When the going gets tough, the tough get going. How is that working out for you?  In a New York Times op-ed, Oliver Burkeman writes about the power of negative thinking.  After discussing the feet of acolytes of positive thinking guru, Tony Robbins, who walked on burning coals and got, well, burned, he says:

Or take affirmations, those cheery slogans intended to lift the user’s mood by repeating them: “I am a lovable person!” “My life is filled with joy!” Psychologists at the University of Waterloo concluded that such statements make people with low self-esteem feel worse — not least because telling yourself you’re lovable is liable to provoke the grouchy internal counterargument that, really, you’re not.

Even goal setting, the ubiquitous motivational technique of managers everywhere, isn’t an undisputed boon. Fixating too vigorously on goals can distort an organization’s overall mission in a desperate effort to meet some overly narrow target, and research by several business-school professors suggests that employees consumed with goals are likelier to cut ethical corners.

After all, if failure isn’t an option, and you can’t succeed by honest, hard work, then there aren’t too many options left. 

The internet deluges lawyers with messages of how to succeed, usually bolstered by vague concepts and glorious platitudes of becoming the head of a tribe, or a thought leader, or authentically engaging.  No one talks much about the internal inconsistency of this cheap talk, that tribes can’t be made up of all chiefs and no indians, that not everyone has thoughts that the rest of the legal world desires to hear, and those who authentically engage aren’t particularly astute or personable.  By definition most of us are part of the pack, and that’s all we ever will be.

That’s life.

But it may not be good enough. It may not be acceptable. You want more. You need more. Here you are, a lawyer, with all that time, all that money, sunk into your career, and the promise of comfortable life in return withering on the vine.  Explain it to your spouse and your kids, how the law is hard, business is rough.  It can crush your soul, so you open yourself to the power of positive thinking in the hopes of finding a better answer because the one you’ve got now isn’t working.

The problem is that as bad as things are, they can always get worse.  The  Wall Street Journal Law Blog reports that lawyers continue to get sucked into internet easy money scams.

Lawyers who warn clients against risky transactions are not supposed to get drawn in themselves.

But some are turning out to be easy prey for email swindlers using a sophisticated Internet scam that has bilked millions from law firms across North America, as the WSJ reported Monday.

Internet swindlers can reap much as $100,000 to $400,000 each time a law firm is duped, according to court records and federal law enforcement officials.

I get a few of these scam emails a day. Chances are good that you do too. Don’t we all know that these are scams, that no real client will email us out of the blue to handle their easy collection of a cool million, where we get to keep a third for doing nothing more than writing a letter?  Any idiot knows that, right?  Except the victims of Emmanuel Ekhator.

In a first here in the U.S., an alleged ringleader of one such scam is set to go on trial this fall in U.S. district court in Pennsylvania. Federal prosecutors say Emmanuel Ekhator, a Nigerian national, bilked firms of at least $32 million that way. Mr. Ekhator, who prosecutors said was living in Canada at the time of the alleged frauds, has plead not guilty. His lawyer declined to comment.

Despite the publicity surrounding the Ekhator case — and numerous warnings over the years from law enforcement and bar associations — the victims continue to pile up.

Meet the power of positive thinking. Meet the end result of the persistent claims of social media legal evangelists, who twit constantly about the fabulous wealth to be made by hopping on the tech train, and how you better jump on now or it’s leaving you behind.  You’re hungry. You’re desperate. You are ready to try anything. Even  Seth Godin says if you’re waiting for proof that it’s real, you’ve waited too long.  Do it! Take the chance! Do it NOW!

The power of negative thinking is that it keeps us skeptical.  Skepticism prevents us from getting burned.  What kind of idiot walks on burning coals? Why would any sane person do such a thing? The same could be asked of  lawyers who fall for scams on the internet.  And it’s not just rich Nigerian princes, but well-known companies like West, even bar associations, who will do anything to separate you from your money.

The desperate will respond, “so what are we supposed to do?”  Hard work, integrity and honing your skills isn’t a magic bullet. You won’t get rich overnight. You won’t become a thought leader. You won’t become a social media rockstar.  The reason is because no matter how hard you shut your eyes, click your heels, and repeat, “I’m fabulous,” it doesn’t make it so.  There is no secret to overnight success.

The best you can hope for is not to be played for a fool on the internet.  As bad as things may be, at least your feet aren’t burned. 



 

For every person who wins a gold medal, there are athletes who don’t. They are the losers of the Olympics, the guy at the back of the field in the 100 meter dash.  Compared to the winner, he looks so slow, so, well, pathetic.

The guy who loses in the Olympics put in 10,000 hours of practice.  His family spent a small fortune on his training, his coaching, his equipment and his care.  He passed up going to the movies, or maybe a dance, and probably didn’t have time to perfect his technique in Mortal Kombat.  He may not even have a lot of friends on Facebook.

The guy who finished last in the Olympics was a hometown hero.  He was a college star.  Many admired him. Some even adored him.  Maybe in his nation, they threw a dinner to honor him.

At home, he has a wall of trophies. Or medals. Or plaques.  Or all of these physical manifestations of his prowess.  He has know great success, and probably great failure.  He cried when he didn’t perform as well as he knows he could.  Someone held him and told him it was okay to lose.  It didn’t mean he was no good, that he was a fraud, a failure.  Everyone has a bad day, but you bounce back and make sure tomorrow is a better day.

There were times when he hated to wake up, knowing that he had to practice again.  His feet hurt.  He’s legs felt like dead weights.  Practice isn’t fun. It’s boring. It’s tiresome and tedious.  The same move, the same intricate detail, repeated over and over until it becomes a part of him so that he never has to think about it again. His body just does it that way, as if there is no other way it could possibly happen.

It was great when his friends, when people he didn’t even know, told him he was a star.  But he knew there were other stars, better stars.  He didn’t compare himself to people who couldn’t perform like he could, but to people who performed better.  Whatever he did, it was never good enough. It could always be done better.

And so he gave up going on a date.  He came home early to go to bed when his friends were out late.  He woke up early to practice when his friends slept in. 

They all thought he was a natural, that it just magically happened that his body moved so swiftly, so gracefully.  He saw his awkwardness, the fine distinctions that separate the good from the great.  He knew that a fraction of a second made the difference between the winner and the rest of the field.  He feared that if he didn’t win again, his friends would realize it too.  They would no longer see him as the natural, but as a member of the chorus, an indistinguishable voice.  He laid awake at night, scared to death he would let them down.

He practiced as his body burned, as blood flowed.  He couldn’t tell where the blood came from without looking, as there was no longer enough feeling to realize he was bleeding.  He no longer hated the pain as he had become inured to it.  It was no longer pain, but just how he felt.

There he was, on the big stage. Thousand, maybe millions, watching him.  The thousand of hours, the sacrifice, the love of his family and friends, all laid out for the world to see.  And he pushed with every ounce of his being to make this the best he ever did.  And so did the others around him.  He came up short. He watched as the others were in front of him, and he knew what that meant.  As hard as he wanted to, he couldn’t change it.  It was over.

The athletes competing in the Olympics are among the most select group of human beings that could possibly be. They have dedicated themselves beyond the imagination of almost every other person, and have achieved extraordinary success.

Behind them, there are another hundred athletes vying for their chance to be on the big stage, to prove themselves worthy.

We only think about the guy who wins the gold medal.  Every athlete there is amazing, having excelled beyond almost every one of their peers through their effort, sacrifice and dedication. Yet they are the Olympic losers.

Update: Via Ed at Blawg Review, a little known fact that Olympians who finish between fourth and eighth get a certificate.  The is a reason it’s a little known fact.  After all, what’s the big deal about the 7th best in the world at something.  How many people reading this are 7th best in the world at something.  Show of hands?

A recurring conundrum involves police confrontation with disabled citizens.  It happens. Regularly. And the deaf are particularly problematic, as the first thing a cop does is shout a command.  There is nothing less useful when addressing a deaf person than to scream a command, but that’s invariably the first thing a cop does. The second usually involves pain.

The problem arises out of ignorance. A cop assumes anyone he confronts to be “normal,” in the sense that they have all senses firing as expected.  Certainly, there is nothing terribly out of the ordinary for a person to be deaf (or blind, or psychologically impaired, for that matter), yet cops presume everyone to be able-bodied and minded in all respects, upon pain of, well, pain. It may be wrong, but at least it’s somewhat understandable. 

When it came to Lashonn White, however, there was no excuse.  From KIROTV:

Late in the evening on April 6, White said she called for police assistance after a guest reportedly attacked her in her own apartment.

Deaf since birth, White used a special video-equipped phone, connected to a TV and a Web camera, to call 911. A certified American Sign Language interpreter on the other end verbally relayed White’s pleas for help to a Tacoma police dispatcher.

So which gave it away?  The special 911 video system? The ASL interpreter?

On the 911 calls, White herself made it perfectly clear.

“I’m deaf.  I can’t hear if they’re out front knocking or whatever … I can’t—are they going to the front or back? Where are the police at?”

Or maybe it was that White specifically advised the dispatcher that she was deaf. That should have nailed it down, and it did.

Computer-aided dispatch (CAD) logs show Tacoma police officer Ryan Koskovich and his partner, Michael Young, were outside White’s apartment complex in about six minutes. 

It also reflects that officers received texts along the way stating, “Person doing the hitting is a Sophia” and “Vict. is Lashonn White.”

In addition, it appears from internal police records obtained by KIRO Team 7 Investigators, Koskovich and his partner were repeatedly given information that the victim could not hear a thing.

Unlike the many instances where the police come in “blind,” unaware of a disability or otherwise unable to discern an issue that removes a person from the anticipated norm, the cops responding to White’s 911 call were expressly advised that their victim was deaf.  Short of dropping an ASL interpreter from the sky into the mix, there was nothing more the victim could have done to make clear that she was deaf. Nothing.

And still…

Within seconds of running outside to meet police, Officer Koskovich pulled his Taser and fired a two-barbed electric wire into White’s ribs and stomach.

“All I’m doing is waving my hands in the air, and the next thing I know, I’m on the ground and then handcuffed. It was almost like I blacked out. I was so dizzy and disoriented,” White said.

Witnesses said White began bleeding heavily from her knuckles and the right side of her face swelled up immediately after she hit the pavement following the Taser jolt.

As is required by CYA policy, the police having massively screwed up by nailing the victim, the deaf victim, having been told she was deaf, they arrested White for assaulting the pavement with her face.  The police then prepared official reports to justify themselves.

Officer Koskovich and his partner submitted nearly identical descriptions of the arrest in their reports.

 Koskovich wrote in part: “I yelled for White to ‘stop’ and held my right hand up to signal for White to stop. White ignored my commands.”

He added, “White was making a loud grunting noise, had a piercing stare in her eyes and had a clenched right fist in the air.” 

Ah yes, the loud grunting noise and piercing stare of the deaf. Reason alone to tase her.  After all, that clenched fist posed an immediate thread to their lives. Something had to be done.  And still, the problems for White weren’t over.

Tacoma police arrested Lashonn on two criminal charges, simple assault and obstruction of a public servant (law enforcement officer). Then they carted her off to jail. She spent 60 hours there – also without an interpreter- before a city prosecutor reviewed her case and asked that charges not be filed at all.

There is a clear duty to provide a deaf arrestee with an ASL interpreter as soon as possible, and White requested one to no avail. From what appears, White was never provided with an interpreter at all, and had the city prosecutor not determined that charges should not be filed, she would have remained detained in silence.  Why she was not arraigned on the requisite CYA charges within 24 hours remains a mystery, as does why it took 60 hours for a prosecutor to decide to toss the case, eventually causing her to be released.

On the one hand, this might be viewed as yet another example of why the victim of a crime might want to give serious thought to calling the cops. After all, isn’t it bad enough to be victimized once?  But the snarkiness aside, there are times when a person requires the aid of the police, and does everything within her power, and indeed effectively, to communicate to the cops that there is a special circumstance that alters the standard police operating procedure of shouting commands and expecting citizens to be obsequious.

There is absolutely no excuse for what happened here. No one should have to risk this treatment when seeking the assistance of the police, but that they caused such harm to a deaf woman, and then exacerbated their harm by lying and covering it up is utterly beyond comprehension.  They knew she was deaf, and couldn’t have cared less.

There may be no sign over the Chittenden Regional Correctional Facility in Vermont, but for pre-trial detainees, a sign might have read “arbeit macht frei,” according to the Second Circuit in McGarry v. Pallito.  Barrington Parker, writing for the court, reversed a lower court ruling that the jail could force detainees to work because it was good for their rehabilitation, as a violation of the Thirteenth Amendment to the Constitution, prohibiting involuntary servitude.

McGarry, a pro se defendant, was arrested in December, 2008 on unspecified “charges stemming from a domestic dispute,” and released in June, 2009, when the charges were dismissed. He was held in Chittenden, where he was given a choice:

McGarry alleges that in mid-February 2009 defendants directed him to move to House 1 and required him to work in the prison laundry over his repeated objections. He alleges that he had no choice because defendants told him that his refusal to work would result in his being placed in administrative segregation or “put in the hole,” which, he alleges, involves lock-up for 23 hours-a-day and the use of shackles. McGarry further alleges that defendants told him that he would receive an inmate Disciplinary Report (“DR”) if he refused to work, and that even minor DRs affect when sentenced inmates are eligible for release.

[T]hey contend it was objectively reasonable for defendants to believe they could compel pretrial detainees to work because the work program advances a legitimate interest in rehabilitation.

What legitimate purpose exists in rehabilitating presumptively innocent people is never addressed and remains a vexing question.

McGarry brought suit under §1983, arguing that this was involuntary servitude, prohibited by the 13 Amendment, passed after the Civil War to bring slavery to an end in the United States. He was smacked in the district court by Mag. John Conroy.

The Magistrate sua sponte concluded that McGarry’s Thirteenth Amendment allegations were barred as a matter of law because being forced to work in the laundry was “nothing like the slavery that gave rise to the enactment of [the] Amendment.” Finding that McGarry’s “laundry claim” failed “to allege labor that was akin to African slavery,” (internal quotation marks omitted), the Magistrate recommended dismissing his claim and denying leave to amend, holding that any other outcome would “trivialize the pain and anguish that the Thirteenth Amendment sought to  remedy.”

For those unaware, there aren’t many involuntary servitude claims made these days.  Judge Parker (who, not that it means anything, happens to be African American) rejected this view of the limitation of involuntary servitude.

The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, §1. Shortly after its passage, the Supreme Court held that the Amendment “is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Civil Rights Cases, 109 U.S. 3, 20 (1883). Contrary to the district court’s conclusion, it is well-settled that the term “involuntary servitude” is not limited to chattel slavery-like conditions. The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery. See Slaughter-House Cases, 83 U.S. 36, 69 (1872) (“The word servitude is of larger meaning than slavery . . . .”)

The lower court’s comparison to slavery would have effectively made it impossible to maintain any claim under the 13th Amendment, as pretty much any forced labor today falls far short of slavery and “trivialize[d]” its “pain and anguish.”  As much as someone may gripe about forced labor, it’s not slavery.

But, as the Circuit held, the prohibition isn’t limited to the institution that remains one of the most disgraceful in our history, but recognized that far less dehumanizing servitude falls within its ambit.  The argument is regularly made that the government compels citizens to perform involuntary labor, often with regard to lawyers (ranging from compelled pro bono to forced indigent assignments). 

This decision breathes some life into these arguments, though I doubt it suffices to undermine the idea that lawyers, given the monopoly to represent others, can’t be held to a requirement to give back some of their time in return.  However, as to forced indigent assignment, the argument seems far stronger.

As for pre-trial detainees, who are commonly required to work during the time they are held in jail awaiting trial, this decision is huge.  While the rationale put forward by Chittenden doesn’t withstand scrutiny, the fact is that detainees are not convicts, and are merely warehoused pending the outcome of their charges. They didn’t ask to be there, and they are under no duty to provide compelled labor as well as their loss of freedom.  

Jails have long enjoyed the benefit of forced labor from their inmates (even the name inmates as applied to pre-trial detainees rankles), both to perform the jobs needed to maintain a jail on the cheap as well as keep them busy to avoid the “idle hands” dilemma.  Good for the jail. Not so much for the pre-trial detainees, although it would not be surprising for some to prefer to work, as some find it better to do something than sit around for months, if not years, with nothing to do.

Regardless, it’s about time that pre-trial detainees be recognized for what they are, people who have been found guilty of no crime and who enjoy the presumption of innocence.  It’s bad enough that they suffer the loss of their freedom.  It’s about time they were freed from involuntary servitude.

The stories are legion of police, New York or elsewhere, taking a dim view of people memorializing their conduct by video or still photography.  Photography is not a crime, so why do police persist in making it so?  Because they can.

Long-time  New York Times freelance photographer Robert Stolarik found out what it’s like to be treated like the riff-raff.

Mr. Stolarik was taking photographs of the arrest of a teenage girl about 10:30 p.m., when a police officer instructed him to stop doing so. Mr. Stolarik said he identified himself as a journalist for The Times and continued taking pictures. A second officer appeared, grabbed his camera and “slammed” it into his face, he said.

Mr. Stolarik said he asked for the officers’ badge numbers, and the officers then took his cameras and dragged him to the ground; he said that he was kicked in the back and that he received scrapes and bruises to his arms, legs and face.

The police, of course, fall back on their generic excuse, that Stolarik was given a “lawful order” and disobeyed.  The lily was then gilded:

The Police Department said in a statement that officers had been trying to disperse the crowd and had given “numerous lawful orders” for both the crowd and Mr. Stolarik to move back, but that he tried to push forward, “inadvertently” striking an officer in the face with his camera.

The police said that Mr. Stolarik then “violently resisted being handcuffed” and that, in the process, a second officer was cut on the hand.A video of the episode taken by one of the reporters who was with Mr. Stolarik shows Mr. Stolarik face down on the sidewalk, beneath a huddle of about six officers.

After all, photographers seem to be a very violent bunch, always doing something with justifies a pile of officers throwing them to the ground and piling on, the requisite knee to the small of the back so that it’s clear that someone will suffer pain, and it won’t be the cops.  Why six officers?  The others didn’t notice the take down in time to join the pile?

Naturally, charges were levied against Stolarik (note that I do not call him “Mr.” as does the Times, just as they don’t call other folks “Mr.” when it’s not one of their own) for obstructing governmental administration and resisting arrest.  He was apparently given a DAT with a return date in November, thus distinguishing him from the norm of a night in a holding cell at Central Booking. Somebody had the good sense not to push the envelope that far, and no doubt by the time Stolarik returns to court to answer the charges, everyone will forget this ever happened.

But what will the New York Times do about this?  This time, it’s not some local yokel photographer in some backwater getting his camera seized and head bashed.  If there is any newspaper with the ability to bring this issue to a head, it’s the New York Times.  So, gray lady, what do you plan to do about it?

George Freeman, a lawyer for The Times, said the episode was “especially distressing” because the newspaper had been working with the Police Department since the Occupy Wall Street protests last fall, in which some journalists were denied access to certain areas or were arrested, to find ways to prevent the police from interfering with journalists in the course of their work.

Compromise the First Amendment.  Cooperate with the police.  Beg for their indulgence. 

There has long been a concern about the media’s gutless embrace of law enforcement in order to smooth their way when “doing their job.”  They need cops to talk to them, giving them some “inside scoop” so they have more to write about then the official statement. They need access to crime scenes, disaster scenes, newsworthy events, that are under the control of the police. Without this access, how are they supposed to write stories, take pictures, report the news?

There are two ways to accomplish access.  The first is to come to an agreement with the guys with guns, where they won’t step on too many toes, make too many waves, annoy the men in blue.  After all, compromise is always the easiest, smoothest path.

The downside, of course, is that compromising access means they compromise their objectivity, their right to unearth the news and report it.  They report what they’re allowed to report.  They report only as much as the cops permit. 

The other way is to assert freedom of the press and make the biggest stink possible about this outrageous police abuse.  This way involves being tough. It means they could make some enemies. It means they would have to fight for their rights.  It all sounds so hard and unpleasant.  Compromise is such a beloved concept anyway.

Where will compromise take the New York Times after the arrest of Robert Stolarik?  Maybe they will agree to allow their photographers to be thrown to the ground, but agree to only four cops on his back?  Maybe the cops can smash his face on the pavement but not put a knee in his back? 

Or maybe the Times will agree that its photographers will only take pictures approved by the NYPD, and the cops agree not to arrest their people any more.  Will both the cops and the Times be happy with this compromise?

And maybe Stolarik will get an ACD come November, with a promise to behave himself by complying with police commands, just as they expect of every photographer.

Update: To the extent that some see this as a potential “turning point” in the revolution, with dreams of the New York Times fighting the good fight to finally put an end to police abuse of photographers, it should be noted that this story did not appear in the dead tree paper on page one, above the fold.  In fact, it appears on page A18, the last page of the section, below the fold. 

While the message may be subtle, it’s nonetheless clear.  The Times isn’t going to war over this. No matter how many barrels of ink they have stashed away, it will not be spilled on behalf of Stolarik.  







 

Soon after the death of Chavis Carter hit the internet, emails started coming in. Did I see it? What did I think? And, naturally, can you believe the Jonesboro, Arkansas cops just murdered this kid?

Carter suffered a single, fatal gunshot wound to the head. He was detained on Saturday night following a traffic stop in Jonesboro, about 2 1/2 hours north of Little Rock, after officers said they found marijuana and empty baggies. Officers searched him twice, handcuffed him and placed him in the back of a police car, police said. Not long after, police said, he was found slumped over, with his head in his lap and a gunshot wound to the head.

Well sure, I can believe.  But I don’t know it. Nothing about the death of Chavis Carter makes sense.  Twice searched, yet he still had a gun in his possession?  Possible, but highly unlikely.  The windows of the police cruiser were closed, so no shot fired from a third part outside.  The bust was for a small amount of pot, hardly anything for a young man to commit suicide over.

So it’s got to be the cops? Except witnesses bear out the cops story, that they placed him in the cruiser and a short while later found him dead.  To execute a cuffed prisoner this way is nuts.  It’s not that I can’t believe it might conceivably happen, but it’s such an absurd thing to do that absent some piece of evidence to support it, it’s hard to believe.  

Jonesboro Police Chief Michael Yates says the police-claimed circumstances of Carter’s death “defies logic.” He called it “bizarre,” and, for once, no one disagrees.

Those inclined to find the police at fault rushed to find the police at fault.  And they may be right, but their fury and hatred proves nothing about what happened. It proves only that they are as inclined to rush to judgment as the other team is to blame a defendant.  They seized upon possible minute distinctions in media reports of the police write-ups to show it was a murder and a cover-up. 

“I think they killed him”, said Teresa Carter.  In an administrative summary released Friday, officers said Carter was not handcuffed in the back of the car, at first. Then was taken out, handcuffed, and searched.   

Monday officers said a metal thumping noise first alerted them to the shooting. Now they are saying a smell, maybe gunsmoke alerted them and they found carter slumped over.

The mind plays tricks when trying to make sense of the senseless, but it’s neither a discrepancy nor an answer.  It is a grieving mother trying to understand why her son is dead.

The FBI is now going to investigate the case.  Maybe they will make sense of it, but they only have limited information available.  Coming after the fact, without so much as seeing the scene, make it difficult.  There is a dash cam, which may answer all questions, but why, if it does, has it not been disclosed?  This factors tends to militate strongly toward blaming the cops.  If the dash cam showed something else, one would suspect the Jonesboro police to paste it on Youtube within seconds, proving they did nothing wrong.

But it’s still speculation at this point, which is why I wrote nothing about what Charles Blow calls the Curious Case of Chavis Carter.  While his words drip with skepticism, Blow does all he can do. Ask the unanswered questions.

Yet, “specifically, how Carter suffered his apparently self-inflicted gunshot wound remains unexplained.”

That is the question, isn’t it? How do police officers search a man twice and find a small amount of marijuana but miss a handgun? And how does that man, who had been handcuffed, use that gun to shoot himself in the head?

It’s not impossible.  It’s certainly far-fetched.  People have offered scenarios that reflect Carter trying to rid himself of a concealed weapon that somehow survived the frisk, by dropping it on the floor and trying to move it under the seat of the police cruiser so it wouldn’t be discovered.  With his body contorted, his hands behind his back, trying desperately to slide the gun off the seat and onto the floor, it fired and struck him in the temple.  That’s one bizarre, twisted story, but as any criminal defense lawyer can tell you, bizarre twisted stories happen.  Not often, but sometimes.

When people sent me emails and links about this death, they expected me to write something.  After all, this was certainly a fascinating case, and clearly within my ballpark.  Yet I wrote nothing.  I was stymied.

Blow asks all the right questions, but there is nothing as yet, and there may well never be, meaningful answers to these very hard questions.  So what do we do?  Retreat to our respective teams and root for our side?  We ridicule the other side for doing this, and yet should we do the same?

There are times when a fascinating, horrible story comes to light.  A young man is dead under circumstances that defy logic.  And there is nothing more to add.  To think there is some insight to what happened to Chavis Carter given the known “facts” is to indulge in speculation colored by bias.  That enlightens no one, and feeds the mindless antagonism that too often frames the debate over police abuse and misconduct.  No side is entitled to fill in the blanks with whatever serves their agenda.

I had nothing.  I wrote nothing. That’s the best I can do until there is information that changes the landscape.  I’m sorry to have disappointed those of you who think I should have had an answer, but I’m not sorry for coming up empty when that’s the only legitimate view one can have under the circumstances.

Jared Rapp has a great career ahead of him as a lawyer.  Not only because his win before the Michigan Supreme Court in  People v. Rapp was a significant victory for free speech, not to mention an important smack down for “meter maids,” regardless of gender, who believe that no mere citizen has the right to orally challenge their official acts, but because he did something that few people do.  He took a small but important fight all the way to victory.

From The Fire :

On September 16, 2008, Rapp received a parking ticket on MSU’s campus. He approached a nearby MSU parking enforcement employee to complain about the ticket. When Rapp began shouting, the employee called campus police from inside his service vehicle, the standard procedure for responding to an upset parking ticket recipient. Rapp was charged with violating MSU Ordinance § 15.05, which reads:

No person shall disrupt the normal activity or molest the property of any person, firm, or agency while that person, firm, or agency is carrying out service, activity or agreement for or with the University.

Rapp was eventually convicted of violating this ordinance for his tirade against the parking enforcement employee.

Rapp based his case on the 1987 US Supreme Court case Houston v. Hill which found unconstitutionally overbroad under the First Amendment a municipal ordinance that made it a crime to interrupt a police officer. The justices in that case stated police should not be given the ability to arrest individuals for words or conduct that offend them. A majority of the Michigan justices found the MSU ordinance was even broader in scope than the Houston ordinance.

“Like the ordinance that the United States Supreme Court invalidated in Hill, the verbal disruptions that the MSU ordinance criminalizes are not limited to those containing fighting words or obscene language,” Justice Diane M. Hathaway wrote for the Michigan court majority. “Instead, the MSU ordinance explicitly criminalizes any disruption of the normal activity of persons or entities carrying out activities for or with MSU. Not only does the ordinance fail to limit the types of disruptions that are prohibited, it also protects a much broader class of individuals than the ordinance at issue in Hill.”

The majority pointed out that other statutes already prohibit physical assault, so the MSU ordinance in large part criminalizes speech. Rapp did lose his argument that the state should pay the costs he incurred defending himself against a prosecution based on an unconstitutional statute. The justices found no statutory basis for awarding such costs in a criminal case.

Well, not quite a kid, as Jim von der Heydt came to law school after having taught English at Phillips Exeter Academy (where rich parents rid themselves of their baby at their earliest opportunity).  But now that he’s going into his third year of law school, a “rising” 3L as it’s now pretentiously called, he gets to be a kid again (and will therefore be called “the kid” hereinafter).

For some inexplicable reason, Dan Markel  invited the kid to post at PrawfsBlawg about his experience as submissions editor at Cleveland State Law Review.  Yes, apparently there is a law school called Cleveland State, and far be it for me to tell anyone in Ohio that Cleveland is not a state.  The point of the kid’s posts are to advise scholars as to what he, as Lord of Submissions, thinks of their efforts.  He began at the beginning, with cover letters, which he takes seriously despite common wisdom that nobody actually reads them.

From this ignominious start, the kid took a fascinating turn.  His second post, Reaching the Merits, raises a fundamental, and often ignored, lesson for all lawyers, and most people:

To every issue there is a “threshold issue”; before any question is asked there are motions in limine; the countervailing facts are not yet ripe for consideration; can subject-matter jurisdiction be addressed before prudential standing, or do we even need to reach that question? 

There, in the holy of holies, adorned with wisps of emergent satori, is the lama.

“Sheldon,” she says.  “Come home!”

The problem is that most articles editors say that cover letters are irrelevant and that they never read them. So if you’re asking us for the best cover letter, no responses may in fact be our “Zen” answer.

(Incidentally, you might also find that you get more of a response if the reader knows what the post is about in the first paragraph, above the break. If you make readers work their way through a lot of writing before you get to the point, relatively few readers will still be reading by then.)

Posted by: Orin Kerr | Aug 3, 2012 6:01:09 PM

Unfunny joke and turgid post.

Sorry.

Posted by: Barbara Seville | Aug 3, 2012 8:08:14 PM

Initially, whether a “joke” is funny or not is a matter of personal opinion.  Whoever Barbara Seville is (and I was unable to figure it out), to take the time to post a comment that she didn’t find the post funny is a monumentally douchy move. It wasn’t patently offensive. It wasn’t dangerous or destructive. It’s not to your liking? Who cares, you pompous, narcissistic fool.

But the real irony is calling the post “turgid.”  Turgid is the stock in trade of academics, for whom pedantism is the air they breath.  The post was no more turgid than pretty much anything else posted at a law prof blog, and given that it opened with a joke (even if unfunny to someone who thinks the blawgosphere owes her humor that matches her personal sensibilities), it’s about as unturgid as it gets.

Sadly, the kid responded to the second comment with acquiescence,

Agreed.

It’s in the nature of shaggy-dog stories to be shaggy, but the argument got woolly as well.

I’ll have more organized thoughts on legal academia’s neglect of juries, and the complexity of “fact-finding,” in a later post.

Posted by: Jim von der Heydt | Aug 3, 2012 9:14:46 PM

While it’s understandable that a “rising 3L” would be reluctant to tell a commenter to blow it out her butt, the time to decide whether your post is shaggy or woolly is before you hit publish, not afterward. There’s no shame in telling a pompous, narcissistic fool to get lost.

As to Orin’s comment, the kid did much better:

“relatively few readers will still be reading by then”
Yes, those are the ones I was writing for. The others will ignore the post (with, apparently, one exception).

In the same way, editors that value the cover letter will value a good one, and editors that don’t will ignore one. It’s hard to see the merit in ignoring the former, even if there are fewer of them.

Posted by: Jim von der Heydt | Aug 3, 2012 9:19:01 PM

Exactly.  Like I said, the kid gets it.

The Criminal Justice Section of the New York State Bar Association has a long and honored tradition of equivocation so that no one’s feelings are hurt.  Unlike specialized bar groups, the section includes defense lawyers, prosecutors and judges, where disagreements are tempered by civility and the assurance that all will be shown “respect,” meaning that it’s better to compromise on the evisceration of constitutional rights than call anyone out so that they can share a glass of sherry afterward in camaraderie.

Then came Marvin.  Marvin Schechter is a past president of the New York State Association of Criminal Defense Lawyers, and the  only defense attorney member of the commission formed by the National Academy of Sciences that produced the report, “Strengthening Forensic Science in the United States: A Path Forward.”  And now (at least as of this writing, as it might change by the time you read this), Marvin is the chair of the CJS.

In the NYSBA Criminal Justice Section Newsletter, there’s a “message from the chair” column. As Marvin’s the chair, it’s his message.  And following a decision out of the Bronx by Judge Edgar Walker in People v. Waters, where the court held that the prosecutor engaged in an “affirmative act of deceit” by withholding Brady material. 

The Bronx District Attorney, Rob Johnson,  argued that the judge was wrong as the withheld material, that a key witness changed his story, wasn’t Brady:

True, the decision was written by a judge. But both the decision and Schechter seem to ignore the fact that the material in question was inculpatory rather than exculpatory, which was fully explained in our motion to reargue the case, which the judge denied without detailed analysis. That’s right, the versions of the witness’ testimony which were more favorable to the defendant had been fully disclosed and were already in their possession for use as impeachment material.

Assistant district attorneys do not emerge from law school with a genetic disposition to hiding Brady material.  Instead this is something which is learned and taught.

The reliance of the district attorneys association on a recent handbook it prepared is telling. The handbook asserts that prosecutors need only disclose “material, exculpatory information.” But Vance certainly knows that is simply not the standard set forth by our courts and guaranteed by our Constitution.

While it does not serve the best interest of our profession for Willstatter to commend Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association for his baseless and reckless claim that “state and federal prosecutors frequently withhold evidence favorable to a defendant,” it’s unfortunate that he omits Schechter’s shocking and calumnious charge in a recent column he authored as chair of the section that the district attorneys of this state teach young prosecutors to violate the Brady rule as a matter of policy.”

The current Chair of this section did not accuse District Attorneys of not training or poorly training Assistant District Attorneys on Brady. He accused us of actually teaching Brady violations.  I can express my outrage, but I cannot feign surprise that these are the opinions of our current Chair.  His opinions would be just that, his opinions, and of little note except that he expressed them as the chair of our Criminal Justice Section.  I seek no apology from our current chair – his beliefs are his own and I can*t imagine that he would sincerely apologize for his outrageous statements.  I do, however, seek a clear statement from this committee, not just that the current chair*s statement is not the view of the committee, but specifically disavowing his statement that District Attorneys intentionally teach Brady violations.

“There is nothing new in what I said. There is nothing outrageous in what I said,” Schechter said. “D.A.s are responsible for the training of the assistant D.A.s when they come to their offices and we have yet to see from the D.A.s any explanation of why these Brady violations are occurring in the record numbers they are occurring and in the seriousness in which they are occurring.”

The real shame is that the district attorneys demonstrate far more concern with salvaging their dignity after this well-deserved smack than they do about  Brady failures and wrongful convictions, which they persist in sloughing off as if they can’t possibly imagine how such isolated incidents continue to occur. 

The prosecutors want to be treated respectfully. So do defense lawyers and defendants. If they want to have a civil and respectful discussion about why things go wrong, then it starts with some harsh truth, one of which is that they are not teaching their people the full scope and depth of Brady.  Show us you deserve the respect you crave by conceding that there is a huge problem. Then work together to fix it.  Afterward, we can sip sherry.




 

The  New York Times reports that Goldman Sachs is investing $9.6 million in a New York City program intended to reduce adolescent recidivism.

In New York City, Mayor Michael R. Bloomberg plans to announce on Thursday that Goldman Sachs will provide a $9.6 million loan to pay for a new four-year program intended to reduce the rate at which adolescent men incarcerated at Rikers Island reoffend after their release.

The Goldman money will be used to pay MDRC, a social services provider, to design and oversee the program. If the program reduces recidivism by 10 percent, Goldman would be repaid the full $9.6 million; if recidivism drops more, Goldman could make as much as $2.1 million in profit; if recidivism does not drop by at least 10 percent, Goldman would lose as much as $2.4 million.

An interesting bet, though its unclear how a reduction in recidivism produces a direct return for Goldman beyond a government handout. 

If the jail program does not succeed, MDRC can use the Bloomberg money to repay Goldman a portion of its loan; if the program does succeed, Goldman will be paid by the city’s Department of Correction, and MDRC may use the Bloomberg money for other social impact bonds, said James Anderson, director of the foundation’s government innovation program.

It seems that if they just floated a bond, it would cost a lot less, but then the government would have to pay it back regardless. This way, Goldman (and guarantor Bloomberg Philanthropies) takes the hit if the program fails.  Still the amount involved may be significant for kids at Rikers, but falls a bit shy of Goldman’s monthly bagel budget for new staff meetings.  Yes, Goldman is that kinda rich.

There is nothing wrong with doing well by doing good, and if Goldman can make enough money off it to fund clerical staff bonuses for one office for one year, that’s great.  But where will this money go?

The Goldman money will finance a program called Adolescent Behavioral Learning Experience, or ABLE, as a part of the Bloomberg administration’s year-old Young Men’s Initiative, which seeks to improve prospects for black and Latino adolescents. The jail program, which will offer counseling and education for an estimated 3,400 incarcerated adolescent men each year, will be run by two nonprofit organizations, Osborne Association and Friends of Island Academy, and overseen by MDRC.

Currently, nearly 50 percent of young men released from Rikers reoffend within a year.

This is where it gets scary. The  ABLE program is blessed with positive jargon, lofty goals and abject cluelessness.  Like almost every program that rises from the loins of academics, it’s high-minded, politically correct and grounded in utter fantasy.  For example:

Increase the number of high school graduates that are college and career ready by investing
in targeted group of test of schools to test, refine, and document best practices—then disseminate these practices system-wide

Ohh. That’ll fix ’em.  It’s got nothing to do with teachers that suck, parent(s) with no culture of education, no ability to pay for college even if they ever got there, no jobs, street-life where a kid is more likely to be tossed against a wall by a cop doing stop and frisk than fed three meals a day. Nope, the schools just need to be told of “best practices.” Problem solved.

There is a group in polite society that comes into contact with these adolescents on a regular basis. Can you guess who they are?  Correct! That would be criminal defense lawyers, and most likely institutional defenders.  They can tell you what they see in young people committing crimes, but nobody asks.

Want to stop crime by black and Latino youth? Give them the hope of a job.  Their role models for the past few decades are drug dealers, the only people in uptown Manhattan driving fancy cars and wearing flashy jewelry.  They get the women. They drink Cristal. They live the good life. 

Want to stop crime by black and Latino youth? Give them a reason to believe that they can walk down the street without having some cop grab them, throw them against the wall and haul them off to central booking because they didn’t like their attitude. No one becomes vested in law abiding society when they’re treated like garbage.

Want to stop crime by black and Latino youth? Give them a reason to believe they will some day own a home, put their kids through college, make it to old age without getting a bullet in their head.  They aren’t going to care about being educated in public schools if it leads nowhere. They need to believe they can do better, have a better life, by going to school and learning rather than hanging on the street corner selling dime bags.

Want to stop crime by black and Latino youth?  Give them a reason to believe that one day, they will be able to join polite society rather than be perpetual outcasts, looked at with hatred and disgust by the agents of the government who make absolutely certain that they know their place, at the bottom of society’s ladder, where they will stay for the rest of their lives.

These kids aren’t lab rats. They’re kids. They want what everybody wants, a cool future where they can be someone, have expectations of a happy, successful life.  With this expectation, there’s no reason to bother with school.  Why would anybody suffer a dozen years of school with a teacher reading the Times until his pension vests so that you can someday get a minimum wage job behind the counter of Popeye’s Chicken, where the best part of the day is smoking a blunt with the homies while hoping some 16-year-old gal will loosen up enough to let you become baby-daddy?

They need jobs. Well paying jobs. Like everybody else.

They need respect, to be treated better than animals by the uniformed representatives of the other side of society who walk their streets to make sure they don’t get too full of themselves.

They need to believe that if they play the chump game, go to school, study, work hard, fly straight, they can do better than they would selling dime bags on the corner.  The biggest joke of this initiative is that the guarantor of the Goldman Sachs loot is the same fellow who values stop and frisk above the constitutional rights of the adolescents he says he wants to help.  You can’t have it both ways, Mayor Bloomberg. You can’t treat them like trash while telling them how much you care about them.

Got a program that can do this?  At any price?  I didn’t think so.