The Texas Tornado, Mark Bennett, writes about the significance of hiding in the shadows, a problem with which he’s taken issue for a very long time.

I don’t, as a general principle, allow anonymous comments here. Chief among the reasons is that the more anonymous people are, the worse they behave. People do things behind tinted glass on the freeway that they would never do on the sidewalk. They say things from the cover of darkness that they would never say in the light of day.

Despite the fact that he’s right, I’ve chosen to allow anonymous comments. But like hearsay at a suppression hearing, the assertions of anonymous commenters, whether thoughts, feelings or beliefs, aren’t given the credit that goes with putting your name and reputation behind them.  You want to hide? Okay, but then don’t complain that you aren’t treated with the respect you think you deserve. That’s the price.

Anonymity on a blog is relatively benign. Sure, it can offer misleading, even dangerous “advice,” but I trust that others reading it understand that if the person lacks the guts to put his name to his words, his advice is worth no more than his reputation.

But the same concerns that Bennett has about commenters hiding in the shadows apply to others who, though you know what they’re wearing, are similarly anonymous.

Why do TSA goons steal? They steal because they can. They steal from your checked luggage because when you get to Chicago and your cufflinks are missing, there is no way for you to track down the guy in the Atlanta airport who stole them. If TSA wanted to stop its employees stealing from checked luggage, there’d be a simple solution: any TSA employee who opens a bag puts his name in it.

But that would create accountability, and the security state cannot operate if its functionaries are accountable. If screeners knew that their mothers were likely to read on the internet about what they were doing on the job, they would be on much better behavior, which would not aid in the government’s avowed program of unquestioning compliance.

The argument against this is one heard frequently, and used a blanket excuse for any wrong that occurs as an unfortunate by-product of a safe society.  If the functionaries of government could be put in fear for the performance of the job the government demands of them, then we risk their hesitation, their failure to act as the government tells them, and we will all be put at risk and suffer for their fear.  We can’t have that, the government says.

The argument is valid, with the caveat that the government imputes good will to the people it pays to do a job.  If no TSA agent ever pulled out a pair of cufflinks from a bag he was checking for bombs that have never been found, then it wouldn’t be an issue.  The government assumes that no agent in its service will do wrong, because they aren’t supposed to do wrong, and makes rules based on its assumption.

They are sound rules if the assumption proved accurate. It never does, completely. There are always some who violate the authority and trust, and on the rare occasions that they’re revealed, the isolated-incident trope is pulled out of safekeeping.

But Bennett’s point is not only that it’s not an isolated incident (provided you agree that when something happens constantly, isolated isn’t a proper characterization), but that if the assumption was true, it need not happen at all.  Why, if our government functionaries are so honorable and trustworthy, should they live in mortal fear?  If they steal nothing from your bag, touch nothing on your body, that would give rise to anger, hatred, fear of publicly outing them to their mother, should they need to conceal their identities?

Thoughts immediately flashed back to the Oakland police preparing to put an end to Occupy Oakland, when the first thing they did after strapping on their battle gear was cover their nameplates in black tape. In a bit of total irony,  my post about this included a video posted by Carlos Miller, which has since been removed because, according to the Youtube message:

The You Tube account associated with this video has been terminated due to multiple third-party notifications of copyright infringement.

If you’re not aware, Carlos has been at the forefront of recording police, making sure the light (if not sun, then klieg) shines on their conduct, and they absolutely hate him for it.  Copyright infringement?  Not likely.

The black tape didn’t appear on their shields by magic. It didn’t sneak into their closets at night and affix itself to their nametags. The Oakland cops made an affirmative decision to conceal their identities, since the only description anyone could provide about them aside from their names is that they looked like Federation Storm Troopers in black.  And the only answer back would be, “we would love to help, but without knowing whose club broke your skull open, there’s nothing we can do.”

Anonymity is the refuge of coward and scoundrels.  It’s where evil can have its way. It’s the means by which the psychological forces that prevent our worst angels from taking control of our thoughts and actions are swept away, and we devolve into our most vicious, malevolent selves.

You want to be anonymous when you comment on a blog?  Big deal. Say something stupid and that’s how you’ll be treated. Ideas can be dangerous, but by hiding in the shadows, everyone knows you aren’t to be taken seriously. You render yourself worthless by choice, and your cries that you don’t want to suffer the consequences of your spewing are a joke for the rest of us to laugh at.

But this can’t be said for agents of the government, who bask in anonymity to avoid accountability. The excuse that they can’t do their job if they’re afraid is a lie, no matter what court, agency or official perpetuates it. Their attempt to conceal themselves is, alone, a wrong perpetrated by an agent of the government on the public, as clearly as the Oakland cops who put tape over their names. And it is incumbent on good people to get the names of those who hide in the shadows and utter them so they don’t get away with it.

A mechanism that usually helps to reach consensus is to start out with things upon which “we can all agree.”  There aren’t many of them, and even what we perceived as being wholly uncontroversial can give rise to disputes. They may be minor, even trivial, but still, it’s hard to find real common ground.

But one would have to think that this proposition is shared by all: A person who everyone (and by that, I mean everyone) agrees is innocent and committed no crime, but was wrongfully convicted and imprisoned, should be immediately released.  Whether he should be given a deep apology and a subway token can be the subject of vicious argument, but release?  No argument there.

And yet, there is. 

Disagreement didn’t come from some crazy outlier hate group. It didn’t come from some fringe pundit. It didn’t come from some man-hating absolutist advocacy group. No, it came from the Attorney General of the State of Virginia, Ken Cuccinelli.  From the Washington Post :

The man is Jonathan Montgomery, age 26. In 2007, a then-teenage girl named Elizabeth Paige Coast accused Mr. Montgomery of having molested her six years earlier, when she was 10 and he was 14. It wasn’t true.

Despite the flagrant miscarriage of justice in Mr. Montgomery’s case — a stain on Virginia’s criminal justice system — no one in a position of authority has moved to set him free. The trial judge who convicted Mr. Montgomery vacated the verdict and the sentence and ordered him released. But the release was blocked over the weekend by Virginia Attorney General Ken Cuccinelli II’s office, which said the state’s Court of Appeals must first declare him innocent. That could take weeks, even months.

Jeff Gamso explains the rules that Cuccinelli found so compelling that he had to, he just had to, step in to stop this grave miscarriage of justice refusal to follow the rules:

The problem is that it’s been more than 21 days since Montgomery was convicted.  Which means he has to stay in prison even though he’s innocent, even though there was no crime.

“Virginia law will not allow the immediate release of Mr. Montgomery, and the attorney general is obligated to follow the law,” said Brian Gottstein, the attorney general’s director of communication. “Our research shows that the order from the trial court to vacate the three and a half year-old conviction appears void on its face, as the trial court does not have jurisdiction to enter the order according to Virginia’s 21-day rule. Authority to get around the rule — to pardon or commute the sentence — does not rest with the attorney general.”

Rules, after all, are rules. I mean, think what might happen if Virginia started letting innocent people out of prison right and left just because they’re innocent? 

Divestiture of jurisdiction after a conviction is final is certainly a rule. So too are rules about trial readiness, about disclosure of exculpatory information, being forthright with the court.  We are system filled with rules, drowning in rules, each of which exists to serve a purpose. And on occasion, a rule exists which applies even when it serves no purpose, or serves to undermine a greater purpose.

There is a little game we play in the courtroom. We play it all the time. We agree to waive rules.  We stipulate. We rid ourselves of the yoke of a rule that serves neither party’s interest and move forward to the things that matter, the issues in dispute. 

Sometimes we do this as a courtesy to our adversary. Sometimes we use it as a bargaining chip. Sometimes we do it just to avoid a waste of time that the rule would impose when neither side feels any compulsion to let the formalities swallow our lives.  In fact, some rules exist and are never used. There is a rule that at the time of arraignment, the charges must be read publicly so that the defendant is assured of knowing the allegations against him. In 30 years, I remember this being one a grand total of once. Everybody waives the reading.

So what makes this rule, the one keeping an innocent 26-year-old Jonathan Montgomery imprisoned, so much more important than any other rule in the legal system? 

The chief prosecutor in the city of Hampton, Anton Bell, agreed with Mr. Montgomery’s request that his conviction and sentence be thrown out. Hampton Circuit Court Judge Randolph T. West, who presided over Mr. Montgomery’s trial in 2008, said he was mortified to learn of Ms. Coast’s deception. “You will never forget this, and God knows, I will never forget it,” the judge told Mr. Montgomery in a hearing last week.

Clearly, the prosecutor on the case didn’t demand adherence to the rule.  The judge ignored the rule and did what he had to do to right this unquestionable wrong.  Both did precisely what one would hope they would do upon learning that there was no crime, never a crime, committed by a young man in prison. Both did what any human being would do, would want to do, upon learning of this terrible wrong.

But Cuccinelli would hear nothing of it.

There has been no statement by the Attorney General explaining why, why, this had to be done. In some cases, prosecutors who learned of exoneration by DNA persisted in their belief that the defendant was guilty, despite scientific evidence to the contrary.  In other cases, they argued that despite his not having committed this crime, he was a bad and evil man who deserved to be in prison, if not for this crime then for something else.

In this case, however, the only rationale offered is the rule.  One can almost hear Cuccinelli saying, “well, I would sure like to let him free, and he sure deserves to be free, but I just can’t let it happen because, well, we got rules, and without rules, it would just be an awful rule-free society. We can’t let that happen. Rules are all the distinguish us from the beasts, and we must honor our rules.”  Rules.

Weird how the adoration of rules pops up its ugly head only when they serve to work against the individual, even when, as here, they don’t do a damn thing to serve the state.  Had Cuccinelli turned his head the other way, let Montgomery walk free as was agreed by the prosecutor, judge and defense attorney, no one would have thought ill of him for letting this violation of the rules slide. 

No state interest would have been jeopardized, nor any precedent set that would come back later to bite him in the butt.  Nothing bad would have happened at all.  And yet, some sick compulsion made him step forward to stop the freeing of an innocent man. Because of a rule?

H/T Radley Balko

When Eastern District Judge Dora Irizarry granted Jabbar Collins’ habeas petition, she slammed the prosecutor, Michael Vecchione, as well as Kings County District Attorney Joe Hynes.

Judge Irizarry called the office’s lack of contrition “sad,” “shameful” and “beyond disappointing.”

“I didn’t hear any kind of acknowledgment that things were done that should not have been done,” Irizarry said.

Joe Hynes, feeling particularly distressed by such a verbal whipping, backed up the guy he promoted to chief of rackets: 

“Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer,” Hynes said.

Anyone? Maybe not anyone.  But this is all old news. Nothing to see here.

This, however, is brand new, stemming from Jabbar Collins’ action for damages for the 16 years he spent in prison because of the very, very principled Vecchione.  From the New York Times :

Judge Frederic Block made the comments during pretrial proceedings over a lawsuit filed by Jabbar Collins, who was exonerated of murder charges in June 2010 after a judge found that Mr. Hynes’s office relied on false testimony, coerced witnesses and suppressed evidence in the case. One prosecutor, Michael Vecchione, was found to be the driving force behind the case.

“I’m disturbed that Hynes praises Vecchione after what happened,” Judge Block said Friday in Federal District Court in Brooklyn. “Hynes hasn’t treated this seriously, has he?” the judge asked a lawyer for the city. “Name one thing that he has done in light of Mr. Vecchione’s aberration,” the judge continued.

While Judge Block “rebukes” Hynes and Vecchione, it’s troubling that he attributed Collins’ 34 years to life sentence to Vecchione’s “aberration.”  According to the evidence amassed by Joel Rudin, Collins’ lawyer, this is anything but an aberration.

In the complaint, Mr. Rudin said the district attorney’s office regularly brought witnesses picked up on warrants to their office for interrogation, rather than directly to court.

The complaint also accused Mr. Vecchione of allowing subordinates to sign his name for him, and it cited a report from a handwriting expert who found that Mr. Vecchione’s signature on sworn affidavits in multiple cases did not match his actual signature.

And

Mr. Vecchione has been accused by defense lawyers and former colleagues of overstepping the bounds of legal propriety. One of his notable failures was the case against Roy Lindley DeVecchio, a former F.B.I. agent whose murder prosecution fell apart after it became apparent that Mr. Vecchione withheld information that seriously questioned the credibility of his star witness.

While it’s commendable that Judge Block, like Judge Irizarry before him, finds what happened here is disturbing, and DA Hynes’ failure to either acknowledge or deal with the monumental misconduct produced by his office, this suggests nonetheless that the standard judicial caveat, the one-bad-apple, isolated-incident excuse, remains in full force and effect.

To the extent that Hynes could try to cover up what happened here with a few well-placed words about his “very, very principled” prosecutor, the fact that a second federal judge has spoken out publicly about the egregious wrongdoing is important. 

As every criminal defense lawyer who practices in federal court is painfully well aware, the reluctance of federal judges to think ill, no less speak ill, of prosecutors is legend.  When faced with obvious impropriety, they will almost invariably chalk it up to some momentary lapse of judgment, an accident perhaps, that absolves the prosecutor of any malevolent intent.  There he stands, an angel protecting an appreciative public, who made a silly mistake.  Let’s just fix this little bitty problem and all is well. It’s like it never happened.

Should the defense lawyer question the court’s trivialization of the wrong, or absolution of the prosecutor, anticipate a facial challenge to the prove it, beyond any doubt whatsoever.  You do not question a prosecutor’s honesty or integrity unless you’ve got video, plus the Pope as an eyewitness.  Do so and expect payback, hard and swift.  And that’s from the judge. Forget what the government will do to find some damn fine reason to make your life as miserable as possible.

And so prosecutors walk away, their halo intact.

Here, Vecchione got nailed and nailed good.  Here the proof of wrongdoing is not only solid, but accepted by the court, now two federal judges.  So Vecchione’s boss wants to pretend it never happened? Nobody pays Joe Hynes much heed anyway.  He’s a bit, oh, political.  While he ought to do a little something to back up the efficacy of his offices protection of rights, just so he isn’t embarrassed the next time he gets caught dead to rights on a Brady violation (since he doesn’t want to look particularly awful), Vecchione’s too high up on the food chain to throw under a bus. 

So we’re left to federal judges to speak truth about what the Kings County District Attorneys office did to Jabbar Collins. And others.

This is not an abberation.  And more importantly, there was no need to throw in the standard judicial caveat when ripping Hynes a new one for his failure to do anything to address what stinks in his office.  Why offer this gratuitous backdoor?  Why, in the face of systemic impropriety, make nice with the Brooklyn DA by tossing in the one-bad-apple excuse?  Why?

Is there any real concern lurking behind the robes that Brady is a game to be played to test whether anybody’s watching, anybody cares?  Does it bother anyone to have prosecutors sending out phony subpoenas and material witness warrants to harass, coerce and manipulate witnesses so that they won’t testify truthfully for the defense at trial. Doesn’t it concern a judge who spouts the “search for the truth” platitude that the government side, the ones whose job it is to “do justice” as opposed to win, are testing their mettle to see how much they can get away with?

This was no aberration, and as much as I applaud Judge Block’s confirming that the prosecutor did wrong and the DA did nothing about it, it’s never going to stop as long as each and every systemic instance of impropriety isn’t excused as an aberration. In a system that works, aberrations don’t happen. And when they happen over and over, they’re not aberrations.  This was no aberration.

Search Google. Look in a legal directory. Find a “prequalified” lawyer near you who is waiting by the phone to answer your questions.  Select a lawyer who provides free answers to your legal question on the internet.  These are not the way to find a lawyer.

In discussing the methodologies used by legal marketers to fake out methodologies used by search engines to prevent people from gaming the system, one of the reactions came from a legal marketer who saw this as an opportunity to smear his competition (sure, the others are lying scum) while promoting himself (but not me, I’m the real thing and make people fabulously wealthy!!!)  My tolerance for such shenanigans is very limited.

While I’ve written quite a bit in the past about unethical or deceptive marketing by lawyers, directed toward lawyers not putting on hotpants and strutting the boulevard to score a buck, and about what potential clients should do to find the right lawyer for their case, I haven’t written as much about what’s wrong with the dreck cottage industry of legal marketing that seeks to deceive potential clients through slimy lies.

Mind you, individual lawyers who use marketing services aren’t necessarily bad lawyers. In fact, some lawyers who engage in awful marketing schemes are quite good, D.C.’s  David Benowitz coming immediately to mind.  The point is that a lawyer who markets isn’t necessarily a bad lawyer, but the marketing effort is a red flag that tells the potential client to think twice. And probably, stay away.

There are dozens of “lawyer directories” on the internet, most proclaiming themselves to be the foremost. They’re lying. They use vague words like “Number One!!!” or “Premier,” which mean nothing and are mere puffery. But that’s just the start.

These are nothing more than “coop advertising” schemes, where lawyers pay a monthly fee to advertise their availability.  The website owner puts in as much puffery as he can fit, with a disclaimer in tiny print somewhere off the screen that everything it says on the website is a lie and he guarantees absolutely nothing.  Look around, It’s there somewhere, if you can find it.

The scheme is to deceive potential clients into believing that the lawyers are “prequalified,” suggesting that these are at minimum competent lawyers, at best fabulous lawyers.  Prequalified means that they are in fact license to practice law somewhere, and paid their monthly fee.  It doesn’t mean they actually practice what they claim to practice or are any good at it. It’s just a scam.

Marketers will not only deny this with their dying breath, but use every marketing trick in the book to conceal the truth.  They have to, as they make their living off lying to you.  If they can’t produce potential clients, lawyers won’t pay them money. 

They anticipate that most potential clients are too naive, stupid or desperate to see through their meaningless marketing jargon, and they’re mostly right. People still have this bone in their head that makes them think that if someone says something in writing, it must be true. It’s not, but more important, it doesn’t really say what you think it says.

But it takes a fairly sophisticated understanding of language and law to appreciate the nuance that allows them to lie with relative impunity.  You might think that if this just a big old scam, lawyers wouldn’t participate in it. Sadly, there are many lawyers who will do anything to make a buck.  And in a lousy economic environment, lawyers tend to close their eyes and ears whenever it’s convenient, just like anyone else.

And then there’s the loss leader, the websites that offer free answers from real lawyers to your legal questions. This is a come on. The answers are almost invariably worthless, not because the lawyers who answer are necessarily incompetent or failing to try to be helpful, though that happens regularly, but because your questions suck. In order to provide a response to a legal question that’s even modestly worthwhile, a great deal of information, details, specifics, is required.

Your question tend to be awful, failing to provide anything remotely close to the level of specific, accurate, complete info necessary for an even remotely useful answer. It’s not that you don’t try, but you don’t know what’s needed for a valid response. And the responses you get are based on the information you’ve provided, making them utterly worthless, perhaps even dangerously wrong.  Yet, everybody loves the idea of getting free legal advice. Free is better than good.  Heck, for free, people are willing to accept awful. Think about it: do you really want dangerously wrong legal advice, even if the price is right? That’s what you’re getting.

So what are the things you should look for to not find a lawyer?

• Any website that says it can find you a lawyer in your area.
  
• Any website that says its lawyers are “prequalified.”
  
• Any website that offers free answers to your legal questions.
  
• Any lawyer who claims to have won a non-existent award (unless it’s obviously a joke), belong to a nonexistent group or be on a sham list of 100 best lawyers, blawgers, whatever.
  
• Any lawyer who promotes that he’s a SuperLawyer, Best Lawyer, Super-de-duper Lawyer, or any variation on this theme.
  
• Any lawyer who provides a partial resume, including the details that he thinks will impress you while concealing the ones that won’t.
  
• Any lawyer who posts client testimonials on his website.
  
• Any lawyer who uses bogus “guest posts” on his blog.
  
• Any lawyer who uses a ghostwriter to produce content.
  
• Any lawyer who uses stock photos of others on his website.
  
• Any lawyer who uses stock content/language on his website.
  
• Any lawyer who claims to specialize in every practice area there is.
  
• Any lawyer who claims to be an “expert.”
  
• Any lawyer whose physical location is not in the jurisdiction where he’s admitted to practice.
  
• Any lawyer who doesn’t tell you where he’s physically located.
  
• Any lawyer who writes about his fabulous wins, unless he also writes about horrible defeats.
  
• Any lawyer who uses language to suggest he’s the “best,” “number 1,” “foremost,” “premier,” “leading,” in his field.

Dear Jack,

Today is going to be a very tough day for me.  You will  be fencing in your first conference meet, MIT against five other schools, UMass, BU, UNH, Brandeis and Sacred Heart. It’s going to be a long day. I’m sure the epee squad will do well, as there is some real talent there, as reflected by the fact that MIT epees took first, second and third place at  The Big One at Smith College.  You did really well, but this is a tough crowd and some of them will want revenge on you today.

But you probably aren’t thinking about this the same way I am.  You see, I remember your first competition, the Peanut Butter Cup, back in 2006. You were 12-years-old, and wanted desperately to win. You got your butt kicked. It was better after we went out for an ice cream sundae, but that was a rude awakening.  You could have run away from fencing that day, but you didn’t.

You clawed your way up from there. If there was a mistake to be made, a bad thing to happen, it happened. From equipment failures to bad calls to mental errors, it happened. But you learned from each and it rarely happened twice. You have so many medals hanging on the sconce in your room that I’m afraid it’s going to fall off the wall from the weight.  And you have a few medals, plaques and the silver trophy that really mean something to you, that you accomplished things that counted. Nobody gave you these for showing up. You earned them, just as you suffered the bad days when someone wiped the piste with you.

Remember how we traveled around the country, to such fabulous places as Memphis, Des Moines and Milwaukee, to fence in the North American Cup?  Remember that nasty looking barbecue place that had the best ribs ever? We were afraid to go inside, it was so creepy, but had the best time there.  I can’t remember how you fenced the next day, but I’ll never forget that rib joint.

Today will be the first time you compete and I won’t be there.  I asked you if you wanted me to come up to Cambridge, and you told me “no.”  I asked again, and you told me not to bother.  I asked a third time and you finally came clean.  You told me, “Dad, don’t come.”

I get it. You’re not 12 anymore.  You don’t need me to fix your weapons, to make sure you drink water, to calm you down when you’re too hot and to remind you of your mistakes when you’re overconfident.  You’ve grown up, and don’t need daddy to hold your hand anymore. I understand.  It was exactly what I hoped you would get out of fencing.  You can take a beating and still maintain focus and push through for the win.

Don’t think I didn’t notice how you pulled your nuts out of the fire when you were down 14 to 10 in that direct elimination bout two weeks ago (15 touches wins).  Most fencers would give up. Nobody comes back from a deficit like that. But you did. It wasn’t that you won the bout, but that you didn’t give up. You showed remarkable fortitude, a toughness far beyond your years. I saw it. Your coach saw it. I couldn’t have been prouder of you, regardless of whether you ultimately won the bout.

And the final touch, a call disputed by your opponent, where you refused to gloat over the win because you understood why he challenged the touch. Your integrity kicked in, and you never shrugged off a touch when a bad call went your way.  You were the first to tell the ref that he was wrong, that you didn’t deserve the touch. Your opponents were often shocked that you gave away a touch, but you didn’t want anything you didn’t earn. This was the way you rolled.

You see, it was never about fencing. Fencing just gave you the tools to mature, to develop that fortitude, that toughness, the ability to stare adversity in the eye and push through it.  To suffer a loss and keep fighting. To face an opponent bigger, stronger, better, and refuse to back down.  You never disappointed me. In fact, I always wondered what I did right in my life to deserve a son like you.

So today will be a very hard day.  Not so much for you, but for me. You will fence and do your best, pushing yourself to win in bout after bout.  Maybe you will have a great day and win all your bouts, but maybe you will fight your hardest and still lose a few. That’s the nature of competition, and you will be fine with it as long as you know you’ve done your best.

But I won’t be there to watch you do it.  And I can’t tell you how much I’m going to miss being there today, to share in the wins, commiserate in the losses and just be damned proud of you.  Fence well today, Jack. But more importantly, have a great time.   And call me when it’s over and let me know how it went. Give me that much, please.

Love,
Dad

Results Update :

The MIT men’s fencing team defeated UMass Amherst (23-4), University of New Hampshire (25-2), Brandeis University (16-11), and Boston University (22-5) but fell to Sacred Heart University (15-12).

Jack went 12-2 for the day. I know it because I read it in the recap.

The National Association of Criminal Defense Lawyers (NACDL) has  rejected by Colorado Judge John Kane when there wasn’t a specific factual basis to justify its inclusion as part of the deal, and/or a waiver of collateral attack, as might be raised under federal habeas law, 28 U.S.C. §2255.

For anyone unaware, what this really means is that you are waiving the defendant’s ability to later claim that the plea was the product of ineffective assistance of counsel. Perhaps it’s because he wanted to cop out after motions were lost, and it turns out that motions were lost because the defense lawyer overlooked something. Or perhaps there was a lack of investigation that would have produced exculpatory evidence and altered the outcome. Whatever.

It is the opinion of the NACDL Ethics Advisory Committee that, aside from whether the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement limiting the client’s ability to claim ineffective assistance of counsel. The lawyer has a conflict of interest in agreeing to such a provision because it becomes a prospective limiting of liability. Therefore, the lawyer is duty-bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it.

It is the opinion of the NACDL Ethics Advisory Committee that such a plea agreement provision creates a personal conflict of interest between the criminal defense lawyer and the client that rises to the level of denial of the right to loyal counsel under the Sixth Amendment. It is also a violation of due process of law under the Fifth and Fourteenth Amendments. Defense counsel has a duty to see that the offending provision is removed by the prosecutor or the court because of the inherent conflict it forces on the accused and his or her defense counsel.

All of this is both fine and, frankly, accurate, even though most lawyers wouldn’t think of, or be concerned, with, any limitation on their liability.  Initially, it’s just not a serious concern, but more importantly, few criminal defense lawyers ever think of malpractice liability in the management of their clients or the conduct of their defense.  We’re a pretty tough group by nature and nurture, and use up all our worrying on the welfare of our clients. We do not tend to worry too much about ourselves, at least in this regard. Getting paid is another matter entirely.

But neither the government nor the courts tend to worry too much about the wholesale evisceration of defendants’ rights in the process of disposing of cases.  If they could figure out a half-baked legitimate way to toss into a plea agreement a waiver of producing offspring, they might do that as well, and there aren’t too many judges (like Judge Kane) who would give it a second thought.

The problem is that the government seeks to impose such collateral terms and conditions by unilateral fiat. They aren’t a subject of negotiation. They often aren’t even mentioned in the negotiation process. They just show up in the plea agreement, after the deal has been struck and everybody has exhaled.

The defendant has a primary concern: how many years is he going to have to spend in prison. This, by a mile, is the core of the plea, and trumps all other issues at that moment.  If he gets a deal he can live with, is he inclined to blow it, to put his foot down and say “I reject the deal” because there are some collateral waivers snuck into the papers at the back end?  Not likely. 

First, he won’t see the waiver as particularly significant, unless the lawyer tells him that there is a serious concern that he’s giving up an important right that might later serve to get him out from under the plea.  Second, the alternative is going to trial, where he faces his worst nightmare, the million years suggested by the Sentencing Guidelines.  Chances aren’t good that he’ll refuse the plea, with its hard benefits, because of a speculative waiver of dubious worth.

This is why the NACDL’s advisory opinion is important. While it’s only advisory, it provides a well-conceived argument to go back to the government, and to argue to the judge if he will give a few moments of his important time to such banal matters as a plea agreement, that the inclusion of the waiver would place you in an untenable position of engaging in unethical conduct. It’s not that you don’t want the plea, but that you cannot be unethical. “Judge, what am I supposed to do? I can’t agree to an unethical waiver in a plea agreement.”

The best that could come of this opinion is that the issue is resolved by the circuits holding that waiver of the right to collaterally attack a plea based on ineffective assistance of counsel is unethical, and courts must reject plea agreements containing such waivers.  This may, and should, happen, but it will take years before the issue ever reaches the circuits, and there is certainly no assurance that they will come out on the right side.

In the meantime, the NACDL ethics opinion provides a well-reasoned basis to refuse to agree to such waivers, and the basis to argue that the government’s insistence on a waiver puts defense counsel in an untenable position, as you cannot enter into an agreement that is inherently unethical. Hopefully, district judges will appreciate the problem and refuse to allow the government to ram such waivers down defendants’ throats.

H/T Michael K. Bachrach, President, New York Criminal Bar Association

It’s not that police testifying to whatever it is they need to accomplish the greater good of convicting people they decide deserve convicting is new.  But even when caught lying, there was always an excuse, an apology, a rationalization to cover it. And life went on.

This is what makes the conviction of two Los Angeles cops different. They got caught lying and they were prosecuted.  Not only were they prosecuted, but they were convicted. They were convicted of perjury.  From Southern California Public Radio :

Officer Richard Amio and former officer Evan Samuel testified that they chased a man into his apartment in Hollywood in 2007 and immediately saw him toss a black object that contained cocaine. A surveillance video showed it actually took four officers more than twenty minutes to find the drugs. 

LAPD Chief Charlie Beck said in a statement the officers actions were unacceptable.

Unacceptable? I can live with that. Reprehensible might have been better, but we take what we can get.

“I am truly saddened by the events that led to the perjury conviction of a current and a former Los Angeles Police Officer,” Beck said int he statement. “As I said when the charges were filed, I do not believe their intent was evil, just extremely misguided. The character of our organization is defined by the conduct that we condone. These actions were entirely unacceptable.”  

Unacceptable again? Fair enough.  As Chief Beck notes in his attempt to minimize the nature of the wrong and distinguish his cops from “real” criminals, “their intent was [not] evil, just extremely misguided.”  What he means is that they only lied to get the bad guy.  Yet again, the late Murray Kempton’s words ring true: “There they go again, framing the guilty.”

Aside: A quick search of the Kempton quote revealed that an  old post of mine where I used it was copied in its entirety and posted by Ademo Freeman at Copblock without attribution, or even a link back to the original. While I’m happy he thought the post worthy of taking, I’m not as happy about my content being stolen.  How about a little integrity, guys? It would be nice of you to ask first, but posting without attribution as if you wrote it isn’t cool.

There isn’t much explanation or discussion needed about the fact of perjury.  Cops believe that trials, testimony, swearing to tell the truth, is a game that’s played to give the impression that there is a legal system so the natives don’t get terribly bent out of shape. As long as citizens believe we have a system, they sleep well at night.  They also sleep well at night knowing that their brave officers keep the streets safe from murderers and rapists by putting the bad guys in prison. All is well with the world.

You see, we’re naive and silly. The cops understand their job. Rid of us criminals. Only children and defense lawyers think they’re actually supposed to tell the truth. They know better. They laugh about it over beers after a day in court.

So when the video conclusively showed these cops to be perjurers, one would expect them to get a very stern lecture from some mid-level supervisor telling them to never get caught again.  Instead, they found themselves on the receiving end of an indictment and, even more surprising, a guilty verdict.

And the Chief of Police called the conduct unacceptable.  Not evil, but misguided. 

Does this mean the rules are changing? Is it unacceptable to lie to make sure the bad guys go to prison?  it’s not likely. After all, rarely does a cop get caught.  Even when judges believe the cop is just making up a story to justify the bust, they will never find the cop a liar in the absence of irrefutable proof. Never. Their testimony is credible, even when it falls off the precipice of the absurd, because to do otherwise would destroy a finely tuned system that fools the happy natives and keeps the police unions, district attorneys and supervising judges off their backs.

But this time, the cops were convicted.  Without the video, they wouldn’t have been.  Even with video, chances are poor that anyone would face a judge, no less a jury.  There are a bunch of excuses available, including the ubiquitous “we’re going to investigate” until everybody forgets about it and moves on to the next scandal. 

Yet, this conviction, particularly in light of some other verdicts in LA and Chicago, suggests that attitudes toward the police, toward their lying, toward their violence, may be changing. Just a little. But changing. It’s a start.

Five years ago, the question around the blawgosphere was when lawyers would finally, finally, realize that the internet was here to stay and start becoming a part of it.  Most of us who engaged in it were surprised at how few lawyers had ever taken the time online to do more than google where to buy some doodad or get directions to an address.  Actually, we were shocked at how few even knew how to do that.

Times are beginning to change. Sadly, not for the better.  I’ve been fighting a war over the past five years against those who saw the potential to make a quick buck off stupid lawyers by selling them a lie. Knowing how few had a clue what was happening online, they promoted the idea that it was a magical secret marketing place where all the paying clients were going to find lawyers, shell out big bucks and make them fabulously wealthy. 

At the same time, business in general stunk and lawyers, tired of waiting for the phone to ring, wondered where their next case was coming from.  To the internet!  With all these marketers screaming about the money, the connections, the engagement happening, how could they continue to ignore it?  And step by step, lawyer by lawyer, the lie grew.

The failure of the concept would have been fairly obvious to anyone who gave it much thought.  But when things are going poorly, and the shine of new technology blinds one’s vision, putting much thought into it is a waste of time. If so many people say there’s money to be, there must be. There just must be.

Twitterers craft brief bios about themselves, touting their practice, their success and their high esteem. They think someone is going to retain them because of their twitter bio. Their marketer told them so. And so they follow 500 other twitterers and have 7 followers in return. Who wants to “engage” with someone whose bio says they are desperately seeking business? Their twits are promotional or worthless. No one needs you to be the 319th person to retwit a news story that has already been spread by people with thousands of followers. Don’t you get how this works at all?

The simple answer is that they don’t get it. They won’t make friends. They won’t get business. They’re just embarrassing themselves, all because they came here to market and followed the instructions of their marketer.  And once you’ve firmly established yourself as sleazeball, there’s no going back.

The same is happening with blogging, supposedly the way to establish credibility and expertise. Because we need another post about “what to do when you’re stopped for DUI.”  The last ten thousand aren’t enough, right?  But the marketer has a formula, and promises if you just follow the formula, riches are yours for the taking.  You don’t think about the 100,000 lawyers who followed the formula before you, and that they never found those riches. Or to the extent the formula ever worked, it has long since been maxed out. Sorry, but the train left the station a long time ago.

Years ago, in speaking to an audience of lawyers about social media, I said anybody can blog, but everybody cannot. Maybe it’s because your writing stinks. Maybe it’s because you don”t have the chops to keep it up. Maybe you’re not as smart as you think. Maybe it’s because you’re a bore and nobody will want to read what you write. Maybe it’s because nobody needs 100,000 blogs writing about the same crap. You may be able to keep atop ten blogs a day. Maybe 100. A thousand? Forget it. Nobody has that much time, and there aren’t a thousand worth bothering with anyway.

But the marketers tell you to start a blog and fill in the blank space. They tell you that your ideas are wonderful, even though they’re not. Even so, you run out of steam. Writing is hard work. Thinking is harder still. You can’t pull it off.

And so, when the emails come offering to provide guest posts to fill in the blank space on your blog, you seize the opportunity. Crap? Perhaps, but no worse than the empty shell of thought that you come up with on your own.  And really, isn’t the point just to scam google into putting you on page one when people search for a lawyer in Peoria? Any crap will do, as long as it’s new crap, to game the SEO gods. Just do it, the marketers tell you. You must post something new, no matter how empty your personal tank may be.

And you get to be like Bitter Lawyer, trying desperately to make a joke of getting caught empty-handed.  Or The Mac Lawyer, an effort that never had legs to begin with, gasping for breath with a link back to Baby Changing Stations.  No, I didn’t make that up. That’s what it says. That’s how low, how absurd, it gets.  And when you do, one of the handful of  real blawgers will ridicule you for being disgraceful. And your marketing strategy will result in your abject humiliation, and you will wonder how it all went so terribly wrong.

Instead of being a self-proclaimed hero on the internet, you will destroy yourself, ruin your reputation and, worst of all, make no money.

No one publishes guest post garbage unless they’ve run out of anything else to say. They’re dead. They’re empty. They’ve got nothing else to say. The only option left is to leave the space intentionally blank. For the most part, they never had anything to say. It was just crap to begin with, and even that’s run dry.

But you, lawyer new to the internet, won’t find any of this out until you’ve posted your twitter bio proclaiming how special you are compared to the 10,000 other lawyers whose bio says the same thing as yours, whose website proclaims how you’re experienced, caring and aggressive, using stock photos  your marketer dug up for his last 50 blogs.

You won’t read Turkewitz’s admonition, outsource your marketing and you outsource your ethics, until it’s too late. And me, what could I possibly know? I give this away for free. What a loser I must be, having a blawg that makes no money. Why would anybody do that? I must be nuts.

You won’t get rich marketing on the internet. At best, you will fade into obscurity after pissing away a few grand to some jerk whose last real job was assistant manager at Dairy Queen. At worst, you will humiliate yourself and show up in google as a disgraced lawyer for all eternity.  Not even baby changing stations will want anything to do with you.  But you won’t know this until it’s too late.

And as you embarrass yourself, you bring all of us into disrepute, which is why I try so hard to stop you. But your marketer doesn’t care as long as he’s paid. And you don’t care as long as you believe it will make you a buck.  We would all do better to just leave the page intentionally blank. At least you won’t humiliate yourself or disgrace the profession. But you won’t know this until it’s too late.

Life on wheels can’t be fun.  Not cool wheels, but a chair, without which you go nowhere.  And it’s hardly too much to ask that when a structure open to the public, inviting the public to enter, is built, it be capable of accommodating those people who depend on wheels.  Not your issue? It would be if your legs didn’t work right, and it’s not outside the realm of possibility that your legs, or your kids’ legs, might not always move as well as they do now.

But what of structures from the old days? 

The Upper West Side of Manhattan is a thing of beauty, built of brownstones and tenements, and famous for generations of kids playing the quintessential New York game, stoop ball. I love old buildings. I love their look, their feel, the handmade bits of brass hardware that requires polishing to bring its richness to the surface. It’s New York’s history, and a reminder that there was once a time when people took pride in their design and craft. 

Brownstones are not, however, good for wheels.  Stoops are a problem, as each step is barrier that a wheelchair can’t surmount. At least not on its own.  From the New York Post :

Wheelchair-riding Linda Slone, 64, is suing 39 shops in her neighborhood for not being handicapped-accessible.

The legal crusade is netting her thousands, but Slone, who cannot walk because of polio, insists she is simply championing the rights of the disabled.

“If you think this is a money-making scheme, you’re dead wrong,” said Slone, a speech pathologist. “I, along with anybody else with a disability, has the right to go wherever they choose to go and not have to be dissuaded or inconvenienced or even apologetic.”

Last month alone, Slone filed papers against eight shops on or near Columbus Avenue, aiming to force them to install ramps and other accessible features.

In each suit, all filed in Manhattan federal court, she demands $500 in damages, plus lawyers’ and experts’ fees, which could run up to $15,000.

Unrelated in substance, two bits of guidance issued yesterday that criminal defense lawyers ought to be aware of.  First, the Department of Justice issued its long-awaited “guidance” on the Foreign Corrupt Practices Act, a law that has been so lacking in cognizable parameters as to render it incapable of compliance or review.  Vague much, Congress?

But the government is here to help, and  issued its guidance. All 130 pages of guidance. Imagine how much fun it would be sharing these guidelines at parties with your friends!

Fortunately,  WSJ Lawblog’s Ashby Jones has done a bit of vetting of the verbs and provided some outtakes.

In enacting the FCPA, Congress recognized that bribes can come in many shapes and sizes—a broad range of unfair benefits—and so the statute prohibits the corrupt “offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to” a foreign official.

An improper benefit can take many forms. While cases often involve payments of cash (sometimes in the guise of “consulting fees” or “commissions” given through intermediaries), others have involved travel expenses and expensive gifts. Like the domestic bribery statute, the FCPA does not contain a minimum threshold amount for corrupt gifts or payments. Indeed, what might be considered a modest payment in the United States could be a larger and much more significant amount in a foreign country.

Regardless of size, for a gift or other payment to violate the statute, the payor must have corrupt intent—that is, the intent to improperly influence the government official. [It] . . . is difficult to envision any scenario in which the provision of cups of coffee, taxi fare, or company promotional items of nominal value would ever evidence corrupt intent, and  neither DOJ nor SEC has ever pursued an investigation on the basis of such conduct. (Page 14-15)

A small gift or token of esteem or gratitude is often an appropriate way for business people to display respect or each other. Some hallmarks of appropriate gift-giving are when the gift is given openly and transparently, properly recorded in the giver’s books and records, provided only to reflect esteem or gratitude, and permitted under local law. Items of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items, are unlikely to improperly influence an official, and, as a result, are not, without more, items that have resulted in enforcement action by DOJ or SEC. (Page 15)

• the nature and seriousness of the offense, including the risk of harm to the public;

• the pervasiveness of wrongdoing within the corporation, including the complicity in, or the condoning of, the wrongdoing by corporate management;

• the corporation’s history of similar misconduct, including prior criminal, civil, and regulatory enforcement actions against it;

• the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents;

• the existence and effectiveness of the corporation’s pre-existing compliance program;

• the corporation’s remedial actions, including any efforts to implement an effective corporate compliance program or improve an existing one, replace responsible management, discipline or terminate wrongdoers, pay restitution, and cooperate with the relevant government agencies;

• collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution;

• the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance; and

• the adequacy of remedies such as civil or regulatory enforcement actions. (Page 53)

But we don’t have to get deeper into the proximate cause briar patch. Before a judge gets to the issue of proximate cause, he has to determine what the defendant caused. Amy’s and Vicky’s brief misses this point in stating (a proposition not wholly true, but we’ll ignore that qualification) that “a tortfeasor cannot say he should escape liability for sinking a barge because someone else’s acts would have sunk the barge regardless.” The statement is an allusion to a discussion in W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 52, p. 347 (5th ed. 1984), of a class of tort cases best illustrated by cases concerning not barges but “multiple fires of negligent origin. If each fire would have destroyed the plaintiff’s property, so that all the fires were sufficient conditions of the harm but none was a necessary condition, nevertheless the firemakers would be jointly liable whether or not they were acting in concert.” Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011). Otherwise there would be two wrongdoers, a harm from the wrongdoing—yet no liability.

Is this such a case? Amy’s and Vicky’s brief states that “apportioning [their] harm among the numerous past, present, and future defendants is all but impossible. But all of them have contributed to Amy and Vicky’s images going ‘viral’ on the internet.” It’s an open question whether the defendant in the present case uploaded any of Amy’s and Vicky’s images to the Internet—if he didn’t, then he didn’t contribute to those images “going viral.” If we consider only his having seen those images, and imagine his being the only person to have seen them, Amy’s and Vicky’s losses would not have been as great as they were.

Lest you think this is just the needless murder of words leading nowhere (with the gratuitous smack in the head to Bryan Garner, in the last paragraph of page 14, in his capacity as editor of Black’s Law Dictionary and co-author with Justice Scalia in the curious tome, Reading Law : how not to write like Posner), Judge Posner actually answers the question eventually.

But if the defendant in this case is not responsible for the viewing of the images of Amy and Vicky by even one person besides himself, joint liability would be inappropriate. Amy and Vicky argue that psychological harm is always “indivisible.” But it isn’t. If separate fires join and burn down the house, the harm is indivisible: the house is gone, and all the firemakers are liable even though any one of the fires would have destroyed the house. And in our distribution example, the distributors may be jointly liable though again the entire harm might have occurred had there been only a single distributor. But often psychological harm can be greater or less, and it would have been less in this case if instead of tens of thousands of images of Amy’s and Vicky’s rapes being viewed on the Internet one image of each had been viewed by one person, the defendant.

Still less than clear? Boy, are you demanding.

To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

So there you are. Problem solved.  Tomorrow, guidance from the government on how to screw in a light bulb in a union courthouse.