Kristen Cunnane is 30 years old today, but was a mere child of 12 when she was  abused by teachers at Moraga Middle School. 

Cunnane was sexually abused by two Moraga middle school teachers in the 1990s, one of them over a four-year period. She sued the district, retired Joaquin Moraga Intermediate School principal Bill Walters, retired assistant principal Paul Simonin and retired superintendent John Cooley in Contra Costa Superior Court, saying they repeatedly ignored allegations of abuse, allowing her and other students to be victimized.

Former Joaquin Moraga P.E. teacher Julie Correa pleaded guilty to rape and sexual battery against Cunnane over a four-year period beginning in 1996, when Cunnane was an eighth-grader. Cunnane said Correa groomed her after she confided in her that Joaquin Moraga science teacher Daniel Witters had molested her. Witters committed suicide shortly after a group of girls came forward with allegations in 1996, and police stopped investigating him criminally after that.

The Moraga School District’s response to the suit?

The district and three other defendants claim Cunnane “was herself responsible for the acts and damages of which she claims,” in the Oct. 24 legal filing.

“Carelessness and negligence on (Cunnane’s) part proximately contributed to the happenings of the incident and to the injuries, loss and damages,” they claim.

After all, shouldn’t the 12-year-old student bear the responsibility for being so enticing to adult teachers under the supervision of school administrators? Lolita much? 

The district’s response drew obvious outrage, so the district doubled down to justify this utterly outrageous response.

The school district’s attorney said Thursday that the language used as part of its legal stance was appropriate and necessary at the start of such a civil case with significant financial ramifications. The response did not specify how Cunnane was “negligent” or “responsible” for the abuse.

Louis Leone said “every potential defense” must be raised in such legal filings, “since failure to do so results in a waiver of the defense.”

“It is imperative that all possible defenses be raised at this point in time. As more facts become known, the district will then reassess its defenses,” the Walnut Creek attorney said.

A very cautious, lawyerly reaction, but for two crucial problems. First, the abuse occurred nearly 20 years ago, and to the extent the district doesn’t know the facts as yet, someone over there is brain dead.  Second, regardless of the facts, there is no argument to be made, no scenario described, no details parsed, that could conceivably shift any responsibility whatsoever from the teachers who raped and molested Cunnane onto a 12-year-old student.  It doesn’t matter if she ripped off her clothes and threw herself atop the teachers.  They are still totally responsible for what they did to a child.

The protection of their charges is a fundamental argument used by school districts to justify the mindless enforcement of their beloved rules, where embrace of such simplistic concepts as zero tolerance draws the cheers of parents until their baby is involved or where the result is so ridiculously absurd that not even the most brickheaded mommy can ignore the inapplicability. 

And yet, the Moraga School District has allowed its lawyer, perhaps even compelled its lawyer, to answer the complaint by alleging that the fault for the rape of its student by its teacher is the child’s fault.  It’s hard to reconcile.  It’s reduces pedagogical excuses to a joke.

These are the same governmental units that pontificate about the blight of bullying, violence and sexual contact, all too happy to throw students off the ledge for calling someone fat, or drawing a picture of a gun with a crayon, or hugging another student.  They have to, they claim, because it’s their responsibility to protect students. It’s their sacred duty. 

Yet, when put to the test by Cunnane, the knee-jerk reaction is to blame the child who was raped.

The district’s lawyer’s explanation for his outrageous allegations will likely evoke a circumspect reaction from some civil defense lawyers, who may explain that it’s not to be taken too seriously, but just included in the district’s answer in “an excess of caution.”  After all, the argument that a defense not stated is waived is certainly accurate, and it might be negligent of the lawyer to fail to include a potential defense, no matter how absurd. 

This is true, yet utterly wrong.  At best, it reflects the worst of lawyers, so overly cautious as to rationalize the outlandish possibility that the child can be at fault for being raped by a teacher.  At worst, it reflects how cynical lawyers have become in their zeal to win at any cost.  The allegation that a 12-year-old (notice how many times I mention Cunnane’s age in this post?) can ever be responsible for being molested by her teachers goes far beyond frivolous. 

The lawyer and district should not only be sanctions for raising such a defense. but should be ousted from any position of trust forever for even considering such a claim.  If anything, the fact that students were being raped and molested at the Moraga Middle School, and that pleas for help were ignored, is bolstered by the fact that the district would even consider such a defense.

One would hope that most school districts, most administrators, most teachers, and most lawyers, would be disgusted by what happened here. And yet, the fact that a school district, any school district, would attempt to shift liability off its shoulders by putting it on the back of a 12-year-old student is beyond belief.  To the extent that school personnel might have claimed entitlement to the benefit of the doubt before, unless they condemn the tactics of the Moraga School District in this case, they have forfeited any claim of righteousness.  As for the Moraga School District, they are scum.

H/T Fritzmuffknuckle

During my powerless, cold hiatus,  Marc Randazza did a bit of digging into a website that posted naked photos of people with names and some personal information, and then offered the services of “takedown lawyer” David Blade, who guarantees success.

Marc offered takedown lawyer David Blade the opportunity to establish that he was a real lawyer, and received nonsensical threats in return.  You see, no lawyer by the name of “David Blade” could be found, even though he had a website that proclaimed him a lawyer and was taking money from people on the internet for representing them.  His excuse?

I work as a Public Defender for the State of New York. I’m a real attorney – not an ‘internet lawyer’.

The New York Court of Appeals  has upheld the Bloomberg plan to  reduce private indigent defense under 18B of the County Law. From the New York Law Journal :

The panel attorneys were to be called on when primary providers, such as the Legal Aid Society of New York City, were faced with a conflict most often posed by multiple defendants being charged in the same crime. In those instances, Legal Aid lawyers would represent one of the defendants and the others would be assigned to other providers or to assigned private counsel.

The Bloomberg administration’s 2008 plan called for more of the “conflict representation” cases to be handled by institutional providers under competitively bid contracts. The administration argued before state courts that its plan would still retain some participation by the bar associations, but that it could save significant amounts of money.

Oral argument on two cases that held potentially huge significance for a fundamental change in search and seizure law were held before the Supreme Court on October 30th.  Via Radley Balko at HuffPo :

In the first case, Florida v. Jardines, the court will decide whether a drug dog’s sniff outside the door of a home constitutes a “search” under the Fourth Amendment, which police would need to justify by first establishing probable cause. If the justices decide it doesn’t, police could well begin using drug dogs to conduct mass “sniff sweeps” of apartment complexes, public housing, and other densely populated areas.

In the second case, Florida v. Harris, the Court will consider a Florida Supreme Court decision that established some rules for judges to determine whether a particular drug dog should be relied upon as grounds for a search. Here, the justices could either uphold a state supreme court’s desire to set some minimum proficiency standards, or rule that the police and prosecutors aren’t obligated to keep track of a drug dog’s performance record at all.

That assumption was wrong at the time, and it has been repeatedly proven wrong since. For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs’ success rate dropped to 27 percent.

The  Lisa Lit study at Cal-Davis is far more damning. Dog sniffs are essentially carte-blanche for dog handlers to pick targets for searches, completely circumventing what most would consider actual cause, with the blessing of the Supremes in reliance on the magical abilities of canines.  As Radley notes, it’s not that dogs aren’t possessed of wondrous olfactory abilities, but that they are more inclined to do as their handlers want. 

Radley attributes this blindness on the bench to its lack of anyone who earned an honest living as a criminal defense lawyer.  While he may be right, insofar as there is no one inclined to mention the unmentionable at argument or even make the others upset with her by throwing the dog sniff myth into play, I suspect that the justices are bright enough to be aware of the problems with dog hits. 

The tacit decision evidenced by the total absence of concern for a means of establishing probable cause that is less valid than a coin toss (question: why not just let cops do rock, paper, scissors to establish probable cause? Crazy, sure, but less so than dog sniffs) is that law enforcement and the courts have incorporated the dog sniff myth so deeply into their infrastructure and jurisprudence that it would wreak havoc to admit it is all a big ol’ sham now, and hold that the magical eight ball dog alerts are no longer an adequate basis, without so much as a valid showing of training (as determined by a non-law enforcement certifying body using non-law enforcement derived metrics) and efficacy (such as, well, a mere 50% success rate).

This would spell the end of dogs, and that would spell the death of highway shoulder searches, and that would mean that police would be required to fall back on actual, articulable, specific cause. 

To be fair, if the dogs are manipulated by their handlers to alert whenever they feel the desire to conduct a search, there is no reason to believe that police would be less inclined to fudge the details of cause coming from their own observations, whether their old friend, furtive gestures or anxiety, or aggressive stance, or perhaps some newly developed combination of words that gives rise to a vague image of justification without any possibility of disputing the cop’s word.

Still, at least we can cross-examine a cop.  When the only question to be asked is whether the doggy wagged his tail, that detail being sufficient to terminate all rights under the Fourth Amendment, without regard to the fact that the doggy wags his tail constantly, at anything, whenever his beloved handler cues him to do so, even unconsciously, we’re just pretending.

Oral argument in two cases before the Supreme Court was had in earnest, but the argument was about the details on the fringes of the Ministry of Magic.  The dogs will be with us for a long time to come, and they control whether eyes and hands get to touch our lives.

About 4:30 p.m. on election day, November 6th, the lights came back on at Simple Justice World Headquarters.  The ambient room temperature went from a nippy 37º to a balmy 54º in just a few hours, after which we peeled off layers of warm clothing.  The television glowed and we stayed up late enough to watch Karl Rove embarrass himself. 

I didn’t learn that the president was re-elected until this morning.  As far as I can tell, there is a direct correlation between this and my power returning. He owes me. 

More importantly, I hear that Mark Bennett received more than one million 1,326,526 votes for seat seven on the Texas Court of Criminal Appeals. Even substracting my votes, that’s over 479 thousand an awful lot of votes, and that’s huge. Congratulations, brother. Killer Keller was re-elected to the all-Republican court. Sorry, Texas, but you get what you deserve.

It felt nearly miraculous to feel normal.  We checked on our friends to make sure they have power and heat (they did), and started thinking about what was needed for the clean-up, whether FEMA disaster relief would be available to us (don’t feel badly; we laughed too) or whether insurance or any other source would cover damage or loss.  It isn’t likely.

Already, the vultures are coming around looking to do post-Sandy repairs and clean-up at a mere triple the price of their services before the storm, when they were begging for work. While many have proven themselves to be good neighbors and friends during the storm, there are some nice folks on Long Island who just can’t resist the urge to take advantage of others.  No surprise there.

There was no ability to do work over the past 8 days, and so there is substantial catch-up to be done. A nor’easter is supposed to hit tonight, and I’m scheduled to fly out of town on Thursday. We’ll see whether that happens.

Thank you for your kind words and wishes during the past week. It certainly brought warmth to an otherwise very cold existence.  Now that the heat is on, I’m determined to return to as much normalcy as the situation permits, and plan to get back to writing about things that matter.  But please know how much I appreciate the support.

It’s enormously frustrating for a guy whose life has been dedicated to fighting for things to have no one to fight with. My family suffers and there is no argument to be had. It’s utter impotence, and it’s brutal.

You can’t argue with a storm. You can’t argue with a dark light. You can’t argue wth guys on power trucks about why they drive down the road past your home to work on someone else’s road. And you can’t argue with people whose power has returned and are trying to get their own lives back to relative normal. But that means you stand there, silently, incapable of changing anything and feeling helpless. This is a foreign feeling.

The crank radio reports that many have gotten their power back, using numbers that reflect “customers.” This is a bit of sleight of hand, as “customer” refers to the name on the bill.  The rest of the people living there don’t exist. So if they say there are still 1.7 million customers without power ten days after the storm, multiply that number by the average household, maybe 2.4, and that reflects the number of cold people. Multiply it by two to get the number of cold hands. The temperature this mornng was in the upper 30s.

The radio offers either nasty and absurdly ridiculous poltical commercials or commercials of insurance companies and service providings who can help those who have suffered damage. They tell us to call their toll free number, or go online. Except we have no electricity, telephone or internet. But they care about us very deeply.

Press conferences by public officials fill the dead time between commercials. Each begins with 20 minutes of thanking each of other for their great work, and their apprecation of people whose job it is to do whatever they are doing. So they are getting paid and getting appreciation. It must be great to be a public official in a crisis.

Donations to American Red Cross are, as with past disasters, plentiful. The problem is that the American Red Cross takes in the money and doesn’t use it for the purpose given. For all those ten dollar text donations, maybe a dollar or two is used for the crisis, with a few dollars going toward administrative fees, salary increases for their full time staff, new office furniture. The rest disappears. This happened after 9/11, Haiti, and every other major disaster. No one ever wonders where the money went after the noise dies down, but it never seems to find its way to its intended recipients.

On Imus this morning, he talked about how he went to Staten Island, and the Red Cross was nowhere to be found.  And yet, donations pour in.  Regardless, there will be nothing, whether Red Cross, FEMA or state aid, available for those whose suffering won’t make a photo op. There never is.  At least they may offer a cot and peanut butter and jelly sandwich to the homeless, like prison. For every $10,000 contributed to the Red Cross, another sandwich is offered. Kinda makes you feel all warm and good about yourelf, right?

The endless flow of guest-post requests, LinkedIn requests, Nigerian scams and legal marketing solicitations never seems to cease. Apparently, there is no loss of power in Bangalore.  The readers who send me 37 links for possible posts daily, especiallng the ones about these horrific conspiracies where our government plans to feed us to aliens from Mars, continue unabated. They too never seem to lose power, or the hope that  I will embrace their conspiracies in the few moments of internet access alotted to me.

No matter how well one prepares for problems, there are unanticipated needs that remain unmet. Clean clothing, for example.  The washing machine doesn’t work without power, no matter how hard you stare at it.  Some folks probably have enough clothing to last a few weeks without washing. I do not. Crisp, starched collars are a distant memory now.

And towels don’t dry in the cold. They stay damp, and get even colder. Cold, damp towels are remarkably unpleasant to use.  Take my word on this.  After a cold shower, or even a warm sponge bath, a dry towel would feel good.

We now see power company trucks fairly regularly, but they just keep driving past and out of view. They must be helping someone more important. 

In my spare moments, I try to keep abreast of the blawgosphere. There is no shortage of stories of interest and importance, and I’m glad others out there are keeping the information and commentary flowing, even if I can’t or won’t.  Maslow’s Hierarchy has kicked in on my end, so staying warm takes precedence over the latest puppycide. And somebody says there is a presidential election coming soon. 

Don’t give to the Red Cross. Be charitable, if that’s your way, but they don’t need new office furniture, and Haiti remains a shambles despite the billions Red Cross took in. Because they just keep the money.

It’s been a long week.  After Sandy disappeared, having done its damage, there was resignation. There is no arguing with a storm or its aftermath. It just is. And so, the first reaction is to try to make the best of it, or at least not make it any worse.

As no one was harmed and no serious damage was done to any structure, SJ World Headquarters fared pretty well. Others certainly suffered far worse.  A walk around revealed 11 trees down, only one of which landed on anything that mattered. 

One tree fell on the utility wires in the woods from the street to the house, and since I had plenty of time and a hand saw, it seemed wise to disregard Dr. SJ’s admonition to stay away from the wires and just cut the tree down.  It took quite a while to cut a tree with a small handsaw, but it can be done.  And it was.

Life without utilities is odd.  There is a lot of dead time. After cutting down the tree, we cleaned the inside of the house within an inch of its life. Vacuuming wasn’t possible, but anything that required hand-rubbing could be done. And it was.

And then there was nothing. Warm water in the tank lasted about a day, and then was gone. The weather outside was cold, and eventually the house was too. Except the KitchenAid refrigerator. We avoided going in for a couple of days, but inevitably had to get to food.  To the extent it held the cold, that was the end of it.  We tried to get in and out quickly, but cold rushing out is faster than we were.

After four days, listening to a handcrank radio purchased because of the frequent day-long loss of electricity, the pioneer spirit turned angry. Going to sleep at 8 p.m.was wearing thin, but there wasn’t anything else to do.  A library about 15 minutes away was open, and had electricity and wifi, but its bandwidth was so badly overwhelmed by people trying to get online as to give a user a few minutes at best. I went there from day three to five, but spend hours trying to get a page loaded. 

Mostly, my time online was used to try to read emails, each of which would take a few minutes to load. It gave me a new appreciation of guest-post requests from spammers, LinkedIn requests from people I don’t know, Nigerian scams, legal marketing solicitations, and friends who asked if I was alive. Then there were the questions from young lawyers about mundane choices they faced, knowing I had no power but still in need of free advice on trivial matters of utterly no consequence.

On Friday, we decided to get out of town. We planned to go to Massachusetts on Saturday anyway, but decided to jump in the car and find a hotel somewhere north.  There was no gas to be had in the area. Food staples, like milk, were gone. The house was very cold and I had enough of the joys of cold showers.

No doubt there was relief being made available to those who lost their homes, In my area, there was nothing.  We saw the occasional power company truck, but it didn’t stop as it drove to some other place in need.  The neighbors who had generators found out that they don’t run forever without gas, and that residential grade generators weren’t meant to run for days on end. They either ran out of fuel or just died.

So we drove north.  Eventually, we found a motel with a room, as many along the way were booked up with out of state electric workers and national guard being sent to New York to help.  It wasn’t nice, but it had hot water and internet. It worked. This is the third day of having real internet access, but up until now, I haven’t felt much like writing.

Yesterday, we went to our son’s first NCAA fencing competition, the Big One at Smith College, where all the schools in the Northeast Fencing Conference competed n regular tournament format.  Out of a field of 89 fencing epees, he came in tied for third.  In his quarterfinal bout, he was down 10-14 (bouts go to 15), and he pulled it back, winning 15-14. The knot in my stomach didn’t go away for an hour.

And so, it was a pretty good week.  We’re all safe, even if miserable. My son did well.  Life goes on.  We’re heading back home today, even though there is still no power.  There is no reliable information as to when power will return, and it’s painful to listen to everyone praising themselves knowing we’re returning to a dark, cold house. 

There will be substantial costs associated with the storm, but as with 9/11 and Hurricane Irene, all the promises, along with the donations, disappear, never to be seen near my neighborhood.  As always, we will be on our own, and will try to find a way not to make the next day, maybe week, without power any more miserable than it has to be.

The weather report is that it’s going to get colder and there’s a nor’easter comng to knock down whatever electric lines are still up. I don’t expect to feel like writing for a while.

Passing through Laramie, wyoming, Supreme Court associate justice Antonin Scalia gave a talk at the local law school, where he answered a few student generated questions.  Nino answered one question, what was the best piece of advice he could give law students:

In response to Wallace’s question about the single best piece of advice Scalia would give to law students, he advised them not to waste their time taking “frill courses.”

“Professors like certain subjects that they’re writing a book on, so they teach a course in that subject,” he said, adding that students who take the course get to do the research for the book.

“Because there are so many professors teaching their hobbies, the rudimentary courses are not taught with the frequency necessary for everybody to take them,” Scalia said.

“The only time you’re going to have an opportunity to study a whole area of the law systematically is in law school,” Scalia said. “You should not waste that opportunity. Take the bread and butter courses. Do not take, `law and women,’ do not take `law and poverty,’ do not take `law and anything,'” he said.

Had he used “Nietzsche and the Law” as an example, it probably wouldn’t have rankled anyone too badly, but Nino pushed a button that set off a firestorm.  Law and women?  Law and poverty? Both women and the poor took umbrage, neither being a particular fan base for Justice Scalia.  And here he was, saying they weren’t worthy. Oh boy.

But the group he slapped hardest was law professors, when he said that “there are so many professors teaching their hobbies.” George Washington Lawprof  Jonathan Turley did not take kindly to the slap.

That is a disturbing account to give students and serves only to “dumb-down” legal studies. My students will be better lawyers but not only learning about the practice but the philosophy of law. It is both possible and, in my view, essential to get both in your training. I am distinctly proud of my student’s in their ability to move seamlessly from the theoretical to the doctrinal in class.

I am disappointed in the recent controversial comments by Scalia because he reflects a deep understanding of legal theory and history in his writings. His opinions are greatly benefited by that deeper knowledge. Student gain such theoretical foundation by taking these seminars, which often inspire or challenge the view of law students. Lawyers are not accountants who merely tally columns of precedent. They are part of an organic and ever-changing field. The current laws are changed by the powerful legal theories and policies that constantly move beneath the legal superstructure.

Turley’s rhetorical flourishes aside, his disappointment doesn’t address the problem.  Within the Law and Potted Plants course, there may be contracts, or property, or even criminal law (it could happen), There is no independent body of law that relates solely to potted plants, divorced from the more rudimentary practice areas.  If by theory he means the latest law review article on the subject, advocating for a separation of the law of potted plants from those planted in the ground, then it’s hard to ignore Nino’s “hobbies” argument. There are a ton of theories promoted by scholars, most of which pass quietly through the night, never to be heard of again, and for which we are generally grateful.

But then, there is the problem of cost/benefit analysis.  Law students pay a hefty price to learn the law of potted plants. Some do so in the hope of becoming a potted plant lawyer one day. Others just need to flesh out their schedule because they’re still required to do a third year of law school regardless of its merit.

I don’t disagree with Jonathan’s belief that teaching theory as well as doctrine matters. It’s the same problem as “remembering the rubric while forgetting the rationale” that I often raise when arguing that an application of “black letter” law makes no sense, as it becomes increasingly distant from its birth.  The only way to change the law, to make it serve society better as things develop and change, is to appreciate the theory behind it that justified its inception, and thus be capable of arguing why that justification no longer serves our interest.

But it’s not all clear that Nino thinks any differently, even though he tweaked some of our more passionate people in his choice of examples.  Theory, doctrine and practice can all be taught simultaneously in more rudimentary law courses, and for those scholars who so desperately want to push their personal hobbies, examples of law and women abound in discussions of property law and contracts.  There are no shortage of pet peeve opportunities.

Rather, what doctrinal and practical instruction is offered by the “Law and …” courses? Recently, I’ve seen lawyers claim to do hail damage law and even flash mob law.  These don’t’ exist. Stringing words together doesn’t make them real, and they are just minor variations on other extant practice areas.  They’re cute gimmicks, but nothing more.

It’s not at all clear that there is any real difference between Nino and Jonathan’s perspectives, aside from the fact that Nino would shut down a few teaching opportunities, which would mean smaller faculty parties.  Nino didn’t say that law schools shouldn’t touch upon theory, but that they should not have “law and” courses that embody hobbies that don’t reflect actual areas of law. 

Rather, I think Nino just pushed Jonathan’s button.  And a little button pushing from time to time isn’t a bad thing.

John Allen, 64, a retired engineer in California, writes a blog called The Skeptical Juror. With the help of Barbara Lunsford, an accountant in Corpus Christi, and Ward Larkin, an activist from Houston, he has spent nine months and more than 100,000 words delving into the forensic and legal details of Mr. Hughes’s case.

The official facts of the crime, on their face, pointed directly to Mr. Hughes. On the night of Sept. 26, 1988, Shandra Charles, 15, and her cousin Marcell Taylor, 3, were fatally stabbed in a Houston field. A police sergeant reported that before she died, Ms. Charles identified the name “Preston” and said, “He tried to rape me.”

Detectives located Mr. Hughes in a nearby apartment complex. Investigators found evidence of blood on his clothing and a knife in his apartment, as well as Ms. Charles’s eyeglasses on his couch. Mr. Hughes, who said the glasses were planted, confessed to the murder during the investigation but then denied involvement during the trial. No biological evidence tied him directly to the crime.

Hughes has a lawyer, Patrick McCann. He wants to get rid of McCann and get a new lawyer because McCann won’t raise Hughes’ claim of actual innocence.  McCann demurs.

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. But Texas and federal law set a high burden of proof for new claims of “actual innocence” so late in the judicial process, a bar that Mr. McCann said was “almost impossible” to meet.

The assumption tends to be that the lawyer must be some incompetent buffoon, mailing it in for the skimpy state paycheck, which he will spend on booze, after which he’ll sleep it off in court. But what if McCann is a top notch lawyer, doing everything he can within the bounds of the law to save his client’s life?

The issue of advocates’ doubting the work of lawyers is common in death penalty cases, especially as an execution date nears.

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

Murray Newman, a Houston defense lawyer, said he believed Mr. McCann was doing his best and cared about Mr. Hughes. “He works so hard on these cases. It’s like losing a family member,” Mr. Newman said.

Hughes isn’t as fond of his lawyer.

From death row, Mr. Hughes sees it differently, as he plays basketball during his hour of recreation every day, eats food he calls “pitiful” and learns about court decisions from a small, black radio.

“We don’t like each other,” he said of Mr. McCann. “I don’t feel somebody who doesn’t like me is going to do anything for me.”

A loss of confidence often follows a lawyer’s inability to achieve his client’s goal, followed by fighting, arguing and accusations, which gives rise to personal animosity.  For defendants and advocates, this seems critically important.  For lawyers, not so much.

In the simplistic good/evil dichotomy that most outsiders see the criminal justice system, defendants and advocates tend to wish away the problems and see only their point of view.  Passionate lawyers tend to do something similar, conflating an excess of zeal with effectiveness.  We see a lot of this in the blawgosphere and on non-lawyer blogs and websites, where the police and prosecutors are always nefarious liars, judges always hateful morons and defense lawyers incompetent, greedy scum.  It explains everything.

But for a lawyer like McCann, his duty doesn’t require him to love his client.  It requires him to represent him, and to do everything within his power, and within the bounds of the law, to save him from death. 

Lawyers work under constraints that advocates may not, such as the rules of evidence and the legal tests for setting forth and prevailing on a claim.  Advocates can argue, and often do, that these rules that fly in the face of what they believe to be justice are stupid and damaging. They are sometimes right, even though they lack the background in how these rules and tests came to be, or how they can be used as shield as well as sword.  But yes, when they stand in the way of perceived justice, they always look stupid.

Still, they are the boundaries within which the lawyer works if he hopes to achieve success.  As many beefs as we may have with the functioning of the system, it remains the system. Ignoring it helps no one. Sometimes, we can fight it and hope to have that one in a million case that forces a major shift in the system. Other times, we can scream as loud as we can, or as long as we can, and will accomplish nothing.

Patrick McCann is doing what lawyers do, fighting the pending execution of Preston Hughes. Advocates don’t think he’s doing enough. Hughes wants a new lawyer who will fight the fight he wants to make.  And McCann, getting little love from anyone, just does what lawyers do.

If McCann fails to stop Hughes’ execution, someone will blame him for being complicit in the death of his client because of his refusal to argue and win what advocates believe to be true, that Hughes is innocent.  And if he did argue it, despite his having no chance of success and doing everything in his power to challenge the execution on grounds that have at least the potential to succeed, advocates would speak better of McCann as they stand around Hughes’ grave. 

This is not to condemn advocates, or defendants, for feeling as they do. This division doesn’t always exist, and they can’t be faulted for believing as they do.  But McCann is a lawyer, and he has a duty that isn’t controlled by pandering to those who would have him argue what makes them feel good.  And he has persisted in fighting for Hughes, as his lawyer, despite the fact that neither his clients nor those advocates supporting his client have any kind words for his efforts.

When I sat on a planning board, I listened carefully to engineers speak of 20 year, 50 year and 100 year storms, the worst case scenarios that ought to guide our decisions as to the adequacy of sites and structures to accommodate impending disaster.  Obviously, 20 year storms happened with greater regularity than 100 year storms, so the demands of a 20 year storm had to be met.

But they say Frankenstorm is a 100 year event, the big one.  Sitting in Simple Justice World Headquarters, I’m wondering what I should do about it. There has been nothing on the television news except storm reporting, even though there is no storm here yet to report about. It’s been days, pre-empting the existence of any other news. Other than the Giants win over Dallas and reruns of Real Housewives of Somewhere, every station is obsessed with reporters getting their hair blown.  The engineers never mentioned the role of the media in 100 year storms, and whether there was anything to be done about it.

For the moment, there is a breeze outside. It’s expected to pick up later in the day, eventually reaching minor hurricane proportions, which are more than the mid-Atlantic coast states were designed to withstand.  No doubt there will be damage, likely extensive in some areas.  They have been warned to evacuate in low-lying areas. Others have been told to prepare.

How to prepare isn’t necessarily clear. Remove objects likely to fly away. Have batteries for when the electric is lost, as the power company robo-called the other day to warn they anticipated 7-10 days without power. Stock up on drinking water for when the ground water is contaminated and the pumps that send clean water to homes fail. 

Frankly, it all sounds like government should have been prepared and isn’t.  Every time something worse than a 1 year storm hits, they can’t seem to muster whatever it takes to make it through unscathed.  Some will say it’s because they don’t have the money to fix poor infrastructure decisions that were penny-wise and pound-foolish made years ago, and which we still endure.

Others say baloney, we simply piss away infrastructure money on silly toys, gimmicks and social choices. Most people never took econ 101, and aren’t familiar with macroeconomics and the allocation of scarce resources. Nobody ever talks about guns and butter anymore.

As for SJ World HQ, I anticipate the imminent loss of electricity. The north shore of Long Island loses power whenever anyone sneezes too hard, so it’s pretty much a foregone conclusion.  Since New York City is shut down, it’s not terribly consequential. We’ve been here before, and survived. We will again. It’s boring and annoying, but that’s hardly moves the needle on human suffering.

Until then, the plan of action is to just keep doing what we always do. We’re as prepared as we can be, and as unprepared as ever.  For now, the only thing we can do is listen to the wind whistle through the trees and await the storm.

I hope everyone remains safe and free of damage. In the meantime, there isn’t much else to do but continue wait. So forgive me as I shift back to normal mode and think about things other than Frankenstorm, as it will happen whether I spend the day worrying about it or not.