Among the folks who have hitched their wagon to the cottage industry of persuading lawyers that anything new and shiny is good,  Jordan Furlong is considered one of the brightest.  While most aim low, appealing to the emotion and desperation of those for whom thinking is viewed as a symptom of a terminal disease (it makes their head hurt), Jordan presented well-reasoned, well-supported arguments for change.

It looks like the well has run dry.

In a post whose title is itself an ad hominem, The confidence of the Dinosaurs, the emptiness of the argument for mindless change is revealed.

You’ve seen the same signs I have. The volume of pro se litigation continues to set new records every year, most notably in family law. Do-it-yourself websites for contracts, wills and divorces keep flourishing, with non-lawyer providers like LegalZoom and Rocket Lawyer boasting millions of customers and millions of dollars in venture capital investment. Foreign professionals and sophisticated software are surging onto lawyers’ traditional business turf. These trends and others show every indication of continuing throughout this coming decade.

The overall legal market, despite what you might conclude from all that data, is actually strong and growing.

The set up of the first paragraph is no stretch, but a fair description of what any lawyer who pays attention to such things will invariably see.  But the first sentence of the next paragraph is the pay off, the salvation after the recitation of hopelessness.  What’s the basis for this assertion that flies in the face of every known fact?

Jordan says so. That’s it. Nothing more. Jordan sneaks in the line and prays that no one notices that there is absolutely no foundation for it.  Here’s the balance of the second paragraph:

But as Toby Brown has noted, it’s growing with only minimal involvement by or financial gain for lawyers. Market growth is passing us by. Law firms of every size and description, in every jurisdiction, are experiencing flat or declining revenue or profit. This is mainly because lawyers and law firms have proven to be less accessible, more expensive, and less responsive than clients are increasingly willing or able to tolerate, and because those clients are now test-driving alternative options for legal services.

The assumption is that no one will bother to read what “Toby Brown has noted,” which is that the cottage industry leeching off the law is growing.  So a $100 billion industry has shrunken in half, and start-up ancillary services have gone from zero to paying their bills in 90 days.  Strong and growing?  It makes my head hurt.

Jordan asks why lawyers are stuck doing what we’ve always done (which I guess would be practicing law) while the people who set up vendor booths at conferences, usually unemployed young lawyers, have seen their salaries climb from nonexistent to poverty level.  Why aren’t lawyer jumping on board, he asks?

The only reason I can think of to explain this is the serene confidence of incumbency. Lawyers still own this market, and we’ve owned it for longer than anyone can remember, a happy fact that we ascribe to our natural superiority. We feel a deep and untroubled assurance of our continued dominance over legal services.

Well, this is a bad time to be an incumbent in the legal marketplace.

I can think of a different reason.  Because we’re lawyers, who have sworn an oath to zealously represent our clients within our ethical constraints and the bounds of the law.  Because we don’t have the option of playing the game like laundry detergent, offering “new and improved” services while delivering deception.  Because the moment we stop conducting ourselves as lawyers, we become laundry detergent sellers.

Jordan’s point, aside from making it abundantly clear that lawyers who persist in such old-school beliefs as competence and ethics is a dinosaur, is that the environment is changing.

What will you do when that environment changes?

• If your entire business model is premised on pricing your services and paying your lawyers according to time spent on tasks, what do you do when clients stop dealing in that currency and demand a new one?


• If your sole stock in trade is students who spend three years receiving basic law primers, what do you when both your inventory and its purchasers require a radically different product?


• If your core purpose is to resolve private disputes, what do you do when new providers deliver the same outcomes much faster and much more cheaply than you could hope to manage?

Questions are easy.  The problem is finding solutions that not only address problems, but do so within the context of what lawyers do.  The adage is that people want cheap, fast and good, but they can only have two.  Jordan presents the strawman view that the legal profession must meet the desires of our clientele or…what? They will go pro se?  That will save them money, but the outcome is usually disaster. Potential law students will become dental hygienists instead?  This might be a good thing for all involved, though there will still be a few who take to the law, as long as Harvard Law School has seats available.

Clients want good legal services for a lower price?  This isn’t an environmental change. This has always been the case.  Does any lawyer know a client who begged him to charge more?

Jordan devolves to the straight dinosaur analogy, even mentioning the Mesozoic Era (I told you he was the smartest of his ilk), so we get the image of pending death in our heads, and then asks:

What do you suppose is going to happen next in the law?

Since he asked, here’s what I suppose: there will be a core group of new lawyers who are dedicated to the zealous representation of their clients; who put competence, honesty and integrity above deceptive marketing and “low, low prices.”  There will be new lawyers who don’t hand out flyers in front of the courthouse offering $20 wills and $100 DUI defense (Special today, will and defense, $110!!!), 

The economy sucks, and the people in need of legal services either can’t afford them at all, or want as much value as they can get.  They won’t be helped by lawyers walking the boulevard in hotpants. They won’t be helped by lawyers who forsake what makes us lawyers. 

So Jordan calls lawyers who believe in being honest and competent, and zealously representing their clients dinosaurs. At least dinosaurs don’t wear hotpants, and have the capacity to use logic to realize that just because something is new and shiny doesn’t make it better or mean it works.

The contest may not be all that great, but the book is.  I was sent a copy of Steven Stark’s “Writing to Win,” and from  everything I hear, it’s a terrific book on legal writing, and one that every new lawyer should read.

So rather than stick it on a shelf, why not have a contest and share with a reader?  And, just to sweeten the pot, I’ll include a check in the amount of $3.45, rounding out the total value of the prize to a huge $15!!!

How can you win this incredible prize?  In a comment below, complete this phrase:

The law doesn’t suck; it’s just . . .

Have fun.  And if nobody responds or if the responses are just awful, I’m sending the book to Brian Tannebaum, even though there are no pages to color.  Could you live with yourself if that happened?  I don’t think so.

*Chances of winning this prize are 1 in 24,394,874.238.12.

** The contest will end whenever I decide it will end.

*** There is absolutely nothing fair about this contest.

**** Employees of Simple Justice New York LLC and any and all parent, subsidiary, related and affiliated companies, and their respective officers, directors, employees and agents and their dependents and immediate families to the third degree of consanquinity, as well as employees of contest Sponsors and vendors, are not eligible to win. Winner must be a United States citizen or know someone who is a United States citizen, over the age of 12 years by December 31, 2026 and sentient.

Originally posted 8/26/2012 9:16 AM


UPDATE:  And the winner is…Brian Tamanaha, with the utterly brilliant response:

The law doesn’t suck; it’s just misunderstood.

It’s a trick question, but one that really isn’t terribly hard to answer:

Mount Airy, NC prides itself on being the hometown of Andy Griffith and the model used for the small town of Mayberry in the Andy Griffith Show. This morning the local paper posted this report of a traffic accident that totaled a brand new police cruiser. The driver that collided with the cruiser was doing the posted speed limit and won’t be charged with any violations.

The report leaves out one important detail. See if you can figure out what it is before looking at the answer. Hint: Take a look at Google Street view of the intersection.

Mouse over for answer

The greatest danger to police officers on the job isn’t being shot by a criminal but dying in a car accident, so I was interested to see a  report from KXAN-TV declaring that “nine Austin police officers have been suspended for causing traffic accidents in 2012.” Most recently, “An Austin police officer has been suspended for running a red light and causing a crash with another vehicle. It is the fourth time in the last year that an Austin police officer has run a red light and caused a crash.”

KHOU-Houston recently reminded us that “Two years ago, an officer in Austin rammed into a motorcyclist in broad daylight. Later he admitted to being distracted,” and supplied video of the incident. The officer was typing notes into his on-board laptop when slamming into the cyclist. After that episode, The city changed its policy to require officers using in-car computers to “pull over, complete what they need to do and then proceed,” Assistant Chief Sean Mannix has told the press. The Tarrant County Sheriff has enacted a blanket policy against the practice, while the Plano Police Department requires officers to pull over if “extended use” of the in-car computer is expected. But most Texas agencies have left the practice utterly unregulated.

At Volokh Conspiracy, Orin Kerr discusses why he, apparently alone, submitted an amicus curiae brief in a Fifth Circuit appeal of a magistrate judge’s denial of an order permitted the government to obtain historical cell site data.  He describes the underlying issue:

In this case, the United States applied for a court order under the Stored Communications Act to compel cell phone providers to disclose location information about particular phones suspected in criminal investigations. The magistrate judge denied the applications on the ground that he expected that the orders would be executed in ways that will violate the Fourth Amendment.

Some readers might wonder why I filed an amicus brief in this case. After all, relatively few people care about ripeness. The doctrine comes off as a technicality. And filing a brief on one’s own is pretty unusual. But I filed the brief because the stakes of the question strike me as enormous. In my view, the ripeness of the constitutional question is far more important than whether the Fourth Amendment is held to apply to cell-site records under some assumed set of facts. The reason is that Congress has created a statutory system of electronic surveillance law in the last 25 years that requires many statutory court orders at nearly every stage of every case. As I explained in a recent post :

One of the major differences between traditional criminal investigations and network surveillance investigations is that network investigations generally require lots of lawyers and lots of court orders. In traditional criminal investigations, lawyers and judges play a relatively minor role. The cops run the show, and lawyers and judges mostly get involved only if a warrant is obtained. The police might watch a suspect, stop and detain him, frisk him for weapons, and make an arrest all without lawyers or judges. Review of the legality of the investigation is ex post: The defendant moves to suppress the evidence and argues that the past conduct was unconstitutional.

In other words, the argument is that the only question for the magistrate to consider is whether the showing in support of the order (which is not a search warrant, but merely a statutorily required order) is sufficient, and if so, then it should be ordered. What the magistrate has no business doing is predicting facts that will render the government’s actions violative of the Fourth Amendment.

In other words, if the showing is made, the order issues and any potential Fourth Amendment violation is only ripe for review after the fact. 

Orin makes a  persuasive argument that the powers of an Article III judge, limited to determining a case or controversy, do not permit him to anticipate a Fourth Amendment violation and refuse to act to prevent it.

Article III’s limitations on federal court jurisdiction are just as much a part of the Constitution as the Fourth Amendment.  Your argument seems to be that following the spirit of one part of the Constitution requires violating another part of the Constitution — that is, ensuring the enforcement of the Fourth Amendment requires ignoring ripeness and the case or controversy requirements.  There’s a lot of precedent that disagrees with that view, such as City of Los Angeles v. Lyons (1985), Warshak v. United States (6th Cir. 2008) (en banc), which impose ripeness and case-or-controversy limitations on the resolution of Fourth Amendment claims.

Not being particularly slavish to precedent, there is a point to be made that this conflict between different parts of the Constitution amounts to a political choice of which you prefer, which matters more.  That some court cared less about preventing unconstitutional search and seizure than limiting its jurisdiction only means that courts are forever constrained by some old judicial choice if one is slavish about adhering to precedent, right or wrong. Others will argue that bad precedent begs to be reversed. 

While I find Orin’s argument well founded, I (not surprisingly) disagree with his premise.  Once the jurisdiction of the court is invoked for the purpose of obtaining an order (or a warrant, recognizing that the two are different and require differing levels of support), the neutral magistrate becomes the gatekeeper of his order.  The judge didn’t ask that the government bring the case before him, but once there, it demands attention.

The rejection of the government’s application in In Re Applications of the United States for Historical Cell-Site Data, the matter before the magistrate judge in this case, was based on the judge’s view that the order could not be executed in a manner consistent with the Fourth Amendment.  The government, naturally, argues that the order will be executed in a manner consistent with the Fourth Amendment. The judge believes otherwise.

As Orin argues, the judge can’t be 100% certain that a violation of the Fourth Amendment will occur, since it hasn’t happened yet.  Who is he, then, to predict the future and anticipate a violation?  More importantly, even if the judge is correct, so what? By this analysis, the courts aren’t in the business of stopping the government from violating the Constitution, but rather deciding whether they did after the fact and then smacking the government for doing so.

To use an imperfect analogy, picture an agent, executing an arrest warrant, pointing his gun at the head of an unarmed, docile, suspect 50 feet away.  There is maybe a 20% chance the agent’s bullet will find its target, but if it does, it will embed itself right behind the suspects left eyeball.  Does the judge close his eyes tight and mutter to himself this is none of his business until after the body lay still and cold?

Having brought the case before the court, asking the judge to invoke his discretion to determine whether the showing meets the threshold for approval, the government presents all issues implied in the execution of the order.  The same discretion exercised in deciding that the showing is adequate remains in force in deciding that the execution of the order for which it’s seeking approval will impinge on any other aspect of law.

There is no mandate that the judge turn off his discretion when it comes to aspects the government prefers he not consider.  The case or controversy was brought before him, not just the tiniest piece the government would have him decide, precluding him from its consideration in the fuller context.

In other words, you can’t ask the magistrate to exercise discretion and approve an order, but to otherwise ignore the same sound discretion when reasonably believing that the execution of the order will violate the Constitution.  When the government invokes the court’s discretion, it invokes all of it, not just the pieces it wants.  And to expect a judge to approve an order which he reasonably believes to violate the Constitution is to ask the judiciary to become complicit in the reasonably anticipated wrong. 

The courts should not knowingly do wrong. The courts should not become complicit in a reasonably foreseeable wrong. They are the gatekeepers, and have the inherent power to be confident that what they are approving isn’t a violation of the Constitution.

The answer of “we may never know” doesn’t do much to explain why or how Seth Adams was shot to death by a Palm Beach County Deputy Sheriff, Sgt. Michael Custer.  Custer was undercover, purportedly engaged in an unknown operation unrelated to Adams and camped out in the parking lot to Adams’ gardening store. 

PB County Sheriff Ric Bradshaw insisted that his deputy could do no wrong, and the subsequent investigation by Florida Department of Law Enforcement cleared Custer and answered nothing.  How could it? There were only two witnesses, and one was left dying on the asphalt of his parking lot for 47 minutes before the deputy would let anyone near him. 

According to the official story, Custer was in fear of his life.

Seth Adams noticed the undercover deputy’s car in the parking lot of his family business on his way home from a local watering hole. Custer says he identified himself “verbally” and “visually” and that he “had a radio out.” He claims Adams grabbed him by the throat and that Adams’ “intentions were dangerous.”

When Adams returned to his vehicle, Custer said he recognized the maneuver from training videos and thought Adams was going for a gun. He shot him four times in under two seconds, saying “I think I basically tried to push away and just went boom, boom, boom, boom.”

His body riddled with bullets fired by an undercover Palm Beach County sheriff’s deputy, Seth Adams was clinging to life as he crawled across a darkened parking lot for help, an attorney representing Adams’ family said Thursday.

West Palm Beach attorney Valentin Rodriguez told  The Palm Beach Post that instead of trying to stop the 24-year-old Loxahatchee Groves man from bleeding to death, deputies tackled his brother, David Adams, who ran out of the family trailer on A Road to rescue him [after Seth called to tell his brother he was “shot by a cop”].

Palm Beach County Sheriff Ric Bradshaw, meanwhile, said of the situation: “It was just very bad from the outset with Seth Adams’ demeanor towards the deputy.”  Shortly after the shooting, Bradshaw noted “there’s only two witnesses here: the suspect and the deputy. And the suspect was not able to be interviewed. Why he decided to assault the deputy? We may never know that.” When the investigation was well underway, Bradshaw claimed it would “verify exactly what I thought from the beginning.”

And indeed, the investigation verified exactly what Bradshaw said it would.  What else could it do, there being a story that made no sense, a dead man and a live cop?  There were video cameras around the place, but apparently they weren’t recording that night.  And so, there was only one story to be told after Seth Adams died.

So what if the story doesn’t pass the smell test?  So what if there was no reason for Adams to choke a cop? So what if there was no gun in the car to strike fear in the heart of Sgt. Custer?  So what if he watched at Seth Adams dragged his bullet riddled body across a parking lot and did nothing? So what if Custer tackled David Adams to stop him from trying to save his brother’s life?  So what?  None of this proves Custer a liar, a killer.  It’s just a bunch of inexplicable acts, questions that will find no answers, and a dead man.

As Sheriff Ric Bradshaw correctly notes, we may never know the answers to any of these questions.  And that’s the beauty of there being two witness, but one dead.  There is nothing left but the Sgt. Michael Custer’s story, bad as it may be, and a dead body.

It seems unlikely that 7th Circuit Judge Richard Posner intended his opinion in  United States v. Castillo to come off this way, but even without an ostrich reference, it can’t be helped.

We write to clarify an ambiguity concerning the scope of appellate review of an above-guidelines sentence.  We have said that “the farther the judge’s sentence departs from the guidelines . . . the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.”  United States v. Courtland, 642 F.3d 545, 550 (7th Cir. 2011)…. The ambiguity is in the word “farther.”  It can be conceived of in either relative or absolute terms.  A sentence of 60 months is 30 percent longer than a sentence of 46 months (the top of the applicable guidelines range in this case); and a 30 percent increase is large in relative terms. But in absolute terms, given the severity of federal criminal punishments, it is a smallish 14 months; the average federal prison sentence in 2009 was 57 months.

While it’s good that Judge Posner recognized the ambiguity in the earlier holding, although one would have suspected that at the time of writing “farther,” a smart judge like him would have realized it was a bit too glib to pass off in balancing the extent of departure with the extent of justification under reasonableness review. 

But then the circuit adds this gem to the mix:

It seems to us that the relative is generally more important than the absolute, as is implicit in a number of our previous decisions.  The guidelines range is the Sentencing Commission’s estimate of the reasonable range of punishments for the defendant’s offense.  Usually (an important qualification, as we’re about to see), a judge who imposes a sentence far above the top or far below the bottom of that range is challenging the Commission’s penal judgment, and given that the Commission’s knowledge of penology exceeds that of most judges, the judge needs to provide more in the way of justification than if he were departing incrementally.

Did I miss something?  Did the United States Sentencing Commission gain some magical power of penology when no one was looking?  All this time, the understanding was that the commission’s mandate was to standardize sentencing across the nation, so that a judge in California wouldn’t sentence a defendant to 10 years for the same crime that bought him 20 years in New York.  It wasn’t that they held some mystical power to know the intrinsically “right” sentence without any regard for the individual characteristics of the offense or the human being involved.

Even so, the court fails to provide any certain guidance, leaving itself wiggle room to ignore its own test (relative is generally more important than absolute), and thus fails to provide guidance to sentencing courts as to the extent of justification that will be required to uphold a departure on review.  And then Judge Posner stirs up muddy waters even further:

Guidelines ranges are inherently arbitrary, so had the judge in this case sentenced the defendant to 47 months instead of the guideline maximum of 46 it would not have been a significant challenge to the Commission’s penal judgment and so would not have required much in the way of justification.

The Guidelines ranges are inherently arbitrary?  Did he really write that?  If so, then they are by definition unconstitutional, as courts are precluded from acting arbitrarily, and therefore can’t rely on arbitrary guidelines to justify a sentence. And yet the decision expressly approves of a sentence that “would not have required much in the way of justification”?  So basically, the 7th Circuit has endorsed unjustifiable reliance on minor departures from arbitrary guidelines?

A 30 percent departure requires more; “substantial variances from the Sentencing Commission’s recommendations require careful thought.”

This rationale is astounding.  All this time, one would have thought that any sentence, every sentence, required careful thought.  Well, don’t I feel foolish now, learning that in the absence of a substantial (what that means) relative variance from the inherently arbitrary guidelines (which are advisory, though stemming from penologists who know better than any judge what sentence to impose), an utterly mindless sentence of, say, 480 months is just hunky-dory as long as it’s on the grid.

Perhaps Judge Posner is using this decision as a backdoor means of pointing out the absurdity of federal sentencing, but if this is a cynical means of making his point, it eludes me.  Rather, it seems far more likely that this reflects the sad state of reasonableness review, the acknowledgement of both deference and arbitrariness of the Sentencing Guidelines without similar recognition that there is no magical “right” sentence.  It’s poorly executed art that courts pretend is a science in order to lift the burden off their judicial shoulder and make judges not feel too badly about their imposing years, decades of imprisonment that can’t find any rational basis.

But rarely has a court inadvertently admitted what a pathetic joke federal sentencing has become.  Maybe Judge Posner would have done better to throw in a few ostrich references, so at least we could all have a chuckle over this otherwise nightmarish decision.

And by the way, even if the upward departure is only 10%, like a year over 121 months, it’s a year of some guy’s life.  It still matters. It’s still worthy of justification. Don’t give away other people’s lives so easily.

H/T Berman

While the city prosecutors try to harrumph their way through the Brady War, Erie County District Attorney Frank Sedita III has launched an offensive in the Buffalo News.

“While no one can deny that wrongful convictions have taken place, their rate of occurrence has been obscenely exaggerated,” writes Sedita.

Wrongful acquittals are far more common than wrongful convictions

Of course, what Sedita calls “wrongful acquittals” others might call cases where the cop or prosecutor believes a person is guilty but has no evidence to prove it.  And if they believe it, then, guilty they are, proof be damned.

Sedita’s editorial is fascinating, in that it reflects thoughts so bizarrely distorted as to make one wonder whether he could actually believe what he’s writing or thinks the readers so utterly ignorant that they won’t notice.

Our policy of critically and repeatedly reviewing cases at the pre-indictment stage has resulted in some cases being dismissed because the defendant is innocent. Since January 2011, my office has reviewed 4,764 potential felony cases for presentation to the grand jury or other disposition. Thirty-three of the defendants (0.7 percent) charged by the police were probably innocent. One such defendant was exonerated after indictment but well before trial. The remaining 32 defendants were exonerated before they were indicted by a grand jury.

None of the foregoing exonerations occurred after a wrongful conviction. None of the convictions obtained during my administration has been overturned because the defendant was innocent. My predecessor, District Attorney Frank J. Clark, served for 12 years (1997 to 2008) and none of the thousands of defendants convicted during his three terms has been exonerated as innocent.

Aside from the fact that exoneration only occurs after a wrongful conviction (though I hesitate to be critical of Sedita’s unfamiliarity of legal words; they’re pretty hard to understand for some folks, you know), his inability to comprehend that the absence of any exonerations isn’t proof that only the guilty were convicted, but the near-impossibility of the wrongfully convicted from obtaining relief.  Yet, Sedita credits himself and his office with his moral generosity and near-perfect score card:

In reality, it is the prosecutor who usually exonerates the wrongly accused, often without prodding from a defense attorney, and almost always well before a trial. Indeed, a critical review of every felony case, by professional prosecutors and at the earliest practicable stage of the proceedings (i.e. before indictment), prevents wrongful indictments and thus, prevents wrongful convictions.

While most would view a bad bust by a cop, charges without evidence, as a negative, Sedita views these as a demonstration of professionalism: Aren’t we wonderful, tossing cases that are utterly without evidence of a crime or guilt? What a great guy!  And despite his generous spirit, Sedita acknowledges that the system isn’t perfect.

While no one can deny that wrongful convictions have taken place, their rate of occurrence has been obscenely exaggerated. In reality, wrongful acquittals are much more common than wrongful convictions. I can point to at least four trials this year alone in Erie County that resulted in an acquittal despite overwhelming evidence of the defendant’s guilt. Post-indictment dismissals, usually because of technical procedural issues or because the court suppresses key prosecution evidence at the request of the defense, are more common still. Citizens are amazed to learn that under our legal system, the prosecution can rarely appeal a dismissal and can never appeal an acquittal.

Therein lies the kicker. Four trials in Eric County where the guilty walked. We know they’re guilty because Sedita says so, and since he’s the District Attorney, he couldn’t be wrong.  The jury acquitted? Morons. Fools. Idiots. The evidence was overwhelming, The jury is only right when they convicted, because after all, if they weren’t guilty as sin, Sedita wouldn’t prosecute them, as he already explained how he “exonerates” the innocent.  The rest of the system is just a way to squander the budget, confirming the obvious (except in the four cases this year alone where the jury blew it).

So the Erie County District Attorney concedes the system can make mistakes, but not the ones we think:

I agree that the system is flawed, but in a manner that benefits the accused. I can accept that. Our system presumes a man innocent until he is proven guilty beyond a reasonable doubt. Ours is the greatest criminal justice system ever devised and I am proud to play a role in it. What I cannot accept is deliberate deception heaped upon an unsuspecting public. In my view, these so-called legislative reforms, offered under the pretense of preventing an injustice, are not intended to protect the innocent from wrongful conviction but are instead designed to shield the guilty from any conviction.

Rarely has anyone had the chutzpah to publish such utter nonsense.  The system is already stacked against the prosecution, artfully designed by scheming reformers to the disadvantage of the prosecution in order to shield the guilty from conviction.

Except somehow missing from Sedita’s absurd screed is any mention of  Habib Wahir Abdal, convicted of rape in Buffalo in 1983, and exonerated by the Innocence Project via DNA in 1999 after serving 16 years in prison.  Or Anthony Capozzi, convicted of two rapes in Buffalo in 1987, and exonerated by the Innocence Project via DNA in 2007, having spent 22 years incarcerated. Or any of the other  24 New York State exonerations obtained by the Innocence Project, 

These are what Sedita calls “the pretense of preventing an injustice,” as we can just put our trust in prosecutors like Sedita, who will be more than happy to “exonerate” anybody they think is innocent on their own.  And if they don’t, you can bet they’re guilty.  After all, Sedita would never prosecute an innocent person. It just couldn’t happen in “the greatest criminal justice system ever devised.”

H/T Our hinterlands correspondent, Kathleen Casey

 

Via Amy Alkon, good intentions crash head first into the stone facade of the Department of Justice.

Those with “targeted disabilities” may be hired through a “non-competitive” appointment. That means they don’t have to endure the regular civil service competition among applicants, but can be plucked from the stack of resumes and hired immediately instead.

According to the documents, those with these “targeted disabilities” may be hired “before the position is advertised” and even “before the position’s closing date.” Moreover, lawyers with psychiatric disabilities and “severe intellectual” disabilities receive a waiver from the requirement that a new DOJ employee have practiced law for one year before being hired.

Now, I have no problem if they do hire people with disabilities — providing their disability doesn’t make them incapable of performing their job, and providing they aren’t hired over people, “able” or disabled, who are better qualified.

I’m more pleased that the DOJ is hiring people with “severe intellectual” disabilities than that the DOJ is hiring people with psychiatric disabilities; also more surprised.

After all, it’s easier to prevail against someone with “severe intellectual” disabilities than nuts.  There’s no assurance that nuts aren’t smart, and it’s often hard to tell someone is nuts until it’s too late.

No doubt that someone will react with the very kind, deeply sincere response that everyone should be given the chance to lead a happy, productive life.  And I think we all agree. They just can’t do anything they please, however, because no one is entitled to have their happy life come at the expense of other people’s happy lives.

I’m often accused of being an elitist when it comes to the law. I disdain the notion that it’s possible for laws to be written with such clarity and simplicity that everybody can understand them. I am strongly against the belief that the barriers to entry into the legal profession should be toppled so anyone can be a lawyer. 

I rarely have anything nice to say about people who are incapable of logical reasoning, or discerning the relevant from the irrelevant or emotional.  In contrast, I often assert that the practice of law is hard.  A lot of people see me as the enemy because I don’t embrace what I see as unduly simplistic and foolish notions.

That the DOJ, an entity with enormous power over the lives of others, would even consider something as outrageously stupid as this is beyond comprehension and credulity.  I don’t believe that any lawyer with psychiatric or severe intellectual disabilities will be hired.  I wouldn’t be surprised it this was a stunt, good for a laugh to see who falls for it.  Sadly, I also wouldn’t be surprised if this is 100% legit.

There are myriad jobs that can be well-handled by people with disabilities, including psychiatric and severe intellectual disabilities.  There’s a pretty decent chance that there will be more qualified candidates for these jobs who aren’t disabled, and that will perpetuate discrimination against those who are capable but have a deficit.  Maybe they need and deserve a bit of help in overcoming our inclination toward the best candidate (and disinclination toward the disabled candidate) so that they are not relegated in perpetuity to always being too far down the list to ever get a chance to show what they can do.  They do deserve a chance at a happy and productive life.  There are jobs that they can do well.

But being a lawyer isn’t one of them.  Being a brain surgeon isn’t one of them either.  And good intentions and wishful thinking isn’t sufficient to change that.

People who have never seen a midtown avenue at 9 o’clock in the morning would have a hard time imagining the mass of people heading in every direction.  There can be more folks on one stretch of sidewalk than populate small towns. Some move swiftly toward wherever they’re going, while others just stand there, blocking the ones who have a place to go.

This is no place to shoot a gun.

The police commissioner, Raymond W. Kelly, confirmed on Saturday that all nine were wounded by police bullets, bullet fragments or shrapnel from ricochets. Mr. Kelly also confirmed that the shooter, Mr. Johnson, never fired another shot after killing a former co-worker, Steven Ercolino, moments earlier.

“We had a witness that said that Johnson fired at the police,” Mr. Kelly said Saturday. “But the final count of the shells, it appears that that is not the case.”

It’s assume that when the officers approach the Jeffrey Johnson, who had just murdered Steve Ercolino outside the Empire State Building, they had no choice but to shoot.

The veteran patrolmen who opened fire on the suit-clad gunman, Jeffrey Johnson, had only an instant to react when he whirled around and pointed a .45-caliber pistol at them as they approached him from behind on a busy sidewalk.

Officer Craig Matthews shot seven times, and Officer Robert Sinishtaj fired nine times, police said. Neither had ever fired their weapons before on a patrol.

If someone “whirled around and pointed” a gun at me, there’s little doubt that I would shoot as well, if I could.  The gunman went down with ten bullets in his body, which is pretty good shooting by New York City standards. So did nine other people who had the misfortune of being on the wrong block at the wrong time. That none of them were killed was fortunate.  By fortunate, I mean lucky for them. Pure luck.

Similarly fortuitous was the New York Times reporter’s ability to find an “expert” professor who miraculously available to explain what happened:

Geoffrey P. Alpert, a criminologist at the University of South Carolina and an expert on the police use of force, said that hitting innocent civilians “doesn’t happen very often, but it happens.”

He added: “The rule of thumb is that you do not put civilians in the line of fire, but the rule of thumb is also that you don’t let a murderer get away.”

In fairness, the reporters never ask if you’re an “expert,” but rather add it to your name to give the quote greater weight and make their story appear well-researched.  But this one was wrong. This had nothing to do with letting a murderer get away, and if it had, it would have been inexplicably wrong.

The justification for the police opening fire was the First Rule of Policing, make it home for dinner. The officers feared for their lives, and who wouldn’t be if a man with a gun whirled around and pointed it at you. 

But for the nine people who happened to be wounded, the reasonableness of the police shooting brings little comfort. They were innocent people. They did nothing to get themselves shot. It’s a fair assumption that they all had better things to do that day, and likely had other plans for the evening than to spend the night in a hospital. Some, maybe all, will suffer for a long time from their wounds. Some may be disabled for the rest of their lives. The life of every innocent person shot has been changed by the misfortune of being on the wrong block that morning.

While we often consider the ramifications of the system on the wrongfully convicted, people who spend years, decades in prison when they’ve done nothing wrong, few will give much thought to the fact that nine innocent people were convicted by errant bullets and shrapnel that morning.  Bullets offer no due process.  There is no appeal from a bullet.  DNA won’t exonerate you from being shot.

Nine for one.  The maxim is that it’s better for  “n” guilty men to go free than one innocent man to be wrongfully convicted.  Here, nine innocent people were shot so stop one guilty man.

There will always be the well-intended but ridiculously naive person who asks why the cops couldn’t carefully put a single bullet with between Johnson’s eyes, so no one else would be put at risk.  No one has such mad skills. This isn’t a Dirty Harry movie, but real life on a real street with real cops and real bystanders.  As great as it might be if a cop, in the blink of an eye and with fear and adrenalin rushing through his veins could shoot a quarter at 100 paces, it just doesn’t happen that way.

Nor is there likely to be any recompense for the nine people shot.  Maybe the City will show some sympathy of their own volition, but it’s hard to nail down anything the police did wrong.  Sometimes bad things just happen when they do their job.  Sometimes, the cops aren’t breaking rules or violating rights, and still people get hurt.

Yet, our minds somehow play a game that allows us to feel badly for the nine people shot without connecting the harm to them with the need to exercise force.  While it feels differently to us, the pain of a bullet entering a body is no different to a bystander in a righteous police shoot than it is if it came from the gun of a criminal.  The change to their lives, next week, next year, will be every bit as real as if they were victims of a horrible crime.

There may be no good answer to what happened on Fifth Avenue that morning, but that offers little comfort to the people, whether they were moving swiftly to wherever they were going or just standing there, blocking the path.

After a  post the other day stemming from a  couple of  posts at My Shingle by Carolyn Elefant (to which she took umbrage, I hasten to add), I spent about an hour on the phone with a troubled lawyer.  During that conversation, something emerged that compels me to offer this suggestion: Stop lying.  Stop lying to others. Stop lying to yourself. Just stop lying.

Much like the lawyer in Carolyn’s posts, the guy I spoke with had left a stable and reasonably well-paying job to go solo.  Unlike Carolyn’s guy, he had a strong reason to do so, having gone from defense lawyer to prosecutor, only to find that he couldn’t stomach the job and had to return to defense.  Even so, he looked back on his decision as a monumental mistake.

He was an experienced lawyer, with more than ten years in the trenches.  He had substantial trial experience, though he hadn’t tried a case since going out on his own.  He followed the advice, played by the rules, and came into the game with the legitimate ability to fulfill his obligation to defendants.

He was dying.  His business was essentially non-existent.  As his savings depleted, the realization of more than a decade of his life, the sacrifices of his family, hit home. 

During the conversation, he told me that as he talked to other criminal defense lawyers, he was told that they were doing great. Fabulous. Big cases here. Huge cases there. Trials, trials, trials. New clients calling daily, with interesting cases and bulging wallets.  Life couldn’t be better.

“Why,” he asked me, “was everybody lying?  Or am I the only one drowning?”

I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive.

It’s time we admit this, because walking around the courtroom hallways with our chests puffed out isn’t putting any food on our tables. 

During my phone call, we spoke of the baby lawyers hanging out in the hallways trying to catch the attention of a defendant’s mother with $100 in her pocket.  We spoke of n00bs, barely competent if at all, taking felonies for $1500 total.  He didn’t blame them, knowing they had loans to pay.

The lawprofs are busy reinventing law school so they can continue to churn out tens of thousands of new lawyers. The talk is about law school tuition and practice-ready lawyers.  The theory is that if they can produce lawyers without the $150,000 in debt, they can service the middle class, who can’t afford legal representation.

It’s a lie, but the lawprofs don’t realize it. They’ve never experienced law office finance, what it takes to pay rent and phone, or staff and equipment.  While student loan debt is a factor, it’s only one of many. They don’t grasp what every criminal defense lawyer faces daily, the cost of merely existing. They never paid a rent bill during their judicial clerkship or stint in the United States Attorney’s office.

On top of survival, a lawyer hopes for a bit more. To feed his family. To buy a car. A new car. To own a home, and once purchased, put furniture in it. To go out to eat once in a while, or maybe take in a movie. To go on vacation.  To pay for a child’s college education.  We’re called selfish, blood-suckers for wanting these things, expecting that the three years in law school, the tuition paid or owed, the experience gained over years, should produce a fairly stable middle-class existence.

The irony is that most criminal defense lawyers aren’t making enough money to live as well as the middle class clients they’re expected to subsidize.  It’s unfair that people should have to pay for lawyers?  Perhaps, but it’s unfair that lawyers aren’t doing any better than the clients who can’t afford them.

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.

And what of the glory of social media marketing?  By my scientific calculations, one decent case comes in per 5,000 calls. If it’s high volume, low price, you want, there’s some potential. If you don’t mind insanity, or the consultation with 120 ridiculous questions, to be repeated to 25 lawyers they found on the internet, it may work. 

But at the end of the day, it will never produce the quality of cases and fees needed to sustain a practice, not to mention allow a lawyer to thrive financially. Sorry to burst the bubble, but a vague anecdote from a source that earns his living off selling social media marketing isn’t a sufficient basis on which to bet your future. Many have tried. And failed. Are you that special that it will be different for you?

I told my caller that he wasn’t crazy.  I told him that we’ve become a bunch of liar, fakers, pretending to be doing great because no one wants to appear to be a failure.  Failure doesn’t bring in the next case. Failure scares people away, like some ironic form of leprosy, as if it’s contagious.  Only losers fail, and no one wants to announce to his peers that he’s a loser.

I’ve watched as a great many excellent, experienced criminal defense lawyers have walked away over the past few years.  They took an oath, but the word “poverty” was never spoken. It’s not that they don’t want to help every person accused, but they have mouths to feed.  And yes, they want to enjoy a decent standard of living.  There’s no crime in that.

But until the lies stop, there will be no real discussion of how to change this downward spiral and make the practice of criminal defense a strong, desirable area of practice.  You can’t pay the rent with lies, and nothing will change until we cut the crap and start talking about how to make the practice criminal defense financial viable again.