Not to beat the dead horse that judges and legislators aren’t on the cutting edge of technology, but when they try to “fix” perceived real world problems, they occasionally fall a tad shy of anything remotely resembling real life.  To his enormous credit, Judge Richard Kopf of the District of Nebraska knew better.

Via David Post at Volokh Conspiracy, who humbly notes that he served as the expert witness for the plaintiffs and (self-promoting lawyers, take note) exercised the sound discretion not to post about it until after the decision issued, explains how Nebraska law sought to essentially deprive a laundry list of “sex offenders” access to what is the world today. 

The statute made it a  crime –  ”unlawful use of the Internet by a prohibited sex offender” — for any person who was required to register with the federal Sex Offender Registry because of a prior conviction for one of a series of enumerated sex offenses (e.g., sexual assault of a child, “pandering” of a minor, child pornography, or criminal child enticement)  to:

“knowingly and intentionally [use] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use [it].”

The argument in favor of keeping sex offenders as far away from children as possible certainly has widespread appeal,  Frankly, there aren’t many folks who would lose sleep if anyone remotely tainted by sex offender status was shipped off to an island in the middle of the ocean and left there to rot. Don’t bother to argue the point that these aren’t all horrible monsters; they just don’t care.

Judge Kopf, on the other hand, got it.

Whatever else the words of  Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as  MySpace, Facebook, Skype, Twitter, Windows Live Messenger,  and Google+  together with a large number of other utilities.   In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet.  This ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.  The risk posited by the statute is far too speculative when judged against the  First Amendment. The broad scope of the ban is a fatal deficiency.

Is it possible that while roaming the internet, a despicable person will come across a vulnerable child and engage in conduct that makes good people wretch?  Well, yeah, it’s possible, and to those who elevate their own safety at the expense of the rights of others, this law likely seems eminently reasonable.  After all, these are sex offenders. Who cares what happens to them if it means my babies will be safer.

But in the process of achieving speculative safety, the loss to a person who has completed his sentence, paid his debt to society, and returned in the hope (and with the expectation) of leading a law-abiding life, can’t make it an impossibility. David explains:

To tell someone, as Nebraska had done here, that because of your prior conviction you will  never be permitted, in effect, to use the Internet for just about anything — because virtually every social networking site or chat room service out there, however you define them, “allows persons under the age of 18 to access or use [it],” and is therefore off-limits to you — is a crushing blow for someone who might — just might — be trying to put his life back together, and it virtually guarantees that he will not be able to do so.  It has no purpose other than to punish those who have already been punished.

No doubt there will be many who just couldn’t care less about those horrible sex offenders. That’s pretty much been the reaction to every burden placed on them, even to the point of forcing them to live under a bridge because there is no place in a town that’s sufficiently far away from a school or park to allow them to comply with absurd local laws.  They are chased out of town, to the applause of parents who only want to be rid of them.

Notwithstanding Judge Kopf’s slightly embarrassing inclusion of MySpace in his list of really cool places on the interwebz (bear in mind it is Nebraska, and it takes a while for the internet to reach there), the decision recognizes that the internet today is as integral to life as breathing.  It is our world, for better or worse, and to prohibit anyone from access to the web is akin to ordering them to suffocate.

No doubt there are many who will find both the decision, and this post, patently offensive, believing that there is no harm that can be done to a sex offender that compares to the harm they do to others.  But this isn’t about comparing harms, about which there’s no reason to fight. Once a person has served his sentence, he must be allowed back into society or his sentence is never served and he will be left with no option but to engage in crime to survive.  You just can’t order a person to live a law-abiding life but not breath.

One of the basic dirty little secrets of the criminal justice system is the plea of convenience, the defendant accepting a plea to a crime that never happened because the burden of fighting is too difficult to pursue.  Much as we all know it to happen, particularly in cases of incarcerated defendants who will walk free if they cop out but sit in jail for months, maybe years, awaiting a trial where they may well lose despite their innocence, it’s not supposed to happen.

The judge is supposed to be the gatekeeper of pleas, allowing only those of actually guilty defendants and rejecting those of people who are not.  Of course, the judge often has no real clue whether the allocution, the detailed description of the defendant’s conduct that comprises the crime, is true, but the defendant is put under oath, mouths the words he needs to say and the plea moves forward.

On occasion, getting the right words out  can be difficult.  Inexplicably, some defendants take the oath to tell the truth seriously and this throws a huge wrench into the works.  The defendants may want the plea, ending the nightmare for themselves and their families, but find themselves unable to say they committed a crime when they didn’t.  There is, of course, the Alford plea, where a defendant accepts a plea without admission of guilt, but many jurisdictions or prosecutors refuse to accept it.  They demand the defendant admit his guilt.

All of which makes the guilty plea of New York Police Officer Admir Kacamakovic very wrong.

Kacamakovic  was accused of breaking up a fight at his cousin’s bar in Bensonhurst, Brooklyn. He was in uniform and on duty when he handcuffed one of the fighters and pepper sprayed him. There was also a charge of his illegally running plates in the NYPD computer.

Much as he might have liked being a cop, Kacamakovic was not cut out to be a defendant.  As he told EDNY Judge William Kuntz,

There is one immutable fact about the third year of law school: it means that the law school gets a third year of tuition.  Apparently, beyond that, it doesn’t mean much else at New York University Law School,  Via Peter Lattman at Dealbook :

The usefulness of the third year of study ranks high among the growing chorus of complaints — which includes soaring tuition and a glutted job market — about law schools.

New York University School of Law is now trying to address those questions about the utility of the third year. On Wednesday, the school is expected to announce an overhaul of its curriculum, with an emphasis on the final two semesters.

N.Y.U. Law’s changes are built around several themes, including a focus on foreign study and specialized concentrations. Some students could spend their final semester studying in Shanghai or Buenos Aires. Others might work at the Environmental Protection Agency in Washington, or the Federal Trade Commission. Another group, perhaps, will complete a rigorous one-year concentration in patent law, or focused course work in tax.

If you get the sense that students at NYU Law can pretty much do whatever they want in their third year, you’re not alone. Stay here and work. Go abroad. Get an internship or take focused course work.  Or just stick with the standard third year curriculum.

There has been much debate in the legal academy over the necessity of a third year. Many students take advantage of clinical course work, but the traditional third year of study is largely filled by elective courses. While classes like “Nietzsche and the Law” and “Voting, Game Theory and the Law” might be intellectually broadening, law schools and their students are beginning to question whether, at $51,150 a year, a hodgepodge of electives provides sufficient value.

You never know when “Nietzsche and the Law” will come in handy. No, really.

On the bright side, a top tier law school like NYU has the coin to modify its approach, thereby opening the door to lesser law schools to follow suit.  After all, if this happened at a T4 school, ridicule would ensue. But not with a school as admired as NYU.

On the other hand, the variability of the curriculum available suggests that there really isn’t any necessity for a third year at all, the tuition of $51,150 notwithstanding.  If it’s unnecessary to take standard elective courses rather than a trip to Buenos Aires, then the standard courses aren’t needed. And if its equally unnecessary to take the trip to Buenos Aires, then that’s not needed either.

Which results in only one possible conclusion: the third year of law school must not be needed by anyone except the bursar.

Of course, there are certainly arguable benefits to a third year of legal education, assuming a law student chooses education over the grand tour.  There’s even benefits to taking the grand tour, as one can eat unusual foods, perhaps learn a few phrases in another tongue, and certainly be better prepared to select vacation spots after they make partner.  But it isn’t needed.

The issue raised by this modification of the third year curriculum is whether a third year of tuition brings a sufficient return on investment for the student.  It seems that $51,150 could bring an awful lot of fun travel with some pocket change to spare if these students just took the year off and did the grand tour on their own.

But then, the school would be deprived of its much needed tuition money to fund lawprof scholarship on important academic issues like “Nietzsche and the Law.”  Would we not be a poorer profession without such scholarship?

While utilization of a third year of law school presents a huge issue, and one clearly worthy of scrutiny from both the bar and academia, the NYU approach doesn’t address the problems at all.  If there is nothing that students need to learn in that third year, then there is no legitimate reason to hold them for a third year and charge them for the pleasure.  Either it matters or it doesn’t.  And if it matters, make it count.

Hasta luego, 3Ls.  Come back as lawyers, please.

That night in 2010 will be remembered for University of Maryland beating Duke in basketball, and Prince George’s County police officers Reginald Baker and James J. Harrison beating John McKenna.



Baker and Harrison are on trial for the misdemeanor beating, Judge Beverly Woodward having dismissed first degree assault charges, the only felonies, after the close of the prosecutions case based upon the lack of evidence to prove “serious physical injury.”  Sadly, this appears to be the correct ruling,

The remaining charges, second degree assault, are misdemeanors.  Try getting a few of your friends together and beating the crap out of someone with clubs, and see whether you’re only charged with misdemeanors. But I digress.

The defense of the officers is bold, to say the least. From the Washington Post :

Attorneys for the officers called the gathering an unruly riot that threatened to get out of control and characterized McKenna, then a 21-year-old student, as an aggressor who ran toward police with fists clenched, ignoring warnings to stand back.

On the night of the incident, police alleged in charging documents that McKenna and another student had struck officers and their horses and that the students had been injured when they were kicked by the horses. Maryland-National Capital Park Police later said that the students did not attack, and prosecutors dropped those charges.

In the video, McKenna skips along the sidewalk and then stops feet from officers on horseback. He is slammed against a wall by Baker’s shield and then crumples to the ground as Harrison rushes over and strikes him with a baton, the video shows.

In his opening statement, Brennan suggested that McKenna tried to punch Baker over his shield. But a fellow student, Nathan Cole, testified Monday that McKenna had his fists clenched in celebration, “not in a threatening manner,” and sang the Notre Dame fight song as he skipped. Cole said McKenna did not attempt to punch the officer.

Prosecutors showed jurors photos of McKenna’s head injury, bruises and swollen hand. He suffered a concussion and needed eight staples to close the head wound.

Uniformed police officers crowded the courtroom Monday. County Police Chief Mark A. Magaw, who was not in charge of the department at the time of the incident, was also in the gallery.

In an editorial, the  New York Times came out in full force behind a New York City Council proposal to create the position of Inspector General for the NYPD.  The cops and Mayor Bloomberg don’t like the idea at all.

The Police Department called the idea of an inspector general unnecessary. Paul J. Browne, the department’s chief spokesman, said the department was “probably under more scrutiny than any other police agency, probably in the world” and was subject to oversight by two United States attorneys, five district attorneys, the Civilian Complaint Review Board and the Commission to Combat Police Corruption.

Mr. Browne also said that the department had made a “major commitment” to departmental oversight, with 1,000 people assigned to its Internal Affairs Bureau and other “integrity control” units, roughly the same number as are assigned to its counterterrorism operation.

The department has a long history of episodic misconduct that erupts every time the leadership falls down on the job.

The last time that happened, as documented by the Mollen Commission Report in 1994, the department’s leadership and Internal Affairs Bureau were found to be looking the other way while the police trafficked weapons and sold protection to drug dealers. The commission’s central recommendation — that the city create a strong independent body to monitor the police — remains as relevant today as it was during that scandal nearly 20 years ago.

Creating an inspector general’s office could help address these shortcomings. Under a bill that 30 of the City Council’s 51 members have signed, the Council would forward a list of candidates to the mayor, who would then have the authority to name an inspector general.

The inspector would serve a seven-year term. He or she would review and report to the public on policies and practices and make periodic recommendations on how to improve them. Because the inspector would have subpoena power, the police department could no longer just say no when asked to produce information.

An inspector general is not a foolproof answer. But the mechanism has worked well elsewhere and could only strengthen oversight in a police department that clearly needs it.

The internet may not be the source of fabulous wealth and prestige for lawyers that some claim, but it is an incredibly useful tool to learn about people. Whether for law enforcement to learn about suspects or people seeking legal help to learn about lawyers, the web provides an amazing resource to gather information that would otherwise be unavailable or bound in large, brown books that exist only in corner offices. 

When someone expresses an interesting subjective view in the blawgosphere, I regularly check out who they are.  It matters to me whether the opinion comes from someone who has been a lawyer for a month or twenty years. It matters whether they are a prosecutor or defense lawyer. Or cop. Or defendant. Or civil lawyer. They may think their opinion matters regardless, but the fact is that the opinion of a knowledgeable person weighs more heavily than someone lacking any basis. That’s how opinions work.

In the course of checking people out, one particularly disturbing issue keeps cropping up. The claim of “experience.”  It has become de rigueur for young lawyers to include bios on their websites that announce their law schools and bar admissions, but omit the dates. Elsewhere, they invariably claim to be “experienced,” sometimes fleshed out with wild claims like having won thousands of cases even before admission to the bar.  It’s all part of creating their personal brand.

The reason for these omission is plain. Young lawyers want to promote themselves without disclosing that they are new to the practice of law.  Marketing advice is clear: hide the negatives and bang the positives.  Create the appearance of qualification and competence without disclosing harmful material facts.  The way to do this is to conceal anything that might reflect poorly on you and undermine the free-wheeling use of subjective puffery.

Experienced, Competent, Aggressive

Any lawyer can put this on his website, and because each reflects a wholly subjective claim, who could dispute it?  In a post at Avvo’s Lawyernomics, a legal marketing blog, Josh King writes about the Pennsylvania interpretation that precludes use of subjective claims such as “experienced.”

There’s a curious little nugget in the Pennsylvania rules governing attorney advertising; under the state’s interpretation of Professional Conduct Rule 7.1(c), attorneys are barred from using “inherently subjective” terms such as “experienced” and “competent” in advertising their services. The fear, such as it goes, is that such terms are difficult for consumers to confirm or measure. (Never mind that we consumers have some passing familiarity with the uses of hype in advertising.)

This peculiar rule is an anachronism today, and observed in the breach, if a cursory review of Pennsylvania law firm websites, blogs, and internet ads is anything to go on. It’s also inane, paternalistic, and a holdover from the pre- Bates v. Arizona days when attorney advertising was completely banned in most places.

One gets the feeling that Josh doesn’t favor this rule. No doubt he’s correct to say that it’s widely ignored, particularly given that most lawyers consider the internet a truth-free zone where it’s fair to make any claim that could potentially get you business.  If anything goes, then it is indeed inane and paternalistic for state bars to prohibit subjective claims of greatness. After all, no lawyer is going to persuade clients to knock down his door by writing “I’ve never handled a family court case, but I would like to and would be very happy if you would be my first, and pay me for the pleasure.”  Not good marketing.

But here is where it goes completely off the tracks:

Some might say this is okay–that the world hardly needs another attorney advertising their “experienced, competent, aggressive” representation. But the overall effect is a chilling of all information from lawyers to consumers, and a lessening of transparency in what is already the most opaque of professions.

Does a prohibition of deceptive or subjective claims by lawyers produce a chilling effect, “lessening transparency”?  Josh’s concern is that when lawyers aren’t clear where the line is, beyond which they will be subject to discipline, they shy away from the line and provide less information to consumers.  Superficially, it makes some sense.

The problem, upon closer scrutiny, is that the line only comes into play when lawyers are being deceptive or using puffery, subjective claims that range from the meaningless to the intentionally false.  This isn’t transparency. This is dishonest.  And if one wants to fix the problem of opaqueness in the legal profession, the solution isn’t deceit, puffery and omission of material facts, but accuracy and honesty.

The one thing that stands out above all others are lawyers who omit dates from their websites and blogs. This is wrong, and whenever I see “Harvard Law School” without a date, it tells me that this lawyer is concealing a simple, basic fact.  Concealment is hardly transparency. 

It’s no crime to be a new lawyer, and indeed, many clients will prefer a new lawyer who will likely charge significantly lower fees and perhaps show greater interest and exuberance in their representation.  The adage, an old fool is worse than a young fool comes to mind, offering the new lawyer the opportunity to use his lack of experience to his advantage. There is nothing wrong with capitalizing on your strengths, even if those strengths don’t involve many years of experience.

What cannot be done is to omit the material information that would allow clients to reach their own conclusion as to whether a lawyer is sufficiently experienced.  This is deceptive and unethical. Note that it may not result in discipline, the bogeyman Josh fears, but disciplinary rules provide the absolute minimum level of conduct demanded of a lawyer. That conduct skirts the edge of discipline doesn’t make it ethical, but merely not subject to discipline. Is the best that can be truthfully said of you that you haven’t been disbarred?

It’s time to end the deception. We are not laundry detergent and we can hold ourselves to a higher standard than toilet tissue puffery.  If you include your law school and bar admission on your website, include the date. Telling the truth matters. Not omitting the facts you don’t want clients to know matters as well.

It’s highly unlikely that puffery, deception and material omission on the web will get you disbarred.  There is no lack of people who will denigrate honesty and integrity in the name of self-promotion, calling it inane and paternalistic. 

So it’s entirely up to each lawyer to decide whether they prefer to tell the truth about themselves or puff, deceive and omit.  Your call, but understand that some of us do care, and we are watching. If you don’t include dates, I then know you intentionally deceive. That’s your brand.

Update: At Lawyerist, a wealth of comments by baby lawyers “explaining” why there’s nothing wrong with concealing their date of admission. The comments are fascinating if deeply disturbing, and pretty much take a shot at every conceivable way of wiggling out of responsibility. 

At at the Unwashed Advocate, a visual illustration of the issue. 

In preparation for his sentencing before SDNY Judge Jed Rakoff on October 24th for insider trading, or more particularly, feeding his pal, Galleon head Raj Rajaratnam some inside poop, Goldman Sachs’ Board Member Rajat Gupta has asked a few of his dearest friends to write letter on his behalf.  His friends, however, are not like my friends. Or probably yours, either.

From the WSJ Law Blog :

Many have come from well-known figures, as the Wall Street Journal reported Friday, including Bill Gates, Kofi Annan  and Deepak Chopra. 

His wife Anita, for instance, wrote:

He invested with anybody who came to him or was sent to him by friends without asking too many questions much to our financial advisors dismay. He could never imagine his friends or business associates could be involved in unlawful activities or would try to cheat him…. During the present crisis, a lot of his “good friends” have disappeared or cooperated against him in the hope of getting leniency and some who could be helpful did not step forward.

It may be a matter of personal bias, but it never struck me that people who hold mainstream Christian beliefs were the equivalent of a psychotic mass murderer. Then again, I’m not Judge David Glant in Florida, where insanity has apparently been redefined so that a 64-year-old convicted murderer, John Ferguson, with a history of mental illness /files/66432-58232/doc10122012103557.pdf”>his decision, calls the evidence of his insanity “credible and compelling.”  In Florida, this apparently not only means he’s sane enough to execute, but pretty much a “normal Christian.”

Regardless of his long history of mental illness, there is no evidence that he does not understand what is taking place and why it is taking place. Ferguson’s “Prince of God” delusion, as well as his religious beliefs in general, shows a man who has a remarkably clear and relatively normal Christian belief, albeit a grandiose one… In some sense, Ferguson appears to have fit his grandiose delusion into a traditional religious worldview.

This raises a rather disturbing question, whether a “traditional religious worldview” causes a man to do the horrible things Ferguson did, as Fred Grimm describes in the Miami Herald.

On July 27, 1977, Ferguson was one of three masked gunmen who burst into a Carol City home looking for drugs. Ferguson and an accomplice forced six of the occupants to lay face-down on the floor and then shot them, one by one, in the back of the head. Six months later in Hialeah, Ferguson surprised a teenaged couple sitting in their car. He killed them both, after brutally raping the girl.

This is outrageous conduct, but it’s compounded by the fact that Ferguson, who was committed to a mental hospital, was released.

And finally a diagnosis in 1975 came with a warning that reads, in retrospect, like prophecy. “He has a long-standing, severe illness which will most likely require long-term inpatient hospitalization. This man is dangerous and cannot be released under any circumstances.”

Yet, in an act of bureaucratic insanity, less than a year later Ferguson was released from state custody, this diagnosed paranoid schizophrenic who was delusional and impulsive and explosive and aggressive and dangerous.

Apparently, in Florida, “cannot be released under any circumstances” means cut him loose within a year. They really need their own dictionary down there, as those words would suggest to most people that this is a terribly sick man who could murder a lot of people if let go. And he did.

Aside: In a rational world, who bears greater culpability for the murderous acts of utterly insane and dangerous man: the crazy guy or the government official who, knowing he was nuts, released him to prey on the public?

But as mentally ill as John Ferguson may have been for those five decades, believing that he was the “Prince of God” whose mission it was to stop a communist plot to take over the country when he is resurrected “at the right hand of God” to drive the commies away, he doesn’t pass the crazy test in Florida because, as Judge Glant held, this is what relatively normal Christians believe.  It has to be true, because a judge says so. 

If I was a relatively normal Christian, I might find this more than a bit insulting.  As a lawyer, it’s just mind-boggling, unless he was just looking for an excuse to execute Ferguson anyway.

Of course, this being a civilized nation, we don’t execute anyone who doesn’t know he’s about to be zapped from existence. But the courts have decided that somewhere in that muddled and messianic mind of John Errol Ferguson, he’s aware, enough anyway, of what awaits him.

Notions of “normal Christian belief” must be slightly different up there in Bradford County. Either that or when the convict before the court has eight murders on his rap sheet, a judge will accept even the most meager excuse to dispatch him to oblivion. Yet, Judge Glant didn’t really need to stray outside the parameters of the law, which holds such a narrow definition of insanity that a history of outrageous craziness hardly matters.

According to the state’s doctors, Ferguson understood that he was going to be executed, even if his grasp with limited to the twisted paradigm that exists somewhere within the dark recesses of a psychotic mind. As his pro bono lawyer, Chris Handman explained,

there’s a difference between a “factual awareness” by Ferguson that he’s about to be put to death and “a rational appreciation of the death penalty.” But he has yet to find a court willing to acknowledge that difference. He’ll try the Florida Supreme Court this week. But time is running out.

Close enough for killing in Florida. Just your traditional Christian values at work here. Nothing out of the ordinary.

John Errol Ferguson is scheduled to be executed this Thursday.  He knows it, even if he think it’s so he can be resurrected to fight the commies with his old man, God.  And this is not only considered sane in Florida, but normal Christian beliefs.  As Fred Grimm wrote, “[e]ven for fervent advocates of capital punishment, that’s got to take a bit of the fun out of execution day.

Update: An appeal has been filed , and two professors of religion, John Kelsay and David Levenson, of Florida State University have filed an amici brief  that Ferguson’s psychotic view does not reflect normal Christian beliefs, but “differ radically from traditional Christian teaching.”

Update 2: The Florida Supreme Court  New York Times has an editorial against the execution of Crazy John Ferguson. The Supreme Court, however, did not read it. The Court  denied the petition for cert and a stay of execution.  Ferguson will be executed on October 23rd.

Update 4:  And a habeas petition hearing has been granted (h/t Ed. at Blawgreview):

U.S. District Judge Daniel T. K. Hurley granted the motion for a stay in the case of John Errol Ferguson, who was to be executed Tuesday after 34 years on Florida’s death row.

“The issues raised merit full, reflective consideration,” the court said.

If nothing else, Ferguson will not be executed on Tuesday.

Update 5: While others were watching the third presidential debate, the 11th Circuit, in a 2-1 decision, vacated Judge Hurley’s stay of execution, by-passing the usual practice of allowing the district court to hold its hearing and reach a decision, and thus forcing the case toward death without a habeas determination.

Update 6: Ferguson was scheduled to be executed today, October 23rd, but the 11th Circuit granted a stay of execution and ordered the matter briefed, despite it’s having vacated a stay the day before.

Mark Bennett at  Defending People picked up a bit at  Courthouse News Service about debt collection law firm Gurstel Chargo.  Their motto is “accountability matters,” backed up by this insightful and ironic prose.

It is not only what we do, but also what we do not do, for which we are accountable.

— Moliere

Gurstel Chargo’s response to a disabled veteran trying to recover $6,000 of ungarnishable money that Gurstel Chargo had garnished, after the firm had told a judge that the firm would release the money “right away.”

Fuck you! Pay us your money! You can’t afford an attorney. You owe us. I hope your wife divorces your ass. If you would have served our country better you would not be a disabled veteran living off social security while the rest of us honest Americans work our ass off. Too bad; you should have died.

Accountability. Isn’t it a wonderful thing? From a legal assistant at the firm came the words “fuck you” to Michael Collier.  But this isn’t merely a story of one bad apple, but of a law firm (note, this is not merely a debt collection agency, but a law firm, subject to the full panoply of ethical considerations and disciplinary rules that apply to us all) built upon a marketing approach that claims to have “developed sophisticated systems and instituted soft-touch collection practices that produce favorable results.”

On the bright side, it appears that not all lawyers are as scummy at O’Brien.

The veteran, Michael Collier, can now, as it turns out, afford a lawyer. Floyd Bybee of Chandler, Arizona, has filed suit against Gurstel Chargo for, among other things, violating the Fair Debt Collections Act. (Complaint.) Gurstel Chargo is being sued in eight other federal cases in Arizona, Minnesota, and Ohio.

Accountability matters. I certainly hope so. What happened here may not be the norm, even within the ranks of one of the scummiest niches of legal practice.  Of course, there was a reason why Congress felt compelled to enact the Fair Debt Collection Practices Act, to clean up a cesspool of abuse.  Unfortunately, it leaves it to the least capable and powerless to enforce, making it another promise usually unfulfilled.  And lawyers inclined to abuse people are only too aware of this, taking advantage of people whenever possible.

Which makes it important that when something like this occurs, people know about, particularly about the lawyers and firms that would engage in such conduct.  This is why I add my voice to Bennett’s so you know. Lawyers do a lot of good.  Lawyers also do bad.  The bad must be stopped.

* These are, of course, merely accusations in a complaint by Collier against Gurstel Chargo, though it’s representation to the court that they improperly garnished exempt funds and failure to release them should be easily confirmable.  On the other hand, after Bennett’s post appeared, the firm took down linked pages, forcing Mark to post the cached versions.  Because, you know, law firms regularly take down embarrassing pages from their websites when someone calls them out. All the time. #Marketing101

Update:  It appears that  Gurstel Chargo isn’t thrilled with the attention they’ve received, and has issued a statement on their website:

We learned late last week of the lawsuit filed by Michael Andrew Collier and Kim Collier-Dingman. Gurstel Chargo takes the allegations made in the lawsuit very seriously and we have immediately launched an internal investigation to determine the facts. We are extremely disturbed by the allegations stated in the Complaint, as they are contrary to the policies, practices and values of our firm. We expect that all Gurstel Chargo employees fully comply with all state and federal laws, and we thoroughly train our employees to perform their job in a lawful and respectful manner. Under no circumstances does our firm tolerate the type of conduct alleged in the Complaint.

The Complaint states that the wrongful remarks were made during a telephone call. We have requested from the attorney that filed the Complaint the phone number of the phone that Mr. Collier was allegedly on, an approximate date on which the call occurred, whether the person who made the alleged wrongful comments was male or female, all in order to help us to get to the truth about what occurred. We have been informed by Mr. Collier’s attorney that he is unaware of any of this information. To date, we have discovered no information to substantiate the allegations, but our investigation continues. Should these allegations prove to be true, we will take immediate corrective and disciplinary action. (Emphasis added.)

Shifty, disingenuous and, to the extent it reflects the culture of Gurstel Chargo, damning. Or, to put it another way, what one might expect.

While it’s a broom handle shy of Abner Louima, it bears that personal touch that only a sick man with power, and the knowledge that his buddies wouldn’t rat him out, can appreciate.  Milwaukee cop MIchael Vagnini decided that he would insert his finger in the anus of “suspects” when and where he wanted to.

From the Journal-Sentinel :

Four Milwaukee police officers were charged Tuesday with felonies related to illegal rectal searches of suspects on the street and in police district stations over the past two years.

In one case, an officer held a gun to a man’s head as two others held his arms and a third put him in a choke hold while jamming a hand into his anus, purportedly searching for evidence, according to the criminal complaint. Another man bled from his rectum for several days after his encounter with police, the complaint says.

The complaint lays out in graphic detail how the primary suspect, Officer Michael Vagnini, conducted searches of men’s anal and scrotal areas, often inserting his fingers into their rectums. Vagnini acknowledged performing one of the searches. At least one suspect said Vagnini planted drugs on him.

Milwaukee Police Chief Edward Flynn, whose department was “already under fire over the in-custody death of Derek Williams, detaining the mother of a slain boy and reporting inaccurate crime statistics to the FBI and the public,” who shirked off responsibility by saying that “misconduct occurs in every big-city police department,” offered some startling statements. For example:

All of the officers have been on the job long enough to know that the types of searches alleged were illegal and against policy, Flynn said.

Does he mean to suggest that cops, say for the year on the job, aren’t aware of the fact that they can’t anally rape suspects because they want to?  While Flynn now calls the conduct disgraceful, it wasn’t of sufficient concern to stop when the first complaints came in.

The charges issued Tuesday mark the end of an investigation that began in March, when the Police Department notified the district attorney’s office of the allegations.

At the time, Flynn said the department had been aware of complaints about potentially illegal searches for “a couple of years,” but waited to investigate until authorities recognized a pattern.

More than six months elapsed since the department decided to take the complaints seriously, but they were aware of the complaints “about potentially illegal searches” for years and did nothing.  Incidentally, there is nothing “potential” about the illegal searches. The insertion of a cop’s finger into the anus of a suspect is, without question, illegal. 

Flynn makes a point to note that this was intentional misconduct, which he emphatically distinguishes from mere “error.”  Error, he states, is treated differently.  Whether there is any scenario in which this could be error remains a mystery, unless he’s suggesting that Milwaukee hands a gun and shield to cops and puts them on the street unaware that they cannot insert their fingers into people’s anuses.  In which case, it was just a mistake, no matter how much damages they do.

To blame Vagnini is easy; it takes little cause to assert that this was a combination of a sick individual with the power to indulge his desire to torture, humiliate, inflict disgusting pain and suffering on others.  To blame the other cops who watched and did nothing is critical. That someone like Vagnini gains access to a shield can happen. That others watch the show, facilitate Vagnini’s crime, is inexcusable.  Obviously, the blue wall precludes their ratting out their brethren, no matter how sick he may be, but that provides no excuse.

What cannot be sanctioned is the department’s, Flynn’s, willingness to let this go on for years while doing nothing.  Attorneys for the victims of Vagnini say that there are others as well.

Jonathan Safran, a lawyer who represents two of the men who said they were assaulted, called the charges “another sad chapter” for the city and the department.

“This is, I am afraid, the tip of the iceberg,” he said. “There is a culture in the Milwaukee Police Department that, unfortunately, has led to a number of civil rights violations.”

Like Safran, [Robin] Shellow said she has spoken with other victims – including the mothers of underage boys – who were afraid to report the abuse because of their own criminal records.

This comes as no surprise, as one would anticipate only a fraction of those abused would complain, both out of fear as well as the belief that it’s a futile gesture.  And this should have been apparent when the first complaints rolled in, at which point an investigation should have begun had the Chief Flynn cared enough for the citizens of Milwaukee to stop it.  He obviously didn’t, as years elapsed while Vagnini continued to meet anuses he desired to enter.

As Jonathan Safran noted, the problem is one of culture, which is invariably at the heart of cops feelings empowered to do whatever the please on the streets.  But even with a culture that cares nothing for constitutional rights and empowers cops to do as they please without fear, conduct like this crosses the line of any somewhat civilized society.  That it’s not quite as evil as what was done to Abner Louima when NYPD cop Justin Volpe rammed a broom handle up his anus in a precinct bathroom doesn’t mean that it doesn’t fall far beyond the bounds of a disgusting and brutal assault. 

And yet, the Milwaukee Police Department was aware of complaints that citizens were being sodomized on the street by cops and ignored it, unworthy of even an investigation no less action, for years.  This didn’t happen because of one sick cop. This didn’t happen because a few others were cowards at best and enablers at worst.  This happened because Chief Flynn’s police department didn’t think it was worth the time or effort to stop it.  No amount of adjectives at a press conference now will absolve Flynn of his failure to act for years.

H/T  Radley Balko