There has to be a story behind a native American surname of White Twin, but there’s no denying that Boyd William White Twin was a happy person. Maybe a bit too happy.  Via Doug Berman, the 8th Circuit affirmed the sentence imposed in  United States v. White Twin of 84 months for assault with a dangerous weapon on an Indian reservation.

The sentence was already an upward departure, but that wasn’t the worst of it.  Apparently, while standing before the court for sentence, White Twin did the unthinkable.  He smiled.  And for this act of happiness, an offense that clearly upset and possibly enraged the judge, an additional six months were tacked on.

And the 8th Circuit saw no problem.

White Twin claims that the district court abused its discretion by considering an improper factor – his smile.  This court reviews the substantive reasonableness of a sentence for abuse of discretion.   United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  A district court abuses its discretion when it “gives significant weight to an improper or irrelevant factor” in sentencing.  United States v. Williams, 624 F.3d 889, 896-97 (8th Cir. 2010).

The district court did not abuse its discretion by increasing White Twin’s sentence by six months after he smiled.  The court was uniquely situated to observe his demeanor, and personally charged with reviewing the § 3553(a) factors.  District courts have wide discretion in determining a fair and just sentence.   See United States v. Gant, 663 F.3d 1023, 1029-30 (8th Cir. 2011).  A district court may consider a defendant’s attitude and demeanor when exercising its sentencing discretion.  See United States v. Robinson, 662 F.3d 1028, 1033 (8th Cir. 2011).  Congress has provided that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.  The district court based its increase in the sentence not solely on the smile, but a combination of it and other factors.  The district court did not abuse its discretion in considering White Twin’s smile.

The rationale in upholding the six month sentence for smiling was twofold, that a sentencing judge can take anything “concerning the background, character, and conduct of a person convicted” into consideration at the time of sentence, and that, the increase was not based “solely” on the smile.  Still, consideration of the smile was not an abuse of discretion.

Standing there, awaiting sentence, isn’t merely one of the most difficult things a person can go through, but one of the most awkward.  It’s hard to know how to react, how to present oneself, when years of his life are on the line.  Sometimes, the fear manifests itself in a smile, like a nervous laugh.  It may come off poorly, but it happens.  What it is not is a basis for an increase in a sentence.

While the opinion is shy of details about the defendant’s attitude, it seems likely that the judge took the defendant’s smile as defiance or arrogance, a small way for the defendant awaiting sentence to show his contempt for the judge.  While this may have been the case, so what? 

The law doesn’t demand that a defendant bow and scrape to the judge, genuflect to the majesty of the court,   Sure, it’s foolish to be less than respectful, though some judge see anything shy of obsequiousness as an affront, and respond poorly. While judges are human (sometimes too human), and behaving inappropriately while they’re about to decide what’s to become of the next few years of your life certainly isn’t going to make them feel more kindly toward you, it’s also not a crime worthy of punishment.

And a smile isn’t a crime. A smile, whether because a defendant’s reaction to the fear and nervousness of sentence or as a last-ditch affront to the judge’s dignity, isn’t a basis to put a person in prison for an extra six months.

While the circuit tries to spin around the details, it remains that the authority of the judge to sentence the defendant is based upon the crime for which he was convicted, not for the appearance of respect during the actual sentencing.  That the smile factored into the sentence at all is fundamentally wrong, yet the court upheld it.  Whether it was the “sole” basis for the six months, a contributing factor or the straw that broke the camel’s back, it should not be approved.

And to judges whose “dignity” is offended by a defendant who doesn’t stand there and react the way you think they should, put on your big boy robes and don’t get all hurt about it. At best, the defendant before you is scared, angry, frustrated and often striving to maintain a shred of his own dignity in a system that sees him as just another piece of dirt to shoveled into a hole. 

It’s not about you, Judge. You still get to go home after court is done, when he’s led off in shackles to ponder whether he’ll meet nice new friends in the penitentiary, and whether his kids will eat while he’s away.  Get over the offense of a smile. Be bigger than that.

Bob Ambrogi, who apparently spends part of his day reading ads on Craigslist for lawyers, found a curious yet troubling offer in Boston.  A virtual law firm seeking lawyers from anywhere to staff its virtual offices, and interest in the offer being to overwhelming that it couldn’t handle the bandwidth..

[A]n ad appeared on Boston Craigslist, Virtual Law Firm Seeks Lawyers. For further details, it said, go to www.wenhamlaw.com. Within a short time after the ad went up, the site went down. Visits to the URL showed only an error message, “Bandwidth Limit Exceeded.” No doubt, every unemployed lawyer for miles around was clicking through to learn more.

When the site eventually went back up, it revealed what is described as a new, online law firm focusing solely on the needs of companies, all for a flat rate of $150 an hour.

And as for that Craigslist posting, the firm’s site says that it is expanding rapidly and seeks experienced attorneys who want to work online and flexibly. Pay is expected to be $75 to $100 an hour.

Our legal staff is extremely high quality.

We seek attorneys with a JD, admission to a bar and several years of corporate-law experience.

Because they just don’t attorneys with years of experience but not JD or admission to a bar.  And who do these experienced lawyers get to work for?

Notably, one of the firm’s three founders is also the founder of one of Boston’s leading technology law firms. The site lists one of its founders as Andrew Updegrove, who is a founder and name partner in Gesmer Updegrove.

Certainly an interesting and provocative person to found a virtual firm.

Also notable is that another of the firm’s founders is not a lawyer. Inder-Jeet Gujral is identified as CEO of Enfold Inc., a provider of online filing cabinets to consumers and small businesses, and a former VP of WebMD.

The third founder, Elizabeth Gujral, is outside counsel to two Boston-area companies. “Her current role represents a re-entry into the workforce after she took a few years off to have and raise three children,” the website says.

Interesting as well, but for very different reasons.  While I may not be up on the latest news out of the Boston legal market, I’m pretty sure that non-lawyers still aren’t allowed to own law firms, even if their wife is a lawyer who wants to re-enter the workforce.

Nonetheless, this doesn’t seem to concern the lawyers looking to sign up.

A Google search indicates that the Gujrals live in Wenham, Mass., thus explaining the firm’s name. A search of Mass. attorney registration records does not bring up a result for Elizabeth Gujral.

But who needs founders who are lawyers or, if they are in th existential sense, currently licensed to practice?  This is the 21st Century. This is technology. This is virtual. Ethics, adherence to the rules and the unauthorized practice of law is so yesterday.

While it’s hardly surprising that lawyers in need of work will respond to an ad for legal jobs, no matter the pay or dubiousness of the prospect, it is surprising, and disturbing, that no one seemed to be troubled by the fact that this virtual law firm was founded by a real lawyer, a non-lawyer and his maybe-lawyer wife.

Bear in mind, anyone working for this firm is likely to never actually meet any of these people. Clients clearly won’t, as the firm expressly says that all contact will be handled from a distance.  The firm address, 143 Grapevine Road in Wenham, is an  1870 shingle house on 7 “magnificent acres,”  which happens to be where the Gujrals live.

And as a commenter to Bob’s post says:

For a solo needing to fill in gaps in work due to econ. changes, it sounds like a good idea. I am going to investigate further.

Is this the future of law?  Seriously?  As long as there’s a possibility you could make a few bucks, can you shut your eyes, hold your nose and just not care?

On the internet, nobody knows your a dog. Or a lawyer. Or not a lawyer. Or a lawyer working for someone who’s not a lawyer. 

According to this story at Newsday, 41-year-old Jorge Guevara was stopped by two police officers for driving with his 2-year-old not secured in a car seat.

Police said that, as he was being questioned, Guevara started to walk away. Officers attempted to stop him, but, police said, a struggle ensued.

Why was he being questioned, given that the offense was a child out of a carseat, is unknown. How the cops “attempted to stop him” is unknown. How a “struggle ensued” is unknown, as if struggles ensue on their own.  But what is known is the resulting injuries from that struggle.

Guevara suffered a facial contusion, police said. One officer suffered contusions, lacerations and a sprained finger. The other officer suffered several fractures to his hand.

Let’s connect dots, shall we.  Cops: hand injuries. Guevara: facial contusions.  And charges are: two counts of second degree assault.  You probably thought I was kidding whenever I wrote about defendants being charged with assaulting cops’ fists with their faces. Nope. It happens. It happened again here.

Below is a picture of Guevara. In case you’re wondering, he is not winking at you as if he were running for vice president. Where his right eye used to be is a heinous weapon used to assault and seriously injure two police officers. Doesn’t it look vicious?

Former Deputy Attorney General Larry Thompson was a powerful guy at George Bush’s Department of Justice, instrumental in signing the deportation memo that prevented Canadian citizen Maher Arar from being returned to Canada, and sent instead to Syria where he was tortured. And then there was the Thompson memo, requiring corporations to waive attorney-client privilege and refuse to pay legal fees for employees if they wanted to cooperate with the government.  Good stuff.

Though mentioned as possible Attorney General or Supreme Court possibility if McCain was elected, he instead suffers that hard life of General Counsel at Pepsico.  So like me, you probably wondered what Larry was up to, and  the Atlantic is here to oblige, with an article by Larry showing his post-DOJ epiphany that the law just isn’t fair.

The bedrock principle of Anglo-American criminal law has always been that people must know they are doing something wrong before they can be found guilty and branded a criminal. This legal concept is known as mens rea, Latin for “guilty mind.” The reason for this fundamental legal requirement is obvious: violations of criminal laws are serious, and before we put a fellow citizen in jail, we want to make certain that he is actually a bad person, is morally culpable for his crime, and that he deserves to go to jail.

Today, however, we are moving away from this fair and common-sense principle in our legal system. Increasingly, federal criminal law, and especially that related to business conduct, has what is called “weak mens rea,” or even no mens rea requirement at all. In the 2010 Dodd-Frank legislation, for instance, many of the new criminal provisions have no requirement of criminal intent, meaning that morally innocent people can (and will) receive harsh criminal penalties for otherwise innocent mistakes.

Today. Larry?  As in, not in 2003 when you were the friggin’ deputy AG, those grand old days when mens rea was honored about all else? Because you, big guy, would never have been party to the prosecution of tens of thousands of people for violations of thousands of crimes that required no mens rea?

And naturally, Larry ends with a zinger:

It is time to bring fundamental fairness and common sense back to our criminal laws — especially those that relate to business people. Doing so won’t be giving them a break or letting them off easy (fines should always be on the table for even innocent mistakes). Rather, we will be extending to them the basic protection of the criminal justice system that is afforded to all citizens: the commitment to punishing only that behavior which is morally wrong.

It is time. It was time ten years ago, back when you had some power and authority to do something. You could have exercised discretion. You could have knocked on your boss, John Ashcroft’s door and had a chat about bringing fundamental fairness back to our criminal laws. You could have written this article back then, when somebody might have given a damn about what you had to say.

And you did nothing.

So now, after the trail of bodies is behind you where the sight of misery won’t disturb you any longer, you’ve had your epiphany that things aren’t exactly fair?  And I really like how you slipped in “especially those that relate to business people,” because we all know that those that relate to everyone else are hunky dory, and you, Mr. Pepsico GC, have a special spot for the poor, maligned business person who nobody loves.

Welcome back to the fold, Larry. Good to see you’re now one of us.

Via PBS News Hour, the Republic of Texas has figured out that it’s handing school children Class C citations instead of report cards tends to have a negative effect on their futures. Whouda thunk?

“In fiscal year 2011 … 330,000 non-traffic Class C [citations] were handled in the municipal and justice of the peace courts for juveniles,” Fowler said.
And because Texas adjudicates less serious “classroom cases” in municipal and justice of the peace courts – rather than in juvenile courts that attach confidentiality protections to the proceedings – the punishment likely won’t stop there for Rollins.
He may have to list the conviction going forward on everything from college and job applications to the forms requesting a driver’s license with the state of Texas.
It’s all part of a sweeping zero tolerance movement in schools that Fowler says started in the last few decades and has created a “school-to-prison pipeline.”

There were, of course, a few possibilities as to the long term consequences of saddling school children with criminal records whenever possible.  First, they would have extra stuff to put on their college applications right below their National Honor Society induction.  Second, they could do a research paper about their experiences that garnered them international acclaim. Or third, they would be more likely to drop out of school, find themselves incapable of getting a job because of their criminal record, and engage in a life of crime because they had no great expectations.

Research has shown the earlier a student comes into contact with the justice system, the more likely they are to drop out of school, according to Fowler.

Uh oh. This doesn’t bode well for the college option. But isn’t this just Texas, where nobody expects much else.

In Los Angeles, the nation’s second largest school district, many activists have begun protesting what they see as a culture of criminalizing student tardiness.
Some students, who claimed traffic, late buses and oversleeping as reasons for tardiness or truancy, have been ticketed and summoned to court to pay fines that can exceed $250.

More than 40 percent of the tickets were given to students 14 and younger. And critics say the citations have unfairly targeted low-income, minority households

Because it’s no big deal for children 14 and under from low-income minority households to pay $250 fines.  They can just trade their food stamps for some cocaine, sell it on the streets and come up with the fine money, and maybe even a few bucks extra.  For books, maybe.

The police is Los Angeles have declined to stop ticketing students, but are giving serious thought to potential reforms.  Like conducting a study. Because saddling kids with criminal records under zero tolerance policies are working really well, aside from this minor glitch.

That’s the name given by Matt Brown, who is feeling the rush of adrenalin as he comes closer to the edge.

I had a long weekend of work, but I’m ready for trial. The work I completed over the weekend wasn’t trial prep, though, because that was done long ago. I spent the weekend tying up loose ends.

Trial is like a really shitty vacation. You have to make sure all your ducks are in a row so you can take some time off. Instead of dipping your toes in the water and watching a sunset with your adult beverage of choice in hand, however, you get to endure grueling combat all day every day for days on end. It’s a break from your daily stress during which you forget about your normal troubles in favor of some more pressing troubles. Did I mention that I love it?

The point of the job is often trial. Negotiating and writing and analyzing are frequently the point too, probably more so, but trial is the most obvious display of skill. Lawyers phone in motions and avoid other important work altogether. People watch you at trial.

Some lawyers feel a sense of dread, cold fear, as the judge turns to them and asks, “counselor, would you like to give your opening statement?”  Others embrace it. The blood pumps, and sense become hypersensitive. This is the moment they live for, to stand up before the jury, all eyes on them, and feel the rush of owning the courtroom.  If the words, “you may inquire” thrill you, then you are a trial junkie.

For most criminal defense lawyers, this is the epitome of our work, where everything is on the line. This is what people want to hear about at cocktail parties, and where we regale the groundlings with our glory. Or our crashing defeat.  Sure, everything else we do matters too, but it’s not the same.

Different lawyers approach trial different, with some walking down Main Street as gunslingers, no more thought than a challenge demanding a quick draw. Others plan their assault as if it was Omaha beach, meticulously parsing evidence, inspecting crime scenes, preparing witnesses and making sure each document is premarked and ready to be offered.

Like Matt, I prepare long and hard for trial.  My clients have no idea what goes into their trial, as they don’t seen the long, often boring, nights spent pouring over somnambulant papers to find the sentence, maybe only the word, that will destroy a witness’ testimony. Or read page after page and find nothing.  But you do it because there’s someone’s life on the line. And because you want to win. Every thought in your head is to win.

But this isn’t a universal approach. I cringe when I read about some lawyer going to trial tomorrow who has spent the past month doing nothing to prepare. Daily announcements of how wonderfully busy you are going to court on cases of every sort but the one on trial, desperately trying to tell the world  how cool you are. Yet not a word about preparing for trial. It’s disgraceful, and only fools think this makes you an admirable lawyer. Your neglect shames you.  This is a trial. Do you really think it makes you look good to tell the world that you’ve utterly neglected your client? 

When I saw this twit, I was astounded.

@kreyes 22 murders in a year and a half—something like that. Badass.

— Mark W. Bennett (@MarkWBennett) June 21, 2012

To the trial junkie, this might at first blush seem cool, or as Mark put it, “badass.”  And if this was a sporting event, it might very well be.  But this isn’t a sporting event, but a process by which someone’s life could well be destroyed. 

No one can try 22 murder cases in a year and a half. No one. Not the best lawyer ever. Not anyone. At least not competently.

That this was viewed, discussed, as if it was incredibly cool reflects a horribly misguided focus. It’s never about how a lawyer is such a gunslinger that they can go from trial to trial to trial, toughing it out and not breaking a sweat.  It’s about 22 defendants whose children may never again see their father. Every one of those children deserves a lawyer who takes the time to make sure their father receives the best possible defense.  Not one of those children care about how cool it is that a lawyer can rack up mind-blowing numbers of trial over the course of 18 months.

It’s so easy for lawyers who run from case to case, being as much a part of the dehumanizing of defendants as the prosecution, the police, and the system, to think only of their interests as trial junkies.  The names and faces cease to matter, and it’s just the rush of trial that counts.  They harbor irrational belief in their abilities to cross a witness to death, without ever having put in the time or effort your client deserves.

To extol the lawyer who tries 22 murders in a year and a half is insane.  This isn’t cool.  This isn’t badass. This isn’t awesome. This is wrong.  This is the trial junkie taken beyond reason and acceptability.  This is where the trial junkie has lost sight of what trials are about, and what they exist to do.

From the plea junkies, the ones who seek obscurity and dread the light of courtroom, I learned that the point of the job is to do every part of the job as well as possible. A big part of that job is trial. Whether that’s where you actually end up or not, it’s something no lawyer worthy of respect should fear. A lawyer’s time and advice may be his stock in trade, apparently, but some of that time is probably going to have to be spent in the well. Fear can lead to injustice, and that fear just as often comes from the lawyer as it does from the defendant. The fear I saw in many of my colleagues was disturbing, but the overall effect wasn’t all bad. A desire to resolve cases short of trial can inspire a powerful desire to fight for an acceptable non-trial resolution, and the plea junkies taught me that what makes it onto the record is often just the tip of the iceberg.

The trial junkie despises the plea junkie, and looks down on him as if he’s worthless dirt.  But the trial junkie who thinks of trial only for his own rush, who fails to do the boring preparation, is worse than the plea junkie. No criminal defense lawyer is more destructive to the lives of defendants than the one who tries a case without having done what’s necessary to give his client a decent chance.  You are not a badass.

Following GW Lawprof  Jonathan Turley’s posting of his Washington Post op-ed on changing the number of Supreme Court Justices, an idea that was further discussed here, a peculiar thing happened.  Wisconsin Lawprof Ann Althouse picked up on the story and, rather than discuss its merits, bizarrely ridiculed Turley.
 

It was good enough for FDR, and it’s what the Washington Post is pushing in anticipation of the Obamacare decision. Jonathan Turley writes:

The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt…. Roosevelt may have had the right idea for the wrong reason.

Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.

I don’t know what put the idea of 19 into Jonathan Turley’s head. It could be something mystical and nutty. Maybe he loves Adele’s first album.

But I assume there’s nothing mystical or artistic about Turley. I think he likes the number 19 because it’s the smallest odd number that’s big enough to make individual Justices inconsequential — to dilute their power to the point where they don’t loom large as personalities and seem like mere humans.

When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond. This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks. Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals.

***

I must confess that, when one of our regulars sent me this link, I was taken aback. I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor.

My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree and suggest hidden agendas or conspiracies. I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.

As bizarre as it was for Althouse to attack as she did, what followed at her blog was 141 comments that crystalizes a far more damning problem than vapid, tin foil hat commentary from someone who is allowed to teach students.

With a few exceptions, calling Althouse out for her wholesale attribution of baseless motive and challenging her credibility, the vast majority reflected a cult-like acceptance of her accusations, and spewed anger and hatred toward Turley and his “ilk.”  This reflects a growing danger, and one of the worst problems, facing both the blogosphere and virtual society, and happens not just at blogs like Althouse’s, but is becoming increasingly pervasive.

At Above the Law, Elie Mystal poked fun at the situation by noting:

but here on the internet we don’t have a tradition of civil discourse. We do have a tradition of ad hominem attacks, hyperbole, and pictures of cats.

And apparently Althouse is as much a cat lady as any aficionado of FunnyJunk. 

Whether they’re called tribes, fans, cheerleaders or a cult, the development of a coterie of believers who bolster the bloggers self-esteem by blind acceptance of their words, taking it from uncivil challenge to outright hatred, and often attacks in the real world, scares the daylights out of me.  This is not merely how we have the potential to make people stupider, but to cause actual harm to others by the fostering of a community of political sycophants whose disaffected online personas can create a mindless frenzy that manifests in real harm.

It seems to me that those bloggers who are receiving the adoration of their community are loving it a bit too much.  They pander to them. They feed the frenzy. At the very least, they do nothing to limit the growing fury they foster.  They love being loved too much. 

Even with Charles Carreon, whose attack on the Oatmeal merits universal condemnation, there have been allegations of people engaging in real world attacks. If true, these are where things have gotten out of hand, where appropriate challenge crosses the line of a feeding frenzy on the part of weak-minded and dangerous people who, unsatisfied with merely expressing their disapproval, feel some sick need to cause actual damage. 

Are these the tribes we’re trying to create in the blogosphere?  Is this some internet version of Lord of the Flies?  Why, when we see commenters and followers going too far, getting too crazy, expressing seething anger that goes beyond reason and seems likely to burst into real life, do we not calm things down, explain that they’ve taken an idea and gone off the deep end.

Where is Althouse’s responsibility to tell her tin foil hat crowd to take a deep breath and cool off?  Where is that responsibility for all bloggers who gain any following? I’ve often suggested that we have a responsibility not to abuse our trust, not to make readers stupider for having been here.  But it’s gone way beyond merely making people stupider, and is reaching the point where bloggers are fostering such bizarre anger and hatred that the likelihood of some weak=minded fool doing harm becomes almost inescapable.

My suspicion is that some bloggers love being loved.  They thrill at the adoration given their words, and refuse to do anything to quell the fervor, no matter how ridiculous or out of control it gets.  It’s not about suffering legal liability for the actions some nutjob on the internet causes, but that their basking in the limelight of fame and glory is a sick reflection of their need for validation and approval. 

As Elie says, the internet has no tradition of civil discourse. On the other hand, pandering to the ignorant and crazy to maintain their adoration and make you feel validated is pretty warped.  It was bad enough that Ann Althouse wrote two posts that cost her credibility among anyone capable of thought, but that she lit up her sycophants with hatred toward Jonathan Turley, and allowed it to fester, is sick.

In a  Washington Post op-ed, George Washington Lawprof Jonathan Turley posits a solution to the two-prong problem of the lack of public approval (and therefore trust) in the institution of the Supreme Court of the United States, and the net result of the law of the land turning on the vote of one individual, as reflected in the steady stream of 5-4 decisions. Expand the court to 19 justices.

The power of the Supreme Court will always be controversial because of the fact that the justices are the final word in legal disputes. Justice Robert Jackson wrote in 1953, “We are not final because we are infallible, but we are infallible only because we are final.” An individual’s view of the court can depend on whose ox is being gored by its decisions; a “judicial activist” is often just a jurist who doesn’t do what you want. Any Supreme Court of any size will always render unpopular decisions. It is supposed to. Federal judges are given life tenure to insulate them from public opinion, so they can protect minority interests and basic liberties.

The nine-member court is a product not of some profound debate or study, but pure happenstance. The first Supreme Court had an even more ill-conceived number of justices: six. In fact, when the court first convened in 1790 at the Royal Exchange Building in New York, only two justices were present (fortunately, it had no cases on its docket). After that time, the size of the court expanded and shrank, largely with the number of federal circuits. Since justices once “rode circuit” and sat as judges in lower courts, Congress would add a justice when it added a circuit or reduce the number with the elimination of a circuit.

Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter.

While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. Just because we settled on the number 9 arbitrarily does not mean that any number is as good as any other. A court with 19 or so members have been shown to work efficiently where a larger court would likely be unwieldy. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

We treat institutions such as the Supreme Court as inviolate. However, the framers not only gave us a brilliant system of government but the ability to improve it to better meet contemporary demands.

When it’s you pressing the shutter, it’s all happy and completely innocent.  But what about when you don’t know who that guy is taking photos of your kid?  From the Guardian UK,

Requests to take pictures had to be made in writing to the headteacher, but in almost all cases were refused “due to the safeguarding of all children”. In spite of repeatedly taking the issue up with the school and governing body, these parents have been denied photographs of their children at sports days and Christmas plays – even at the PTA craft fair.

Such a blanket ban is relatively rare, but the issue of photographing children has become fraught in schools all over Britain. Ten years ago, nobody thought twice about photographing children on the football field. Now every click of the camera is overhung with a cloud of possible ill intent. Who is photographing that child and why? What will they do with the photo? The epitome of innocence – parents recording their child’s nativity play – has become subject to the strictest regulation.

The problem becomes more acute when children are involved in sports, as the people doing the photographing of children are not necessarily from your school, but the other as well. This not only means you don’t know who is taking pictures, but to the extent you know and trust the parents of children are “your side,” you have no particular reason to trust those you don’t know.

A secondary school teacher from Hertfordshire, who wishes to remain anonymous, says that he was only allowed to photograph his own school’s pupils at sports events, so “if there are three kids on a medal platform, you have to take your child away from the platform and photograph them separately”.

The Child Protection in Sport Unit recommends that you “avoid full-face and body shots” and that children in swimming costumes should only be shown “from waist or shoulder up”. These rules create a stilted genre of child photography, where children are pictured on their own or at designated “photo moments” at the end of the play or match, rather than in the thick of events.

As schools will often sell photos or videos to parents while denying them the opportunity to take their own, the assumption is that these new rules are intended to provide a revenue stream for schools.  After all, $15 DVDs of the class play or the 7th grade soccer match certainly seem a bit greedy.  And it’s hardly outside the realm of possibility that schools have seized upon the issue to provide a secondary benefit of making a few quid.  But it’s not just that. 

The spread of photo bans is not really a response to child abusers stalking school sports days. Instead, it reflects the contamination of everyday adult-child relations – and the new assumption, as the children’s author Philip Pullman put it, that “the default position of one human being to another is predatory rather than kindness”. Any adult looking through the viewfinder at a child is viewed as potentially sinister and in need of regulation.

The rationalization for such pervasive regulation of ordinary parental activities is do it for the children. Yet, this isn’t quite as crazy as it seems.  While this sort of regulation is absurd when it comes to “us,” it’s not nearly as absurd when it comes to “them,” the adults whose purposes are unclear.  Indeed, we may have no reason to suspect that they’re pedophiles (or anything remotely evil), but wonder whether they will inadvertently post images to the internet of our children which we would prefer not be posted.  After all, they’re our children and who knows how careful (or careless) they will be with the images.

Yet the idea of being unable to take photos of your child in her class play, or at a little league game, seems absurd.  Imagine having to bring your lawyer along to interpret the regulatory forms in triplicate needed so you can sign off before receiving your photographing permit?  Have we seriously come to this?  While the story is out of United Kingdom, there is nothing about it that doesn’t suggest it couldn’t happen here. In fact, it surprised me that it hasn’t already, and I fully expect someone to tell me that it has indeed.

In a few hours, my plan is to take a few well-conceived pictures of my son walking to receive his high school diploma. There’s a decent chance a few other kids will find their way into my pictures.  There a decent change that my son will end up in some other parent’s pictures as well.  We’ll just have to take our chances, and pray they won’t end up on some high school graduate porn website.  That’s my default, not because I trust other people implicitly but because I can’t imagine going through life any other way.

H/T Ed at Blawg Review

The saga of Brooklyn District Attorney, Charles “Joe” Hynes, and sex abuse in the “ultra orthodox” Jewish community has raised an interesting problem.  It seems no matter what his office does, it can’t win, and yet at the same time, the demand remains (as well it should) that he prosecute those who molest children.  And Hynes is taking a beating for his efforts.

Part of the problem is demonstrated by Jonathan Turley’s post, castigating Hynes for giving “preferential treatment” to Hasidic defendants by not revealing their names publicly, which follows up on an earlier post  with the same complaint.  This reflects a common mistake, where we try to understand problems derived from exceptionally peculiar cultural norms though our own experiences. Unless you were raised in Williamsburg, you’re not likely to get it.

The issue largely stems from a series of New York Times reports that were so badly off-based as to leave every reader stupider for their effort. Notably, Turley’s complaint, that Hynes is concealing the identities of child molesters, is factually wrong. The names of every defendant charged with a crime remains a matter of public record in court, a fact over which the prosecutor has no control. The complaint is that Hynes isn’t giving press conferences or sending out press releases to announce the names of those being prosecuted. This is a totally different animal.

Then, the DA has set up a hotline, Kol Tzedek (Voice of Justice), to encourage victims to come forward.  The media has gone nuts because Hynes hasn’t immediately turned over the names of cases that came into his office over the hotline because both the media and other victims demand to know.  It’s understandable that the public wants to know the identities of those accused of rape and molestation within their community, albeit that these are accused and still presumed innocent, but it comes at a price that significantly undermines the ability to prosecute.

There are, despite refusal to acknowledge, some unique problems dealing with this community.

1. The victims often go to their rabbi rather than the district attorney because they eschew the secular legal system.  The rabbis do not want victims to use the secular legal system and use their influence to persuade victims to allow them to deal with it.

2. There is a belief within the community that it is a sin to reveal a crime about a fellow member of the community to someone outside the community. In other words, they don’t rat on each other.

3. If someone in the community goes to secular authorities, and the community learns of it, there is overwhelming pressure to put a stop to it, whether by persuading them not to cooperate or testify, or if they’re not to be persuaded, by destroying them within the community. For example, in the case of a young woman who alleged she was forced to engage in oral sex by a rabbi, a bribe of $500,00 was offered, and then a threat of withholding kosher certification of her boyfriend’s restaurant.

4. Even after a victim has reported a crime, they commonly refuse to testify as they will not “go public” with their accusation and bear the consequences within the community, leaving the prosecutors dangling in the wind without any witness for trial. But this doesn’t mean they don’t want their molester to walk, and they rage against Hynes’ office for their failure to prosecute or the plea deals cut.

It took over 17 minutes to flip through all 6713 channels on my cable box, ending in utter frustration. Not a single television show, not even on cable, about the pentathlon. Where were the crowds, the fans, the sponsors, financing pentathletes so they could train for the upcoming Olympics?  How are young pentathletes supposed to develop their skills in five events so they can compete with the Ruskies, who we all know are professional pentathletes, spending every waking second preparing.  How could this be?

The harsh reality is that aside from a few sports that sufficiently interest viewers so that sponsors are willing to put up big money to get their name plastered somewhere on the participants bodies, most Olympic sports are, in the truest sense, amateur, meaning that there isn’t a buck to be made anywhere for playing.  To the players, it’s love of the sport, with maybe a bit of a quest for glory. 

It doesn’t start when they announce the next quadrennial location, but many years earlier as young men and women decide to dedicate themselves to achieve competence, and later excellence.  There are costs associated throughout, but the families carry them as there is no other way to do it.  From equipment, to training, to the car rides and missed dinners, it’s a commitment. To do something well enough to make an Olympic team is an accomplishment far beyond most of our wildest imagination.

Shockingly, this doesn’t turn into magnificent glory.  Name the guy who took the silver in luge?  Too tough?  Fair enough, what about the the gal who won biathlon in Albertville in ’92?  No? And to add insult to injury, there were no million dollar endorsement deals coming her way either.

It’s fair to question whether any of this matters. After all, if you’re not interested in a sport, who cares if it exists?  But if you don’t begrudge a sport being in the Olympics even if it’s not of interest to you, then it follows that you wouldn’t begrudge the United States Olympic Committee doing what it must to raise the funds to maintain amateur sports that do not raise sufficient revenue to sustain itself for the Olympics.

Unless you happen to give a damn about one of these sports, it’s likely that you haven’t given much thought to the fact that the USOC has been fighting a battle to finance non-revenue producing Olympic sports by, among other things, selling its only quantifiable asset, it’s brand, to corporate sponsors.  Without this, the US Olympic team would be comprised of a handful of common spectator sports and little else. It costs money to field an Olympic team. A lot of money. Did you realize this? Do you care?

In an effort to protect its brand against poachers, the USOC has taken an aggressive stance toward others using either any of its Olympic trademarks. Not surprisingly, this has made some enemies with otherwise nice folks who meant no harm.  The latest involved going to war with knitters.

Via Ken at Popehat :

They told me about a cease-and-desist letter the USOC sent to Ravelry, a site for knitting and crocheting enthusiasts. The USOC confronted Ravelry over a planned event called the Ravelympics, a communal knitting competition and event scheduled to coincide with the London Summer Olympics.

The issue was not merely that the USOC was demanding that Ravelry cease and desist using the term ‘Ravelympics” and remove the Olympic five-ringed symbol from all projects. The issue was that the USOC (which in its wisdom had tasked a law clerk to write a threatening letter to an organization with two million members) displayed such Olympian hubris about the whole thing:

The athletes of Team USA have usually spent the better part of their entire lives training for the opportunity to compete at the Olympic Games and represent their country in a sport that means everything to them. For many, the Olympics represent the pinnacle of their sporting career. Over more than a century, the Olympic Games have brought athletes around the world together to compete in an event that has come to mean much more than just a competition between the world’s best athletes. The Olympic Games represent ideals that go beyond sport to encompass culture and education, tolerance and respect, world peace and harmony.

The USOC is responsible for preserving the Olympic Movement and its ideals within the United States. Part of that responsibility is to ensure that Olympic trademarks, imagery and terminology are protected and given the appropriate respect. We believe using the name “Ravelympics” for a competition that involves an afghan marathon, scarf hockey and sweater triathlon, among others, tends to denigrate the true nature of the Olympic Games. In a sense, it is disrespectful to our country’s finest athletes and fails to recognize or appreciate their hard work.

Now, I don’t know whether the USOC’s law clerk came up with that language himself, or whether the USOC’s word processor has a macro entitled DOUCHIFY. But that’s some seriously DSM-IV-level narcissism there, not to mention catastrophic lack of social skills. I can’t blame the law clerk — it’s the USOC’s fault for failure to supervise him. Law clerks don’t have the sense God gave a handful of gravel. Adults are supposed to take them by the hand and make sure they doesn’t send letters like that. Protip, USOC: if your cease-and-desist-letter methodology resembles that of Girls Gone Wild jailbird Joe Francis, you may want to rethink it.

The language of this letter is atrocious.  There is absolutely no reason nor justification to demean knitting by writing it “denigrates” the Olympics.  As much as some people care about amateur sports, people care about knitting. And they are just as entitled to be treated respectfully.  Ken is absolutely right to call it narcissistic, just as he’s right to note that it’s not some kid-intern’s fault for cranking out a form letter, but the responsibility of grown-ups at the USOC to make sure it’s touch is appropriate and respectful, just as it hopes its sports and athletes are treated by others.

But the post doesn’t stop at criticizing the USOC for its terribly poor choice of language, or even its arrogance.  Rather, the attack goes to the heart of the USOCs efforts to raise money through the sale of its brand, as if this was part of a cabal of greed, sucking money from corporate sponsors so fat men could eat bon bons while runners sweat.  Not surprisingly, the comments generated from this post include some of the typical mindless vitriol of the regulars, coupled with knitters attacking athletics with the same disdain that the USOC showed Ravelry. 

Most knitters who came to let Ken know how much they adored him for being their hero were far more thoughtful, noting their offense at the language, while recognizing that the USOCs intentions weren’t evil.

This efforts follows on the heels of a series of posts, ranging from the support of Aaron Walker, the Oatmeal to Regretsy.  I’ve been pretty effusive in praising Ken’s steadfast support of free speech, even in the face of some daunting foes.  But even so, a concern existed that the both the credibility Ken built, as well as the appreciation, even adoration, of those who enjoyed his free legal support, can become too powerful a club.  Handling such adoration with circumspection is a difficult thing.

Sometimes, there is a clear demarcation of good and bad, right and wrong. Sometimes, it’s a matter of gradation, and we need to limit our focus, and control those inclined toward scorched earth from overstepping the wrong and wiping out everything in sight.  Fostering mindless anger and hatred isn’t a solution.

The grace and propriety of most of the knitters was exceptionally impressive. Their tone toward the USOC was, frankly, better than the USOC deserved, given it’s heavy-handed and offensive attack on the knitters.  

Though not a knitter, I can well appreciate their love of knitting (and crocheting) and the utter reasonableness of their expectation of being treated with respect.  Maybe the nice folks in the house next door to me knit, and there isn’t a reason in the world to suggest that their choice of activity isn’t artistic and worthy of appreciation.  Then again, maybe the people down the block are athletes with Olympic aspirations, and the attacks on the USOC could cost them the funding to go to London this summer.

Neither knitters nor athletes deserve to be attacked.  When wielding the club, we need to give a great deal of thought as to who gets hit.  And we similarly need to be vigilant to use the power with care and circumspection.  Defending the knitters from attack is a fine cause.  But must it come at the expense of the pentathletes?  Who will save them?

You want to be a star.  Admit it, you do.  Heck, if Kim Kardashian can turn herself into a household name and make millions, why not you?  You’re every bit as untalented, but at least you’ve got an expensive education. Shouldn’t that be worth something?

Well, have I got great news for you! Using the Joe Amendola method, you too can be a television star just like Joe!  You can hold press conferences and where a hundred microphones hang on your every word.  You can have former 15-minute-of-fame lawyers like  Mark Geragos doing play-by-plays all about you.   Jeffrey Toobin will fawn over your daring dos, making very serious faces as if it’s all about him.

Nancy Grace will hate you and snarl every time your name is mentioned.

It doesn’t get any better than this.  And all you have to do is watch this video of Joe Amendola’s press conference following the conviction of Jerry Sandusky and answer the following question: How many ways has Amendola undermined his client in order to pretend he’s a star?



CLE credits are not available for this course.  However, every successful graduate will get a chance to be a regular on Piers Morgan Tonight, a chance to  guest host on HLN and a signed copy of  Brian Tannebaum’s How To Be Famous Without Anyone Noticing You Suck, coming soon from ABA Press.