It would be a  New York joke if it didn’t mean that 684,000 people were stopped on the streets of New York and frisked last year.  In 2003, cops stopped and frisked 160,851 people and recovered 604 guns. This proved that stop and frisked worked, even if it meant the sacrifice of the right to be left alone of more than 150,000 people. 

Last year, they recovered 780 guns, proportionately negligible, which again proves that stop and frisk works.  Mayor Bloomberg explains that the reason so few guns per capita were seized is that  people are afraid to walk around the guns for fear of being stopped and frisked.  With that rationale, the program is a rousing success no matter what comes of it.

More than half of all stops were conducted because the individual displayed “furtive movements” — which is so vague as to be meaningless.

The data also show that the police are significantly more likely to use force when they stop blacks and Hispanics than when they stop whites. This means minority targets are more likely to be slammed against walls or spread-eagled while officers go through their belongings. Even when victims are unhurt, they are likely to develop a deep and abiding distrust of law enforcement.

Let’s be clear: if police could stop at will anyone they wanted, they would turn up more illegal stuff, whether guns or drugs, than they would if they were limited by something like, oh, a Constitution.  Same is true if they could search houses at will.  Or people traveling on airplanes.

That Mayor Bloomberg has to stretch so far to spin what he knows to be a flagrantly unlawful program is telling. He’s not stupid. Few billionaires are, and even then, they have the wherewithal to surround themselves with smart people.  Somebody must have mentioned to him at some point that this really isn’t kosher.  When the  Newspaper That Shall Not Be Named Here Anymore has an editorial stating that stop and frisk is a terribly wrong thing to do, does Punch Sulzberger think it’s going to change something? 

What this reflects is the Mayor’s relative weighing of two irreconcilable responsibilities, one to protect New Yorker’s from crime, and the other to respect New Yorker’s right to walk the streets without being slammed against a wall for no particular reason.  When David Dinkins was hizzoner, there were bloodbaths on the streets of uptown Manhattan, and chains ripped from the necks of white folks downtown.  Dinkins wasn’t as inclined to promote the police rousting people at will and people screamed about the murder and mugging rates.  Of course, the crack epidemic might have had something to do with it as well.

But times have changed, as has the regime on power, and the mess that existed under Dinkins, and exacerbated under his successor, Rudy “If Only I Could Be President” Giuliani, have given way to substantially reduced crime, particularly gun crime.  The penalties for possession of a weapon are far more severe than they used to be, and the demographics have changed as well.

So naturally, the solution is the perpetuation of a program at whose core is the evisceration of the constitutional right to be left alone.  And naysayers aside, it works, even if it means that many hundreds of thousand of people have to give up a little so that the residents of Sutton Place can sleep at night.

Because filling out forms is the highest order of government service, police officers are expected to do two things: Each time they stop and frisk someone, fill out a form.  Each time they fill out a stop and frisk form, state the basis for the stop.  And so they do.

This has been going on since the beginning of the program, when naive people (like me) thought 160,851 people stopped for no reason was an outrage.  Now that we’re closing in on 700,000, maybe it’s time to be honest with ourselves.  While there has been some squawking from the Newspaper Who Shall Not be Named Here Anymore, the NYCLU and a couple bloggers, there has been no massive uprising against the stop and frisk program.  Bloomberg continues in his post as Ruler for Life, and Ray Kelly bobble-head dolls continue to sell like hotcakes. 

Forget Mapp v. Ohio, which  the uninitiated seem to think applies, and even DeBour, which provides the constitutional limits to police seizures in New York.  Every lawyer, every judge, every politician, every cop and certainly every black and Hispanic, in New York knows that to walk the streets of Manhattan is to invite a stop and frisk.  No, the law says they can’t do it. Yes, they do it anyway. No, as the numbers climb closer to a million souls stripped of their right to walk on the street without being tossed in the name of safety, there are no cries of revolution.

There is no epidemic of furtive movements.  Let’s put the lie to rest, stop demanding that cops keep breaking the law again by filing false documents at the behest of the administration, and put up a big sign at the midtown tunnel: All persons subject to search. 

The choice has been made and the Constitution lost. At least show New Yorkers the courtesy of being honest about it.

James Craig, of “I’m a Phoenix fame,” heads up the 1000 member Cincinnati police department.  While that number of officers is slightly more than the number needed to change a New York light bulb, it’s still a big city police department, which makes James Craig’s announcement matter, as he’s the first top cop to admit the obvious: Tasers sometimes kill people.

From Cincinnati.com :

In light of a recently released scientific study that shows the electronic Taser stun guns can cause cardiac arrest and death, the leader of Greater Cincinnati and Northern Kentucky’s largest police force announced today that the findings concern him and changes are coming to the department’s policy regarding the devices.

Cincinnati Police Chief James Craig said the changes should come in about a month. Those could include altering where officers direct the Taser’s prongs on a suspect’s body, perhaps at the back as opposed to the front, Craig said.

Every silver lining has its cloud, of course, so while Craig acknowledges that non-lethal means occasionally lethal, and that there is presumptive connection between shooting people in the chest and cardiac arrest, he solution is to shoot people in the back? 

One might wonder if he has considered why, praytell, the back of a person who needs shooting would be facing the cop. But it’s possible that he didn’t study anatomy at the University of Phoenix, and remains confused as to which direction the person in need of Tasering is facing when his actions are so threatening as to demand the use of force against him.

“I am concerned about it because, like most police chiefs, I am a big supporter of the tool. We know that the tool has saved lives,” Craig told reporters in a media briefing at Cincinnati police headquarters in the West End. “We know it’s minimizing injuries to both police officers and suspects. Based on this report we are looking at our existing policy. We will be making some revisions.”

He said he will not pull Tasers from officers’ belts, and this is not the first time the device’s policy has been revised.

“We are not going to eliminate the use of Taser. We just want to make sure we are doing it within what this evidence-based report is suggesting,” he said. “I think that it is suggesting – the key point – is elevated heart rate and the taser coming in contact close proximity to the heart if someone has an elevated heart rate. Usually when we have contact with suspects, it’s pretty clear their heart rate is elevated.

That’s pretty darned likely, as is the possibility that they are using drugs or in less than perfect health, all characteristics of the sort of folks who end up on the business end of a Taser, and all characteristics of the sort of people who die when tased. 

While Craig’s embracing evidence-based thought is a novel approach for a police department, and one that should be (and is) applauded, there remains a question as to what, exactly, he plans to do to reduce the likelihood of people being killed by “non-lethal force” for calling cops bad names.  The “tase-’em-in-the-back” policy has some inherent problems, the least of which is the laws of physics.  What about the “why-tase-’em-at-all” question?

Now that Chief Craig has openly acknowledged what everyone not on the Taser International payroll has long known to be the case, that Tasers aren’t always less-than-lethal, the next logical step is control their use as the tool of first resort to prevent a cop from having to spend a few minutes talking a defendant off the ledge rather than tasing anyone who backtalks, questions or doesn’t comply fast enough (especially if they happen to be deaf, blind or intellectually or mentally impaired). 

At what point will a big city police chief decide that painful and potentially deadly force should not be used except to meet force and prevent injury? 

Since 2001, more than 500 people have died following Taser stuns according to Amnesty International, which said in February that stricter guidelines for Taser use were “imperative.”

There is no doubt that Tasers have saved lives, both cop and non-cop, when there was justification for the use of force, and getting tased beat the hell out of a bullet from a Glock.  The problem isn’t that they haven’t served as a valued tool, but that the use of Tasers as an expedient means of shutting down a recalcitrant person who poses no threat to anybody for the convenience of a police officer remains largely uncontrolled.

The idea of praising James Craig for acknowledging that Tasers can kill seems incredibly banal at this point.  It’s not that empirical evidence isn’t a good thing, but all those dead bodies send a message of their own, despite Taser International’s explanation that it just must have been their time, and had nothing to do with getting tased. 

If someone threatens a cop, or anyone else, with physical harm, their chances of surviving a Taser over a bullet, or even a half dozen cops with clubs beating them until their clubs break, suggests that the weapon should remain on the utility belt. It is a useful device, and one that benefits everyone involved when used properly. 

Maybe avoiding the chest is a great idea to reduce the risk of killing someone.  Maybe avoiding the use of weapons, of force, altogether when there is no reason for any force to be used, is a better idea.  Just because there’s a Taser on their belt doesn’t mean they have to use it whenever it’s convenient.  And if they don’t use it without reason, that’s one less person who won’t die.

One of the tactics frequently urged by aggressive lawyers is to push judges to start living up to their oaths by granting motions, whether for suppression, controversion or even simple discovery.  You know, the stuff that really shouldn’t be an issue at all except for the fact that the Government will not negotiate with terrorists give the defense half a chance at preparing.

On the island of  Saipan in the northern Marianas, a lawyer named George Anthony Long pushed the envelope by demanding that the government disclose stuff it didn’t want to disclose.  Not that it was some huge secret, but that it would have offered Long the chance of defending his client, Julita Sablan.  And the judge, Mark W. Bennett, granted his motion.

So the government promptly complied with the court’s order and turned the requested material over to the defense?  Nope.  From the  Rule 48 motion, which is the equivalent of telling Judge Bennett to go screw himself. Instead of disclosing, they responded with a pox on your bench. And, naturally, the defense consented.

Was Judge Bennett serious?  They called his bluff by tossing the prosecution and leaving the good folks of the Northern Marianas in the clutches of Julita Sablan. Hah, they spit. And when they tell the tale of the judge who condemned Saipan to drugs, it will be on your head, the government said.

And Judge Bennett collapsed. He folded like a cheap suit. 

Judge Bennett, sua sponte (for you non-lawyers or folks who slept through Latin class, sua sponte means he did it on his own without anybody asking) reversed his prior ruling compelling disclosure and denied the government’s motion to dismiss.  Pwned.

If you’ve ever had the pleasure of getting a huge ruling, one where you get a judge to move off the dime and actually make the government do something that forces them to give the defense half a chance at fighting, you know the feeling. It’s like a miracle. It’s fantastic. You feel ten feet tall, You feel brilliant. You feel like you’ve finally done something to make all those knee-jerk denials, all those affirmed no opinions, all those rulings that cut your knees out from under you and make you wonder why you wasted a clean shirt, worthwhile.  It’s one of the best feelings a criminal defense lawyer can get.  And defendants like it too.

And then the rug gets pulled out from under you when the court, in an act of supreme supplication, realizes that by doing the right thing and applying law, he’s violated the basic precept of the legal system: Never give the defense a fighting chance.  And poof, it’s gone. Reversed, denied, gone. No, there’s nothing more to discuss.

Try explaining to your client how, in the blink of an eye, a huge win turned into a crashing defeat for no reason whatsoever.  Except it’s not quite no reason, but really acquiescence to the government.  The government refused, and the judge couldn’t bear the government’s ire.  And so, poof.

But the law wasn’t done smacking George Long around just yet.  It wasn’t enough that his win crashed around  him.  The defendant pleaded guilty, and he argued that Judge Bennett should take the government’s willingness to dismiss into consideration at sentence. Nope, he said. Judge Bennett, having been told he’s a bad boy once by the government, wasn’t about to suffer it’s displeasure again.

Long appealed. Nope, said the 9th Circuit in an unpublished opinion, noting that the defendant got enough of a break as far as they were concerned.  But Long, even though he was assigned CJA, petitioned for rehearing en banc because the Circuit affirmance neglected to mention, note, consider or recognize that Judge Bennett’s refusal to consider the Rule 48 motion at sentence wasn’t quite the law.

The Circuit had enough.  Not only did they  This entry was posted in Uncategorized on May 13, 2012 by SHG.

The market is speaking.  It may be wrong and foolish, but that never stopped the market from speaking before, and it won’t this time either.  And you can’t argue with the market because it only speaks. It doesn’t listen.  At The Legal Whiteboard, Bill Henderson is trying to tell us what it’s saying.

This story is fresh off the newswire: “Law firms are no more the preferred destination for fresh law graduates looking for jobs.  With outsourcing catching up even in this industry, legal process outsourcing (LPO) companies are now bagging a large number of graduates.”  A law professor opines, “There is a rising trend of students opting for LPOs. The nature of work is changing and these places offer good packages and work culture. … [P]romotions also come faster in LPOs.”

Wonderful news.  But the story was written for the Hindu Business Line.  The law graduates went to school in India.  Why are the LPOs become more attractive jobs for Indian law grads?  Probably because (a) LPOs are increasingly focusing on process and technology, engineering out the drudgery work, and (b) process and technology are creating a sustainable competitive advantage within a global industry — and that can support higher salaries.

Bill has an important message in his post, which sadly is hidden behind academic jargon, on the one hand, and inadequately detailed application to practicing lawyers, on the other.  So let me play sign language interpreter for a moment. The bulk of work that kept baby lawyers in civil firms busy until they got some decent lawyer chops and learned how to bring in business is being done in Bangalore at $3 an hour or fed into a computer.  Where it’s not going is a firm near you, which is why a firm near you has no job for you.

This means that lawyers have to shift out of the routinized, commoditized work that provided them jobs before into practice areas that can’t be shipped off shore. Except they aren’t competent to do so, undermine the market price and fill the courthouse with death and destruction. They do this because they have no place else to turn. They have a ticket. They have debt. They have no other future. And we keep churning them out.

A second post by Bill Henderson notes that  LegalZoom has filed for an Initial Public Offering.  While real lawyers struggle to pay rent, LZ had revenue of $156 million and turned a profit of $12 million.  Plus, it loves all those poor, miserable souls who need legal-type stuff but don’t want to pay a lawyer.

We believe that everyone deserves access to quality legal services so they can benefit from the full protection of the law. Our mission is to be the trusted destination where small businesses and consumers address their important legal needs and to be our customers’ legal partner for life.

A different way to say that would be that they sell forms to people who have no clue what they need or why, using the brilliant method of taking a piece of paper that only needs to be written once and selling it a million times over. One size fits all? Close but no cigar?  Not even close? A disaster waiting to happen? So what? 

Whether it’s corporations or mom & pops, they are prepared to trade off bespoke legal services for potentially crappy but substantially less expensive, and take their risks.  They’ve come to realize that the “bespoke” legal services aren’t all that great, because most lawyers aspire to mediocrity, caring only that the check cleared, and because even if a client tries to do everything as well as possible, the legal system (I mean you, judges) is considered so unreliable that there’s no faith that the righteous will prevail.  So if expensive legal services are a crapshoot, and inexpensive legal services are a crapshoot, why pay more?

But we’re criminal defense lawyers here.  Neither computers nor lawyers in Bangalore can do what we do, right?

Do the math. Law schools continue to crank out tens of thousands of newly minted, deeply indebted, lawyers every year with no place to go.  To the extent that they have any hope of practicing law, the kid who dreamed of one day being an M&A lawyer at Skadden and buying that Ferrari is now standing in the hallway of 100 Centre Street hustling misdemeanors at $100 a pop. He has no choice, if he wants to eat again tonight.

But lawyers aren’t fungible, you say? Of course not, but most clients can’t tell us apart. We all wear similar suits and, despite the cheerleaders, our websites extolling our virtues are essentially the same. You’re an “experience, aggressive and caring” lawyer? Well, isn’t that special. So is the kid next door, who got his licence last week.  So is the old man down the hall, who has 30 years of experience. So is the guy who did real estate closings until the business went bust. Etc. We’ve hyped ourselves into oblivion, and the potential client has a choice of 31 flavors that all claim to be vanilla.

On the other hand, he doesn’t really want to waste his money on you.  You say you’re worth it, but he can’t tell. You guarantee nothing, because you can’t.  The system sucks, as the internet tells us, making the concept of trying one’s best seem like a fools errand. The net result is why bother.  If you’re going to lose anyway, save your money.

Within the discussion of what has to change in the nature of American law schools, and the practice of law, is that our society has no need for the tens of thousands of new lawyers being dumped on the market.  Not only is it bad for the silly children whose mothers told them that becoming a lawyer assured them reasonable prestige and security, but it’s bad for everyone.  The Boulevard can only handle so many lawyers in hotpants.

But Greenfield, you ask, isn’t it true that there is a massive underserved population who is in desperate need of legal services?  What about them?

Yes, I respond, but they’re not your market, your potential client. They want and need a lawyer, but they have no money to pay you. Society won’t put together the money to pay you, as that would take needed money away from buying armored vehicles for the police in Peoria to stop terrorists. While it would be very nice of you to serve these poor, needy folks, what will you tell your babies when you have no money to put food in front of them this evening and they’re really, really hungry?  The price of cannibalizing ourselves is that a robust legal profession can’t be maintained, and if lawyers have to take jobs as assistant manager at Dairy Queen to survive, they really aren’t lawyers anymore and can’t help much of anyone.  

Shutter the law schools.  Whether it’s a third, or half, or more, there is no future in the law for most of these students. As we discuss how to fix the systemic problems arising from the structural changes in the law that Bill Henderson talks about, one thing that’s clear is that we have no use for the numbers of full fledged lawyers that are being produced.  Yet, the ABA keeps accrediting more law schools, and they do whatever they have to do to fill their seats.

Don’t cry for the empty classrooms and idle lawprofs. They can convert them to carpentry schools. Do you have any idea how hard it is to find a good carpenter?  And lawprofs, being the intellectual elite, will quickly learn how to lecture on the theory of hammers and nails.  They’ll survive, like cockroaches after nuclear holocaust.  But whether lawyers survive is another story.

My gift this mother’s day is to pass along a message.  You love your child and want the best for him.  Don’t let him become a lawyer.  Maybe a cowboy would be better.

According to the review in the Chronicle of Higher Education, the advance copy of Washington lawprof Brian Tamanaha’s new book, Failing Law Schools, was “circulated to a handful of prominent legal scholars.” And I got one too.  It’s devastating. 

While it thoroughly covers the obvious, from bloated salaries for underworked “scholars” whose glorious research and writing is subsidized by students who take on massive debt for the honor, yet leave school armed with theories without the slightest clue of how to practice law, to schools driven by profit incentive to game the U.S. News and World Reports ranking for fear of dropping a notch and being relegated to the academic junkheap, where their fellow scholars will laugh at them and their salary will shrivel like a penis in Long Island Sound in May. 

But Brian covers a wealth of historic background, the “how we got here” stuff that goes back to the days when law transitions from common apprenticeships to the “professionalized academic” style we now see as absolutely necessary and beyond the possibility of reformation.  This part of his book made me realize that the tin foil hat wearers, while still crazy, aren’t as crazy as I thought.

As the notion of normalizing a legal education across the country and schools took form, a conflict existed as to how it ought to look. The ABA, captured by the professoriat who represented the ideals of Big University, created an image of law school that served two purposes, ridding the scholars of those annoying schools capable of turning out lawyers quickly, inexpensively and effectively at the expense of grander academic ideals.  The other purpose, which comes as no surprise, was to institutionalize and mandate the protection of the scholar class, even though it bore no necessary connection to the core purpose of educating lawyers.

In other words, it was a conspiracy to preserve and protect scholars, even though it really had nothing much to do with educating lawyers.  They just needed some protecting or they, like dinosaurs, would become extinct.  As they got to write the rules, they wrote rules that perpetuated their continued existence.

Some of the big questions, such as why three years rather than two?  Why tenure? Why scholarship as a necessary component of law school academia?  Tamanaha gives answers. They’re not pretty.  Had there been a shift in relative power at the time, things would have looked very different indeed, and law school today would have looked very different.

The point of this digression into the history of law school is that most of our sacred cows today were borne of self-interest by the professoriat at the time the model was created, rather than sound educational necessity.  What we now think we can’t live without could just as easily have never existed, and we would have been no worse for it.

It’s a pretty shocking view. 

Another bit of news is that one of the most highly promoted options that have been moving about the discussion, the creation of third year clinical programs in order to teach students to practice while keeping them on board as tuition payers, isn’t all its cracked up to be.  They’re expensive to run.  They don’t do nearly as well at teaching practice as an actual apprenticeship would do. They continue to add to law school debt, even though students are working for a living. 

Add to this  Walter Olson’s beef, from Schools for Misrule, that the focus of most clinical programs reflects the political bias of academia (why should students be indoctrinated to believe that people suing large corporations are inherently more righteous and entitled to clinical love than the corporations being sued, or that “victims” of domestic violence are invariably honest and good while defendants are necessarily guilty and evil?), generally a very liberal bias, such that they’re not only teaching practice, but good and evil as well, and suddenly clinics aren’t a panacea.

Brian Tamanaha’s Failing Law Schools is meant to serve two purposes: First, to compel his fellow lawprofs to pull their collective heads out of their butts and stop denying that they’ve created an awfully damned cushy world for themselves at the expense of students.  The second is to begin the discussion of how to fix things.

From the rumbling I’ve heard in advance of the book, a great many lawprofs believe that this book is going break things wide open.  Though many won’t speak out publicly, whether because they’re a bunch of sissies, fear loss of admiration from their peers, can’t bring themselves to hurt people’s feelings or, as seems to be the predominant reason, fear that once the words leave their fingertips, there will be no going back.  They fear that a rift will develop within the academy, and they don’t want to be either pariahs (if they’re on the losing end of the debate) or lose the camaraderie of others in their insular community.  Yes, it sucks to believe in something but lack the guts to stand up for it.  Ask Paul Campos, the most hated man in academia.

What some don’t realize, but I do, is that there are a lot of lawprofs who agree with Campos. I know because they tell me, though they ask me to keep it our little secret. While I honor my promise to bite my tongue, they need to know they aren’t alone.

Then again, the view of the institutional tool remains :

Paul S. Berman, dean of law at George Washington University, says there is some truth to Mr. Tamanaha’s arguments about the economic consequences of attending law school, particularly when students attend expensive, low-ranked schools in weak job markets. But he says Mr. Tamanaha exaggerates the extent of the problem, in part by failing to adequately consider the flexibility that federal income-based loan-repayment plans offer students.

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

When Eastern District of New York Judge John Gleeson used his sentencing memo in  U.S. v. Dossie to send a message to the Attorney General to stop being such a mindless tool, his purpose was to castigate the Department of Justice and its co-conspirators in abusing the power it was given just because they could. 

Former prosecutor turned Gibson Dunn partner, Jim Walden, didn’t quite get the message.  In the National Law Journal, Walden makes sure his bona fides are clear:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this “war” has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Glad to know that you’re available to have lunch with Andy McCarthy, though this is no doubt expressed so that other “hawks” realize you’re no “wide-eyed, liberal” who “naïvely criticizes” the drug war.  As Walden informs, however, the problem isn’t the worthiness of the war, but that it has exceeded its purpose:

Congress empowered the Department of Justice — through the creation of mandatory-minimum sentences — to end the careers of committed drug dealers. Second, the mandatory-minimum sentences were intended to be used against drug “kingpins” — the people at the upper echelons of large trafficking organizations, who make the most money, wield the most power and inflict the greatest violence and destruction.

Is that really what Congress did, or did you just believe the press release with all your heart and soul, the stuff meant to keep the nice folks in Peoria happy and buy votes in Cincinnati.  The story behind mandatory minimums was that it was to put drug kingpins in prison, but the quantities at which mandatory minimums kick in tells a different story.  Take a peak inside any federal prison and tell us how many cartel drug kingpins you see in those cells?  They’re filled to capacity, and not a kingpin to be found.

Walden, the drug hawk, contends that the problem isn’t with the war, or the law, but the overuse of mandatory minimums by prosecutors.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one. Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

This is where Judge Gleeson’s Dossie decision comes into play. And where it’s artfully abused.  Using Dossie as the exemplar, Walden argues that prosecutors could “cure” the lack of fairness and equity by exercising better discretion in applying the mandatory minimums.  The problem, thus, isn’t that the law is horrendously wrong, imposing mandatory minimums on people who fall a bit shy of drug kingpin.  No, no. No problem there. It’s merely an empowerment of the DOJ to have the weapons available for when Prosecutors, there to protect us from the ravages of crime, feel the need to impose these harsh sentences. 

Yet again, we’re asked to trust those in power to exercise it as they see fit.  Trust them. Believe in them. Don’t worry our naive heads about it, as they will protect us from the evil people.  Let them have their mandatory minimums, and smarter people than us will remind the Prosecutors should they forget Congress’ will, to exercise their vast but necessary power with mercy and discretion, fairness and equity.

Except that’s neither how the law works, nor is supposed to work.  The law is not meant to be a bludgeon in the hands of the government, where the powerful get to exercise it if and when they deem it necessary.  That Hawkish Mr. Walden trusts the Department of Justice to tread lightly where he, in his hawkish personal opinion, believes it’s warranted is not a substitute for my vision of fairness and equity. 

It’s not that we disagree that street level drug dealers should not be subject to the mandatory minimums. Indeed, we are in complete agreement, to that extent.  But I have no plans on handing unfettered discretion to the government to decide if and when to slam a defendant, because someone in the United States Attorneys office has decided that he’s the one who deserves it.

What makes posts like Walden’s insidious is that many will applaud his take, that he argues against the application of mandatory minimums to non-kingpins.  Woo hoo, they cry. He’s one of us.  Do not be fooled.  He is most assuredly not one of us, whoever us is.  He is a purveyor of omnipotent government, with only Prosecutorial Oblige to limit its worst impulses. 

If you trust the government to be all-powerful, but only use that power when it’s deemed necessary, than maybe you can go to lunch with Walden and McCarthy.  If you prefer that Congress enact laws that prevent the government from using the bludgeon at will, then don’t be fooled. When the government has power, it uses it.  As long as there are mandatory minimums, there will be full prisons.

The crime committed by former New York  Police Officer Michael Pena was, as Justice Richard Carruthers called it at sentence, “deplorable.”

Handing down a sentence that virtually assures 28-year-old Michael Pena will spend the rest of his life behind bars, state Supreme Court Justice Richard Carruthers said the former officer “showed by his deplorable conduct that he was not one of New York’s Finest,” invoking the department’s nickname.

“He showed instead that he is a sexual predator,” Justice Carruthers said.

No question about that. Pena was a forcible sexual predator in the real sense, not merely the politically correct hyperbole that reduces words to meaninglessness. His conduct was, in every sense, deplorable.

But that doesn’t provide much of a measure for sentence.  When the judge announced the sentence of 75 years, two things became abundantly clear: First, that the sentence was significantly more harsh than Pena would have received had he been convicted in a typical murder case. Second, that he would die in prison.  He was sentenced to death, the slow way.

In Tamer el-Ghobashy’s  Wall Street Journal story about the sentence, I sought to convey the disconnect between the deplorable crime and the severity of the sentence:

Scott Greenfield, a veteran criminal-defense attorney who runs a legal blog, said the sentence is “hugely excessive in the abstract,” especially when weighed against the 25-years-to-life sentence typically reserved for murder.

Mr. Greenfield suggested that Mr. Pena’s status as a police officer who broke the public trust and used a police-issued weapon was “probably an aggravating factor that elevated” the sentence.

Still, as legal thresholds evolve, Mr. Greenfield said, a life sentence for crimes such as drug dealing are becoming more common. He said it is difficult to assess how unusual Mr. Pena’s penalty is.

“Is this an extreme sentence for someone who didn’t commit the crime of murder? It used to be,” he said.

In the post-federal sentencing guidelines age, the post-Madoff sentence, it’s no longer possible to assess an unusual sentence. The range tends to be from harsh to ridiculously harsh.  Trying to make sense of sentences, or even to find context within which to place a sentence, is nearly impossible.

After Tamer’s article appeared, I received an email from a woman who claimed no connection to the case, but wished my wife and daughter would be brutally raped in punishment for my words. That someone overwrought with emotion would write such a thing isn’t uncommon, but reflects that an unfortunately typical lack of reason when it comes to the public’s perception of sentencing. The anger is so strong that they should all die, as should anyone who doesn’t share their anger.

Pena’s lawyer, Ephraim Savitt, was so outraged by the severity of the sentence that he took the media.  In an op-ed that was published in the Daily News, Savitt wrote:

True, my client was convicted of acts that are unpardonable. The jury found unanimously that he sexually assaulted the victim, but was deadlocked on whether or not he had raped her.

This calls for a strong sentence. According to the John Jay College of Criminal Justice, the national average sentence for rape offenders does not exceed 10 years. Michael Pena has been sentenced to more than seven times the average for his conviction on nonrape charges. Life behind bars, which is essentially what he received, is typically the sentence given to career criminals, Al Qaeda terrorists and professional hit men.

While making a strong case for the disproportionality of the sentence, Savitt took a problematic path to get there:

But what’s this really about? Will the victim “find peace” now that my client has been sentenced to the functional equivalent of life imprisonment?

Hardly. These days, politics, vengeance and trial by the media have become the order of the day. Those factors have created significantly higher watermarks in sentencing — but only for certain offenders, namely those who serve or served as cops.

His explanation for what went so terribly wrong is that Pena was a cop.  This argument doesn’t bear out particularly well for two reasons.  The fact that Pena was a cop, a New York City Police Officer, with a shield and a department issued gun which was used to perpetrate his crime, is a factor that should be taken into consideration.  Had he not been a cop, he wouldn’t have been authorized to carry that gun, a huge trust between society and a man that he can wield a  weapon and authority to serve society.  That he used it to sexually assault a woman is a massive violation of that trust, and deserves recognition as an aggravating factor.

The other aspect is that the newspapers, and these digital pages, are replete with stories of cops doing harm, committing crimes, even murdering people, who walk away with light to no sentences because they’re society’s heroes.  Maybe they did wrong, but we avert our eyes from the dead and destruction they cause because they are cops.  Savitt’s claim that cops have it worse because of “politics, vengeance and trial by media” just doesn’t bear out.

Once again,  Carlos Miller proves that a picture is worth a thousand words, and that our need for images of the reality on the streets of police encounters cannot be understated.  Two cops are on trial for their beating to death a homeless man, Kelly Thomas, the subject of an earlier post.

Carlos now provides the video of Thomas’ killing.  While I could embed it here, I prefer that you watch it at Carlos’ blog, as he provides a substantial amount of additional information about the case and, frankly, deserves your interest more than I do.  He’s done all the heavy lifting, and I just ride his coattails.

But Carlos includes a few pictures in addition to the video, which provide as stark a juxtaposition as I’ve ever seen.  Here’s the picture of us.



Here’s the picture of them.



I have nothing more to add.

H/T Radley Balko

Given the amount of time I spend thinking about legal marketing and its impact on the legal profession, I couldn’t help but watch in amazement/amusement the debate between Lexblog honcho  Kevin O’Keefe and Tom Watson, Senior Vice President at Wisconsin Lawyers Mutual Insurance Company.

Watson wrote about a cautionary post about the perils of social media.

Use social networking sites to better serve your clients and help create new business. But do not lose sight of your ethical obligations in accessing, or protecting a client from, information disclosed electronically.

He also gave a long list of horribles, and short list of benefits. This made Kevin start to sweat profusely, and prompted this response.

I don’t know whether Watson uses Twitter, Facebook, or a blog to build and nurture relationships or enhance his reputation as a thought leader on malpractice insurance statewide or nationwide. He may not fully appreciate how social media works nor the benefits it brings to the public an lawyers.

I understand that he is just doing his job as a legal malpractice carrier and that he is citing other authorities for much of what he writes. But my gut tells me articles like this on the perils of social media do far more harm than good to lawyers and the public we serve.

Things get uglier in the comments, where  Watson argues that he’s saying nothing more than be cautious, and Kevin, in an interesting rejoinder, questions whether anybody has ever been disciplined for something they did on social media. 

This is a dangerous question in the abstract, but because  there have  certainly been disciplinary cases involving social media (even if Kevin doesn’t know about them), but more importantly, the sine qua non of ethics isn’t whether someone was nailed for a violation of a disciplinary rule, and the suggestion that anything that doesn’t land you in lawyer-jail is cool is, frankly, dangerous and foolish. Some of us prefer to be ethical. Some of us prefer to do whatever serves our self-interest, provided we don’t get caught. What’s your preference?

While the dispute didn’t strike me as too, well, serious, it apparently compelled Kevin to write another post questioning whether the use of all social media is subject to ethics rules.  This is where an otherwise mundane disagreement becomes interesting.

The simple answer is that everything a lawyer does is subject to ethics rules. Being a lawyer is a 24/7 gig, and no one should be confused about the obligation to be ethical after hours. But that’s not really the issue Kevin’s raising. Rather, the issue is whether all use of social media is advertising, and therefore subject to the rules for attorney advertising. 

To answer this question, it helps to know the definition of commercial speech, which is subject to intermediate rather than strict scrutiny, and can therefore be regulated provided the government has pretty good reason and it’s regulations don’t go too far over the edge. 

Kevin  kicks the question over to my buddy Josh King, who holds the curiously divergent positions of general counsel of Avvo and VP of business development.  In a video interview with Colin O’Keefe (Kevin’s son and a great kid) done at Avvocating 2012 (see my  keynote address that went undelivered), Josh defines commercial speech (and thus speech subject to regulation as attorney advertising) as speech which “proposed a commercial transaction.”

Well, yeah. That’s accurate as far as one definition is concerned, but it’s not the end of the story, both because defining a word by using the word in the definition never works, and more importantly, that’s not the end of the definition.   Caselaw also defines commercial speech as that which informs the public of the quality, nature and availability of good and services.  That means much of the writing by lawyers in social media is certainly commercial speech.  All of it is not. 

This is where Kevin gets himself into trouble, with an unfortunate attempt at analogy:

Is fashion attorney  Staci Riordan, perhaps the fastest woman associate to make equity partner at Fox Rothschild, a century old national law firm, advertising with her heavy use of Facebook and Twitter?

Riordan, like many shrewd lawyers who truly understand relationships and reputation aren’t built by having separate online identities, uses Twitter and Facebook to network and engage with business leaders, other lawyers, civic leaders, and friends. Riordan knows networking to nurture relationships and establish trust with others so as to build a strong word of mouth reputation is the stuff life is made of for lawyers looking to grow their business and become better lawyers.

Is Riordan’s activity on Twitter and Facebook advertising? How about her Fashion Law Blog?

For some reason, I suspect Staci’s making partner had more to do with her abilities as a lawyer than her blog. Why Kevin would choose to diminish Staci’s substantial professional accomplishments in order to promote her blogginess, wrapped up in such absurdly pretentious language that it makes me wince, is that it serves his interest, the promotion of blogging.  Staci deserves better.

But the problem is that if Staci’s blog was directed to the purposes Kevin attributes, it would likely be commercial speech rather than substantive speech.  If her purpose is to grow business rather than illuminate issues in the law, then it’s about the quality and nature of services for sale.  Sure, Kevin tosses in at the end “better lawyer,” but nothing else he’s written suggests any connection whatsoever.  It plays better if you try not to think too hard.

So what’s the point?  It’s hard to imagine how anyone without a direct financial interest would have a problem with Tom Watson’s admonitions to be cautious and ethical in social media. We should be ethical in everything we do, and this shouldn’t be controversial.  Similarly, Josh’s argument, that we ought to push the limits of ethics to test how far we can take speech to reap financial rewards is troubling. It seems like the Gordon Gecko version of ethics in the age of greed.

As for Kevin’s point, perhaps he’s right that there are financial benefits to engaging in social media, though I’ve never found it to be true, or that the trade-offs come close to making it worth your time if your purpose is to develop business.  There may be that one in a thousand lawyer who’s gotten enough business off the internet to make it worthwhile, and I don’t begrudge her if that’s the case. 

Yet, denying that social media doesn’t hold the potential, if not the likelihood, of being a vast cesspool of unethical conduct by lawyers is fundamentally wrong. It is not a truth-free zone.  It is not absolved from ethical considerations because it’s web 2.0.  It is not an opportunity to put on those pink hotpants and strut down the boulevard. 

You want to use social media to generate business?  Heed Tom Watson.

And now we return to our regularly scheduled programming.

The only place in New York City that gives Bed-Sty a run for its money on the Police Department’s stop and frisk initiative is The Bronx.  You know the place, Yankee Stadium.  The Grand Concourse. Blacks and Hispanics. Drugs.

And like any good police initiative that just happens to focus on people whose skin color is a shade or two darker than white folks, we can rest easy knowing that New York’s Finest are there to protect and serve, and they would never, NEVER, make stuff up about busting some kid on the street. Except when there’s video.

Via NY1 :

Officers swore they witnessed bags of crack and marijuana being carried by [Jateik] Reed. In the criminal complaint one officer is quoted as saying, “He observed the defendant to have on his person, in his hand, one (1) clear plastic bag containing a white, rock-like substance, which he threw to the ground. In his hand, two (2) clear plastic bags, each containing a dried green leafy substance with a distinctive odor, in public view.”

Surveillance video from a nearby building shows Reed walking with his hands out, no drugs in view. John Eterno, a retired New York City Police Department captain, says it appears Reed shouldn’t have been stopped.

But the officers swore.  They swore.  Doesn’t that mean anything?



And if the lie isn’t reason enough to watch the video, the gratuitous kick at the end is icing on the cake. There’s nothing like a fun little kick of a handcuffed perp on the ground to cap off a busy day, right?  And see all the other officers rush to stop the kicking cop?  Neither did I.

The allegations against Jateik Reed are about as ordinary as they come. It would hardly be surprising if they have a change-the-name form on the computer in ECAB to save time.  Naturally, street level drug dealers walk around the Bronx flashing packages of drugs in their hands to everyone in sight.  At least that’s what cops say, and prosecutors and judges believe.

Yet again, a lie is exposed, and a defendant walks free, because a video showed that the police lied.  The cops are on paid vacation while the matter is sorted out, since lies by police officers require massive, lengthy investigation, although lies by civilians are dealt with swiftly and harshly.  But then, civilians don’t protect us at night, and therefore aren’t deserving of our respect and admiration. And the benefit of the doubt.

And without the video?  Take a guess at what would have happened to Jateik Reed.  And the fair maiden officer who booted him would have put in for permanent disability at full pension for the injury to her toe.  it’s a very dangerous job, police officer.