If you’re not a fan of FunnyJunk, the Oatmeal or the First Amendment, you may not have noticed the soap opera developing around the indefatigable ego of Charles Carreon, whose journey began with a threatening letter on behalf of FunnyJunk who was miffed that content from Oatmeal was funnier than anything it could produce.  From there, it got stupider.  Popehat, Lowering the Bar, even Masnick, the Constitution’s fair-weather friend at Techdirt, have been chronicling Carreon’s every burp.

While the original beef between the humor websites catering to precocious twelve-year-olds has fallen by the wayside, Carreon has focused on his own dignity, determined to prove that he can take on the sniggling masses who mistakenly think they can cow him with their ridicule.  He will not be cowed.  It’s not that Carreon is a slacker or a scammer. Indeed, he has history on the side of good. From Paul Alan Levy at Public Citizen :

Recently, Public Citizen was aligned with a lawyer named Charles Carreon, filing an amicus brief in support of his argument against allowing a publisher to pursue a a copyright-infringement lawsuit against his wife’s Oregon company in federal court in New York.  The former colleague who wrote this amicus brief argued the personal jurisdiction issue orally, so well that Carreon did not feel the need to come argue himself (a good thing too – his appellate brief was terrible).   And it has seemed to me that some of the online criticism directed his way for having sent a demand letter for a client, complaining that a blogger had defamed the client, had become a bit excessive.  I had turned down requests that I represent some of the defendants in Carreon’s earlier litigation, because, although it was apparent that he was litigating strange claims to punish his critics, the theories in the case either were not interesting enough to make a good vehicle for impact litigation, or would have had to be advanced on behalf of entities that could easily afford to hire their own lawyers. 

Most immediately, we have agreed to represent the anonymous author of a blog at www.charles-carreon.com that satirizes Carreon mercilessly by speaking in his voice and imitating the rather pompous and over-the-top language that Carreon himself uses.  Carreon claimed that the domain name infringes the registered copyright in his name, and constitutes cybersquatting, and threatened to add  our client as an additional defendant in the peculiar lawsuit that he has filed against Matt Inman and others over Inman’s satirical charity-fundraising campaign.  

As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:

1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that’s an equitable defense that asserts “you waited too long to file this.”] would not kick in for at least three years.

2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn’t live in Arizona, Florida, or California.

3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.

4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.

5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.

6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.

7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server ’round to her door.

8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).

9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.

10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.

While the prosecutor’s duty to disclose Brady material is affirmative, there’s a backdoor in the case of failure where a defendant knew or should have known the existence of impeachment evidence.  It’s a foolish rule, relieving the prosecutor of the consequence of failure by subsequent speculation about what the defendant might have known.  But then, Brady has always been one of the cruelest jokes.

It had to be weird for Jeffrey Dean Ford to sit in the defendant’s chair and listen to the testimony of Constance Goins about his robbing banks.  After all, Goins was the sister of Ford’s wife, and his wife was living with her mother and Goins while Ford dined on the state’s dime.  He knew Goins was no angel, having a multitude of criminal problems of her own, yet somehow free to sleep in her own bed.  But there his lawyer was given no evidence to use at trial to show that Goins’ testimony was a quid pro quo.

Sure, there was speculation. There’s always speculation about a snitch getting a deal, testifying in exchange for lenient treatment. It’s the nature of the snitch.  But proving it, confronting the witness on the stand with the fact that a promise was made, a deal cut, is another matter. The hope of leniency for “truthful testimony” always emits an unpleasant odor.  Finding the rot that gives off the scent to show the jury is the key. 

Ford’s lawyer eventually obtained Goins’ files, well after Ford’s conviction, and went about the task of exhausting remedies before he made his way to federal court. After all, the smoking gun of Goins’ deal was not only true, but denied the defense at trial. Another Brady failure. Ho hum.  But as he approached the federal courthouse, the door slammed shut.  From the 9th Circuit’s opinion in Ford v. Gonzalez :

Petitioner-Appellant Jeffrey Dean Ford (Ford), a California state prisoner, appeals from the district court’s dismissal as untimely of three claims in his petition for a writ of habeas corpus, under 28 U.S.C. § 2254. Ford argues that his claims are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial, received lenient treatment in her own criminal cases in return for testifying against him. We hold that Ford is not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial.

Of course, in our nation’s zeal to stop terrorism, it was crucial to limit habeas relief to a year so the terrorists don’t win. 

The majority opinion by Judge Milan Smith doesn’t question whether the prosecution completely and totally failed in its affirmative obligation to turn over Brady as to Goins.  Rather, they ignore the prosecution’s burden and focus instead on Ford.

Based on the testimony offered at Ford’s trial, Ford had reason to suspect that Goins may have sought and received some benefits for assisting law enforcement. At the very least, Ford and his trial counsel were aware that, despite being found in possession of drugs by a police detective, Goins was not arrested. In fact, his trial counsel remarked at trial that he wanted to argue to the jury that Goins “did what she did because she was expecting a deal from the DA’s office,” but declined to press this argument. Thus, Ford’s trial counsel was clearly aware of the possibility of a deal. Regardless of whether this knowledge is attributed to Ford, it illustrates that the testimony at trial gave ample reason for a reasonable person in Ford’s position to investigate further whether Goins sought and received benefits in return for assisting law enforcement.

This is a really cool trick, since every time a witness with some sort of criminal issues testifies for the prosecution, everyone who isn’t on a jury knows they’ve got some personal benefit in mind. The problem is overcoming the pat arguments used to convince the jury that they’re telling the truth, and without actual proof of the deal, the defense is usually precluded from anything more than noting the unpleasant smell in the courtroom. It’s just business as usual.

But then Judge Smith throws a knife into Ford’s heart.

Beyond the testimony at trial, the unique living arrangements and active assistance of Beverly Ford, his wife, also gave Ford access to information about whether Goins had received a deal. Beverly Ford, Goins’s sister, lived in the same house as Goins and their mother. As the magistrate judge found, “it is more than arguable that Beverly Ford was present and aware of Goins’ various criminal cases and their dispositions” after Ford’s arrest. During and after the trial, Beverly Ford pressured Goins to help Ford, and took an active interest in Ford’s case. The magistrate judge did not speculate as to what specific information Beverly Ford was privy to or what information she relayed to Ford. Beverly Ford’s assistance was an additional resource a reasonable person in Ford’s circumstances could have used to discover the factual predicate of his claims at the time of his trial.

Prosecutor’s duty to turn over impeachment evidence? Pshaw. It’s all Beverly’s fault.  After all, she was living in the same house as Goins, and she should have certainly figured it out.  No doubt the trial judge would have found defense counsel’s argument overwhelming if he said, “but your Honor, the defendant’s wife says so, and what more proof would you need?”

Or as Judge John Noonan dissent notes in his opening paragraph:

While there isn’t a criminal defense lawyer who doesn’t bemoan the fact that defendants, by and large, ignore what we consider monumentally sound advice, every once in a while the other side accuses us of something that warms the cockles of our hearts.  This is such a time :

The state Attorney’s Office said that DUI defense attorneys are part of the problem. Many advise against taking breath tests so someone can avoid giving up evidence used against them. Eyewitness News checked online and found several websites that spell out what to do and not do if you’re stopped.

It is also very frustrating for law enforcement. The word is out in Florida that if you’re suspected of driving drunk you should not submit to a breath test.

“I think in county court, DUI is probably 40 percent of the docket,” said Perlman.

However, at least four out of 10 in Florida refuse a breath test, making prosecution more difficult.

Drawing blood when someone refuses a breath test has been done in Florida by Brevard and Hillsborough counties. However, after gaining a conviction, Brevard County saw it overturned.

“I would love to see the law changed because I’m frustrated as a prosecutor with the limitations of proving a drug or chemical substance case,” said Perlman.

Unless the state Supreme Court rules differently, blood draws will only be allowed when someone’s hurt, or a suspect is stopped for at least a third time.

“I definitely would support it, yes I would,” said beachgoer Jessie Gainey.

“I think it would be fine,” said Victoria Mauro. “It’s the law to not drink and drive so I don’t see why not, why it would be wrong.”

“I think it’s against your rights, more than a breathalyzer,” said Ted Kryla.

There is a host of things ordinary people do for no better reason than someone requests it. Do you give your social security number to the physician because his medical history form has a space for it?  Why? Will that help her diagnose your illness?  The reason it’s on there is for the benefit of the collection agency in case you don’t pay your medical bills, and yet nearly everyone provides it without blinking. 

When a police officer tells you to jump, most people ask how high. They may not like it, but they will do what they’re told lest the interaction is raised to the next level.  It’s the motivation that gives rise to false confessions. It’s how they get you to consent to a search, even when you know you’ve got two bricks of cocaine in the trunk. It’s amazingly powerful stuff.

And the cops know how powerful submission to the shield can be, which is how a disgusting pig can do something like this. Via the Miami Herald :

[T]he girl was sitting in the back of a car with a 19-year-old friend parked in the back lot of a business plaza in Miramar after school on Jan. 18, when a man approached the car and looked at them through the window.

He asked them to roll down the window.

Because he was in a dark-blue uniform and wearing a gold badge, the teens thought he was a police officer and complied.

The girl was 15 years old.

But the man told the girl he “needed to check.”

The girl asked “Check what?”

“I need to see inside,” he responded.

That’s when he ordered her to take off her pants and underwear so he could look for bruising or other evidence of sexual activity.

In fear, the affidavit said, she complied.

It’s almost impossible to imagine what thoughts raced through a young woman’s mind as a cop ordered her to remove her clothing.  But as mind-boggling as that was, it got worse.

The girl told police she thought it “was the right thing to do” because he was an officer.

He told police he heard the man tell the girl “I need you to spread your legs wider so I can see.”

The officer then used a flashlight to “inspect” her and told her to pull down her blouse so he could check for bruising, according to the police report.

Then he returned the driver’s license to the boy and told them “Go home.”

While this could have been done by a vicious pedophile masquerading as a police officer, it wasn’t.  After sifting through pictures of police officers, she identified the man who ordered her to spread her legs wider.

The man she identified: Miramar police Capt. Juan De Los Rios, 46.

On Friday, De Los Rios was charged with two counts of lewd or lascivious conduct on an underage girl, according to the arrest affidavit. He was booked into Broward County Jail and held on $30,000 bail.

If convicted, De Los Rios could face up to 15 years in prison and up to a $10,000 fine.

Miramar police Capt. Juan De Los Rios was on the job for 18 years.  It appears that he has transgressed even the thin blue line this time, and he was suspended without pay.  The case seems to be taken seriously, though I wouldn’t anticipate $30,000 bail had it not been a cop who gave the order to a 15-year-old to spread her legs wider.

Yet why, why would a young woman disrobe and allow an unknown man to view her vagina with a flashlight upon command?  

The girl told police she thought it “was the right thing to do” because he was an officer.

Much as readers here, as lawyers, will find that statement utterly naive and shocking, it reflects the breadth of faith in police.  No matter how many videos appear showing the police beating someone to death for being non-compliant, we still teach our children that they can trust the police, that the police are their friends. 

And even the videos push people to do as they’re told, fearing that failure to do what the office says might leave one dead on the street, whether a statistic or the target of some vague yet vicious justification.  “She took an aggressive stance and made furtive gestures as I ordered her to spread her legs apart.”

People find it unfathomable that others do as a police officer commands, thinking they would never do something as “wrong” as consent to a search without basis, confess to a crime they didn’t commit, or strip naked and spread one’s legs so the officer can “inspect” her vagina.  The power of the shield is amazing, and compulsion to submit to that power is undeniable.  And still people don’t believe it, just as they can’t bring themselves to believe that any cop could engage in conduct this demented and disgusting.

There’s little purpose in  repeating my issues with the caselaw that has elevated the beloved dog hit to unquestionable probable cause.  It’s untrue. It’s unreliable, It’s the law. It sucks.  Have you ever tried cross-examining a dog? They just stare at you with those adorable eyes, occasionally wag their tail, and let out a nonresponsive woof. A collective “awwww” fills the courtroom.

Yet the Nevada State Troopers don’t think it’s particularly funny, a bunch having  sued their superiors in federal court for racketeering by their converting the K9 program into a huge scam.  A report  8NewsNow says:

The complaint alleges that the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.

The dogs were being trained to alert their handlers by cues, instead of by picking up a drug’s scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.

The nose of a drug-sniffing police dog is not so sharp, but it’s good enough to support cocaine charges against Herbert Green.

That was the opinion of federal Judge Glen Conrad, who denied a motion this week to suppress the drugs found in Green’s sport utility vehicle with the help of a police dog named Bono.

Green’s lawyer had argued that Bono’s track record — drugs were found just 22 times out of 85 “alerts” by the dog — was so poor that police lacked probable cause to search Green’s SUV.

Bono “may not be a model of canine accuracy,” Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.

However, the judge ruled that other factors, including the dog’s training and flawless performance during re-certification sessions, were enough to overcome a challenge raised by Green’s attorney, public defender Randy Cargill.

In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.

Taking those cases into account, Conrad found that Bono’s accuracy rate was at least 50 percent.

In his recap of the 2012 Supreme Court term,  Adam Liptak writes something that should strike fear in the hearts of all good people.

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Several of the cases in which Justice Kennedy joined the liberal bloc involved the rights of people accused and convicted of crimes. This year, the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace.

While no one will be surprised to read that plea bargains are the norm and harsh sentences commonplace, the relationship with the realization that criminal trials are vanishingly rare, mentioned almost in passing, cannot be ignored.

The law has rendered the trial a deadly exercise for most criminal defendants.  Not because they are guilty, or as guilty as the government says, but because the mechanics of assessing guilt, with crimes like conspiracy, so overwhelmingly favor the government that it’s tantamount to suicide to challenge the charges head on at trial. 

The tools available to the government, wiretaps, warrants, snitches and law enforcement personnel with feigned “expertise” in every aspect of human experience that conveniently serves the government’s purposes, combined with judges fresh from the United States Attorneys office, schooled and indoctrinated in the evils of criminal defendants and the relative integrity and valor of federal agents, makes for a tough time.

Add to that defendants who might choose to testify, except for the use of irrelevant prior bad acts against them that couldn’t be used against any other witness and their lack of adequate training in the art and science of testifying persuasively on the witness stand, as is provided every agent , combined with poor education and, often, lousy attitude. 

And even the non-defendant witnesses for the defense, who will be investigated and confronted by government agents in advance of testimony, and told (but not threatened, the agents tell the court) that if they lie (in the government’s eyes), they can bank on being the next sacrificial lamb in the defendant’s chair.  And we’re shocked when the witness disappears on us, or won’t take our calls or appear in response to the subpoena.  Better we get angry with them than the government.

As discretion becomes the better part of valor, defendants decide that the pittance offered by the government to plead guilty and not put them through their paces is a pittance shaved off the back end of a sentence.  The few months or years is that much more time to spend with their children before they reach majority, or grandparenthood, as the case may be.  The punishment for exercising the constitutional right to trial is brutal.

This situation didn’t come about by accident.  It’s been part of a design developed over many years to expedite the speedy resolution of criminal prosecutions.  And, naturally, to end cases with the “proper” result.  It’s been done with the cooperation of the joint task force, comprised of member of the legislative, executive and judicial branches.  And they are pleased with their work, until someone occasionally breaks ranks and admits to the damages they’ve wrought, invariably after they  no longer have any power to fix things.

Not surprisingly, the trial of a criminal cause has become “vanishingly rare,” one case at a time, repeated over and over across the land.

New lawyers offer their expert opinions on every matter of law on the internet, but few have ever tried a serious felony to verdict before a jury.  Fewer still have 20 trials 100 trials, under the belt.  Their knowledge of cross-examination comes from books and CLEs, where they hear of things they will never actually experience. They will take copious notes on their iPad just in case they ever had to use them someday.

A decent plea bargain comes from a relative balance of power. The government must fear that they might lose at trial, while the defendant fears everything about the prosecution. This requires a defendant to negotiate from a position of strength. When the defendant’s chance of prevailing falls below slim and approaches none, it’s no longer a bargain but a unilateral imposition of government might. The prosecutor dictates the offer, based on the government’s view of provable fact. That the defense disputes it means nothing. He can take it. He can leave it. He doesn’t have to like it or agree with it.

As the ability to sustain a challenge fades into distant memory, so too does the defendant’s bargaining position.  The vanishingly rare trial means the government will impose the plea it deems appropriate.  No amount of bluff and swagger by defense counsel makes the prosecutor shudder with fear. He knows you won’t try the case.  Pretty soon, he will know that you can’t. You’ve never tried a case. You’re shooting blanks.  And he can smugly offer three points off his best case scenario, secure in the knowledge that there isn’t a damn thing you can do about it.

And the defense will ultimately take it, because there isn’t a damn thing they can do about it.

This the future (and for many, the present) of a legal system in which a trial is vanishingly rare, because the legislative and executive branches have done everything in their power to make sure you have as little chance to fight as possible. 

And now the judicial branch, which hasn’t demonstrated much concern for the fact that not everyone lassoed into mass prosecutions or targeted in individual prosecutions, is guilty, no longer sees the vanishingly rare trial as worthy of its very important time and effort, because “plea bargains are the norm and harsh sentences commonplace.”  Mission accomplished.

As a normal person trying to conduct an everyday transaction, it likely wouldn’t strike you as particularly onerous to expect to be able to engage in basic communication with the other party. Say you want to buy a cheese danish and mocha latte, but would like to make sure it costs less than the $20 bill in your hip pocket, so you ask the cashier, “how much will this cost?”  Instead of an answer, you get a stare.

What’s wrong with this scenario?

It’s bad business.  But according to the EEOC, it’s the law.  Via Walter Olson at Overlawyered :

Pay up, EEOC tells a cafe owner, for not taking on a hearing- and speech-impaired applicant for a cashier’s position [EEOC press release (Albuquerque’s Savory Fare Bakery and Cafe agrees to pay $20,000 and offer other relief).

“Employers with 15 or more employees must comply with the ADA,” said EEOC Regional Attorney Mary Jo O’Neill. “Employers must make employment decisions based upon the abilities of their applicants and employees, not based on myths, fears or stereotypes about a person’s disability. The ADA was passed so that people with disabilities get a fair chance at making a living and have equal employment opportunities.”

It’s true: the Equal Employment Opportunity Commission and private lawyers are hitting employers with legal complaints for preferring jobholders whose manner of speech is familiar and understandable to the customers and co-workers they deal with. In fact, in many cases it has become legally suspect for companies to insist on strong communications skills. The immigrant-rights unit of the U.S. Department of Justice has run subway and newspaper ads warning that the “ability to speak fluent English” must not “affect your decision about hiring a prospective employee.”

Civil rights enforcers admit there are some circumstances where employers may legitimately consider accents. They just take an ultra-narrow view of what’s legitimate. Consider the controversy that engulfed the town of Westfield, Massachusetts, a couple of years ago.

The town’s school system had assigned instructor Ramon Vega to an experimental program where he’d teach language skills to first- and second-graders. Some parents had trouble understanding Vega’s conversation themselves and worried that their kids might have the same problem. Four hundred of them proceeded to sign a petition asking that instructors in early grades be proficient in “the accepted and standard use of pronunciation.”

When word reached Boston, all hell broke loose. The state education commissioner charged the parents with “bigotry.” The National Education Association rushed through a resolution at its annual meeting decrying disparate treatment on the basis of “pronunciation”–quite a switch from the old days when teachers used to be demons for correctness on that topic.

Experts popped up and were quoted saying expert things. Donaldo Macedo, described as “director of graduate studies in bilingual education” at a local university, accused the parents of “linguistic racism”

Don’t do it for the children. Do it for the money. From the American Independent :

The detention and treatment of sex offenders represents a growing business opportunity for GEO and its competitors, who hope to score lucrative contracts from state officials looking to keep predators off the streets.

In this case, the facility that GEO wants to run is the Virginia Center for Behavioral Rehabilitation, a civil commitment center that houses and treats “sexually violent predators” who have already completed criminal sentences in a department of corrections facility but are deemed by a special court to be at risk of re-offending. Rather than being released at a predetermined date, these sex offenders are sent to VCBR to participate in what the state describes as “intensive treatment.” Their “eventual conditional release” from the center “is determined by their progress in treatment and reduction of re-offense risk.”

Is that not the most efficacious business model you ever saw, where they get to decide when their inmates civil commitees are ready to cut loose?  The worse job they do treating them, the more money they make off them. It doesn’t get better than this.

Virginia’s civil commitment program has been operating for about a decade. It grew slowly at first, with fewer than a dozen new detainees per year. But in 2006, the General Assembly greatly increased the number of crimes that can qualify convicts for the program and also made changes to the evaluation process for identifying which of these offenders are sexually violent predators eligible for civil commitment. The result was an explosion in VCBR’s population.

Talk about a win-win. The legislature gets to show how tough it is by adding crimes to the mix, and GEO gets to warehouse them indefinitely under the fabulous legal fiction that it’s not punishment, because that would be wrong, but to protect the good folk of Virginia while helping violent sexual predator, such a heinous public urinators bent on publicly urinating again, or 18-year-olds who have sex with 17-year-olds, recover from their sick and demented ways.  Eventually, anyway.

Civil commitment is “the perfect market” for private detention companies, according to Michele Deitch, a criminal justice expert at the University of Texas’ LBJ School. “No one’s likely to want to close them down. The inmates probably aren’t getting out. You’ve got the growing population feeding into these civil commitment centers. I would imagine private prison companies see it as a fairly safe area for growth.”

Not even the iPad offers this level of investment security.  We may run out of fossil fuels. Whole industries may be outsourced to third world countries, but we will always have people to hate, new crimes to add, defendants who are so reviled that no one will say “boo” about their being held in confinement on their three year sentence for another 50 years,  Just to make sure.

So how does one establish a foothold in such a lucrative business?

GEO Group has long been active in Virginia politics. From 2003 to 2009, it donated a total of $84,600 to state-level politicians, mostly Republicans, according to data compiled by Influence Explorer.

In 2009, GEO contributed $28,000 to Republican Bob McDonnell’s gubernatorial campaign. Four years earlier, GEO gave more than $28,600 to the campaign of GOP gubernatorial nominee Jerry Kilgore. GEO executives Jorge Dominicis and Wayne Calabrese each donated another $1,000 to Kilgore.

Both McDonnell and Kilgore have long been outspoken proponents of tough sex offender laws.

Because, you know, it’s for the children.  Isn’t it worth it to you do protect the children?  Of course, it’s not like Virginia doesn’t take seriously its duty of oversight to make sure private companies aren’t just in it for the profit, but to truly benefit the fine citizens of the state.

The growth in VCBR’s population has contributed to swelling program costs. In 2005, Virginia’s civil commitment program received only $5.8 million; in 2011, the center spent $24.5 million, or about $91,000 for each of the 269 patients, according to the commission.

But the commission warned that the state should carefully consider whether private companies’ “profit motive” was appropriate for a civil commitment program.

“The incentive to make a profit tends to encourage efficiency and quick decision-making that often results in lower costs,” the commission explained. “However, the same profit motive could supersede treatment and safety considerations and lead to individuals being moved through treatment and then recommended for release before they are ready.”

A very serious concern, that the private operator would send violent predators home rather than keep them locked up like animals long after their sentences are finished, since they get paid by the number of people in their custody.  Oh wait, it makes absolutely no sense at all.  So what would militate in favor of a private company running civil commitment prisons?

Experts differ on whether privatization could potentially improve treatment. Eric Janus, the dean of the William Mitchell College of Law in Minnesota, is a harsh critic of civil commitment. “This is a quintessential public function. This is the state exercising its most awesome power to deprive people of their liberty. I think there’s something inherently worrisome about the state turning that over to a private company,” Janus says.

But given the right mix of talent and funding, Janus thinks it is conceivable that private companies could do better than states and adds that “it’s hard to imagine anything that would make [state-run systems] worse.”

Finally, the ultimate rationale for the success of privatizing the booming sex offender commitment sector: The government is so incompetent that anything, even a private enterprise whose every motive runs in conflict with every rationale, nonsensical though they may be, would be better. 

When it comes to investments, the metrics don’t get any better than this. Who’s in?

H/T Ed at Blawg Review

Marketing philosopher Seth Godin, to whom all legal marketers pray every morning in the hope that some lawyer, somewhere, will send them a check,  Will they internalize this bit?

The road to the bottom is paved with good intentions, or at the very least, clever rationalizations.

National Geographic goes into a cable TV partnership and ends up broadcasting shameless (shameful? same thing) reality shows, then justifies it as a way to make money to pay for the good stuff.

Restaurants serve chicken fingers to their guests’ kids, because it’s the only thing they’ll eat.

Some comedians give up their best work in exchange for jokes that everyone will get.

Brands extend their products or dumb down their offerings or slap their brands on inferior substitutes all in the name of reaching the masses.

And that’s the problem with the shortcut. You trade in your reputation (another word for brand) in exchange for a short-term boost of awareness or profit, but then you have neither. Yes, you can have a blog that follows every rule of blogging and seo, but no, it won’t be a blog we’ll miss if it’s gone.

But isn’t this what it’s all about, smearing one’s glory all over the internet, no matter how undignified, shameless, deceptive it takes to make you “stand out” with the thousands of others similarly vying for those few legal bucks as yet unclaimed?

If anything-for-a-buck isn’t a sound approach for selling laundry detergent, could that possibly suggest that it isn’t utterly fabulous for lawyers?

It’s occasionally ironic that the consummate marketer and a disgusted curmudgeon see much in common, but it happens.

Yes, you can pander, and if you’re a public company and have promised an infinite growth curve, you may very well have to. But if you want to build a reputation that lasts, if you want to be the voice that some (not all!) in the market seek out, this is nothing but a trap, a test to see if you can resist short-term greed long enough to build something that matters.

Too many lawyers are hungry.  Too many, despite your self-proclaimed brilliance, fail to apprehend the long-term consequences to yourselves and the profession, of running the race to the bottom, as if being first to arrive makes you a winner. 

No lawyers builds his real reputation on the internet.  Sure, lawyers who are glib, willing to pretend to care deeply about every disembodied twitterer or commenter, will gather a tribe.  It’s easy to fool with the mass of others in the race for digital validation, just as the person who is so foolish as to think their number of Facebook friends truly love them.  For those who believe that follow-back reflects reality, they will confuse reputation with carefully crafted internet persona.

But they’re fools. Your internet friends come and go, and when they find that the thousands of hours put into pretending to like other people they don’t know on the internet doesn’t create anything of real value, but merely sucks away their time and tricks their pheromones into overdrive when they get a #followfriday, until one day someone in the real world smacks them for sitting there in the tattered underwear with three day’s growth of beard, banging a keyboard in fury because someone said something wrong in the internet.

Some will look into the mirror and realize how insane they’ve become.  Some will just continue to bang, their original purpose forgotten and their only remaining goal to pander more than anyone else.

It can’t be said that there aren’t people who will sing your praises because of your twits or blog posts.   Kevin O’Keefe has told me how some people are great lawyers, even though he’s never seen them in court or read a word of their motions.  He was once a lawyer, but he believes that twits and blog posts are good enough substitutes for real legal work.  He wants to believe. He needs to believe.

But even Seth Godin knows better.  He doesn’t believe. He reminds us to distinguish between the lies we tell ourselves and reality.  The things lawyers do to pander may serve them for the moment, but will diminish them in the long term.  It will demean us all, for it makes lawyers no better than brightly colored boxes of laundry detergent that proclaim “new and improved!!!” when it doesn’t work. 

People will remember what you claimed. People will remember what you produced. People will remember that you failed and your claims were empty.  What will you then do to pander?

After being sentenced the first time to 28 months for refusing to honor rules rammed down her throat at the cost of speaking with her client, Lynne Stewart uttered the unfortunate words, that she could do the time “standing on my head.”  So many who otherwise would never bow to the will of the government were on their knees this time, outraged that this terrorist loving idealogue was getting away with . . . refusing to genuflect.

So after a  scathing reversal of her “good fortune,” with a direction to suck the blood out of her, Lynne was resentenced to ten years.”  And the  Second Circuit has affirmed the sentence, rejecting the argument that the increase from 28 months to 120 months in the absence of any substantive change, but rather due to the dissents urging of brutal harshness for her unspeakable crimes of affirming compliance with the special administrative measures (SAMS) and her post-sentence bravado. 

From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar.  We cannot agree with her that the sentence imposed on her was “shockingly high” so as to warrant a finding of substantive unreasonableness.