Over at Above the Law, (which, incidentally, has added  Eric Turkewitz to its stable of columnists, along with  Brian Tannebaum) my fellow curmudgeon, Mark Herrmann, raised an interesting point.  After regaling us with a story that reeks of omission of critical detail, the absence of mention of donut or bacon being the obvious, Mark gets to the punchline.

“Because you can tell good from bad. You worked in private practice for 25 years, and you’ve labored in my field. I suspect that, back when you were playing the game, you could write a pretty good brief. When an outside lawyer sends a bad brief to you, you may criticize it, but at least when a lawyer sends a good brief to you, you’ll recognize that it’s good. I work with an awful lot of clients who can’t distinguish good work from bad.”

Yet another dirty little lawyer secret revealed.  And in Mark’s story, it was about civil litigators trying to pass off crappy legal work to inside counsel at corporations, because though they were lawyers, their lack of practice experience left them easy prey. In the scheme of clueless clients, inside counsel is at the very top rung.

Criminal defendants are not so high on the ladder.

Many defendants are barely literate, if at all.  Put papers before them with page after page of black marks on white and they are overwhelmed with your legal brilliance. They haven’t got the slightest clue what the words mean, whether your caselaw is relevant or whether your argument holds any water at all, but they feel the weight of the paper, the see the exhibit tabs, they fondle the heft and are impressed.  You produced all these pages just for them. You must be a good lawyer.

We know better. Even before the days of computers, a great many lawyers did nothing more than change the names when they had to produce motions.  But now, with every word every written stores on a hard drive, cranking out papers, with wordy paragraphs and string cites of utterly no relevance to the case or consequence to the client, is a button-push away. 

Only the lawyers too lazy or stupid to make sure that he hasn’t left in the name or charge of some former client gets caught, and then only occasionally.  Otherwise, the client basks in the warm glow of believing you did all of this just for him. He’s elated. He’s impressed. He thinks he got his money’s worth. 

Are you proud of this?  You fooled your client.  You tricked the person who has entrusted his life to you, who you know to be wholly unsophisticated in the ways of the law.  Aren’t you special.

While Mark speaks to a clientele who is far more capable of distinguishing good from bad that most criminal defendants, his “rules” still apply:

First, produce precisely the same quality legal work, no matter the skill set of the client. As a matter of ethics (or perhaps it’s “morals”), you should not produce lower-quality work simply because you can get away with it. And, as a matter of reality, if you file bad briefs or generate crappy deal documents, the proof will ultimately come out in the pudding. You’ll win fewer cases, or see your corporate transactions explode, if you produce poor quality work. Whether or not you can get away with it, you must still produce top-notch work.

But, you say, the “proof” rarely comes out in criminal cases. The likelihood is the case will end with a plea and no one will be the wiser.  True, but there remains that “ethics” thing, the part where you get to sleep at night knowing that you aren’t a sleazeball.

And then, there are other ways for the proof to “come out in the pudding.”  The judge reads your papers, Co-counsel read your papers. An appellate court may read your papers. They will see what sort of lawyer you are. 

Second, be kind to your less-knowledgeable clients. If those clients don’t understand a strategy, a process, a word, or a contingency, do some tutoring. Most clients will appreciate the education and many, once educated, will also hold your legal work in higher regard.

Some clients, especially those who spend hours pouring over law books in the jail house library, care about their lives to the extent they want to participate in the strategy. Yes, they can be a royal pain, harping on irrelevant technicalities (“it doesn’t say “In God We Trust” over the bench, so they can’t convict me!”). It may not be your job to teach them to be a lawyer, but it is your job to explain to them why decisions are made in their case, and how those decisions are executed.  And they will appreciate the actual thought you’ve put into their lives, which is likely more thought than anyone else has ever put into them.

Third, if you’re working with less legally sophisticated clients, then personal relationships may take on added significance. (I’m a little odd in that regard: I’ll retain the right litigator for a case, whether or not I like the person. Then again, I’ve been heard to say: “Attila the Hun? The guy’s got a mean streak, but he’s pretty darn good at his job. Hire him.”) If a client can’t distinguish good legal work from bad, then the client will necessarily be judging lawyers by some other metric. That metric may be cost (which appears to be easy to assess), or it may be results (which isn’t a crazy metric), or it may be personal presence (“Smith is a very impressive guy; let’s use him”), or it may be pure personality (“I interviewed six lawyers. I’m hiring the guy I’d most like to have a beer with.”). Once pure legal skill is no longer the focal point, be acutely sensitive to other aspects of your relationship with your client.

It is painfully common in criminal defense that clients stick with the lawyer they like, the ones who makes them feel comfortable and special.  These may not be the best lawyers (and are often some of the worst around), but the unsophisticated client wouldn’t know quality if it bit him in the butt.  He does, however, know trust, even if misplaced. 

This is one place where the marketers know what they’re talking about, that any blithering idiot lawyer who can pass himself off as friendly and trustworthy can overcome gross incompetence without breaking a sweat. But this can be overcome by educating the client about the difference between the lawyer whose sole skill is hand-holding and sweet-talking, as opposed to the lawyer who can provide excellent legal representation.

And there is nothing about providing great representation that precludes being otherwise trustworthy and caring toward your client.  While there are times when a conflict arises between these purposes, in which case friendliness gives way to fulfilling the hard obligations of lawyer, there need be no reason the client ever believes you are placing his interests first.  And indeed, the client’s interest is always paramount.

The criminal defendant may not be capable of appreciating the thought and effort you put into his defense, particularly since it doesn’t guarantee a win and may ultimately mean nothing at to outcome, but it doesn’t mean you don’t try. Do it for the judge and your co-counsel.  Do it for your client. Do it for yourself. Just do it.

Some clients want to tell their lawyer everything under the sun, using tens of thousands of words to express thoughts that require maybe a dozen. Some answer questions posed to them succinctly and clearly.  Some don’t say much.  Some lie.

The liar isn’t malevolent. He’s manipulative.  Maybe he survived on the street by his wits, and can’t quite give up the tools that kept him alive thus far.  More likely, he believes, as many do, that if he convinces his lawyer that he’s an innocent man, his lawyer will love him more and represent him better.  It’s not that he views his lawyer as the enemy (though that often becomes the case as the lawyer is the messenger for a miserable system, and comes to personify all the client comes to hate), as much as he can’t quite bring himself to trust someone. 

And so the lawyer asked the client questions, and the client responds.  The lawyer knows that the client isn’t being forthright with him, and pushes the client. Sometimes, he even tells the client that he’s lying, and that his lies won’t serve his cause. 

Do you really want your lawyer to be the stupidest guy in the room?

“You were supposed to win my case. You’re the lawyer. You were supposed to win. And now I’m going to jail forever because of YOU!”

Last week was Blog about Brett Kimberlin Day, and it apparently raised a some serious consciousness.  It also raised some mindless anger, with some people across the internet allegedly retaliating against Kimberlin with death threats.  Impropriety and stupidity knows no politics. 

But the gravamen of the exercise was that people across the political spectrum would not allow Lawfare to murder free speech, regardless of whether the speaker was on your side, the other side, or no side.  The story that  gave rise to this was that of Aaron Walker, who blogged as Aaron Worthing at Allergic2Bull.  Calling upon those who believe that free speech shouldn’t be shut down by outrageous use of police and the legal system seemed like a pretty good idea at the time.

As it turned out, this may not have been the case.  Aaron Walker was  taken into custody yesterday because of it.  Via Eugene Volokh :

  David Hogberg (Investor’s Business Daily Politics and Markets Blog) reports that the arrest was indeed based on Walker’s blogging, which would mean that it is indeed a First Amendment violation (see, e.g., this recent case):

This was the second peace order that Kimberlin has filed against Walker, demanding that Walker cease any contact with Kimberlin. In it, Kimberlin claims that Walker has “continually harassed” him with “alarming posts, tweets, alerts that arrive in my email box, which I consider threats to me personally and to my business.” Kimberlin came to court with pages upon pages of threatening emails and tweets that he claimed had resulted from Walker’s blog posts about him. None of them, though, were sent by Walker….

Here’s what seems to have happened. Although Kimberlin’s first peace order against Walker was eventually thrown out on appeal, it appears that while it was in effect Walker wrote a blog post about Kimberlin. This triggered a Google Alert that Kimberlin had set up. Kimberlin filed criminal charges based on that, apparently claiming that constituted “contact.” The court apparently agreed, and Walker was arrested….

It seemed like Walker did himself in when the judge asked, “Where do you see this case going?”

Walker, who has tried to get the Maryland State Attorney to file charges against Kimberlin for filing what Walker claims are false criminal charges against him (see here), replied, “I hope to raise enough consciousness to get the State’s Attorney to file charges.”

“How are you going to do that?” Vaughey asked.

Walker replied, “I’ve been raising awareness. There’s now 400,000 posts on Google discussing him (Kimberlin), and I’m guessing 300,000 of them are not very pleasant. These are people calling for charges to be filed.”

If you are a judge who knows very little about the Internet, Walker has just made it sound as though he’s able to generate all of this Google traffic against Kimberlin. And Vaughey seemed to believe that is what caused Kimberlin to get death threats….

The judge then said that Walker was the type who didn’t want to get into it “mano-y-mano” with Kimberlin but “you want to get together with all of your friends, who have nothing else to do with their time, in this judge’s opinion … and you are creating a conflagration, and you don’t care where it goes. And so you get some freak out in Oklahoma with nothing better to do with his time, so he does the nastiest things he can to this poor gentlemen (Kimberlin). What right does he have to do that?”

Speech creates a conflagration?  Sometimes, on a really good day, it creates a conflagration of ideas.  And is it possible that “some  freak out in Oklahoma with nothing better to do” will say nasty things to “this poor gentleman?”  It is possible.  As we are already too well aware of the fact that they sell keyboards to the stupid and psychotic alike, it’s very possible that someone who sees something on the internet will be inflamed and write nasty words.

“He has no right to do that, your honor,” Walker replied.

“But you incited him,” Vaughey said….

At the end, the judge said, “All I’ve learned here is one guy hides behind the sheets while the other guy suffers. I don’t care what (Kimberlin’s) background is. A prostitute can also be raped. He’s an individual, he’s entitled to his own privacy and can’t be threatened. What I didn’t like is these death threats that are coming and his children are reading it. That is nasty and wrong.”

The judge signed off on the peace order, which means that Walker can’t say one word about Kimberlin for six months.

“I find that this is worse than harassment. It’s a nasty, dirty thing to do to somebody … you’ve got people all over writing these things. He’s got 54 pages that he says come directly from you, and he’s got volumes of people who are doing it.”

That there is clear and convincing evidence that within 30 days before the filing of the Petition, [Walker] committed the following act(s):

Placed [Kimberlin] in fear of imminent serious bodily harm: COUNTLESS NUMBER OF BLOGS EITHER THREATENING DEATH [sic]

Ironically, the First Amendment, and our right to enjoy it, is in far worse shape today than it was a week ago.  So too is Aaron Walker.  This wasn’t what anybody had in mind when we spoke out in support of the constitutional right of free speech and the outrage used to thwart it.

American Lawyer Media has been a trusted source of news and commentary for the legal community, from such “must-read” publications as the Legal Intelligencer and the New York Law Journal to such sketchy ones as the American Liar and the National Law Journal, And then there’s its web presence, with such mainstays as  Legal Blog Watch, Blog of Legal Times and its best named domain, Law.com.

The problem with ALM, however, is that for all it has, it’s never been a hugely profitable company, and it’s always been limited by its universe, the legal community.  As a business, like any business, the goal of profitability is at its core, and certainly no one can blame it for that.  In fact, it says so right under the title “Our Core Values“:

As a dynamic global business ALM is committed to the development and success of the people we work with and the communities we serve. We aim to deliver the highest standards of integrity, fair-dealing and quality in the services we provide.

There you go, profit. And I, for one, have no qualm with that.  I do, unfortunately, have a qualm with this :

ALM, known as a leading provider of news and business information to the legal and real estate industries, announced last week the formation of a Marketing Services team that will work with law firm clients to plan, execute and measure a comprehensive marketing campaign.

The objective of the new team is to deliver greater return on investment for clients by offering a full suite of marketing services from a single source, reducing the need to engage with multiple vendors to acquire new leads and build customer relationships. The team will meet with clients to assess their overall marketing goals, then customize a package of services – including market research, national and regional advertising, live events, Webcasts, email marketing, advertorials, and other ALM offerings – in order to build a turnkey marketing campaign, and finally to provide lead management and measure campaign results.

How thrilling to learn that a business built on providing information, news and commentary to lawyers can also provide “new leads” and “customer relationships.”  Notice that there is no mention of the arcane and archaic word “client.”  There’s gold in them thar leads, and ALM wants to mine it.

Over time, I’ve gotten to know a good number of folks who work or are related to ALM, and for the most part, they’re good people and many are good lawyers.  They handled themselves with integrity, and never let their association with ALM sway what they wrote or who they wrote about. There was often some question as to what their relationship to ALM meant, given that it wasn’t exactly a great payor and when trouble happened, was the first to leave the sinking ship.  But they didn’t strong arm their people to do their corporate bidding, which reflected well upon the integrity of ALM’s publications.

But then look at what happened with other businesses that began as honest brokers and ended up walking the boulevard.  Findlaw comes immediately to mind.  Not Yodle, as was never considered an honest broker, nor a host of others who staked out their street corners already.

Granted, the toxic combination of ignorance and desperation makes this move by ALM a good business decision from the perspective of scarfing up those marketing dollars that would go elsewhere, perhaps to a less “dynamic” business.  But as Kevin Vermeulen, senior vice president at ALM and the head of this new venture says, he has the “other ALM offerings” to sell, to use to bolster your one stop marketing behemoth.

Does this mean that Legal Blog Watch will now be an integral part of ALM’s lead generator?  Bruce Carton probably gets a bunch of press releases and tips every day from people who want him to take notice of their incredibly important bloggy news, and promote the living crap out of them.  While I can’t imagine Bruce selling his keyboard, I can easily imagine his handing off the reins to another who might be more amendable to the corporate good.

This would never happen with an honorable company, you say?  Consider Exhibit A, the law firm of Womble Carlyle  announces that it was “ranked #1 for social media outreach among law firms reviewed.”  The ranking was done by Adrian Dayton, who turned “social media guru” after his eight months practicing law didn’t work out too well.  And for whom does Adrian guru?  Womble Carlyle! 

As it happens, Adrian is also a social media writer for The National Law Journal.  And the NLJ just happens to be owned by whom?

While this might be an appropriate opportunity to explain, again, why a quarter million websites proclaiming their lawyers to be caring, experienced and aggressive isn’t going to work.  As each tries to outdo the other, to take another step down the slippery slope of deceit and slime and SEO hegemony, there will never be a winner.  But I will resist the temptation to mention these problems.

Instead, consider that even trusted sources of news, information and commentary want to make sure that they have a hand in your pocket, and a street corner to call their very own.  Let no lawyer be untouched by marketing.  Let no “lead” or “customer” be missed by the business that once was a profession.

At  Above the Law a while back, Mark Herrmann explained why old lawyers were always seeing problems where newer lawyers saw none.  They had the misfortune of experience, having been there, done that, and learned the hard way how ideas that seemed so good at the time ended up in the toilet. 

Whether it was because of the certainty that nothing could possibly go wrong, or merely the manifestation of the ancient legal maxim, stercus accidit, it happens.  Old lawyers experienced it. Young lawyer had yet to, and were unpersuaded that there was any reason to doubt their certainty.

At Tempe Criminal Defense, Matt Brown provides another remarkably astute observation about scientific expert witnesses.

Expert one is young and arrogant. He has no practical experience. He testifies to scientific “facts” that seal a person’s fate. He grudgingly acknowledges that science is not absolute, yet he speaks in nothing but certainties when it comes to each and every fact weighing in favor of guilt. He insists that his “science” is infallible and that things must be a certain way. He uses big words to build even bigger claims.

Expert two has a half-century of practical experience, and he more or less founded his field of study. He’s conducted over fifty clinical trials involving the type of thing to which he’s testifying. He has academic and professional credentials that can’t be beat. He testifies that things are complex and that no reputable scientist would ever dare to make the ridiculous claims expert one did.

Expert one wins. Every time.

There is no expedient to which a man will not resort to avoid the real labor of thinking.

–Sir Joshua Reynolds

By its very nature, science is fluid. Reputable practitioners gather measurable evidence and subject it to specific principles of reasoning. From that, they develop theories to test and retest. They gain knowledge, but they don’t produce “facts” beyond the empirical data of the studies themselves. They gain knowledge and produce other theories which each must then be tested and retested. Validation does not create truths, but rather principles at best. Outliers exist. They may be explained, but that process too requires more testing and analysis. When the reason for discrepancies is explained, it isn’t much more absolute than the initial hypothesis. It’s a tendency, an assumption, or at best a theory. It certainly isn’t a “fact” by any stretch of the imagination.

One of the few holidays I’ve recognized  year after year is Memorial Day.  There are few things more real than young men and women dying. Via Ken Lammers at CrimLaw :



As a parent, an old man, an American, a person who gives a damn, I grieve when I see this image.  I don’t care about their politics, the number of twitter followers or whether they have an iPhone.  I feel what their parents, spouses, children and friends feel. 

General George Patten, a tough old man, famously said :

The object of war is not to die for your country but to make the other bastard die for his.

They did not give their lives for iPads, political parties, more laws or bigger prisons. They gave their lives for freedom. Honor it.

This fundamental rule of life from the great philosopher and cat lover, Bernard Kliban, has long guided my blawging.

Any criminal defense lawyer who has had the pleasure of being involved in a case subject to media scrutiny has heard the judge’s admonition to keep his yap shut to avoid prejudicing the jury pool.  These warning, by definition, come after the District Attorney has held a press conference explaining, without contradiction, about the great glory of nailing the evil defendant, since this comes before the judge gets his hands on the case.  The myth is created, and the defense better do nothing to screw it up.

But once there is a judge involved, and should that judge inadvertently follow the law and make a ruling that favors the defense, what’s a prosecutor to do?  Bingo! Put out a press release!  And that’s exactly what Albany County District Attorney P. David Soares did,  ripping County Court Judge Stephen Herrick a new one for ruling against him.

“Judge Herrick’s decision is a get-out-of-jail free card for every criminal defendant in New York State. His message to defendants is: ‘if your DA is being too tough on you, sue him, and you can get a new one.’ The Court’s decision undermines the criminal justice system and the DA’s who represent the interest of the people they serve. We are seeking immediate relief from Judge Herrick’s decision and to close this dangerous loophole that he created.”

The problem stemmed from Soares’ being sued by Florida defendants for being indicted in New York, after the federal court ruled against Soares’ motion for summary judgment.  Given that the case would be proceeding in federal court, Judge Herrick’s determined that a conflict of interest existed, dismissed the indictments with leave to represent, and appointed a special prosecutor.

And Soares responded with his press release.

The grievance against Soares, which started in the Third Department and was transferred to the Fourth (presumably to remove the appearance of conflict given Soares’ position and his having fired the Third Department’s chief disciplinary counsel from the DA’s office when he took office) concluded the obvious :

We conclude that respondent has violated rule 8.4 (d) of the Rules of Professional Conduct (22 NYCRR 1200.0) – engaging in conduct that is prejudicial to the administration of justice. Inasmuch as Judge Herrick appointed a special district attorney and granted that prosecutor leave to re-present the dismissed indictment, we conclude that respondent’s statement that Judge Herrick’s determination constituted a “get-out-of-jail-free card for every criminal defendant in New York State” was objectively false. For the same reasons, we conclude that his statement that Judge Herrick created a “dangerous loophole” was reckless and misleading.

If only it were true that it was that easy to rid oneself of a wayward prosecutor.  But it’s not, and even a butthurt District Attorney doesn’t get to make public statements like this.  At least about judges. If it was about a criminal defense lawyer, it would be another story. But I digress.

A win!  Score one for the good guys!  A district attorney called on the carpet for making outrageous, false and misleading statements doesn’t happen everyday.  So what was done about it?  Did he get Nifonged? Was he required to stand in the public square in stocks?  Did they force him to walk the courthouse hallways with a sandwich sign that said, “I’m a lying District Attorney who can’t keep his mouth shut?” Well, not exactly.

We have also considered,however, respondent’s disciplinary history, which includes two letters of admonition for making improper and prejudicial public statements regarding pending criminal matters. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured.

Say what?  Two prior letters of admonition for making improper and prejudicial public statements.  Apparently, that didn’t work too well at getting Soares to shut up and stop doing the dirty.  So if two prior letters of admonition didn’t work, censure is the answer?  Because telling Soares he really, really has to stop making false, misleading and prejudicial statements to the media is the answer?

And yet, the story isn’t yet complete. 

Sheriff Bill Watson has a contraband problem in his jail in Portsmouth, Virginia.  Why, under his watchful eyes, he had such a problem, isn’t exactly clear, given that his adopted tough on contraband position didn’t do him much good before.  But one it was a gaggle of nurses coming into his jail to care for the health of prisoners. Watson appreciated the strictest need possible for thoroughness.

Via Fox 8 News :

Nine female healthcare contractors providing healthcare services to inmates at the Portsmouth City Jail claimed that when they arrived at work they were sent with a female guard to a private room.

“They were told to completely remove their clothing, they were forced to bend over and cough while jail officials looked in their bodily cavities,” said ACLU lawyer Rebecca Glenberg.

These were contracted nurses, not misdemeanant or people arrested for unpaid parking tickets that were actually paid.  You know, the sort of people who deserve a good body cavity search.  Sheriff Watson, whose nickname around Portsmouth is Mr. Sensitivity, was unimpressed.  When he learned he was being sued for the searches, he responded:

“I thought it was the biggest bunch of crap I’d ever heard in my life,” said Watson.

The Sheriff contends he has every right to strip search anyone coming in to his jail. He emphasized that includes his owns deputy. He says security is his primary concern and he had been having problems with contraband getting in to the jail.

Anyone?  Lawyers meeting with their clients, for example?  Though a defendant may have a constitutional right to counsel, the Constitution says nothing about the right of a lawyer to meet with his client with his clothes on, or not to undergo a myopic inspection as part of the entrance protocol.  And if Sheriff Watson was really intend on being thorough, there is always the colonoscopy, just in case.  You never know what a lawyer could be hiding in there.

“The nurses need to understand they don’t run the jail, we run the jail and they have the option to be searched or leave,” said Watson.

Watson believes the searches are part of his efforts to ensure inmate safety.

“The world’s gotten so politically correct you can’t do your job,” he said.

One might muse that the good Sheriff could be asked the same question if he happens to appear in an emergency room in extremis, and a nurse orders him to squat and spread before showing him any concern.  While he may own the guns in the jail, the nurses have the juice in the ER.  I wonder whether Sheriff Watson understands that it works both ways?

Certainly, one has to wonder why the nurses didn’t turn on their heels and walk out of Sheriff Watson’s domain.  Perhaps they felt they had no option, since the screws had guns and gave them order. Maybe they were so dedicated to the health of prisoners they felt morally bound to endure the search lest the inmates’ health suffer. It could even be as simple as they needed the money.  Or maybe there were just foolish.

At a time when employer’s  demanding Facebook passwords causes outrage, it seems almost quaint in comparison to a body cavity search.  This hardly seems to fall under the facile rubric of political correctness.  The notion that Sheriff’s keep their eyes (and all other body parts) out of nurses’ orifices without a damn good reason.

The alternative for healthcare professionals who are needed to tend to the care of prisoners is to tell nice old sheriff’s like Watson to enjoy his own body cavity search, and refuse to suffer the indignity.  But then, that doesn’t do much to help the prisoner in need of medical attention.  Should they refuse to enter as long as Watson continues to have his head firmly implanted in the search zone and allow inmates to suffer, perhaps die, for lack of medical care?

The most absurd part of Watson’s thinking, and I use that word in its broadest sense, is that there is an easy alternative means to protect against the introduction of contraband.  After a prisoner is seen by a nurse, and before they re-enter general population, search the prisoner.  It’s not that I’m advocating this be done, or that prisoners should be needlessly search and forced to undergo the indignity of a body cavity search in order to obtain health care, but to note the stupidity of Watson’s position.

Relative to the nurse, the prisoner is more rationally subject to search.  That’s comparative, of course, rather than absolute. There is just no sound reason to engage in any of this, absent a specific reason to believe that an individual has secreted contraband on his person.  As far as Watson’s contraband problems are concerned, there is an even better solution available to him since the primary source of unlawful stuff coming into a jail isn nurses’ tushies. 

The Sheriff contends he has every right to strip search anyone coming in to his jail. He emphasized that includes his owns deputy.

Now he’s on to something.  Maybe Sheriff Watson will let us know how that turns out.  And when it’s his turn to squat and cough, I’m sure there will be no shortage of volunteers to do the job.

The police announced that they had solved one of the most horrific and long-standing open cases in New York City history, the disappearance of Etan Patz.  Perhaps “solved” is a bit of exaggeration, given that Pedro Hernandez confessed to the crime, saying he strangled the child in the basement of a SoHo bodega across the street from the bus stop. 

Solved might have suggested that the cops spoke with him 33 years ago and pieced together evidence to prove his guilt. Somehow, despite the enormity of the interest in the case, that never happened. It wasn’t until a family member told police that Hernandez had confessed that they first went to speak with him. And he spilled his guts.

But the  New York Times calls this the “worst case scenario.”

“Time is an enemy here,” said Vernon J. Geberth, a retired New York City police lieutenant commander in the Bronx. He said he was struck by the absence of corroborating details in the news accounts of Mr. Hernandez’s confession. “I have to ask myself a question, do they have something they’re not telling us?” he said.

No body. No physical evidence of any sort connecting Hernandez to a crime. And a confession that provides essentially no factual hook beyond he did it.

Why? “Great evidence in court,” [some unspecified detective] said. “When you go to court, you not only have his statement saying that’s what happened, but you have evidence for jurors to see.”

Jurors. That there are 12 people walking around who may one day sit in judgment of Mr. Hernandez is what has the police hunting for proof and for the holy grail — motive, the prosecutor said. “Corroboration is such a legal thing, it’s a thin requirement,” he said. “The question is, do you get the jury to believe this is the real thing?”

Jurors, he said, “care about why.”

Well, not exactly. There is another reason for needing corroboration, that being New York Criminal Procedure Law, §60.50, which provides:

A person may not be convicted of any offense solely upon evidence of a confession  or  admission  made by him without additional proof that the offense charged has been committed.

This is called the confession corroboration rule, its purpose being to preclude someone from being convicted upon a false confession, where there is no evidence to prove the commission of the crime beyond the confession.   After all, there are some folks who inexplicably like to confess to crimes for fun, and there used to be some  folks manipulated or coerced into giving false confessions (until scientific lawprof expert Paul Cassell concluded that evolution never happened and there is no such thing as a false confession, just evil defendants who DID IT!!!).

Hernandez doesn’t seem likely to be a false confessor type, having never confessed before nor been arrested for any crime up to now.  And yet there is little with which to corroborate what he said, other than the absence of a little boy for the past 33 years.  And that doesn’t do much to show that Hernandez is responsible.

This case will prove an enormously difficult test of the corroboration rule.  Nobody wants to see the killer of Etan Patz walk.  It was a crime that shocked New Yorkers, who aren’t easily shocked.  The loss broke hearts, and there is no parent, if anyone, who doesn’t share the pain.  If Hernandez killed this child, committed this heinous crime, then he must not walk.

And yet, there is an excellent chance that the law will require otherwise, in the absence of corroboration.  Indeed, this may well be a case where the law, if a judge is bold enough, would compel the grant of a motion to inspect the grand jury minutes and dismiss the indictment for lack of corroboration.  Of course, that judge would be assured of a front page picture in the New York Post as the world’s worst judge.

In the old days, the maxim was bad cases make bad law. And this is a very old case.  It boggles the mind when contemplating what sort of machinations the prosecution will employ to claim the existence of evidence to corroborate the confession.  It’s not that the district attorney won’t try, or shouldn’t try.  If they believe Hernandez’s confession (and there isn’t any known reason not to), then pursuing this prosecution seems a duty.  Just as it’s the defense’s duty to test that pursuit if it fails to satisfy the requirements of the law, and the judge’s duty to grant the motion to dismiss for that failure.

The scenario is indeed worst case.  Of course, if the police had done as thorough an investigation as they would have us believe in the first place, as they lay claim now despite the fact that the extent of their involvement was to answer a phone call and listen to an old man, perhaps there are facts, photos, evidence that will suddenly make sense, suddenly connect, suddenly corroborate this awful confession.

Or maybe the killer of a smiling, happy, beautiful child will go free because they can’t corroborate a thing 33 years after their claims of thoroughness, dedication and professionalism are exposed as crap. Should that happen, you can bet they will blame the judge, the defense lawyer and the law for the outcome.  What you won’t hear is the Police Commissioner’s true confession that they screwed up when they failed to properly investigate the disappearance of Etan Patz 33 years ago.