After 24 years of prison, David Lee Wiggins walked out.  Yet again, Barry Scheck’s Innocence Project employed DNA to prove a convicted man innocent, although this time the Tarrant County, Texas, District Attorney was fully cooperative in the effort. 

The Tarrant County District Attorney’s office fully cooperated with the Innocence Project, consented to testing and opened their files to reinvestigate the crime. Wiggins always maintained his innocence and even filed an unsuccessful pro se motion seeking DNA testing before his trial, though DNA technology had just been introduced in criminal cases at that time. Although earlier rounds of testing were inconclusive, the Innocence Project was able to secure testing earlier this month that definitively excludes Wiggins as the source of sperm found on clothing the defendant was wearing at the time of the attack.

Wiggins said he agreed to be in a police lineup in 1988 because he knew that he didn’t commit the crime and thought he had nothing to worry about. Instead, it led to a 24-year nightmare that ended Friday.

“I always believed the truth would come out,” he said.

Belief in the truth sounds like such a wonderful thing. Who doesn’t believe? Who doesn’t love the truth? Well, perhaps the guilty guy, but then, nobody loves the guilty guy, so who cares about him.

Except Wiggins was the guilty guy.  His misfortune was eventually what saved him, that his conviction was for rape.  As it happens, rape often provides the evidence that can be DNA tested for identification.  Murder sometimes. Armed robbery, not too much. Drugs, almost never.

Yet the same identification, the same methods and the same blind belief that “I will never forget that face” that juries always find so compelling, nail down the conviction. 

To those on the outside looking in to the criminal justice system, the shocking revelations of wrongful convictions, conclusively proven by the efforts of the Innocence Project and others, seems incredible.  They find it impossible to believe that the system can be so wrong with such frequency.  And yet the thread between them is DNA, as the kismet of having scientific evidence of innocence distinguishes the guilty people we hate from the wrongfully convicted.

There is no question that Americans, with the exception of certain Texas prosecutors and judges, applaud the identification and release of the wrongfully convicted, but they remain largely hung up on proof.  The Innocence Project recognizes the problem, that not every wrongfully convicted defendant has the good fortune of having DNA evidence available to prove their innocence.

The Innocence Project provides pro bono legal representation on behalf of people seeking to prove their innocence post-conviction. Since its inception in 1992, the Innocence Project has only taken cases where DNA testing can prove innocence.

In some rare circumstances, however, the Innocence Project has helped exonerate clients through evidence other than DNA testing. We often have to close cases because the biological evidence is missing or destroyed, making DNA testing impossible. In some of those cases, strong evidence of innocence is discovered during the search for biological evidence, and we are able to secure our clients’ freedom without DNA testing. In other cases, DNA test results alone are not enough to free our clients, but can help exonerate people when coupled with other evidence of innocence. In all of these cases, new evidence of innocence resulted in our clients’ convictions being vacated and indictments against them being dismissed, fully exonerating them.

These cases underscore a critical point: DNA testing alone cannot overturn most wrongful convictions. In fact, experts estimate that DNA testing is possible in just 5-10% of all criminal cases. That is why a growing number of organizations in the Innocence Network handle cases regardless of whether DNA testing is possible.

Thus far, they have exonerated a total of five non-DNA cases.  While it matters a great deal to the five men who walked free, it’s statistically insignificant.  Tens of thousands will never be exonerated, though they are every bit as innocent as David Wiggins.

And this is said without touching the larger pool of people who are not quite innocent but hardly as guilty as their convictions say. The difference between two and twenty years is monumental to them, though outsiders to the system don’t lose a minute’s sleep over them.

While the conspiracy theorists and zealots are certain this is all the product of nefarious cops and hateful prosecutors, whose evil cheating schemes subjugate the citizenry, they are not merely misguided but distract from the real problems.

For the most part, no cop, prosecutor or judge wants to convict an innocent person. When you talk to them, you learn that they sincerely believe in what they’re doing, that they are protecting the public from harm, that the people they prosecute are guilty and deserve to be prosecuted. They may overstep the bounds in the process, though most don’t see it and will absolutely deny it ever happened, but they believe with all the righteousness they can muster that when they convicted an innocent person, they believed him guilty.  And of the many people convicted, they are often right. We can never forget that there are bad people out there who harm others, and from whom society truly needs protecting.

The problem is that David Lee Wiggins was exactly such a man. Until, one day, he wasn’t. The same is true of each of the wrongfully convicted. The same is true of the wrongfully convicted who will never be exonerated, and who will serve out there complete sentences, or perhaps die in prison.  The same is true for the defendants for whom no DNA is available or involved, and who have no hope of ever having their innocence proven.

We used to be able to sleep well at night, knowing that the men and women who filled out prisons to capacity and more were guilty.  Perhaps one or two were innocent, but like Justice Scalia, we could live with that as long as it wasn’t us.  No more.  No longer can we pretend that it’s just one or two, or take comfort in the myth of cops having a sixth sense for the guilty, or the righteousness of prosecutors and judges. 

The steady stream of exonerations have shaken our faith that the system works well enough.  Twenty years ago, they were all guilty. Today, we can no longer pretend that the system works well enough that a man can voluntarily walk into a line-up, knowing that he’s innocent, and believe that the truth will come out.

Blame it on DNA.  But DNA barely scratches the surface, for it only addresses the proof of innocence.  The systemic failures that result in wrongful convictions are beginning to change, with double blind identification procedures and video-recorded confessions, but they are barely palliative, just a start and (despite their advocates) hardly the grand solution to the problem.  Until DNA, we could pretend there was no real problem.  We can never go back there again.

Via Orin Kerr at Volokh Conspiracy, the town of Henry, Tennessee has come to realize that its fortunes may be tied to a dog.

At the Henry Mayor and Board of Alderman meeting on Tuesday, board members decided to allow police chief David Andrews to institute a K9 program for the Henry Police Department.

Andrews told board members that the city is missing out on possible revenues that a K9 would bring. He said when you make traffic stops and the driver refuses to allow a search, their hands are tied. If a drug dog alerts on a vehicle, its gives officers probable cause to search a vehicle for drugs or illegal proceeds from drugs. More drug arrests and drug, cash, and vehicle seizures lead to more revenues coming in for the police department and city.

Radley Balko wrote at least they get points for honesty.  More likely naivete, at best, or cynicism, at worst.  They openly said what everyone involved has long known, but had the good sense to keep to themselves.

Unlike many who now complain bitterly about the impropriety of in rem forfeiture (the legal fiction where it is the property that offends the sovereign), I was there when it first came into vogue.  I recall to this day sitting in chambers of a federal district court judge in the early 80’s as he scoffed at the government’s attempt to forfeit property.  “The law abhors a forfeiture,” he bellowed, repeating the ancient maxim that guided the common law to that very day.

It was the last time I ever heard a judge utter those words.

In the early days, judges were resistent to forfeiture, and the government was relatively circumspect in its use.  It was an offshoot of the heady drug days, invoked to seize currency and property of bad guys who either went down hard or were smart enough to walk even though everybody knew they what they were selling.  Remember, nobody drove a pimp mobile to keep a low profile.

Over time, the old judges who only begrudgingly signed off on a forfeiture were replace with new judges for whom forfeiture was the norm. And it quickly became untethered from the covert weapon to strip drug dealers of their vast wealth to a public relations ploy, as used to take cars away from drunk drivers, and revenue raiser for backwaters like Tenaha. 

Whether this is attributed to remembering the rubric while forgetting the rationale, or as the conspiracy theorists would have it, a cynical abuse by the oligarchy to strip the citizenry of its property, doesn’t matter.  It was a fundamental abuse of process from the outset, but in the beginning it only affected scummy drug dealers and nobody really cared what happened to scummy drug dealers. And so the law developed, approving a system that gave the property owner essentially no chance of prevailing. 

Who cared about the drug dealers, so no one except the criminal defense lawyers spoke against it.  Shades of Martin Niemöller, because now they’re coming for you.

The trigger to the spoils system is the lovable, obedient dog.  It didn’t come about for that reason, but rather because society embraced things that had a distant smell of science and facilitated the accomplishment of our drug war goals.  Plus, dogs were cute and beloved, and thus above criticism.  So their historic abilities of smelling escaped prisoners and tracking edible critters was turned toward drugs. Dogs could smell drugs, and sniff out those evil drug dealers who concealed their nasty poison.

It was a marriage made in doggy heaven, the linking of dogs and forfeiture.  As Ilya Somin apparently discovered yesterday,

It’s worth noting that drug-sniffing police dogs are often highly inaccurate, because dogs want to please their human handlers and therefore may turn up a false positive because that’s the reaction they think the handler wants.

For those not living in caves, this is pretty much a basic feature of drug dogs.  They can be made to “alert,” an interesting word that reflects whatever the dog’s handler says it reflects (“I observed the hair on his left paw move laterally, which indicates the presence of narcotics…”).  Once a dog alerts, probable cause, by definition, exists.  False positives? Meh.  That crazy statistician talk.  The courts have long held that a dog alert establishes probable cause, and so it is. It’s so embedded that they carve it into the courthouse lintels in flyover states.

Some smart cookie put it all together.

The burden of proof for in rem forfeiture is probable cause – check
Dog hits, by definition, are sufficient to establish probable cause – check
Ninety percent of currency will give rise to a drug dog alert – check
The shiny new very valuable Mercedes is the instrumentality of the crime of transporting drug proceeds, and therefore forfeitable if the drug dog alerts to the currency in a driver’s or passenger’s wallet – check

Is this a great country or what?  Remember, the law surrounding this process was developed at a time when drugs were fairly rampant and no one except criminals and criminal defense lawyers gave a damn about what happened to their assets.

So the Mayor and Aldermen of Henry, Tennessee, have come to the epiphany that they can cash in on the nice folks driving nice cars through their community with some cash in the wallets.  And now people are bewildered about how such an insane, cynical, easily abused process could possibly exist in these United States of America?

First they came for the drug dealers, and nobody spoke up because they weren’t a drug dealer.  And they hated the drug dealers. And it was only right that the government should be able to seize their assets, and deny them any chance to fight.  After all, we were at war with drugs back then.  That’s how it happens.

When Supreme Court Justice Thomas D. Raffaele’s throat met the hand of a police officer on the street in Queens,  he took a giant step forward to the place where the nice people who retain criminal defense lawyers live.  While it was a move in the right direction, it was only the start of a journey.  He may have suffered a brutal blow for no reason by a cop on the street who didn’t realize that the throat he struck belonged to a judge, but he had yet to realize the full force of the blow.

He’s getting there.

From the New York Law Journal :

A state judge who says he was assaulted by a police officer is accusing the Queens district attorney of orchestrating a cover-up after the prosecutor announced yesterday he will not file criminal charges against the officer who allegedly hit the judge and assaulted a homeless man.

“Everything they say is a lie,” Queens Supreme Court Justice Thomas Raffaele (See Profile) said in response to District Attorney Richard Brown’s press release.

A lie? How can that be?  They’re the good guys, the protectors of officials and the status quo. Or as every young prosecutor is taught to ask, “why would they lie?”

“Get Down” Brown, who has had plenty of practice issuing press releases lately, did what came naturally; he backed his cop.

Brown’s statement said that an investigation indicated that the homeless defendant, Charles Menninger, 47, was attempting to strike two police officers with a metal pipe and was appropriately restrained. He also suggested that Raffaele, who happened on the scene while walking through his neighborhood late one night, encroached on police.

But Raffaele said yesterday that the press release is full of falsehoods, and maintained it was the police officer, not Menninger, who was violently “out-of-control.”

This is where the system gets awkward, unwieldy. Usually, it’s just a few black and brown fingers pointing a bodies in blue claiming they were out of control. They’re easily dismissed with the usual rhetoric, and since everyone in the official system knows that the odds favor the cops, no one blinks.  But even though Justice Thomas Raffaele was walking the street in jeans that day, he still has a black robe hanging in his closet.  Is his word so easily dismissed?

Brown also said he could not prove that the officer who allegedly hit Raffaele with a karate-like chop to the throat “unjustifiably struck Justice Raffaele and that the judge sustained a physical injury.” He indicated that Raffaele had walked into a “safety perimeter that police officers attempted to establish” to contain Menninger and keep him away from the crowd.

Aside from tossing out cool police-type language like “safety perimeter” that creates an image of justification in the minds of all law-abiding people, Brown is really saying that Justice Raffaele isn’t a credible witness.  If it came down to a swearing contest between some cop and a judge, the cop wins.  As he always does, except for the rare occasion when there’s a video proving otherwise.

But the judge points out that it’s not just his word (because he apparently understands why he isn’t a credible witness), but there are witnesses to corroborate his account.

Raffaele said that when he was first interviewed in early June he gave investigators the names of witnesses who would corroborate his story. The judge said he later learned that the witnesses were not interviewed until much later and only after he complained.

This is a nuance often missed by those who don’t deal with it regularly. Witnesses that don’t bolster the police position aren’t interviewed to ascertain what really happened, but to undermine their credibility so they can’t be used by defense against them.  When they aren’t likely to be called by the defense, there isn’t much reason to interview them at all.  This detail often comes as a shock to people who watch too much TV, and think the police investigate.  The police make cases, and do only so much as they need to solidify their ability to convict. Any investigation that muddies the waters is unhelpful. Why would they want to do that?

One might suspect that Justice Raffaele has come to an epiphany from this experience, how life on the street differs from the routine of official experience.  And perhaps he’s learning, but wearing the robe makes it hard, if not impossible, to truly appreciate the significance of what he’s undergoing.

“I have great respect for police officers,” Raffaele said. “I think the vast majority are very brave and do great things to protect us. But when something like this happens, something totally unprovoked and very, very violent and it is brushed off, it is very discouraging and very upsetting. My feeling, frankly, is that somebody who is that violent and dangerous should not be walking around with a gun and a badge. He is an out-of-control, dangerous person.”

And so Justice Thomas Raffaele’s journey continues.  Still constrained to utter the requisite caveat of respect for police and one bad apple.  He hasn’t thought this through yet, recognizing that all the other police officers who didn’t stop the officer from hurting him are protecting the one who did.  He hasn’t come to realize that Brown’s allegiance is to the police, and not the judges. Or the truth.  The words haven’t sunk in that a perfectly fine story about a safety perimeter shields the official actions of the police from scrutiny, and allows the bad cop to thrive in a system that denies it could ever happen.  Maybe he doesn’t realize that Brown just called him a liar and incredible.

It’s a process for a judge to give up every shred of official sanctity, all the fine platitudes and easy answers that he can wrap around him like a cocoon and protect him from the harsh reality that the rest of society endures.  Justice Thomas Raffaele has reaches the step where he chalks it all up to an isolated incident.  He still has a way to go.

Are other judges paying attention?  You, or your spouse, or your kids, will walk the streets just like Justice Raffaele, and may happen upon a police officer pumped up with adrenalin and maybe a steroid or two.  Do you think your robe will protect them any better than Thomas Raffaele’s robe protected him?  Are you willing to bet their life on it?

The problem with smart kids is that they’re, well, smart. They come to realize that words are merely a means to convey a message, and otherwise neither good nor bad.  And so, as Prague, Oklahoma Valedictorian Kaitlin Nootbaar gave her inspirational speech to her classmates and their teary eyed parents, the word “hell” slipped from her lips.  And apparently all hell broke loose, at least in Prague High School principal Rickey Martin’s (I didn’t even know he got a legit job)  mind.

From KFOR :

Kaitlin Nootbaar graduated from Prague High School, the Red Devils, in May and was named valedictorian.

When tasked with writing the graduation speech, her dad said she got her inspiration from the movie “Eclipse: The Twilight Saga.”

Nootbaar said, “Her quote was, ‘When she first started school she wanted to be a nurse, then a veterinarian and now that she was getting closer to graduation, people would ask her, what do you want to do and she said how the hell do I know? I’ve changed my mind so many times.’”

He said in the written script she gave to the school she wrote “heck,” but in the moment she said “hell” instead. 

“We went to the office and asked for the diploma and the principal said, ‘Your diploma is right here but you’re not getting it. Close the door; we have a problem,’” Nootbaar said.

He said the principal told Kaitlin she would have to write an apology letter before he would release the diploma.

The demand that Kaitlin write a letter of apology is fascinating, given that it comes at the critical juncture where she is no longer subject to the principal’s control.  The diploma is a piece of paper, documenting the fact of graduation, just as the ceremony is where the magic words are spoken confirming that a student has met the requirements for graduation.  What it’s not is an opportunity to assert one final demand of control over a student’s thoughts and speech.  Tough luck, bro, but she’s no longer under your thumb.

Patrick at Popehat, sneaking into  Balko’s Agitator for an impromptu guest post, had this to say:

You pig-fucking coward. You shit-eating child born from a buggered arsehole. You piss-colored pile of carrion. You dung-fly. You prickless and ball-lacking catamite. You son of a street-walking widow who never had a man except for money. You cock-sucking arse-licking defiler of sacred shrines, you brainless heartless gutless cockless offspring of an imbecile and a deformed cow, you flea-bitten child-robber who poisoned your father and raped your mother and sold your sisters to the Dutch and carved up your brothers for sale in a butcher’s shop, you gutter-hugging trader in second-hand excrement, why won’t you give this girl her high school diploma?

Some might view this as painful to sensitive eyes, and indeed, I know mine twitched a bit, particularly at the use of catamite.  But you survived. I survived. And so too will the fine people of Prague, Doc Martin included.

In Tinker v. Des Moines School District, Abe Fortas wrote that free speech doesn’t stop at the schoolhouse gate.  Of course, he also wrote:

But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Does the use of a minor curse, “hell,” involve substantial disorder or invade the rights of others? Since it was uttered at graduation, it clearly couldn’t have disrupted classwork.  Perhaps the principal felt that her fresh mouth invaded the rights of others to attend a high school graduation and hear only sweet words of deep meaning inspired by The Twilight Saga?

Nootbaar said the audience laughed, she finished her speech to warm applause and didn’t know there was a problem.

It’s troubling that the audience laughed.  Because she said “hell?”  Was it that shocking? People laugh when something is funny. They also laugh when they’re nervous, because something said has gone a bit beyond their comfort level.  That the audience applauded at the end of a valedictory speech isn’t quite novel, and whether the applause was warm or perfunctory is a matter of subjective interpretation.  Polite applause sounds a lot like warm applause.

It is not, however, the reception of the audience that controls.  No doubt there were some who thought nothing of Kaitlin’s curse, while there were others, prissy folks who believe that no foul language should mar the sanctity of a high school graduation, who were deeply offended by the word.  One can only wonder what happens when they watch television, or perhaps the occasional porno flick in aid of their boring marriages (this is sheer speculation on my part).

Under almost any other circumstances, the utterance of a word as inconsequential as “hell” would have not raised an eyelash. That the principal (or perhaps some other person of significance among those charged with maintaining school purity) either found it so offensive, or “inappropriate” raises it to the level of concern that makes this a story worthy of consideration.

It’s just a word, and barely a bad one if words could be bad.  At least Kaitlin didn’t use her opportunity to express her views to inform Rick Martin that her first thought as she entered the hallowed halls of Prague High School every school day for the past four years was that he was a blithering asshole. But even if she had, so what?  It was graduation, and there was no classwork left to disrupt.


 

There was video showing the crime, a guy walking up to a truck and taking a shotgun out through the window. The jury saw it. Prosecution witnesses testified to it. Yet the defendant took the position that it wasn’t him because he didn’t walk that way, and wanted to demonstrate for the jury how he walked.

The problem was that the defendant also sought to exercise his right not to testify at trial. 

The trial judge refused to let the defendant walk if he wasn’t going to testify, but the Oregon Court of Appeals reversed.

The black and white video showed a man walk up to the driver’s side of the van, quickly reach inside the window, take the shotgun and towel, and walk away. Berge could tell from watching the video, based on the man’s behavior and the  short timeframe, that the man who took the gun knew that the gun was in the van. Berge then separately showed the video to Officers Braun and Sharpe, who were familiar with many of the people who frequented the area around the bar. Braun and Sharpe both identified defendant as the man in the video based on his appearance and mannerisms, particularly his “twitchy walk” and jerky movements. Defendant was arrested and charged with felon in possession of a firearm.

When the identifying factors include one’s “twitchy walk,” the question of whether one’s walk is “twitchy” is certainly something to challenge. But whether that’s testimonial is another story.  Of course, if the defendant was to demonstrate his walk which turned out to not be “twitchy,” would that not give rise to a very strong interest in examining him about whether he was faking his walk in front of the jury in order to disprove the testimony and appearance on video?  On the other hand, his walk is nothing more than his walk, not reflecting any workings of his mind, just as his face remains his face as the jury sits and looks at the defendant throughout the trial.

The court rejected the trial judge’s refusal to allow the defendant to demonstrate his walk without otherwise subjecting himself to examination, holding that walking is not a testimonial act.

We agree with defendant that demonstrating a walk is not testimonial. For purposes of the right against self-incrimination, “testimonial” evidence is not limited to in-court testimony under oath. Rather, the label “testimonial” is simply shorthand for the type of evidence that is subject to the right against compelled self-incrimination. Testimonial evidence is evidence that communicates by words or conduct an individual’s beliefs, knowledge, or state of mind. In contrast, evidence of physical characteristics such as identity, appearance, and physical conditions are not testimonial.

The court offered examples, such as tattoos and handwriting, or merely having the defendant stand in the courtroom so the jury could get a full height view.  The examples, however, fall short of addressing the differences between an immutable characteristic and something that can be altered to present to the jury. 

Whether the defendant deliberately walks in an unusual manner, undergoes some gait training to make his walk less twitchy, can be at issue.  This doesn’t mean that the defendant isn’t offering his real walk, unmodified for the purpose of trial, but doesn’t preclude the OJ Simpson question of whether he deliberately “made” the glove not fit. One can’t make tattoos magically appear or disappear. One can slouch or stretch to make his height appear slightly different, but not likely to a material degree. Walking, on the other hand, can be made to appear significantly different than they way it happens when no thought or effort is put into the demonstration.

It appears that the Court of Appeals did two things in reaching the right decision. First, it would not impute a deliberately false purpose to the defendant in offering the demonstration.  This is significant, as few courts would credit the defendant with honesty, whether in testimony or in a demonstration that could be subject to thoughtful modification.

The second is that the demonstration was one of the few things the defense could offer to refute the prosecution’s identification that wouldn’t compel the defendant to undergo cross-examination.  This is a huge, and deeply problematic, element in a trial, where the defense seeks to undermine testimony it claims is false but is incapable of doing so because it opens the door to the prosecution getting their hands around the defendant’s throat. 

Like it or not, few defendants make good witnesses, and once a defendant puts his butt in the witness chair, he’s exposed to every bad thing he’s ever done, the potential for confusion and inarticulate testimony that is often used to destroy him in front of the jury.  While defendant would often love to testify about one or two specific things raised by prosecution witnesses, the downside of opening up his life to the jury can’t be avoided.  While being unlikeable or ignorant doesn’t make a person guilty, it also doesn’t endear him to a jury.  The risk is huge.

By this ruling, the Oregon court enabled the defense to proffer what is, on the surface, nothing more than physical evidence in order to counter the twitchy testimony, without putting the defendant in the position of risking self-incrimination or just general coming off poorly to the jury.  While the decision could have easily gone the other way, it seems to best accommodate both the distinction between testimonial evidence and non-testimonial evidence, while allowing the defendant the opportunity to challenge claims against him without exposing himself to full cross-examination. 

At My Shingle, Carolyn Elefant copies an email on one of her listservs (which I would guess comes from the ABA’s Solosez listserv), which she describes as “one of the best and most objective post-mortem analyses of a solo practice that didn’t quite make it to the finish line.” The first clue that failure was inevitable was that he was engaged with the Solosez listserv, the mother lode of self-perpetuated ignorance about how to achieve success in the law.

The unnamed author started explains how he came to go solo:

I came to solo practice through a wholly voluntary decision to leave a partnership-track position at one of the most prestigious and high-paying  ”white-shoe” firms.  I had a significant pool of savings to draw on as start-up capital and to cover living expenses during the early going.

The reasons for leaving my position were two-fold:  no interest in practicing high-stakes business litigation, and a desire to have more time to spend on family and personal interests. 

Apparently, no one told him times were tough out there. He had a good job, and chose to walk away for personal reasons.  I’m sure the many young unemployed lawyers suffering crushing debt can empathize with his reasons. Who doesn’t want work that fascinates you and plenty of free time?

So the author conducted “market research” and decided to go out on his own.

I planned to practice criminal defense, immigration, civil rights (police and corrections misconduct), and consumer law (debt defense and FDCPA).  My essential plan was to finance contingency civil rights work with revenue from flat-fee criminal, immigration, and consumer work and contingency FDCPA work.  My market research told me that criminal defense would be very competitive and hard to generate business in; however, I had always wanted to do it.  Immigration also appeared competitive based solely on the number of lawyers practicing it; however, because one of [state immigration courts is in smaller city], I anticipated generating business representing individuals from a broader area and so felt the demographics overstated the competitiveness.  My research showed very little competition and a lot of need for civil rights representation and for certain aspects of consumer law (debt defense) but other areas very competitive (FDCPA).

He clearly thought this through, having chosen a variety of interesting practice areas where competent practitioners with experience and well-earned reputations die daily.  The ace in the hole was consumer law, where there is no shortage of need, and no money with which to pay a lawyer.

The transitory solo eventually connected up with a lawprof who hooked him up with a job. But his “insights” from his failed venture make this worthy of discussion.

In retrospect what I would have done differently:  not rented my office ($18,000 in unnecessary rental expenses over 2 years, plus probably $4,000 in gas); turned down a couple clients and required a couple others to pay expenses; done more revision of my web marketing earlier (started to generate lots of leads when it was basically too late to do anything with them as I was already in discussions over this new job).

I have somewhat mixed feelings about leaving the solo life.  It may be that had I stuck it out, somehow, for six months or so, I would have gotten over this hump and begun making ends meet.  It’s also possible I would have been totally insolvent within that same time frame.  My marketing was just starting to work a lot better and I was starting to be appropriately discriminating in what civil rights cases I would consider accepting.

Naturally, the focus immediately shifted to this tale of woe being a clarion call for social media marketing.  Just as every inmate in prison for 20 years knows every trick about winning a case, so too does the failed solo show the path to success. Yet, my takeaway is somewhat different.

First, in an economy where the business of law is in the toilet, the idea of giving up a stable, well-paid job is borderline idiotic.  Did he hate it that much that he was willing to trade poverty for the drudgery of doing work that didn’t interest him? Was more time with his family worth feeding his family?  It smacks of entitlement, a theme that carries over to his next poor choice.

So market research suggests that criminal law is “competitive,” but you “always wanted to do it?”  Practicing law isn’t a game that you want to play, but a responsibility to clients. Did anyone on the Solosez listserv suggest you might want to gain competence before holding yourself out as prepared to take someone’s life into your hands? It’s not about what you want to try, but what you are capable of doing without screwing up someone else’s life.  The good news is that a young lawyer’s interest in being a criminal defense lawyer isn’t much of a reason for anyone to retain him, thus saving poor defendants from a poor lawyer.

In Part II of the story, Carolyn includes what this intrepid solo was doing to market himself as the pall of death descended on his budding solo practice.  The gist is that, had he marketed himself this way from the outset, he wouldn’t be moribund now.

I started a blog on blogger, which I promoted on Twitter, Facebook, and LinkedIn.  I wrote substantive content at a rate of 2-3 articles per week.  I also systematically used Twitter to tweet or retweet updates and news relevant to my practice areas.  I targeted local people and attorneys in similar or related practice areas as followers, and went from 200 to over 500 followers.  I also reviewed my presence in various online yellow-pages type sites and found that with respect to many that I had thought I was listed in, I either was not or the information was sparse and not up to date.  I submitted to dozens of listing sites and submitted updated information to others. I created a JDSupra profile and Justia profile, answered Justia and AVVO questions, and linked together my website, online listings (where possible), Q&As, JDSupra profile, and blog.

The saddest, most astounding aspect is the shockingly absurd leap from the silent telephone to the belief that had he “revised” his web marketing earlier, his solo practice might not have failed, as it “started to generate lots of leads.” 

Leads?  You mean people calling and emailing for free advice, to find out how soon you can jump on their case pro bono, to inquire about whether you could do their murder case for $1,000?  Kid, it’s easy to get leads. Any idiot can get people with no money, bad attitudes and lousy cases to call.  That’s what they do after the first ten lawyers whose name they got through personal referrals sent them away. 

I know all about the calls and emails you received. I’ve gotten them for years, and expect that I probably get ten times the number you do.  These aren’t clients. This isn’t the basis of a successful practice. These are the multitudes of sad, angry, poor people who need a lawyer for grievances real or imagined and, just as you think you’re entitled to get what you want, believe themselves entitled to a lawyer, free and easy.

The problem with this leap of expectation is that you weren’t anywhere near having a successful practice with social media marketing.  You got all excited that the phone rang, and misunderstood a live voice on the other side of the line to be a potential basis for a thriving law practice. What you failed to perceive is that the sound you heard was poverty, misery and aggravation, not cha-ching. 

The interest that suddenly came your way was the annoyance that everyone else turned away. And what in the world made you think you would get anything else?  Because you’re the best lawyer in town, without reputation, experience or competence?  Clients would fling themselves at you because you are special?  Get a grip.

Of all the misunderstandings that are reflected in this solo’s post-mortem, the one that demands correction is his expectation that he would not only be able to create a viable practice out of nothing, but that it would allow him work/life balance.  The practice of law is hard. Its demands are unrelenting.  If anybody on Solosez told you that being a successful solo meant having more time to spend with your family, they either have no clue what they’re talking about or lied to you.

Best of luck in your new job. Working for someone else is what you were meant to do.

The  New York Times reports that a  new poll shows that a majority of New Yorkers believe that the police favor whites over blacks.

A significant majority of New Yorkers say the Police Department favors whites over blacks, according to a new poll by The New York Times.

That view, as widespread now as it was in 2001 during the administration of Mayor Rudolph W. Giuliani, is particularly prevalent among black New Yorkers, 80 percent of whom say the police favor one race over the other. A plurality of white residents — 48 percent — agree.

There’s only one problem. Whites don’t seem to have any real problem with it.

The poll found that a majority of black residents said the stop-and-frisk tactic had led to the harassment of innocent people, but most white residents viewed the practice as an acceptable way to improve urban safety.

This dichotomy is at the heart of the perpetual question of why Americans go to work everyday, come home and plop their fat butts down in front of the TV and watch the Kardashians or unattractive New Jersey women, and don’t furrow their wrinkly brow over problems with the criminal justice system, police misconduct and abuse or, for that matter, people who get to vote on the laws of this nation who possess strange views of the human reproductive system.

It’s not that they necessarily like what’s going on, but it doesn’t touch them.  People don’t care enough to get off the couch when the problem isn’t theirs. 

If white people were being stopped and frisked, thrown against the wall or forced to kiss pavement, in either the numbers or with the degree of force experienced routinely by black New Yorkers, you can bet your butt that they would be screaming for blood.  That would be Ray Kelly’s blood. That would be Mike Bloomberg’s blood.  Suddenly, the adage that you have to break a few eggs to make a safe omelet wouldn’t be enough to make the pain and humiliation go away.

My old buddy Mike, with whom I rode the train into the city every morning, and who was a classmate of Nino Scalia’s at La Salle Military Academy, spelled it out to me pretty clearly :

People don’t get too concerned over abstractions, unless it happens to hit them where they live.  As my good buddy Mike from the train tells me, “Hey, somebody has to take one for the team, as long as it isn’t one of mine.”  I suspect most people feel that way in their hearts.

This survey confirms my suspicions, though it’s hardly a new idea. Pastor Martin Niemöller  made the point back in World War II.  It remains as true today, in New York, as ever.

At its conceptual core, much of what’ written here is the elevation of law over order, the protection of civil rights and personal freedom at the sacrifice of safety.  I would like to believe that most people generally agree with the notion, provided that the safety at risk isn’t theirs.  When it is, they line up right behind my buddy, Mike, and are fully prepared to sacrifice rights and freedoms to regain that sense of personal security, particularly when someone else has to take the bullet for the team.

But some New Yorkers, while conceding that the police show favoritism for one race over another, said the stop-and-frisk tactic’s ends justified the means.

“If that’s what it takes, I find it acceptable,” said Jani Kipness, 58, a special-education teacher from Brooklyn who is white. She said that she thought that officers “single out minority groups,” but that “if you look at the crime in New York, it’s less white people; that’s just the way it is.”

“I wouldn’t want to be stopped and frisked,” she added. “But if you look at cities like Detroit and other cities that have a way higher crime rate than New York, I think New York has to be doing something right.”

Kinda makes you feel proud to be a New Yorker, doesn’t it? But don’t be angry with Jani. She’s hardly alone.

“In the Bronx, Brooklyn, Queens, they will stop and frisk blacks and Hispanics more,” said Kevon Geanus, 20, a construction worker who is black and lives in the Bronx. “The way they talk to you, and curse at you, when you’re just walking, for example, and say: ‘Why are you walking? What are you doing out here at night?’ ”

The irony is that this practice doesn’t necessarily make anyone safer, given the  negligible results produced by stop and frisk. but it goes a long way in giving the appearance of order, the sense of security, that lets people sleep better at night.  That would be white people, of course.  Who aren’t asked to take one for the team.

While it remains questionable whether the truth will set you free, at least the Minnesota Court of Appeals has held that it won’t cost $60,000.  That was the award given by a jury against blogger Johnny “Northside” Hoff for telling the truth with bad intent.

Eugene Volokh has been following this case since the beginning, providing a link to the Minnesota Star Tribune :

Controversial north Minneapolis blogger John Hoff must pay $60,000 in damages to a former Jordan Area Community Council executive director Jerry Moore, a jury in the civil case concluded Friday.

The Hennepin County District Court jury found that an “Adventures of Johnny Northside” blog post in June 2009 resulted in Moore’s firing from the University of Minnesota….

The jury ruled that although Hoff’s post … was true, he intentionally interfered with Moore’ employment contract with the University of Minnesota Urban Outreach and Outreach/Engagement Center….

Moore argues that Hoff is not shielded from tort liability simply because Moore could not prove the falsity of Hoff’s statement. Rather, Moore urges us to rely instead on Hoff’s motivation for making the allegedly defamatory statements. Moore asserts that because Hoff had an ulterior motive of getting Moore fired, he can be liable for the tortious-interference claims. We disagree.

When a person conveys unflattering and possibly damaging information to another person’s employer, it is unlikely that the motivation for conveying that information is borne out of affection. It is much more likely that the intent is for the employer to take responsive action — up to and including termination — based on the content of that information. Regardless of the motivation of the messenger, if the information conveyed is true, it is not appropriate for liability to attach. See Restatement (Second) of Torts § 772 cmt. b. (noting that conveying truthful information is not “improper” interference “even though the facts are marshaled in such a way that … the person to whom the information is given immediately recognizes them as a reason for breaking his contract”).

Hoff’s blog post is the kind of speech that the First Amendment is designed to protect. He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern. Attaching liability to this speech would infringe on Hoff’s First Amendment rights.

At the New York Times, another in their tepid series of Room for Debate appears, stemming from Colorado Senior Judge John Kane’s  refusal to accept a plea bargain that included an appeal waiver.  The question posed was whether prosecutors have too much power.

Of the five “debaters,”  two lawprofs took the answer as a given,  one arguing that the cure is the elimination of mandatory minimums.  A  former prosecutor argued that prosecutors need power because, well, they just do, and some collateral damage has to happen if we expect them to clean up all the bad things criminals do.

Former criminal defense lawyer and federal judge. turned Harvard lawprof, Nancy Gertner, limits her thrust to appeal waivers, agreeing with Judge Kane that they shouldn’t be on the table, employing an odd economic theory approach to show it’s not really arm’s length negotiations. 

Former prosecutor and federal judge, turned Utah lawprof, Paul Cassel,  ignores the question entirely and harps on how prosecutors exercise their discretion to nullify federal law at the expense of crime victims, and how Congress should hold hearings whenever the DOJ doesn’t bring charges for the “ultimate accountability in the court of public opinion.”

And while the issue is significant, the dilemma real and the problem one that is confronted daily in every court in America, the New York Times has managed to reduce it to an abstraction, if not a tangent as participants huck their personal agendas without regard to its relation to the question posed. 

Notice anything missing from the “debate”?  That’s right. There’s no criminal defense lawyer.  The Times, like almost all media, adores official titles, whether professor, prosecutor or judge. Put a few official titles together and it’s a grand slam.  Criminal defense lawyer, sadly, is not a title. Lawyer is not a title. What could the people who actually deal with the reality of the subject have to add to the debate?

It’s not that worthwhile things weren’t written that reflected life in the trenches.   Rachel Barkow from NYU wrote:

By almost any measure, federal prosecutors wield too much power. Because many federal laws govern similar behavior and are written broadly, prosecutors commonly have multiple charges from which to choose. This means they typically have many sentencing ranges to choose from as well. Thus, they can – and do – threaten defendants who want to exercise their trial rights with charges that will carry longer sentences (sometimes decades longer) than the charges they will file if defendants plead guilty.

On average, federal defendants who refuse to waive their right to a jury trial receive a sentence three times longer than those who plead. And with the prevalence of mandatory minimum laws, a prosecutor’s charging decision often dictates a sentence that a judge is powerless to avoid. It is no wonder 97 percent of federal convictions are the result of guilty pleas.

Absolutely true.  Similarly,  Angela Davis of American University wrote:

Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those crucial decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges. When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers.

Equally problematic is the fact that the charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone. If a prosecutor treats two similarly situated defendants differently — charging one but not the other or offering a better plea offer to one — it is almost impossible to challenge such differential treatment. The lack of transparency in the prosecution function also leads to misconduct, like the failure to turn over exculpatory evidence — a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.

These are solid, strong points that need to be made. And yet, they remain a bit too sanitary to reflect the ugliness and nastiness of the system from the ground floor. 

The irony is that Judge Kane’s decision to refuse to approve of a plea bargain that included a waiver of appeal, aside from the conundrum caused by its practical application which was subsequently resolved when the plea was offered without the appeal waiver, was an act of revolution.  As Nancy Gertner wrote,

Procedural protections are inadequate; the playing field, unequal. Still, every appeals court has found appeal waivers to be constitutional. They did not have to; the Constitution, after all, doesn’t even mention plea bargaining. It is an issue of fairness. Rather than being protective of a defendant as they should, the appeals courts have permitted an already well-armed government to demand even more.

Yet, the pleas offered today will include the same waiver of appeal unless they happen to go before Judge Kane, because no other judge has yet adopted his position.  And the same is true of judges who sit quietly by as defendants are overcharged, or threatened with a superseding indictment if they don’t take the plea, or the defendant whose choice is to take thirty years instead of life after trial, when the evidence, if it wasn’t trumped up by lying cops, would justify only ten.

Do prosecutors wield too much power? There is no real question here to debate. We know why Congress criminalizes everything it can, and why it incorporates mandatory minimums so that there’s something new to offer every two years in a stump speech. 

Rather, the debate is why other judges don’t have the guts of a Judge Kane to say “enough” with the evisceration of rights in the quest to create the Utopian crimeless society. And after appeal waivers, how about lying agents and cheating prosecutors? 

Of course prosecutors have too much power, and power corrupts. This isn’t a new concept. Ironically, former prosecutor Samuel Buell, now lawprof at Duke, offers an honest defense of the prosecutor function, that collateral damage and abuse is inevitable if you want the government to take down the bad guys. You have to take the bad with the good if you want prosecutors to be effective.

But then, that’s why there are judges, to temper the bad and rein in the corrupting power.  What this debate shows, to the extent it shows anything, is that federal judges, save one old man in Colorado, have the ability to do something about a system gone insane, but lack the fortitude to make it happen.  They have power too.  And power still corrupts.

In a couple of days, Dr. SJ and I will pack up the Prius and head north.  In the back seat, my youngest child, my son, will sit quietly,  The trip will take about four hours, but it will feel like the blink of an eye. It all feels like a blink of an eye at the moment.

While it’s just the next step down a path that began 18 years ago, it’s a different one. I remember most of it, though a lot has blended into an amorphous mass.  There were the afternoon naps when he fell asleep on my chest. The times we watched TV together, poking and kicking each other.  The look he gave me when he needed to know I was there for him in Dallas, after a stunning loss at a fencing competition when he was used to winning.  All along, I knew he was coming home with me. In the morning, I would find him asleep in his bed.  They all look like angels when they’re asleep.

When we drove our daughter to college, it was the culmination of months of drama. Her emotional highs and lows grew like the pile of stuff she needed to bring with her. It was exhausting, the latest test of parenthood endurance. On the ride down, she informed us that this was a bad idea, and we should turn around and go home.  We get her ice cream instead, and she survived.

The pile is about half the size this time. His needs are few. While I can tell he’s nervous, he would never admit it. But he’s exhilarated at the idea of independence, which both pleases me and breaks my heart.  I raised him to be ready for this day, and yet there is a part of a dad that knows that he will be the victim of his own success. 

When you’re young, 18 years seems like forever.  As you slide past the middle of your life, you are acutely aware of how fiendish time is. It sucks you in when you’re most vulnerable and then rips your heart out after you’re hooked.  New parents think the birth of their child is the first time the miracle ever happened. Later, you know that you are just like every other parent, not at all unique.

The ride will be ordinary, complaining about traffic and lousy drivers.  Pointing out interesting cars along the way. Singing along with the radio, only to be told how awful my voice is.  We’ll try to make conversation, and get a grunt in return.  Things will pop into our head that we forgot to do, and my son will tell us it doesn’t matter or he doesn’t care.  And he doesn’t. 

We’ll find a place somewhere in Connecticut to stop for breakfast, and he’ll want bacon with his pancakes.  He’ll make bacon jokes, just as he always does.  It will be nothing out of the ordinary for him. 

It’s not like I won’t see him soon enough, as hotel reservations are already made for parent’s visiting day in October.  But it won’t be the same.  He already has plans to go to Cern next summer for an internship, and it’s where he belongs.  The place on the couch where he watched Saturday morning cartoons will be empty, though it still bears the scars of food that missed his mouth.

My plan of action is to carry his things to his room and help him set things up in whatever way makes him feel at home.  We’ll be busy doing busy work, hashing out insignificant details as if they’re matters of life and death.  In a few days, he’ll change everything anyway, as he creates his own world.  Eventually, we will run out of things to put away.  Dr. SJ will go through lists of things for him to remember to do, to which he will nod and ignore.

Then time will come to let go.  Every parent who has dropped off his youngest child knows what will happen, and my experience will be no different. But this time it will be my turn. I will tell him I love him and that I’m so proud of him. I will look him in the eyes and remind him that if he needs anything, I’m here for him. He’ll tell me he knows. 

He will let me hug him because he knows I won’t leave until he does. Then he will say “bye” and turn away, rushing off to the new, exciting things out there for him.  I will watch for a moment, then turn away. Dr. SJ and I will walk back to the car slowly, knowing that we’ve done all we can to make him ready for the day and that we have no place else to go.  It’s time for us to take the long drive home, and for him to start his own life.  And I will join all the other fathers whose son has left home get on with his future.