I’ve lurked on a conversation between two of my favorite young lawyers,  Fishtown’s Jordan Rushie and Tempe’s Matt Brown. Watching them develop and evolve has been fascinating, both because of the selfish memories of my earlier days and because they provide me with insight into the changes wrought by the economy and technology. They tell me they learn from me, but they don’t realize I learn from them as well.

Jordan started the ball rolling with a post that business is good, and from there about the various technological means which are in vogue to build a practice, and why he either won’t use them or they don’t work. 

So yeah, you’ve read that right. We have a free website, no SEO optimization, no Twitter presence, no billboards, I don’t know how to use LinkedIn, and we’ve paid about $100 this year for advertising. I refuse to spam the internet with crap like “Do you need a lawyer?” And business is decent.

Within his post, Jordan mentions free ads on CraigsList:

Do you really think we would put up a free Craigslist ad? That’s for losers, and it will never ever happen. Period. Why? Because it’s undignified, that’s why. And yes, you are a total loser if you’re putting up free classified ads for legal services on Craigslist. I don’t care if it resulted in a client or two. It’s where people go to find hookers and meet people with weird fetishes. Do you really want to advertise professional services there? [Update] When I first started practicing law, I was told by an older attorney to troll Craigslist. I will admit, I got two great clients from it. In both cases, I decided to respond to an “I need help desperately ad.” That disclosure out of the way, we’re not a firm that finds clients on Craigslist.

Matt remembers his early adventures with CraigsList:

The year was 2007. I had no money, so I was working one weekend and thought I would put up a post on craigslist. Within minutes of publishing my little ad, I got a call. The guy needed help with a case set for Monday and wanted a free consultation right away. I agreed and met with him after hours. He was an hour late. I let him do a payment plan with very little money down. I put myself in the worst situation imaginable for a criminal defense attorney, but bizarrely, the guy turned out to be a great client. He was so happy with the representation that he showed up one afternoon a few weeks later and gave me a hug along with a check for the balance due months before he actually had to pay it.

Yet Matt, after relating how he blew his last $5 in a casino, and won a jackpot, concludes:

Strangely, every other year or so, the mood strikes and I saddle on up to a video poker machine. I’ve never put another ad on craigslist. It’s mostly because I’d rather not be the kind of lawyer who posts between an old guy seeking a topless female roommate and a stewardess hoping to fornicate with a golden shepherd in front of her husband, but it’s also because I know the odds of a good outcome are terrible and I stand to lose a lot more than five dollars.

Both Jordan and Matt, hungry for the opportunity to be lawyers and, coincidentally, make some money, tried CraigsList and, well, came away with positive experiences. They both got gigs, got paid, and were appreciated.  This is good, so why do both firmly reject the idea going forward? 

In a comment to Matt’s post, Jordan explains how efforts to bottom feed come back to haunt a lawyer, prompting Matt to reply:

We thought we were really cutting edge when we used free internet listings starting out, and we probably told a lot of other people to do it. Few things change perspective as effectively as time.

This is where lawyers who weren’t born to the internet have something to learn.  As much as we may have years of experience behind us in the trenches, we’re the babes in the digital woods. Good cases are hard to find these days. Good cases with clients capable of paying for counsel are harder still. They must be around somewhere, but your phone is silent. What to do?

The never-ending deluge of emails offering internet services strikes home. If all these people are making a business out of getting you business, there must be something to it.  The onslaught of people far more knowledgeable about the web telling you that this is where the action is, where the clients are, where the lawyers who are making money are getting their clients, grabs you by the neck and shakes you to your core. You, old lawyer, are missing the gravy train. You, who can barely use email, are sitting there in the solitude of your office while great cases from paying clients are making the lawyers who use the internet fabulously rich. 

Let these young lawyers be your guide.  They may not have your hours in the trenches, but they have a lifetime in that foreign land called the internet speaking a language in which you will never be fluent.  Anything you are considering has already been tried.  Anything you are first hearing about has already been done.  They tried it. They did it. And they are telling you that it doesn’t work.

But you’re hungry, and business is lousy, and what would it hurt if you gave it a go?  After all, didn’t both these young lawyers get cases off Craigslist that made them some money?

As Matt said, “few things change perspective as effectively as time.”

The cases that excited them as brand new lawyers aren’t quite what interests them a couple of years later. Even so, hitting a small win on the slot machine doesn’t mean that life as a casino gambler guarantees rewards.  Indeed, the odds are much better that you get burned, whether by the clients or by your reputation as a bottom feeder that precludes your ever getting a good case again. 

The part of the story that my protagonists don’t mention is that the culture of free advice, cheap lawyers, the stench of desperation and the availability of the internet as new tool for clients, sadly referred to as “legal consumers” these days, is one of the foremost reasons you sit there wondering why your phone doesn’t ring. Clients are warned to interview a dozen lawyers before acting. Clients are told that they can hire you for a song, if that much, because lawyers give their services free on the internet in the hope of scoring the occasional paying client.  Clients are told to demand guarantees.  If a client makes your phone ring, he believes he’s doing you a favor, even though he has no interest in hiring you or paying you. That he’s broken the silence is good enough.

This isn’t an accident, but the result of what the internet has wrought. These young lawyers know it. You old lawyers have yet to learn it, but would rather listen to hucksters than lawyers whose experience on the internet dwarfs yours. Just as they don’t have your experience in the trenches, you don’t have their experience on the web. Pay attention to them before you screw things up so badly that you never get another case again.

The defendant was white. The jury was white. The victim was black. The video was black and white.  And it never happened.

When the  video was released of Chad Holley being beaten, it sent shock waves though Houston.  It was so inflammatory, so “shocking and sickening,” that they wanted it hidden from view.



When this video was first released, the outrage was that the Houston Police Officers giving Chad Holley a good beating were only charged with the lesser offense of official oppression rather than assault.  No matter, as it turns out. 

Via the AP, former officer Andrew Blomberg was acquitted of official oppression because there was no beating. It didn’t happen.

During his trial, Blomberg, who is white, testified that he didn’t mistreat Holley and denied kicking or stomping on the teen’s head or neck. He said he only used his foot to move Holley’s arm after he refused to comply with an order to put his hands behind his back.

Jurors declined to comment after the verdict.

I suppose “I didn’t see nuttin'” probably wasn’t one of those moments jurors wanted captured for posterity.

Prosecutors told jurors Blomberg kicked Holley several times and Houston Police Chief Charles McClelland Jr. testified that he believed Blomberg kicked and stomped on the teen.

Defense attorneys countered he was only trying to secure a potentially armed suspect. Several officers testified supporting Blomberg’s claim that Holley was resisting arrest.

They told about how bad and dangerous Holley was, as if that has any relevance.  But it’s always a great play for cops.  Not because it explains or justifies their actions, but because it makes the jurors feel that the victim deserved it and, well, he got what was coming to him.  It’s a variation on the old Texas defense, he needed killin’.

Was the beating of a black teen by white cops a racial thing?  Was the acquittal of that white cop by a white jury a racial thing? Blomberg’s lawyer says no.

His attorney, Dick DeGuerin, also said “it is not and was not a racial thing.”

“It’s been made into that by others for their own reasons,” he said.

Asked why there weren’t any blacks or minorities on the jury, DeGuerin said most of the African-Americans in the jury pool had already made up their minds that Blomberg was guilty.

If this is true, then explaining the verdict becomes exceptionally difficult.  Unless you accept the premise that what you see on that videotape just didn’t happen.  Maybe it looks different in Houston.

In the midst of an otherwise interesting post about the pedagogy issues surrounding the timing aspect of law school testing, Sam Bagenstos at  PrawfsBlawg slips in this factor that stopped me dead. 

We talk about accommodations for people with physical disabilities, vision disabilities, and, of course, learning disabilities and ADHD.  It won’t surprise anyone that the accommodation that generates the most discussion is the provision of extra time to take an exam.  In fact, my casual empirical conclusion is that testing accommodation is the area of disability law that draws the most interest from both students and faculty at law schools across the country.

First, many students and faculty believe that everyone would benefit from extra time on their exams, so that even for people who legitimately are diagnosed with learning disabilities the accommodation gives them an unfair advantage.  

I don’t agree that a disabled student who has demonstrated she is capable of successfully completing law school should be prohibited from attending solely because she will be too disabled to practice law once she graduates.

***

But if you are correct that our primary concern should be for our students’ future clients, then we shouldn’t be keeping any group of talented people out of the profession.

And if an associate’s use of adaptive software to generate documents doesn’t impair his ability to represent clients in any way, then how does the fact that he required bar exam accommodations (to enable him to take the examination using the software), along with the fact that his disability isn’t one you consider “flagrant,” establish an ethical obligation that he make some disclosure to his clients? Which ethical rule, exactly, is he violating if he fails to make the disclosure? How are his clients being deceived?

In a post that will surprise many,  Kevin O’Keefe rips legal marketing for its disgraceful lack of dignity.  This follows an “incident” yesterday where an interview conduct by his son, Colin, of someone from ConsultWeb at Avvocating 2012 was spammed across twitter.  Kevin was pissed, so he let loose in a colorful post :

Lately I think of Kodachrome most “When I think back on all the crap lawyers learn from legal marketers, it’s a wonder lawyers can think at all.”

Some legal marketers don’t know how lawyers grow their practices. Some legal marketers intentionally keep lawyers in the dark.

Either way it’s a shame. A shame that marketers act with no dignity in serving a profession that deserves, or at least should demand, dignity. A shame that otherwise intelligent people believe the crap taught to them.

While there are quibbles to be had over claims that the internet offers any meaningful opportunity to get filthy rich and famous, Kevin is still one of the good guys in that his thrust has always been to develop first as a competent lawyer and then spread one’s earned reputation around.  Whether it works that way isn’t the point of this post.  Kevin has always put competence and client service first, even if what follows is subject to debate.

But in the process of flying too close to the sun, Kevin, and his baby, the Lexblog Network, got burned.  Colin, who happens to do a terrific interview, “covered” a marketing conference.  At the time, Kevin saw the attendees as his peeps, worthy of a listen and even an interview.  And then, these very people, the ones to whom he showered his love and good words, burned him. They took his well-intended promotional video and spammed it across the internet, pulling on their pink hotpants and black patent leather hip-boots, and strutting their stuff down the boulevard.  And Kevin’s stuff too. 

Kevin now sees what happened in painful living color.  He was used. ConsultWeb took his interview and turned it into cheap and tawdry marketing.  Instead of developing relationships, the thrust of Kevin’s message, they put bright red lipstick on it and pushed it in everyone’s face.  It made Kevin the pimp, having created the streetwalker, and Kevin was outraged at being put in that position. I can’t blame him.

But it can’t surprise him.  Kevin O’Keefe may have given his talk about accelerating relationships a thousand times, but it’s still part of the marketing scheme the drowning lawyers grasp before they go under.  It’s may be more dignified than others, but it’s still marketing.

I twitted back at Kevin, during his fit of pique, bemoaning the death of dignity.

You can’t force dignity. Once you slide down the marketing slope, it’s baby steps to hot pants and the boulevard.

While my message was aimed directly at the spamming, it was meant for Kevin as well. Once you hoist yourself up on the fence between “dignified” marketing and the sleazy stuff, there is no way to avoid getting splinters. Big, nasty splinters in your butt.

People don’t go to these marketing conferences because they want to learn how to be dignified. They go because they want to get clients, and they want to get clients because they want money. And if they want clients and money enough to go to conferences, they want it pretty badly. And they will do whatever they have to do to get it. When the sweet rhetoric of dignity doesn’t make them rich, they push a little farther, until one day they find themselves walking the boulevard in hot pants.

Kevin  later twitted :

Why do lawyers have such a shitty reputation? Because of advertising like this.

Every once in a while, a person has a chance to make a difference in the larger world.  Sometimes, the chance comes at personal expense, but the person’s will to make a difference transcends self-interest.  Most people choose to cover themselves rather than risk it. Only the truly brave take the chance.

Brooklyn Supreme Court Justice Gustin Reichbach is a very brave man.

In a New York Times op-ed, Gus Reichbach has done what few would even consider.  He not only told the truth, but told the truth that exposed him to a huge potential problem.  You see, Gus Reichbach sits as a criminal term judge. And Gus Reichbach smokes dope.

He doesn’t toke for fun or relaxation, but for relief from the pain and nausea from pancreatic cancer. 

THREE and a half years ago, on my 62nd birthday, doctors discovered a mass on my pancreas. It turned out to be Stage 3 pancreatic cancer. I was told I would be dead in four to six months. Today I am in that rare coterie of people who have survived this long with the disease. But I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana.

While the federal government persist in midnight showings of Reefer Madness and keeping marijuana on schedule I, for drugs with no use that isn’t evil, Justice Reichbach can’t afford to indulge in the fantasy of the drug war.  Cancer is real, as is the suffering that goes with it. No kind words from Gil Kerlikowske will stop the pain.  Indeed, they would be more likely to induce nausea than ameliorate it.

When used for medicinal purposes, there is no rational reason why marijuana is any different than any other drug.  Throw your back out and you’re in agony. The doc writes a script and you feel better.  Until the feds put an end to that as well.  Can it be abused?  Of course, like anything else, including power.  Does that mean it’s ineffective for those who need it.  Clearly no.  The toss-up is whether it’s better to make cancer patients endure the suffering or offer the only medicine that provides palliative care. 

In the heat of war, there are always victims.  In the War on Drugs, cancer sufferers like Justice Reichbach is called collateral damage. 

So rather than suffer for the cause of politics, Gus Reichbach has chosen to address his pain and nausea.  It is unlawful in New York to possess marijuana, regardless of how worthy and justifiable the reason.  For a man who sits on a bench in a robe and metes out punishment, doing something unlawful isn’t generally considered a good thing. 

This must have weighed heavily on a judge, as well it should have.  While there are excellent arguments for the legalization of medical marijuana, many a criminal defendant can offer a sympathetic rationale for breaking the law.  Yet they are prosecuted, convicted and sentenced, because they have broken the law.  Nobody is individually entitled to chose to ignore the law because they have what they feel to be a reason. 

And that “nobody” includes a sitting Supreme Court Justice.

Gus Reichbach knows this.

Given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue. But I recognize that fellow cancer sufferers may be unable, for a host of reasons, to give voice to our plight. It is another heartbreaking aporia in the world of cancer that the one drug that gives relief without deleterious side effects remains classified as a narcotic with no medicinal value.

Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease. I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year. Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.

You will note that he doesn’t speak to the inherent conflict of being a law-breaker and judge, which is the message he’s sending to Albany.  Meet your criminal, Governor Cuomo.

How many legislators, governors, presidents, didn’t smoke dope?  Every one is as much a criminal as the kid snatched off the street during a sweep of an uptown block. They just didn’t get caught because cops didn’t roust kids at Harvard or Yale, which somehow makes them different. 

Gus Reichbach offers his reason for breaking the law, and it’s a damn fine one.  But he is still breaking the law, because the law accepts no reason.  The former (or current) pot-smokers in Albany perpetuate a law that they themselves violated, because they got away with it and can’t be touched.

No doubt Justice Reichbach is facing his own mortality, and doesn’t want to leave this earth with work undone. He has chosen to sacrifice himself on the alter of integrity to make a point that could change the course of suffering for such a ubiquitous disease and such pervasive suffering. 

It should come as no surprise that Justice Reichbach has long been one of the best and boldest judges on the bench, That is the sort of person who would take a risk like this, to sacrifice himself for the welfare of others.  Let any politician in Albany, Washington or any other place where self-important people meet under marble domes say they’re a better person than Gus Reichbach. 

Update:  On July 14, 2012, the Honorable Gustin Lewis Reichbach, 65, Justice of the Supreme Court of the State of New York, Kings County, died.  May he rest in peace.

On the day SDNY Judge Shira Sheindlin  certified a class action on behalf of the hundreds of thousand of people, mostly black and Hispanic, who were stopped and frisked because a cop felt like it,  Fishtown’s Leo Mulvihill  pointed me toward an  NPR radio broadcast of Richard Cohen on the subject.

The NPR Talk of the Nation broadcast followed upon Cohen’s  Washington Post column on the same subject.

New York Mayor Michael Bloomberg has a new kind of crime statistic. It is not the astoundingly low number of murders committed in his fair city — 471 in 2009 vs. about 2,000 per year in the 1980s — but murders not committed in the last decade: 5,600. Those people are alive today by the grace of God and the policing policies of the Bloomberg administration, particularly what is known as stop-and-frisk. New York City is heaven on earth possibly because it is a certain kind of hell for young black and Hispanic men.

I didn’t think I would ever do this, but here I am: There should be a law against this.  The law should prohibit anyone from espousing something in public to large audiences that makes them inherently stupider.  The law should prohibit people from offering an opinion on a subject about which they are clueless. The law should punish the murder of brain cells. 

Richard Cohen, j’accuse.

Compared to the relatively benign column, the NPR broadcast made my eyes well up with tears, my ears ring and my fingers twitch.  After the typical humblebrag beginnings of “I don’t know nothin’ about birthin’ no babies,” Cohen goes on the get most of the facts wrong and yet elevate ignorance to new heights.  His opinion, baseless as he falsely admitted, was nonetheless worthy of assertion under the last refuge of the ignorant, common sense.

It’s a trade-off, Cohen informs, between all the people who aren’t dead today because of the stop and frisk policy, and all the people who suffered the stop and frisk.  Cohen readily concedes that he’s not likely to be subject to it, and wouldn’t like it much if he was, but since it saved lives, proven by the absence of dead bodies littering the streets of Manhattan, it’s something we can’t dismiss.

Maybe Cohen was sick that day in third grade when the teacher, Mrs. Crabtree, mentioned it. That happens, but it’s a good reason not to write about it. The “it” is the Constitution.  The “it” is the foundation of our government.  The “it” is not subject to individual approval or “common sense” revisionism.  In other words, columnists for the Washington Post who go on radio to talk about crap they know nothing about do not get to opine that the application of the Constitution to the government is subject to either their approval or their imaginings of common sense.

Of course order and security would be enhanced if the people had no rights and the government was all powerful. This isn’t exactly higher order thinking.  But Cohen, when that bunch of dry good merchants decided to form a better union, they made some choices to guide how that government would function going forward.  No one told you?  Sorry, but it’s all over the internet. 

The United States Constitution, Fourth Amendment, establishes a value judgment upon which this nation was formed.  It provides that police cannot stop and frisk people at will. Done deal. This is not subject to either popular approval or your severely limited grasp and equivocation.

Yes, the stop and frisk program is more effective than adherence to the Constitution at preventing crime. So too would be anal cavity searches at will. Summary executions would also work pretty darned well. There is a laundry list of things the police could do that would have an impact, to at least some degree, on crime.

And yet the Constitution says they can’t.

It sucks? It’s not your cup of tea, Cohen?  There’s always Singapore. I hear it’s lovely this time of year.  They have no Fourth Amendment prohibiting the government from flexing its muscles at will to prevent the potential of crime by allowing people to be free from baseless searches.  Sure, apartments are hard to find, but isn’t it worth it to feel safe?

What strikes me as incredible is that the newspaper that broke Watergate would give space to a column that makes people stupider.  And if that’s not bad enough, the NPR puts Richard Cohen on air in the apparent hope that its funding won’t be cut. 

Prefer safety over rights all you want, and point out the 5600 people alive today but for the flagrant violation of civil rights.  There are many people who agree, despite the fact that it’s based on an imaginary argument.  But to suggest that this is an open question, a toss-up for fans of security to decide, rather than a facial violation of our Constitution is just fundamentally ignorant.  If you want to be a pundit, you don’t get to be ignorant, and you don’t get to make other people ignorant.

I would proclaim you guilty of my imaginary law, but then, in America, you have a right to trial. Unlike you, I didn’t miss the day in third grade when Mrs. Crabtree mentioned the Constitution.

Today is  Judge Katherine Bolan Forrest’s seven month anniversary on the bench of the Southern District of New York, having been appointed by President Obama to fill Jed Rakoff’s seat, and it’s an anniversary worth celebrating. Not because seven months is such a big deal, but because her decision in Hedges v. Obama shows that the President did at least one thing right when he appointed her to the court.

The indefinite detention provision buried within the 2012 National Defense Authorization Act, which  Obama signed with a lame excuse after flipping from his prior position,  The President explained in his signing statement:

Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”

Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I don’t think it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct.

Tempe criminal defense lawyer Matt Brown wrote of his frustration.

The criminal justice system is broken. Many judges are little more than prosecutors in robes.

The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way.

Matt goes on to vent on the ironies and wrinklies of the broken system, how it’s a machine designed to efficiently move defendants from arrest to conviction.  Whenever anyone uses language like “fuss and fume,” it tells me that emotions have overcome reason.  This is the mistaken language of melodrama, which has nothing to do with the legal system. It’s merely the annoyance over someone impeding the working of the machinery of justice.

My response to Matt was to tell him to give himself a smack and snap out of it.

This is our life. This is what we do. If it was easy, anybody could do it. If the judges were fair or caring, then we would be on the pedestal instead of cops and prosecutors. But we’re not, and that’s how it goes. Don’t wallow. This job is hard, and it sucks. And we keep doing it anyway. Give yourself a smack and get back to work. There’s too much to do and no time for self-pity. If we don’t fight, nobody will.

Rick Horowitz has been sliding down the slope of frustration as well lately.  He wrote:

One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.

He doesn’t mean it, but sometimes the frustration comes out that way.   Brian Tannebaum gave Rick the pep talk.

Things in the criminal justice system are getting pretty bad. No doubt. A decade after 9/11 we see an America where the public has no desire to curtail police power (until their kid is of course “unfairly, wrongly, and illegally stopped and searched.”)

As a criminal defense lawyer, you have a couple choices – run for office (and maybe lose), try to become a judge (not easy either), write about it (which you do), leave the practice and focus on something else, or try to make a difference on client at a time.

A vacation is also not a bad idea. Go clear your head, take a deep breath, see the good in life in other areas.

Anger doesn’t change the system – anger and work – maybe – can make a difference.

But don’t ever think that it’s going to change much. Remember that the system operates as it does because the public allows it to.

The other day, I sat across the table from  Radley Balko eating flaming cheese. I really love flaming cheese. And as we talked about stuff like where he gets his hair cut, he casually mentioned that public defenders have a macabre sense of humor. Gallows humor, he called it.  I agreed, that they had to in order to survive their days in the well.

I then lapsed into a discussion of new criminal defense lawyers, punctuated by the occasional bite of flaming cheese. “We all start out with dreams of being the next Clarence Darrow, full of piss and vinegar.”  I actually used that phrase, one that my father used all the time but rarely appears anymore. 

And then they burn out when they figure out it’s not so easy, when they get smacked hard a few thousand times, when they have to explain to the next wide-eyed defendant why the law didn’t work. Again. Why they have to say good-bye to their children and will spend the next decade wearing an khaki jumpsuit. 

There is no good answer to why. Not for the defendant. Not for the lawyer.

Debates about truth and justice are for kids and fools. The real fight is over how to maintain the zeal a young lawyer feels when he steps into the well for the very first time after he’s been beaten to a pulp one time too many.

The blawgosphere is coming of an age when the last generation of blawgers are reaching the burn out point.  The frustration is overwhelming.  The lie of the system has been revealed.  The realization that they may not be the next Clarence Darrow, or even his third cousin, has become undeniable.  As brilliant and tough as they are when they start, they can no longer rely on their youthful vigor and enthusiasm to keep them going.

Those of us who have gotten over the hump and survived (meaning that we didn’t succumb to drugs and alcohol, give up on defending and churn pleas for a living or turn our law practice into a used car lot), we’ve watched as comrades have quietly fallen by the wayside.  Public defenders could share their frustrations with others in their office.  Private lawyers were reluctant to do so, fearing that it showed weakness or failure.  Even in frustration, no one wants to look weak.

The blawgosphere has changed this, providing a place to vent one’s frustrations combined with the new normal of exposing one’s inner feelings to all. It’s a good thing.  These feelings of frustration, loneliness, failure have stolen many a good lawyer from the ranks.  We need them.  Defendants need them, even though they may hate them for being the embodiment of the machinery of a broken system.  Without them, who will gain the experience necessary to keep up the fight?

It’s not that we’re likely to win the war.  If we can win the occasional battle, we’ve served our purpose well. It’s just a matter of fighting each battle at a time, always believing that this is the one you will win.  And if you don’t, you shake it off and fight the next battle.  And the next.

The criminal defense lawyers who hit the wall of frustration and break through are the ones who keep the system as honest as it can ever be.  It may not be much, but without them, there is no one to impede the machinery of justice.  We’ve all been there. We just keep fighting. Sometimes it helps to make a joke of it just to keep our sanity. Sometimes a stiff drink helps. A vacation is always a good idea. Whatever it takes, break through the wall.  Welcome to the other side.

Radley Balko posts about a car stop in Monterey, Tennessee, where a brave police officer, Larry Bates, caught a heinous criminal.  The person driving the car, George Reby, was no criminal. He wasn’t arrested.  

Reby was stopped for speeding, though it’s unclear whether he was given a ticket. It may have slipped the officer’s mind as he struggled with the vicious criminal, wrestled the criminal until, exhausted and spent, the criminal was subdued.  The name of the vicious criminal in the accusatory charges against it?  $22,000 in United States Currency.

From NewsChannel5 :

A Monterey police officer wanted to know if he was carrying any large amounts of cash.

“I said, ‘Around $20,000,'” he recalled. “Then, at the point, he said, ‘Do you mind if I search your vehicle?’ I said, ‘No, I don’t mind.’ I certainly didn’t feel I was doing anything wrong. It was my money.”

That’s when Officer Larry Bates confiscated the cash based on his suspicion that it was drug money.

“Why didn’t you arrest him?” we asked Bates.

“Because he hadn’t committed a criminal law,” the officer answered.

The reason for the initial question is, sadly, obvious:  forfeiture has long been a mainstay of law enforcement.  The seized monies go to various purposes according to jurisdiction.  In most places, the funds are a prize for law enforcement budgets, providing the wherewithal to purchase cool new stuff like SWAT equipment or tanks to stop the terrorists from invading Tennessee.  In other places, New York City for example, local seizures go to the police pension fund.  And don’t police deserve it for all they do to protect us?

So what makes currency such a heinous criminal that it requires a cop to wrestle it into submission?

Bates said the amount of money and the way it was packed gave him reason to be suspicious.

“The safest place to put your money if it’s legitimate is in a bank account,” he explained. “He stated he had two. I would put it in a bank account. It draws interest and it’s safer.”

“But it’s not illegal to carry cash,” we noted.

“No, it’s not illegal to carry cash,” Bates said. “Again, it’s what the cash is being used for to facilitate or what it is being utilized for.”

If we assume, just for kicks, that Bates was sincere in his suspicion, it places the decision of a nice enough fellow like Reby subject to the sensibilities of a cop like Bates.  Since Bates thought it would be a better idea, if the money was to be used for legit purposes, to put it in a bank account, it struck Bates that Reby was likely to be using it for drugs.  That, under the legal fiction of forfeiture, means the money offends the sovereign, and becomes the criminal.  It’s lucky that Bates didn’t have to tase the money for failure to respond immediately to questioning, but then, what question could there be?

NewsChannel 5 Investigates noted, “But you had no proof that money was being used for drug trafficking, correct? No proof?”

“And he couldn’t prove it was legitimate,” Bates insisted.

The word “proof” here is probably not the best choice.  Proof has nothing to do with it.  The officer was under no obligation to prove anything. Indeed, the burden in forfeiture is probable cause, which requires no probability and cause only limited by an officer’s imagination. 

Bates’ response, that it’s the burden of the person from whom currency was taken to prove it was legitimate, isn’t as wrong-headed as you might think at first.  The trick is that if an officer can articulate any basis of suspicion, the burden to prove legitimacy falls on the claimant.  And the only thing the officer needs to say is that it’s a large amount of currency.

Possession of a large amount of currency in the United States of America is, alone, probable cause to believe that it is contraband, either the proceeds of crime or to be used for criminal purposes.  There exists a tacit presumption that non-criminals do not use cash. Cash was the first victim in the War on Drugs, and the development of the wide variety of monetary tools in common use today was intended to facilitate the tracking of financial transactions by the government, both to end the underground economy that survived on currency and to enable taxation of all transactions.

So cash was once king. Now it’s a criminal. Oh, how the mighty have fallen.

The story from Tennessee offers insight into many of the tricks of the forfeiture trade, from targeting out of state drivers (you can tell by the plates, guys) in order to substantially increase the cost and burden of fighting for the return of the money (Reby was from New Jersey), to the seemingly innocuous inquiries having no bearing on the basis for the stop or any other facially illegal conduct.  Handing out a speeding ticket doesn’t get anyone a medal.  Bringing home $22,000 in currency is a fine day’s work. 

And, of course, the only person worse than the officer taking cash because it’s there is the lawyer hired to fight for its return.

It took him four months to get his money back, but it usually takes a lot longer for most people.

And that, Miles said, works to the benefit of the police.

He had two clients where police agreed to drop the cases in exchange for a cut of the money — $1,000 in one case, $2,000 in another. In both cases, that was less than what they might have paid in attorney fees.

A whole lot less. Like innocent people who can’t understand why they have to pay their lawyer, or guilty people who can’t understand why they aren’t guaranteed a win for their money, the legal fee paid by the wronged claimant whose only mistake was to believe that currency issued by the United States government was legal tender for its return is the glue that holds the scheme together. 

And the final nail in the coffin is that judicial approval of forfeiture is an ex parte proceeding, since the criminal in the currency, prosecuted in rem.  Not until a claimant intervenes, after the seizure and judicial approval, by establishing his bona fides to claim the return of the money (as if it having been taken from him in the first place didn’t suffice), and disproves the presumption that cash is evil, does the money get returned.  And not everybody can prove either the source or purpose of the currency, despite its having nothing to do with crime.

I remember my first forfeiture case, back in the mid-1980s, when we conferenced the proceeding before a federal judge who later went on to the 2d Circuit.  He scoffed at the government for making this very argument, reminding the prosecutor of the age-old maxim, the law abhors a forfeiture.  Those days are only a fond memory.

It’s an internet meme, the Rules of the Internet.  It’s a funny joke to most, though in a peculiar way it has always carried a kernel of truth.  But as  Max Kennerly found out after trial, the joke is on us. 

Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.

When we talked to the jury, we learned that the two jurors who felt we hadn’t met our burden, and then two more jurors who had kept the damages award lower (the remaining eight jurors wanted to award our client nearly $7 million), all had one thing in common: they were under 30 years old, and they expected more of a paper trail for our client’s claims. Said one, “I felt your client was negligent in not doing more to protect himself with a written agreement.”

I was invited to come in and speak on how lawyers can use the Internet for professional development (getting to be a better lawyer) and business development (getting a job or getting clients in an area you want to work in – area of practice or location).

Rather than being ahead of the curve in their use of the Internet, most of the students were behind practicing lawyers in how to use the Internet to accelerate relationships and word of mouth referrals. Ironically, all of them agreed it was referrals and a strong word of mouth reputation that drove a good lawyer’s practice.

Afterwards out in the hallway (where you get to know students and their struggles), students came up to me and asked why doesn’t someone like me teach a semester long class or do a semester or year long clinic on how to use the Internet in the ways I was trying to cover in 2 hours. Students told me that no one had told them how to use the net this way. One student told me he felt so far behind the times.