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Model Rule 5.5 Meets Your New Neighbor

At My Shingle, Carolyn Elefant gives the ABA 20/20 Commission a piece of her mind about their completely ignoring her comments in the consideration of changes to accommodate the Brave New World of jurisdiction under Model Rule 5.5 dealing with the Unauthorized Practice of Law.

So imagine my dismay when I saw that the Committee’s most recent release entitled Issues Paper Concerning Model Rule of Professional  Conduct 5.5 and the Limits on Virtual Presence in a Jurisdiction  seeking comment on an appropriate standard for determining whether a lawyer’s out of state presence in another jurisdiction is so “systematic and continuous” as to justify licensing.  As I’ll discuss, the Committee completely disregarded the very reasonable approach that I proposed   here  which (1) would have ensured that lawyers with a physical presence and virtual presence are treated on equal footing for purposes of UPL and (2) reflects a bright-line, easy test rather than another loosey-goosey, ambiguous balancing test.

While Carolyn uses the example of a lawyer, whose office is near a state border, doing wills for people from the adjacent state. she notes that the concern arose from the birth of virtual law offices, lawyers who are everywhere and nowhere, and for whom jurisdiction and admission are quaint concepts.

For those unaware (and who believe that any issue that doesn’t smack them square in the chops doesn’t exist and isn’t worth their concern), technology has caused two monumental changes that either have or will affect most lawyers and clients in a decidedly problematic way.  First, young lawyers do not perceive a justification for the current concept that admission in a particular state should limit their ability to practice wherever they please.  Not only do they argue that admission should be national, but they largely ignore Rule 5.5 issues because they believe it’s wrong and, well, they shouldn’t have to comply. 

The second problem is that in the process of pursuing life, liberty and happiness, they are up late at night writing things on the internet that is not merely designed to poach clients by promises of cut rate pricing and easy-peasy accommodation, but substantially misinforms clients of their rights and responsibilities under the law.  In part, it’s because they’re young and clueless. In part, it’s because their advice might work in Nebraska, but it’s being read by clients in Louisiana.  And since they eschew the limits of jurisdiction, they make no bones about being national in their advice, even though they’re just plain wrong.

The crux of Carolyn’s complaint is that the 20/20 Commission’s focus is on dealing with the blight of lawyers who disrespect jurisdiction, and thus boldly ignore proscriptions on unauthorized practice.  The ABA’s newfound love of tech, in its effort to be cool, relevant and keep at least 27 members going into the next decade,


But what bugged me when I filed my original comments on Model Rule 5.5 was the proposal to make exceptions to the systematic and continuous rule for virtual practice but not for brick-and-mortar practitioners.   Under both the current and proposed Model Rule 5.5., Annie Attorney, also a Massachusetts-only lawyer, is barred from opening a branch office in Concord, NH and meeting with clients three days a week even if she limits her practice to Massachusetts-only matters (that’s because an office is presumptively considered a “systematic and continuous presence.”  So why should Laura Lawyer be given a pass and allowed to represent New Hampshire clients on Massachusetts issues if she serves clients online from her basement in her Boston apartment?  The answer:  she shouldn’t.

Note: Despite Carolyn’s implications to the contrary, I do not believe she means to suggest that only women lawyers are unethical or engage in criminal conduct.

To the extent that there’s something amiss when the model rules contemplate a carve-out for virtual lawyers that would give them an advantage over brick-and-mortar lawyers, Carolyn’s argument is well taken. The same rationale applies to all lawyers, and the absence of an office doesn’t make you competent to practice in jurisdictions where you aren’t admitted.

But these efforts at “solving” the problem is to facilitate a downward trend, watering down the proscription for the benefit of lawyers at the expense of clients.  The argument boils down to “if a virtual lawyer can provide incompetent legal services outside her jurisdiction, why can’t I?”

Sure, there are practice areas where jurisdictional competence doesn’t apply. Transaction work, regulatory practice, even federal trial practice to some extent. But there are similarly practice areas where jurisdiction is critically important, as state law and practice varies markedly. Yes, a competent lawyer can usually figure out how to work another state’s law with some research and a few phone calls, but they don’t have the answers at their fingertips and may not realize that a distinction exists requiring them to find out what they don’t know.

As long as states get to pass their own laws, and their courts get to regulate their own practice, jurisdiction counts. The virtual lawyer’s argument that they can handle anything (at half the price) may play to the crowd, but we know it’s not true. 

In the age of the internet, we are all each other’s next door neighbor, like it or not. As far as clients are concerned, they can just as easily email the lawyer across town as across the country.  When I get an email from someone in Des Moines, I explain that I am not admitted to practice there, don’t know the law and can’t give them an answer to their question.  Frankly, it would be awfully easy to do a telephone consultation for a “reasonable” internet fee, making a quick buck at the expense of their lives. I could, but I can’t because it would violate my ethical proscription, and more importantly, my rule of not making anyone stupider.

But then, my practice isn’t based on ignoring jurisdiction, making the internet love me in the hope that Ma and Pa Kettle have a valid credit card and having no concern whatsoever for making sure my advice is sound.  It appears that the ABA doesn’t share my view, and that we may soon have virtual ethics to go along with virtual lawyers.  And as Carolyn properly argues, once the proscription against unauthorized practice falls online, it’s only fair that all lawyers get to be similarly incompetent. 

Howdy neighbor. 

Facebook Status Update: Sex Offender

Via CNN, Louisiana has enacted a new law requiring convicted sex offenders and child molesters to wear the scarlet letter:


A new Louisiana law requires sex offenders and child predators to state their criminal status on their Facebook or other social networking page, with the law’s author saying the bill is the first of its kind in the nation.

State Rep. Jeff Thompson, a Republican from Bossier City, Louisiana, says his new law, effective August 1, will stand up to constitutional challenge because it expands sex offender registration requirements, common in many states, to include a disclosure on the convicted criminal’s social networking sites as well.

While it’s true that this is the first of its kind to require those convicted of heinous sex offenses, like public urination, to become pariahs in perpetuity on the internet, it’s not the first to compel public shaming. Some states already have laws requiring people convicted of drunk driving to have special plates on their cars so others can hate them for being inchoate murderers. 



The law states that sex offenders and child predators “shall include in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics… and his residential address.”

Anybody want to guess how this will affect their friend requests? 

If states hadn’t top-loaded sex offender with such a broad swathe of crimes that have nothing to do with sex offenses, or were truly serious in that they posed a threat to others, perhaps this law, though inherently overbearing, wouldn’t be terribly bothersome.  After all, Facebook supports it, and notes it’s terms of service already forbid sex offenders and child molesters from participating.  Nobody wants their medium to facilitate harm to children.

But our blind, indiscriminate hatred of sex offenders, makes laws like this simultaneously sympathetic to laymen while overwhelmingly destructive to those of us who are aware of its full breadth.  Most people uninvolved in criminal law have no idea how many people are swept into these laws, creating a huge underclass of pariahs who, despite having paid their debt to society, will be forever held out to the public for shame and hatred. 

As this underclass continues to grow, without any meaningful recognition by the public of the harm being done, there will eventually be a terrible backlash as there is nowhere for them to live, to work, to play, to exist.  And for a society that seeks to end recidivism, what better way to accomplish it than to make sure they can never re-enter society as a law-abiding member and live among us like normal people?

And yet, I suspect that Thompson’s point, that this is a mere extension of sex offender registries, will prevail if and when this law is challenged as unconstitutional.  Is there any room for more nails in the coffin?  Sadly, I bet there is. 

H/T reader Zarin Zhang

The Judicial Twilight Zone: A Crime We Can’t Punish

The majority decision out of the 9th Circuit in  U.S. v. Wing is, I am terribly sorry to say, sound and not terribly exciting. It seems that Michelle Wing, during the time lag between having had her supervised release violated and returning to prison to serve the term imposed, went on a bit of a crime spree passing bad checks. 

She then went to prison and was restored to supervised release. The question was whether she could be violated as well for her crime spree.  The Court held she couldn’t, as it happened during that quirky period where the court’s supervisory control had concluded under her prior stint under supervisory release but before the next one commenced. 

In this matter of first impression, we conclude that a district court lacks jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release.

Lest anyone forget, nothing precluded Wing from being prosecuted for the crimes themselves, so it’s not like Wing was getting away with anything.  It merely meant that the court couldn’t summarily punish her for violation of supervised release.  It happens.

And so Judge Richard Tallman blew a clot in dissent:



Our story begins in a courtroom. The camera zooms in on the defendant’s table, where a young woman wipes away her tears. The somnolent voice of the narrator, Rod Serling, intones:



Imagine it is June 6, 2008. The location, Missoula, Montana. This is Michelle Wing, a convicted felon who’s in trouble once again. She’s been lying to her probation officer. Routine lies the judge will punish in a routine manner: by revoking supervised release and sending her back to jail for a few short months.

What the judge doesn’t realize, however, is that his act is not merely one of revocation, but of liberation.

Wing will now begin an iniquitous journey through space and time. Her companion on this journey will be fraud. Her route, embezzlement. That’s a signpost up ahead; her next stop: The Twilight Zone.


As the narration fades and Wing leaves the courtroom, the camera follows her. Mystified by her good fortune but happy to exploit it, Wing takes full advantage of the benevolent parameters of this unique parallel dimension. In the three weeks between July 3 and July 23, 2008, alone, she executes eight fraudulent financial transactions totaling $240,000. She spends $600 on toys at Toys “R” Us. She pays a $900 dental bill with a forged check. And, for good measure, she outfits her many fraudulently purchased cars with fraudulently purchased wheels and tires.


The camera soon returns to the courtroom, where Wing’s parole officer is seen pleading with the Montana district judge. The officer tells of Wing’s two-month crime spree. He asks the judge to revoke her supervised release. But the judge —who had thought Wing was still under his supervision—can only stand by helplessly. He cannot punish crimes executed outside his rational world of crime and punishment. He has no jurisdiction over . . . The Twilight Zone.


Perhaps we all have our own vision of the legal Twilight Zone, though I wouldn’t recommend that any criminal defense lawyer share his vision in his next brief by following in the path of Judge Tallman. 

The crux of the dissent’s issue is that one avenue of punishment is foreclosed to the court. Outrageous! Imagine a judge powerless to punish, and forced (how humiliating) to leave it to another judge to do the fun stuff.  Of course, the other judge would also be required to have the prosecution prove guilt first, but then he would be free to sentence at his leisure. 

Word out of the 9th Circuit is to keep a close eye on future decisions, where Judge Tallman will be channeling Love Boat for the majority in affirming an substantially over-guidelines sentence under “the bad guy deserves it” doctrine.

Paparazzi Primer

News of  Alec Baldwin’s paparazzi issues gave me pause: No one who hasn’t experienced the joy of the paparazzi can appreciate what this is all about.  Until you’ve actually been there, you can’t believe it.

Consider:

Photographers standing with their back to the courthouse door, making it impossible for you to reach the handle, open the door and enter, without pushing them out of the way. And they won’t move, but just keep snapping pictures. And they won’t be pushed gently, but will stand their ground.

Photographers screaming curses, calling a person vile names, calling a person’s wife and children vile names, all to get a reaction so that they can photograph their target with an unattractive look on their face.

Photographers putting their cameras within inches of a person’s face and standing their ground, such that any attempt by the person to move forward will result in their face striking the camera.

Photographers creating a phalanx into which a person walks to get to the place he needs to be, which then closes in around him and stops, making it impossible for the person to move, whether forward or even backward. They will not move, and leave the person no choice but to stand there or push his way through.

Photographers jumping on the hoods of cars and photographing through the windshield, such that any movement by the car could throw the photographer off the hood and to his death.

This is what it means to deal with the paparazzi.  Forget politeness. Forget civility. This is utter insanity by design.  It’s a manufactured untenable situation from which no one can escape unscathed.

One of the most striking examples is the video of Bernie Madoff trying to enter his building.



Notice the photographer push Madoff back?  Remarkably, Bernie kept his cool and didn’t react as most of us would, shove for shove.  What allows a photographer to behave this way?  The media’s thirst for images, and the uglier the better.  No doubt the photographer who pushed Madoff hoped he would react poorly, whether by making an angry face, saying something or, in the best of all possible worlds, physically responding.  He didn’t, but this bit of video was replayed in almost every report on Madoff.

And every time I watched it, I was disgusted by the photographers’ conduct. No matter what Madoff did, or what you think of him, this was wrong.

Meet the paparazzi.  And the photographer who says he was “attacked” by Baldwin is considering filing charges?  Poor baby.  It would be a terrible shame if a member of the paparazzi got a boo boo because their target didn’t play dead.


Nor Twice Put In Jeopardy

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ..

–United States Constitution, Fifth Amendment

The founding fathers left much up for grabs in their wording of the Constitution and Bill of Rights, but not in the double jeopardy clause. They said “twice.”  Not thrice, not as many times as needed to get a conviction, not until a jury of twelve is unanimous one way or another.  Just twice.  And everything since has dishonored their word.

I’ve argued long and hard, and to no avail, that the doctrinal construct around the double jeopardy clause is fundamentally wrong.  The government gets one chance to prove a defendant guilty beyond a reasonable doubt. To do so, they must persuade twelve men good and true of guilt.  If they fail to do so, what?

The United States Supreme Court has redefined twice to mean until twelve jurors reach unanimous agreement, whether of guilt or lack of guilt.  Nowhere in the double jeopardy clause is there a proviso that unless there is unanimous agreement that a defendant is not guilty, the government can put a person in jeopardy again. 

The inability of the government to convince the twelve of guilt means that they have put a person in jeopardy and failed to convict.  That is their one shot at jeopardy. That even one person rejects the government’s proof satisfies whatever claim to due process the government possesses.  There is no burden on the defense to obtain a unanimous verdict from a jury of not guilty, yet the interpretation of double jeopardy does exactly that, subjecting the defendant to multiple jeopardy until some party has met the burden of unanimity. 

Thus, I was surprised and thrilled to see  PrawfsBlawg honcho  Dan Markel and his trusty sidekick, Ethan Leib (only kidding), seize the opportunity to “propose” a constitutional amendment at Slate’s “Fix the Constitution” series.





Theoretically, the Constitution’s double jeopardy clause is supposed to protect a defendant from being tried twice for the same offense. In practice, our constitutional protections against double jeopardy are anemic. One reason that’s true is because the Supreme Court has read the clause to allow the government to retry a defendant on a charge anytime the jury doesn’t reach unanimous agreement on a defendant’s innocence with respect to that charge.



This is unjustifiable. Unless there is evidence of their misconduct affecting the integrity of the initial trial, defendants who are not initially found guilty on a charge deserve finality and repose with respect to those charges. They shouldn’t be dependent on unilateral decisions by the government after they have already inspired some real doubt in a jury of their peers who have deliberated and failed to agree upon conviction.

That Dan and Ethan would propound this argument, this point, is quite extraordinary. Having read their book, Privilege or Punish (along with Jennifer Collins), which began with an interesting premise before devolving into a way to bring misery to the families of defendants everywhere, there was little expectation that they would have sufficient concern for an issue such as this, which restores meaning to the double jeopardy clause in aid of the defense rather than rationalizes away the try-’em-till-they’re-convicted approach.

I would be remiss not to applaud Dan and Ethan for their Slate post.  Not merely remiss, but insufferably unappreciative, given that I’ve never been reluctant to take a stab when I disagreed with Dan in the past.  I take back every snarling word I ever wrote about Dan for having used his bully pulpit to offer this proposal to change the Fifth Amendment:



Absent evidence of a defendant’s misconduct affecting the integrity of the initial judicial process, a defendant will have double jeopardy protection against a particular charge whenever a jury deliberates and is unable to agree upon conviction unanimously.

This honors the word of the Founding Fathers. This reflects the only intellectually honest approach toward jeopardy in light of the double jeopardy clause; the government gets one shot, one full opportunity, to prove guilt.  If it fails to do so, then no person shall be put twice in jeopardy.

And, as Dan and Ethan note, it’s not like this isn’t the case elsewhere in our approach toward jeopardy.


Our change would give the government one real chance to make its case on a particular charge. The Uniform Code of Military Justice has adopted the rule we propose—when the prosecutors fail to get jurors to reach consensus on conviction, according to the code, a not-guilty verdict is entered. In this domain, the military is doling out better justice than our Constitution provides to the average defendant in our criminal justice system.

When I first learned of this distinction between criminal and military law, I was shocked. How was it possible that the interpretation could be so fundamentally different, that under military law the burden, along with the proscription of double jeopardy, was respected when in criminal law it, like so many other rules, was subsumed in rationalization that rendered the constitutional prohibition a farce?

No one has ever provided a satisfactory explanation.  I conclude there is none.

So I tip my hat and offer my heartfelt appreciation to Dan Markel and Ethan Leib for using their opportunity at Slate to propose this change.  You guys did good. Thank you.  And sorry about all the mean things I said about you before.





Murdering Brain Cells

Either the legal marketers have maxed out their scam with websites and blogs, or new ones are searching for fertile ground, not already owned by Nigerian princes, but there has been a big push of late to get Luddites to grasp the latest and greatest in social media marketing.

In the monthly webzine (yes, internet savvy folks have a cutesy name for everything) of the American Bar Association Law Practice Management Section, is this stroke of brilliance from someone named Jared Correia, a non-practicing lawyer who has dedicated his career to making sure practicing lawyers wear brightly colored hotpants.


Among the social media services, Twitter is unequivocally the best for professional development.  While LinkedIn might seem to be the more obvious choice, since it has, for quite some time, attained the put-upon status of ‘the professional’s social networking site’, Twitter features far more for the attorney seeking to develop as a professional person via the use of social networking. 

Twitter offers a far more dynamic user experience: The Twitter streams of effective users are more active.  It’s easier to communicate with other users, including in multiples, and to refer their content.

This all speaks to functionality; but, it’s also a bedrock consideration for professional development.  If you conceive of Twitter, as others have, as a gigantic networking event, you’ll be far more effective within that construct if you can easily communicate with others, especially as the guest list continues to grow. 

If you’ve read this quote, you will necessarily be stupider. But this is hardly the worst, even if it reflects what the ABA has to say about the future of law.  Consider Adrian Dayton’s offering at the National Law Journal :



There is another social media metric for law firms to take notice of. Forget about your number of Twitter followers, LinkedIn connections or Facebook “likes.” The new standard in judging your social media influence is your “Klout” score. To find out what yours is, just head on over to Klout.com and enter your information from LinkedIn, Facebook, Twitter or any other major social media site and you will see your Klout score from 1-100.

Why is it important? Looking at the klout score for your firm and for your lawyers will help you appreciate that having more lawyers engage in using social media is the only way to increase your influence.

Before you scream at your computer that he didn’t say anything, think again. Adrian told you everything there is to say. The problem is that there is nothing here. It’s all nonsense, the sort of development that appeals to people who are so fundamentally clueless that they are incapable of realizing that this is all empty and meaningless.  Since you are reading this, of course, and know better, it has the unfortunate side of effect of killing your brain cells. For that, I apologize.

And it’s not just Americans whose synapses are under seige. This from  Legal Futures in Great Britain:



There has been a massive increase in people using Twitter to ask for recommendations of professional service providers in the last two years, with solicitors one of the most in demand, according to research conducted for Orange Business.


It claimed that “small businesses are missing a trick if they take their eyes off tweets”, with its research reporting a 663% increase in people using Twitter to ask for recommendations around common professional services.


Orange, unsurprisingly, said lawyers should use their smartphones to access Twitter on the move so that they did not miss out on what was happening, and also advised that they should be prepared to offer advice on the micro-blogging site. “Professionals need to showcase their expertise and accessibility over Twitter. It’s not about giving away free counsel but showing you know what you’re talking about and sharing information which might spread far and wide. Your words of wisdom will reach far more potential customers than your silence.”


Also, it said lawyers and others need to be quick in responding to tweets and ensure they can demonstrate their “real-world” credentials by making sure users can easily link from their Twitter profile to a website.

Quick, run out to the shiny gadget store and get the coolest new smartphone so you can twit constantly and not miss out.  No, not later, right this very second. There are people twitting and you’re missing them. Go. Run.

It’s out of control, which is no surprise to those who have watched as lawyers, whether young adoring fans of social media or old and susceptible to the silly pitches of a medium they neither grasp nor care to learn.  Voices are starting to be raised to save a brain cell here and there.  Take Josh King at Avvo :


Last week in sunny Naples, FL, I joined Brian Tannebaum to speak to the annual meeting of the Florida Association of Criminal Defense Lawyers. The topic? Social media and online advertising. We talked a lot about blogging, Twitter, and scummy SEO tactics. But I want to expand on a theme that permeated our talk, and the discussions I had with many Florida lawyers afterward: that blogging and social media are worthless as tools for direct client acquisition.

Even Sam Glover, whose Lawyerist website has not been treated kindly here in the past, is trying valiantly to save a synapse:



Many lawyers seem to take it as a given that technology is changing everything about the practice of law, and fight about whether or not that is a good thing. In reality, technology isn’t changing much about how we practice law. That is, technology is changing plenty about how we do things, but not about what we actually do.


The thing is, if you can stop being distracted by shiny gadgets, the practice of law today looks a lot like it did 50 years ago. The fact that you can check your email from your car’s dashboard doesn’t mean a contract is suddenly valid without consideration.

The dust will eventually settle.  You will never have a practice based on twitter, no one, but no one, will give a damn about your Klout.  Your shiny gadgets may be enjoyable, and even helpful as tools in the performance of lawyerly functions, but no client will ever throw money at you because you have an iPhone and twit incessantly.

But the question remains whether you will have any brain cells left before lawyers come to the realization that this is all an inane effort to separate you from your money. 

Note to those of you who are bored by my repeated admonitions that social media will not bring you success and prestige in the interwebz. (See, another cute word!)  Every day, every hour, lawyers with quiet telephones look for a way to improve their revenues, and, hungry and ignorant, click on an email or link from some scamming marketer who promises them salvation. 

My efforts, though concededly boring to those who already know this (like those of you who bought blogs and, after a year or two, realize that you got maybe one decent case which barely covered the cost of your bandwidth and certainly didn’t pay for the time you put into it), are directed at the n00bs (Cute internet word alert). They’re the ones trying on the brand new hot pants and wondering if they’re the only lawyers not walking the boulevard.

As every day brings another marketing scam designed to pray on the foolish and ignorant, and as new social media channels open up to the scammers, because what client doesn’t care more about your Klout score than your competence, there is a concomitant need to prevent lawyers from falling into the dark hole of social media marketing that taints us all.  So, sorry that I sound like a broken record, but whoever maybe a lawyer who signs on today will hear an alternative voice. 

Maybe you could help by telling them as well.  You could save a brain cell today.


Trial is Not a Crime in America

Not being a regular reader of sport reporting, I wasn’t familiar with Rick Reilly.   Eric Mayer explained him to me:




Rick Reilly has done sports-related human interest columns for years, first at Sports Illustrated and now at ESPN. He focuses on sports figures, but not purely their on-the-field accomplishments. Normally, he focuses on some other aspect, like their philanthropy, overcoming childhood adversity, and the like. He either shows an undue amount of sympathy or an undue lack of sympathy. Rarely is there middle ground.


He is not a lawyer.


Which makes him like most people who aren’t lawyers. And like most people who are.  Even criminal defense lawyers, capable of expressing blustery argument in support of their own clients, especially when there is no one to argue the other side, are inclined to go black and white when it’s some sports hero’s butt on the line.

Now that Roger the Rocket has been acquitted, the eyes of the sporting world have turned to Jerry Sandusky, who still maintains his broad smile during his trial for 51 counts of sexually abusing boys.  Rick Reilly says he’s a “coward.”

Testifying under their own names, they wept. They whispered. They trembled. One left the courthouse with a black bag over his head. Justice shouldn’t cost this much


But all eight of these young men, ages 18 to 28, had to testify because Jerry Sandusky didn’t have the guts or the courage or the decency to cop a plea and go to jail. He could’ve saved them the pain, the shame and the degradation.  


If Sandusky really did abuse them the first time, then this was the second.


It may well be a steep price, but this is exactly what “justice” should cost.  Though Reilly is kind enough to include the caveat, “if Sandusky really did abuse them,” which may reflect his pen or may have been forced upon him by the lawyers, he doesn’t really mean it.  He has Sandusky convicted and is arguing sentence. 



The hell, the anguish and the torment Sandusky put these boys through was cruel enough. To make them relive it in front of brothers and sisters, strangers and jurors, public and media, is unforgivable.




Let’s hope the judge sends Sandusky away for the rest of his days, into the general population at a federal prison, not a protected one.




Let’s see how the tickle monster goes over with those guys.


When it comes to retribution for those who sexually molest children, I’m not terribly far away from Reilly.  I would, however, wait for a verdict before I throw him into the yard. 

But these trials are the ones that test us.  As much as we may revile an alleged crime, and empathize with the purported victims, we have a system by which people accused of crimes are entitled, entitled as in it is their absolute right, to challenge their accusations before we punish them.  The right to a trial isn’t protected for those we favor and denied to those we don’t.  It isn’t limited to those about whom the public thinks a doubt may exist and denied to those we don’t. 

It isn’t balanced with our concerns for the pain a trial may cause a victim against the benefit of trial theater to a defendant we’ve already convicted.  Everyone accused of a crime is entitled to a trial. This is the American way.

If Reilly thinks Sandusky is a coward, then I think Reilly is unAmerican.

In my country, the idea of someone being innocent until proven guilty is a bedrock principle, no matter how disgusting the crime of which they’re accused, no matter how overwhelming the evidence appears and no matter how ridiculous the excuses in defense.  It is not the defendant’s burden to prove he’s not guilty, but the prosecution’s burden to prove he is. 

This trial isn’t about Sandusky explaining his conduct, whether he claims to be teaching young men how to use soap in the Penn State locker room showers, or playing “tickle monster” with their genitals.  This trial is about the government proving that a person committed a crime.  Only after that happens do we get to ponder how other inmates will welcome him into the fold.

Is it ugly and painful for victims of a crime? Absolutely.  And it’s ugly for the innocent person who spends 30 years in prison because this system, the trial, does such a lousy job of distinguishing the guilty from the innocent.  It may turn out that the system works better in this trial than most, given the evidence against Sandusky, but that doesn’t mean he doesn’t enjoy the right to a trial.

Reilly may see the evidence against Jerry Sandusky as overwhelming, leaving no doubt in his mind that he’s guilty as sin.  He’s allowed, especially since he gets no vote on the jury and its mere puffery at this point.  But Reilly has no call to diminish Sandusky’s exercise of his constitutional right to trial by calling him a coward for doing so.

In America, defendant’s get tried and, if the prosecution proves its case beyond a reasonable doubt, then convicted. We don’t divvy up trials between those who may be not be guilty and those we all know are guilty beforehand and don’t deserve the rights of Americans.  As much as we may empathize with those who will be rightfully called victims should a conviction follow, this is the cost levied by the system on everyone, innocent, guilty, victim and accuser. 

As Eric noted, Reilly is not a lawyer.  But if he’s an American, then he ought to know how we do things here. You don’t have to be a lawyer to realize that our freedoms demand that Jerry Sandusky get a trial. When Reilly attacks Sandusky for exercising his rights, he attacks America for having a Constitution that protects its freedoms.  Not very sporting of him.

When Confrontation Meets Truthiness

It started with Crawford, and then  picked up steam with Melendez-Diaz and Bullcoming.  It seems impossible, but there it was: The Supreme Court of the United States held that a clause in the Bill of Rights entitling a defendant to confront the evidence against him would be honored. 

Then came Williams v. Illinois, decided yesterday by a fractured 4-1-4 decision with Justice Clarence Thomas assuring that no affirmative rationale would support the decision.  No matter, While the opinion failed miserably to perform anything remotely resembling a positive function of the least helpful branch of government, it did enough: It killed Bullcoming.

When Justice Scalia is in the minority of a confrontation clause decision, there is an absolute assurance that no good can come of it. And indeed, Justice Alito’s kinda majority (with Justice Thomas concurring in result but not rationale) returns us to the age where the court need not bother trying to wrap its ruling in rational explanation, but resorts to the old “because I said so” reasoning.

The case involved a testifying DNA expert who concluded that the DNA involves belonged to the defendant based upon an analysis by Cellmark Diagnostic Laboratory in Maryland.  No one from Cellmark testified, so the results of its analysis  simply materialized at trial and were relied upon by the expert, Sandra Lambatos, who was present.


Ms. Lambatos’s discussion of the Cellmark report was not offered to prove that what was in it was true, Justice Alito wrote. In any event, he added, the report itself was not the sort of evidence to which the confrontation clause applies because it was made “for the purpose of finding a rapist who was on the loose.”

The “not offered for the truth of the matter” is the old escape hatch that was invoked whenever a court chose to allow in evidence that couldn’t be justified under law.  Aside from the fact that no juror ever in the history of our nation has had the capacity to distinguish between testimony offered for the truth as opposed to testimony offered for the, well, untruth, the result of the Cellmark DNA analysis were absolutely offered for the truth. The results were used to compare with the defendant’s DNA to conclude that he was guilty.  It doesn’t get any more “truth” than this.

The Williams opinion, though framed in terms of evidence not offered for its truth, instead provides a fabulous example of the rule of truthiness.  Justice Alito has strung together words that create the appearance of a reason when they reflect nothing more than truthiness, it is because we say it is.

According to Alito, the Cellmark results were merely a “premise” of the prosecution’s question, and a simple assumption upon which the expert’s opinion relied.  In other words, when the Lambatos was asked whether the DNA taken from the defendant matched the DNA from the vaginal swab analyzed by Cellmark, and she responded that absolutely, the DNA she took from the defendant matched perfectly with the DNA Cellmark obtained from the victim’s vagina, it was all just a hypothetical on the Cellmark side.  Who could possibly be confused into believing when she proclaimed it a perfect match, she meant that to be taken as true?

Not only does this reflect a monumental step backward from the position taken since Crawford, that confrontation meant confrontation, but it also reflects a return to the days when absurd rhetoric was a complete substitute for anything remotely resembling reason.  This is one incredibly stupid decision.

And while it may not suffice to explain what the law requires of the government in order to prove a fact at trial, it is more than adequate to screw up the otherwise clear trend that developed between Crawford and Bullcoming, and throw the door wide open to the return of the old days when any string of words a judge could put together serves as a perfectly adequate excuse to admit evidence that condemns a defendant, denies him confrontation, conclusively proves the prosecution’s case, yet complies only with the truthiness version of the Constitution.

Nice going, guys. 

A Tip from the Angels

When a call comes in to police about mass murder, it’s likely that someone will take it seriously. Unless, of course, the tipster happens to be a psychic who gets her information from the angels.  And unless the cops work for the Liberty County Sheriff.

Via Courthouse News, Joe Bankson and Gena Charlton are suing the sheriff, the psychic and a bunch of news outlets who reported about them “after a self-proclaimed psychic told the sheriff that 25 to 30 dismembered bodies were buried in a mass grave at their home.”  Needless to say, this tip didn’t pan out, much to the surprise of the psychic who calls herself “Angel.”


The sheriff’s office provided the plaintiffs’ address to the news media and repeated the false statement, and it made nationwide and worldwide headlines, according to the complaint.

Bankson and Charlton claim the sheriff’s office searched their home unreasonably and without probable cause, inviting the media along to watch the intrusive execution of the search warrant.

The couple claim the sheriff’s office was “unreasonable in relying on an uncorroborated tip from a self-proclaimed psychic source” who has proven to be “unreliable and untrustworthy.”

While it may seem utterly outrageous that the sheriff had cameras along for the ride, they just couldn’t risk the possibility that a mass grave would be found and there would be no one to record their brilliant law enforcement efforts.  Sometimes, you just need to throw caution to the wind and take a chance. And have your own friendly cameras ready to record it all for national television.

Afterward, as things didn’t quite pan out as hoped, there were butts to be covered.


Officials at the Liberty County Sheriff’s Office maintain the investigation was by the book. In a previous interview with KHOU 11 News, a spokesperson called what they did a justifiable response to a pair of phone calls from a woman who claimed there was a mass grave with children.


It’s unclear whether there’s a chapter in the book about dealing with mass graves of children or tips from psychics.  In any event, that’s quite an interesting book guiding the Liberty County Sheriff’s Department, who went to check out the tip :



Deputies went to the property and found nothing, but in a subsequent call Tuesday the tipster redirected officials and offered more details that led them to a home with blood on the porch and the foul odor of rotting flesh in the air.


Apparently, there was a perfectly reasonable explanation (by Texas standards) for this:


The blood was from an injury at the residence a few weeks earlier when an AWOL soldier tried to kill himself, and the odor was from a malfunctioning deep freeze full of pork products and maggots, officials have said.

As for Angel, explanations were in order as well.


“I was calling to have a welfare check on three live children,” said the 48-year-old woman, who only wanted to be identified by her nickname Angel. “Everything pretty much got blown out of proportion.”

Liberty County Sheriff’s deputies, the FBI, DPS officers and the media converged on the town of Hardin looking for signs of a mass grave. The information spread around the world, but Angel claims she said nothing about dozens of bodies.

“They up front asked me how I got the information, and I am a reverend. I am a prophet and I get my information from Jesus and the angels, and I told them that I had 32 angels with me and they were giving me the information and then it went from there,” she said.

Naturally, it’s the old “blame it on the 32 angels” excuse.  Of course, as a prophet, one wonders why Angel didn’t foresee the possibility of filing a false report charge.  But then, no one would come out of that trial looking good, and so no charges were ultimately filed.

There remains one question that demands an answer: What judge would sign a search warrant based upon information provided by a psychic?  I’ve requested a copy of the warrant affidavit from Bankson and Charlton’s lawyer, Andrew Sommerman, but heard nothing, which is a terrible shame given that this may be one of those all-time classic search warrants.

The good news is that there was no mass grave, meaning that 25 to 30 children had no been murdered, and, perhaps more importantly, 25 to 30 children hadn’t been murdered and nobody in Liberty County happened to notice.  One would think that if that many children had disappeared, someone would have said something.  After all, a dozen children missing could easily go unnoticed, but 30 can’t be ignored.

While television shows have bolstered the notion of psychics helping police solve crimes and find bodies, most of us realize they’re just entertainment, and don’t reflect reality.  Apparently, no one told the Liberty County Sheriffs, or the judge, or the too-happy-to-tag-along media, that people don’t actually talk to angels or get psychic tips about crimes.

In the meantime, the psychic, Angel, fears that  this is a bad thing for her in particular and crime fighting in general.



Hunkered down in her trailer in the Texas Panhandle, a grandmother who had a vision that sparked a media circus and police search for alleged mass graves in Liberty County said she is being wronged and fears for children who may never be found.


“This is bad for people who call in a tip for something,” she told the Houston Chronicle by phone Wednesday evening. “They think they have done a good deed, and it turns around on them.”


There’s a reason why they say no good deed goes unpunished. On the other hand, if someone calls in a tip because they have actual knowledge of a crime, they aren’t likely to be subject to quite the same scrutiny as your basic 32 angel prophet. 

All of which begs the basic question, is everybody in Liberty County, Texas nuts?