that you don’t know what your talking about and if you’re so busy defending peoples rights, where do you find the time to write self serving pieces like this with the intention of degrading others who are delivering great value to the profession. You seem to have impressed a grand total of 23 people who hit the “like” button. Not so good.

In the future, you need to back up your claims with facts supported by credible third parties. The word of Brian and Brian alone simply does not cut it with intelligent people. Then again, maybe that’s not your audience.

I have limited time here. I have seven law firms that we’re rebranding and several holiday parties to attend in the evening by past clients who simply want to thank us for putting them on a positive path. They are all thriving and focused on the future of their firms as opposed to Brian who is desperately defending the past.

Here’s more about Marc:

Judgment against Ignyte, Inc.

The United States House of Representatives voted 398 to 1, with 36 congressmen unable to find their way to the chamber, to eliminate a word.  The single nay vote came not from disagreement in substance, but focus.

The lone “no” vote was cast by Representative Louie Gohmert, Republican of Texas, who said in a statement that “not only should we not eliminate the word ‘lunatic’ from federal law when the most pressing issue of the day is saving our country from bankruptcy, we should use the word to describe the people who want to continue with business as usual in Washington.”

Yes, the word “lunatic” has been stricken from the laws of the United States of America, the Senate having approved the measure last May. No longer is anyone in America a federal lunatic. Your state may vary.

This comes on the heels of the eradication of the phrase “mental retardation,” eliminated two years ago because of its hurtful connotation, where school boys called each other “retard” and neo-conservative media personalities figured out the if you replaced “re” with “lib,” they could get a belly laugh out of their followers.  At the same time,  58% of Republicans believe that man was created by God less than 10,000 years ago, when they walked the earth alongside dinosaurs.

Given the meaning and derivation of the word “lunatic,” that people would suffer transitory insanity based on movement of the moon, it’s just as well that it’s gone. But the meaning of mental retardation, that a person’s intelligence, based upon IQ, was below a score of 70, is more of a problem. A medical phrase was eliminated because it was abused by jerks and turned into an epithet. When this happened, there were two options. The first was to speak out and return it to its original meaning. The second was to make it disappear.  The first required people to think. The second did not.  The second prevailed.

A while back, there was a huge dispute, a very angry dispute, about the word “niggardly.” On the one hand, reasonably well-educated folks understood its meaning to be “cheap” or “miserly.”  On the other, it was just too damn close to a hated word to ignore. David Howard, D.C.’s head of the Office of Public Advocate, was forced to resign for using this “racist” word, not because it was racist but because people felt it was. It had no connection whatsoever with the racial slur, but so what? It’s gone.

As lawyer and blawger, I use a lot of words. They are useful to convey the correct meaning whenever possible, in the hope that readers or listeners will get the message that I am trying to send. Each day, it gets more difficult to accomplish.

Political correctness has caused us to eliminate words from our lexicon that hurt people’s feelings or have taken on disparaging meanings or connotations. In the process of eradicating “hate speech” from the language, we ignore definitions in favor of how words make us feel. But it hasn’t stopped at the edge of hurtfulness. It’s dribbled over to positive characterizations, empowering people to ascribe attributes and credibility to themselves at will.

In a recent exchange, a marketer argued his “belief” about why he was a professional.  His argument was that he felt entitled to do so, and at no time did a definition of the word come into play.

There have been similar arguments about one of our favorite words, “justice,” a word of such vague meaning that we can all embrace it, own it, define it to support whatever we believe.

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

—Through the Looking Glass, Lewis Carrol (Charles Lutwidge Dodgson)

We cannot communicate with each other if each of us is a Humpty Dumpty to ourselves. The problem is not solved by the elimination of words because they cause some people to feel badly, especially when the feeling bears no actual connection to the word. As we eliminate hurtful words, a new word will be adapted to its use, as we still need words to denigrate each other. Then that word will be eradicated from the lexicon as well.

Some people think that we can achieve an Orwellian Utopia by only having happy, supportive words, and thereby end that branch of language that can be used to hurt people’s feelings or express ideas that some believe should never be expressed. My guess is that will never happen, even if you think it’s a good idea.

What may well happen in the process, however, is that the sharp edges of definition will be dulled and rounded, so that the precision of words gives way to an amorphous mass of nice-sounding utterances that are interpreted by each of us in whatever way suits our desires and beliefs.  We will be able to talk among ourselves and agree or disagree without every having the slightest clue if we are talking about the same thing or making any headway in explaining our position.

There doesn’t appear to be any harm in the elimination of the word “lunatic” from the United States Code. It was probably a poor choice of words in the first place, reflective of common usage rather than definition.  If it were up to me, however, the word “justice” would also be on the chopping block, as it’s one of the most hurtful words around to the wrongly convicted.

Yes, you know exactly what justice means.  You and Humpty Dumpty.  You lunatic.

What people just don’t get about red light cameras is that they make money.  It’s not personal. It’s just business.  Cities need money, and who better to get it from then faceless people who cameras say broke the law? 

It’s not that anyone denies this to be the core motivation. In fact, while the rhetoric of making streets safer was originally part of the sales pitch by camera companies, repeated with approval by local politicians, everybody involved now conceded that it actually does the opposite. But it’s money, and you have to break a few eggs to finance an omelet.

Given this motivation, it’s completely understandable that anything the siphons money away is, well, unhelpful.  Like some guy named Kevin Schmadeka in Tacoma, Washington, who got a red light camera ticket and decided he wasn’t going to pay it, but wanted a trial that included a living, breathing witness against him.  That’s when he got the bill.

Red light camera ticket recipients in Tacoma, Washington are being told they need to buy $30 meals and $114 hotel rooms for employees of an Australian company if they want to exercise their rights under the Sixth Amendment. Motorist Kevin Schmadeka had gone to the courthouse to gather information to use to defend himself found out he was supposed to pay a total of $670 in travel expenses for an employee of Redflex Traffic Systems if he wanted to confront the witnesses against him.

“When I was at the clerk’s office inquiring about chain-of-custody information, the employee at the counter mentioned that if I wanted to subpoena a camera company representative that there was a fee,” Schmadeka told TheNewspaper. “Later on I thought about that some more and made another inquiry by phone, also requesting documentation about how such a charge was authorized. The clerk I spoke to at that time had no explanations to offer, but did send me the request form.”

Photo ticketing firms have been facing increased pressure since the 2009 US Supreme Court ruling in the case Melendez-Diaz v. Massachusetts, which dealt with laboratory analysis of drug evidence. A defendant argued that he had a right to question the lab worker who signed a piece of paper that certified the substance he had been carrying was cocaine. The majority agreed that despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that such questioning of the evidence be allowed.

Tacoma sought to avoid the inconvenience by forcing defendants to pay for the cost of confronting the witnesses against them. Schmadeka added this to a long list of constitutional concerns he brought before a judge.

“If the city considers it too expensive and burdensome to fly a camera company representative to Washington every time a defendant wishes to cross-examine them, the city should consider this obligation when making their decision to outsource local law enforcement duties to privately-owned, for-profit out-of-state companies,” Schmadeka said.

The judge singled out the Sixth Amendment issue and dismissed the charges against Schmadeka.

It happened in Kentucky, which was the first in a long line of legal mistakes.  The human mistakes happened much earlier.  Benny Lee Hodges was a horrible human being, though he didn’t start out that way.

Mr. Hodge was convicted of murder, robbery and burglary. He and two others posed as F.B.I. agents to get into a doctor’s home; stole guns, jewelry and around $2 million of cash; strangled the doctor until he was unconscious, though he did not die; and stabbed his daughter to death. Mr. Hodge’s childhood was not as brutal as the murders he attempted or perpetrated, but it was horrible by any measure.

When Benny Lee Hodge tried to defend his sisters and mother, his stepfather kicked the boy, beat him with a belt and made him watch as he killed the boy’s dog. This relentless abuse, two psychologists said, was “ruinous” to the boy’s development.

But it offers virtually no rationale for the premeditated, cold-blooded murder and attempted murder of two innocent victims who were complete strangers to Hodge. Many, if not most, malefactors committing terribly violent and cruel murders are the subjects of terrible childhoods. Even if the sentencing jury had this mitigation evidence before it, we do not believe, in light of the particularly depraved and brutal nature of these crimes, that it would have spared Hodge the death penalty.

The Kentucky Supreme Court’s opinion is plainly contrary to these precedents. The evidence of Hodge’s brutal upbringing need not have offered any “rationale” for the murder he committed in order for the jury to have considered it as weighty mitigation. It would be enough if there were a “reasonable probability” that, because of Hodge’s tragic past, the jury’s “reasoned moral response” would instead have been to spare his life and sentence him to life imprisonment instead.

More fundamentally, the Kentucky Supreme Court appears to believe that in cases involving “violent and cruel murders,” it does not matter that the “malefacto[r]”had a “terrible childhoo[d]”; the jury would return a death sentence regardless.

Perhaps if the court had afforded proper consideration to the mitigation evidence, it still would have reached the same result; it might have found no”reasonable probability” that the jury would have weighed Hodge’s difficult past more heavily in its moral calculation than the callous nature of the crime and Hodge’s history of imprisonment and escape. But, giving full effect to the mitigation evidence, the court may well have concluded that the story of Hodge’s childhood was so extraordinary,”there is a reasonable probability that at least one juror would have struck a different balance” had the jury known. A “reasonable probability” is only “a probability sufficient to undermine confidence in the outcome.”

Perhaps it was a fit of over exuberance, but when the states of Washington and Colorado approved referendums legalizing the use of marijuana, it struck me as a pretty good time for a second-term, Democratic president, who sought to trademark the word audacious, to embrace the will of the people.  I went so far as to muse how legalization in some places would affect the pursuit of prosecution elsewhere.

What was I thinking?

From the New York Times :

Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

To put it a bit more clearly, the Obama Department of Justice has no intention of either honoring the laws of the states of Washington or Colorado, and plans to grasp the old Schedule 1 crime until it’s pried from its cold, dead fingers.  The feds are not going to stop the War on Demon Marijuana. No way. No how.

Why?  Why would such an enlightened president, who neo-cons place just to the left of Trotsky, reject the will of the people?

“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” {Seattle United States Attorney Jenny A. Durkan] said. “Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law.”

Well, yeah. We know that the feds have yet to come to grips with the fact that the citizens of some states think that laws passed after a showing of Reefer Madness on the big screen in the house chamber, but what about the fact that Schedule I, meaning that a drug is highly abused and has no medicinal benefit, is total nonsense?  The only people in Congress who still believe that also believe that women’s vaginas can magically reject the sperm of rapists. 

The Times runs through the various responses available to the feds, to sue the states to prevent the law from going into effect, to take up the slack of arrest and prosecution in state courts by overloading federal courts, or, the most painful and effective tool in the federal arsenal, to cut off federal funding.

While supporters of President Obama may not have switched their votes to Mitt Romney in light of this reaction, I bet they wish they could vote for Ronald Reagan.  His script writers would have understood.

That the federal government isn’t going to accept that fact that the citizens of two of these United States have decided that they want to control their own lives, to exercise those rights that were supposed to be assured by the Constitution under basic notions of federalism, not to mention the 10th Amendment, really comes as no surprise. 

As Congress, with the acquiescence of the courts, have usurped control over criminal laws far beyond Jefferson’s wildest imagination, it was all fine and dandy as long as everybody was on the same page.  Who cared whether the Drug War was fought in state courts or federal, by local cops or DEA agents?  They were all on the same team, and that’s what really mattered.

But now that a split has arisen, where suddenly citizens have chosen to hop off the drug war train and want to run their states their own way, we have a crisis abrewing.

That marijuana remains a schedule I drug isn’t likely to change a lot of minds about where the law should be, and the feds reliance on this archaic law to tell citizens that their votes don’t matter nearly as much as Congress, isn’t likely to change any minds.  President Obama probably hates the fact that he’s been thrust into the middle of this, even though I suspect he’s got no greater beef with marijuana than he did with gay marriage.  He was against it until he caught a whiff of public opinion being overwhelmingly for it, and being a man of integrity, he flip-flopped.  Marijuana is likely no different.

But two states don’t make a tidal wave, and he isn’t prepared to suffer the wrath of the people for being the liberal president who turned America into a druggie state with a side of munchies.  So instead, he’s prepared to be the president who refused to accept the will of the voters of Colorado and Washington, just as he was when it came to medicinal marijuana in California, and openly admitted that the federal government will use any method it can to dictate to the states what will be a crime.

It will be interesting to see which legacy the president picks. And it will be equally interesting to see what the States of Colorado and Washington, and their respective federal district courts, have to say about it.  This may well be the start of a constitutional crisis on unwarranted federal expansion on crime, and if so, it’s about time.

At Above the Law, Brian Tannebaum offered the apparently controversial notion that

the internet and those that “sell” the internet to lawyers, as well as this notion of “branding” and spending your day reading self-fulfilling predictions on “the future of law” from the losers of our profession is, well, maybe not the be-all and end-all in the practice of law.

I agree with Tannebaum that success requires far more than “being able to obtain a volume of calls from a fake presence, a creation of a ‘brand,’ and trying very, very hard to get our hand to the top of the baseball bat of the internet.” But I also think that success doesn’t come just from doing good legal work. In my experience, the most talented lawyers often are not the most successful, at least by traditional definitions. Nor are the most successful lawyers the best lawyers.

A law practice is, fundamentally, like many other businesses that sell their services. Success comes from controlling your expenses, managing your employees, properly setting your prices, and attracting sufficient customers. Of these, generating business is the most important factor governing success in both in Biglaw and in running your own firm.

It’s true that a law practice, particularly a solo practice, must be thoughtfully run in order to maximize financial success.  Such questions as whether it’s sufficiently crucial to have your name embossed in gold on your legal pads to make the extra expense worthwhile, or which firm credit card to get if you want the most cash back. 

If you ponder such questions, as well as the million other bits of minituae that comprise any enterprise, the answer is no one cares if your name is embossed on your yellow pads, and go to NerdWallet and find whatever credit card floats your boat.  But none of this amounts to anything if you don’t have paying clients to begin with.  Run the best managed shop in town, but without revenues, you won’t eat. Do you really need someone to tell you not to piss away revenues on worthless vanity items? A penny saved is a penny earned, and in small law, every penny comes straight from your pocket.

But while Wallerstein concedes it’s better to be a skilled lawyer than not, he suggests that it’s the show pony who wins the day.

The disconnect between being a talented attorney, on the one hand, and a successful one, on the other, isn’t necessarily a terrible thing. If you are not the most naturally skilled lawyer, you can take heart that you can still be successful.

There are, and have always been, lawyers who are remarkably mediocre in the courtroom but have an incredible knack of getting business. They are usually quite extroverted, fabulous raconteurs and wonderfully engaging human beings around whom other seem to naturally want to flock.  If you’re one of these fortunate lawyers, then you don’t need to worry about any of this, and certainly have no use for creating a false internet persona to compensate for your worthless off-line reality. 

Even so, there is a pretty good chance that if your skills as a lawyer are inadequate, people may want to hang out with you at the bar, but choose someone else to stand next to them in the courtroom.  People are funny that way, not willing to spend an extra decade in prison because their lawyer is a cool, fun and incompetent guy.  

As a coda to Wallerstein’s post, the cool kid who becomes a Biglaw partner, or even a partner in a ten person firm, has an advantage that we do not.  The cool kid rainmaker partner can eat, drink and schmooze clients, and then hand off their work to the local grunt, often referred to as associates, who may have mad lawyer skills to make the magic happen.  We have only ourselves to do the work. If we can’t do it, and do it right, then no amount of schmoozing is going to make up for lousy lawyering.

While Wallerstein’s curious need to undermine Tannebaum’s call for competency added nothing substantive to the mix,  Mark Bennett highlights the distinction in his homage to Jimi Hendrix and exposé of one of the most pervasive marketing shams in criminal defense.

I never saw a criminal-defense lawyer advertising himself as “never a prosecutor” before I started doing so; when I would point out to a potential client that he was more likely to suffer than benefit as a result of the long-term relationships between a former prosecutor and him (if he has to choose between maintaining those relationships and burning bridges on your behalf, which do you think he’ll pick?) his eyes would get wide. His checkbook would come out.

Jason H. Howard has no reason to remember the practice of law in those days because he was a freshman in high school, fighting acne and maybe hoping to get to second base.

For this former prosecutor, the benefit he provides his clients is E-X-P-E-R-I-E-N-C-E. 

Perhaps Jason wasn’t one of the cool kids, to whom clients are attracted like Wallerstein’s successful lawyers or moths to a flame.  So he was left with a few choices, to develop and hone his skills as a criminal defense lawyer or use the old former prosecutor claim to suggest he knows the secret handshake that will set his clients free.

It’s true that good-looking, likeable, engaging people have a leg up on success, in the law as well as in any other endeavor.  But anything that suggests it’s enough to be successful as a solo lawyer, especially a criminal defense lawyer, is not only wrong, but dangerous.

Maybe Wallerstein is right that Biglaw partners can fake it to make it, but not us. We must be competent, and no fake claims or false internet personas will do the trick.  The glaring omission is that our success isn’t measured only by our ability to score the new case, but our ability to fulfill our duty to zealously represent our client.  Too bad Wallerstein never mentioned that aspect of success.

Via  Leo Mulvihill out of Fishtown, Philadelphia, a team of six narcotics cops has been broken up and  transferred to lower profile assignments by Philly Police Commissioner Charles H. Ramsey.  And the Fraternal Order of Police (Lodge 5, to be exact) isn’t pleased.

John McNesby, president of the Fraternal Order of Police Lodge 5, said that the transfers were based on “unfounded accusations” by the District Attorney’s Office and that the allegations should have been investigated first.

“When you’ve got an aggressive group of officers, you’re going to have people who aren’t happy,” McNesby said. “These guys took a lot of guns off the streets, took a lot of drugs off the streets. They did a lot of good work for the city.”

The people who weren’t happy turned out to be the district attorney and judges who didn’t think nearly as well of these officers as their union president.  As Leo (irony duly noted) explains it:

Besides, it’s not like they ever threatened anyone’s life while in the line of duty, right?

When the officers caught up to him, Conolly said, he got out of the car with hands raised, but [the officers] threw him to the ground and choked, kicked, and punched him as he yelled for help. [Officer] Liciardello, he said, put a gun to the back of [Connolly’s] head and told him, “We are the cops. If you don’t shut up, I will put a . . . bullet in your head.”

The article finishes with this gem:

McNesby has maintained the innocence of those officers.”It’s a sad day,” he said, “when you have the criminals in the city dictating where cops are going to be working.”

No, John. It’s a sad day when police feel and act like they’re above the law they’re sworn to uphold.

Ah, kids. So trusting. So believing. Aren’t they cute as the dickens?  On the one hand, you have police officers who take guns and drugs off the streets. So they  sometimes put a little something in their own pocket for a rainy day? So they get a little rough with the bad guys on the street? It’s a hard world out there when you’re saving society from the criminals, you know.



Sure, back-benchers see it all neat and clean, platitudes and oaths galore, but somebody has to do the dirty work to keep us safe at night.  And that’s why they have the FOP.

McNesby’s comments reflect the basic question that’s been posed forever. Either we believe our beloved cops or we believe the criminals. Which side are you on? 

While we now have the occasional video which shows cops gone bad, where for decades before it was the perps word against the cops, and the perps rarely won a pissing match because few judges wanted to be in McNesby’s crosshairs for being on the wrong side of the question, not every bust offers a Youtube moment.  And when there is no video, we go right back to the old ways, playing the odds and awaiting the union president’s retort, next time you’re in trouble, call a criminal. Hah! That’ll show ’em.

But, you say, that’s not what happened this time.  The district attorney and police commissioner didn’t side with the cops, didn’t sweep it under the rug, didn’t squint their eyes and conclude the accusations were unfounded.  Well, yeah. Kinda. Maybe.

You see, these six cops didn’t get canned. They didn’t get prosecuted. They didn’t get booted off the force and lose their pensions.  They were transferred.

Bradley S. Bridge, a veteran lawyer in the Philadelphia Public Defender’s Office, said the officers were “among the most troubled in the department.”

“Transferring them out of a place where they have intense, high-profile interactions with people, and where there is little oversight of their actions, is an important and significant move,” Bridge said. “We have had numerous clients who have complained about their interactions with these officers, who have maintained that these officers have testified falsely against them. And this is a recognition that those complaints are valid. This reflects that the problems are so significant that the department had to do something.”

Ouch. Harsh. They made the cowboys change horses. That’ll learn ’em for lying and beating folks and kicking ’em in the head.

And John McNesby goes full bore, because that’s his job as union president, covering his people when they get fired prosecuted transferred for being tough cops in a tough world.  Time to break out the champagne in Philly.  No, not the citizens who applaud the firm action by the police chief and district attorney, but the guys in the party room at FOP Lodge 5.  They got away with it again, and nobody noticed.