Via Eugene Volokh, the  Wilmington News-Journal reports that the alleged victim of a hate crime is double upset.

Wilmington criminal-defense lawyer Eugene Maurer, who is representing DiDonato, accused Baum of using the incident to seek attention.

“We feel this may have been an opportunity that was seized upon by the young man whereby he could politicize this situation, to draw attention to it,” Maurer said. “I think we’re going to be able to demonstrate in part that may have been part of his motivation.”

Baum called that criticism “terribly offensive.”

“I was a victim of an attack,” Baum said. “I didn’t ask to be attacked. To make that kind of allegation is so insensitive.”

DiDonato is accused of pushing Baum to the floor at a drunken fraternity party because of Baum’s sexual preference.  The defendant argues that he pushed Baum to the floor in the “early morning altercation” having nothing to do with the fact that Baum is gay.  Even gay guys get into beefs sometimes.

Who is telling the truth about the push, and whether any derogatory words were spoken, isn’t know. What is known is that DiDonato’s lawyer has been “accused” of insensitivity in his defense of his client.  Eugene explains:

On the other hand, if the incident was motivated by sexual orientation, and Baum is telling the truth, then the problem with Maurer’s response is that it’s incorrect. Maybe it’s innocently incorrect, if Maurer thinks his theory is right but it’s not. Maybe it’s deliberately false. But in any event, if it’s incorrect it should rightly labeled be as such — but quite regardless of whether Maurer’s statement is “so insensitive.”

This raises an issue that compels recognition, particularly in this time when extraordinary emphasis on hurt feelings has become a primary moving force in our perception of right and wrong.  The only thing missing from Baum’s reaction is calling the defense lawyer, Maurer, a bully for saying hurtful words.

There is a question of whether Baum’s accusation of insensitivity was deliberately irrelevant or merely inarticulate.  That his feelings are hurt by the defense lawyer raising the specter that he’s using his being on the losing end of a drunken push opportunistically, to become a hero of the anti-gay bullying crowd and pursue that agenda, may be accurate. Who can say whether Baum’s feelings are truly hurt?

But so what?

Drawing on the obvious comparison, what of the woman who falsely cries rape?  For a long time now, this was viewed not only as an impossibility, but as a misogynist slur.  No man could accuse of woman of lying about a rape.  Of course, some women did and their accusations were absolutely false, but a mythology arose around the sanctity of womanhood that precluded any man from openly arguing the point.  The man who tried to defend his actions this way was not only rapist (even though the accusation was false), but a woman hating one at that.

Is this going to be the case where an alleged victim of any crime is gay?  If a tussle breaks out on campus, and one of the participants turns out to have a sexual orientation other than straight, will the other person be subject to both a hate crime accusation and, should he dispute that sexual orientation had anything to do with the conduct, a secondary accusation of “insensitivity”?  Will his lawyer be precluded from raising the defense? Should his lawyer limit his defense to that which won’t hurt the victim’s feelings?

This is pretty dangerous turf.  Lawyers defend, but when the defense is over, live to fight another day for another defendant.  As much as they may be willing to do whatever the law allows to zealously represent their client, no one wants to be permanently tarred as a gay-hater any more than a misogynist (or racist, for that matter) as a by-product of presenting a legitimate defense.

While Eugene notes that the claim of insensitivity of the defense is irrelevant to the claim of a hate crime having been committed, that’s a distinction better loved by lawyers than the public.  Few people think that hard or care to separate the relevant from irrelevant.  Words like “insensitivity” from the victim-du-jour carry a punch, often broadcast by the media who seize upon the salacious but irrelevant because it’s fascinating to their readers.  Hate crimes are in. Stories about hate crimes are in. So what if the secondary insensitivity has nothing to do with the hate crime, but with a fair defense as to the motive to lie?

The fear is that this will have a chilling effect on a lawyer’s willingness to raise an insensitive issue in the defense.  Eugene Maurer challenges the allegation that his client gave a damn whether Baum was gay, and that DiDonato never uttered a derogatory word when he pushed Baum down.  Why would Baum lie?  Maurer explains, offering a valid if insensitive explanation for his position.

And now Maurer is insensitive to gays.  A gay hater.  Meet Wilmington criminal defense lawyer, Eugene Maurer, the lawyer who hates gays.

This is absurd, of course.  Maurer’s argument bears no reflection on his feelings toward gays. Or blacks, dolphins or Ford trucks.  It is nothing more than a rational explanation in support of his defense of his client.  And yet the story made the Wilmington News-Journal, and the implication is now hanging in the air for anyone who reads it and everyone who subsequently Google’s Maurer.

That Maurer said what he had to say to defend his client is not merely appropriate, but reflects his dedication to providing a zealous defense.  It says nothing of his being insensitive, and in the atmosphere where insensitivity has taken on a life of its own, the only message here is that Maurer won’t back down from his obligation to save himself from being accused.  He’s done what he has to do.  And he’s done what all of us have to do.

In the defense of a crime, there may be arguments that will hurt the purported victim’s feelings. It’s happened before and it will happen again.  Even in this atmosphere where the crime of hurt feelings has taken on a life of its own, an independent existence of wrongfulness which may well be imputed to the lawyer, our job doesn’t change.  The minute we become concerned about hurting the victim’s feelings, about how any backlash could impact our reputations or standing in the community, we trade off our responsibility for the latest political correctness and abandon our role as criminal defense lawyer.  We cannot defend if we’re worried that someone will call us insensitive.

If Baum is telling the truth about DiDonato’s push being motivated by anti-gay animus, then let DiDonato be damned for that. But there is no secondary insensitivity on Maurer’s part in questioning whether Baum’s claim is false and motivated by a secondary agenda. That’s his job, and there is no shame in his doing it.  Even if it hurts Baum’s feelings again.

In the never-ending search for academic legitimacy, Jack Chin  takes his best shot at arguing the importance of scholarly influence in criminal law.

For me, these cases brought to mind Chief Justice Roberts’ famous mockery of the contribution of scholars to actual law: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” But at least in criminal law and procedure, the field I know best, Lafler and Frye seem like par for the course; the idea that good scholars are irrelevant to courts and and legal doctrine struck me as mistaken.

I looked at the 21 most cited criminal scholars according to Brian Leiter. The Leiter study looks at faculty who are most cited in law reviews from January 1, 2005 to January 15, 2010. By examining those who were most influential in recent law review citations, this study captures those now in fashion in the academy. All of these 21 teach at highly ranked schools (all are in the top 50, and 19 are in the top 20), where one might expect highbrow academic culture prevails.

1.  Love the students.  I think this is probably the most important.  If you don’t think the students are the most important part of teaching, I feel like you will never reach them.

2.  Teach so students can learn.  If a teacher is the most brilliant person in the world on the subject but can’t present it in a way that his listeners can understand, the teacher is completely ineffective.  Teaching requires not only someone presenting but also someone receiving.  I believe that many people learn in very different ways.  The best teachers I have known have been adept at presenting key concepts in ways that appealed to students with diverse learning modes.

3.  Love the subject.  If you love the subject and the students, your enthusiasm will be apparent and the students will feel it and catch it.

6.   Don’t require attendance.  If you build it, they will come.  Teach well, and you won’t have to compel your students to listen to you.

No, poor people can’t take their ’59 Rambler to the garage and get a free oil and lube as part of the auto mechanic’s pro bono duty.  No, saddled with debt and less hope for a job than winning the lottery, aspiring lawyers don’t deserve an unanticipated additional burden that no lawyer who is earning a living has to endure.  No, they aren’t suddenly competent to represent a rodent, no less a person, because they’ve managed not to flunk out after two years.

New York State Court of Appeals Chief Judge Jonathan Lippman’s  Law Day announcement that admission to the bar will require proof of 50 hours of pro bono service has raised quite a ruckus.  As has been admirably pointed out by pretty much all quarters, the idea is deeply flawed. No need to review every problem, as it’s all ready been done by the thoughtful, the angry, the disappointed, the angrier and the  self-serving and hysterical. 

So what is a smart guy like Judge Lippman thinking?  He’s got to know that he’s putting more weight on the shoulders of aspiring lawyers, who are already carrying more than their share.  He’s got to know that the sweet hype of helping indigent litigants is silly, since the poor don’t need representation by the incompetent.  He’s got to know that the burden of the legal system on the poor is a societal problem, and not one that demands lawyer pay the freight for a society unwilling to do so.  And he’s got to know that the legal profession is floundering on the whole, and he’s not helping.

Jonathan Lippman is a very smart man, and has proven himself well-intended many times. So what’s this really about?

Initially, the “burden” of 50 hours of pro bono services is a bit overwrought.  This is a grand total, not a monthly thing.  Given that law students can rack up the numbers fairly easily in law school, and most have plenty of time to get the rest in while waiting for their bar exam results, it can be accomplished without breaking much of a sweat. 

Is it a burden? Well, sure, just like the biennial dues and the CLE requirements. Burdens seem to come hand in hand with admission to a monopoly.  It’s not “indentured servitude” (or even involuntary servitude), since no one is forcing anyone to serve for free. No one forces you to be a lawyer, or to be admitted to the New York bar. Go to Montana. Become a carpenter. No pro bono requirement. There you go.

The poor in need of legal services, on the other hand, get squat out of this, making it far harder to understand why this was a battle worth fighting.  The 50 hours isn’t enough to cover their case, leaving them either high and dry in the middle, or forced to switch horses from one lame lawyer to another, neither of whom has a clue what he’s doing.

The blame game that invariably appears gets us nowhere, that it’s old lawyer shifting the burden onto young lawyers.  Of course it is, and that’s because old lawyers have more power than young lawyers. If young lawyers weren’t worthless slugs, they would have the power to impose burdens on old lawyers. You don’t. We win. Get over it.

And still, nothing about this requirement makes much sense on the surface. Plenty of anger. Almost no benefit. So why is Judge Lippman doing it?

Here’s my guess: This is where it starts.  Judge Lippman has figured out that as much as people need the hated lawyer when things go south, there is no way that legislatures are going to fund legal services for the poor. Nobody, but nobody, will ever get elected on that platform, and it will never come.  So while indigent litigants suffer for lack of representation, there is no hope of a fix in sight.

The need can only be filled by mandatory pro bono by experienced lawyers, which will not only prove invariably unfair, since the burden will eventually fall on the handful of lawyers with useful skills and the highest earners have no skills anyone needs. But by starting with the least powerful among us, the aspirants, and using his unilateral fiat to impose the requirement, since he can’t force the legislature to fund indigent representation and will be met by severe resistance if he tries to make admitted lawyers do pro bono off the bat, there is no better place to start.

Over the next decade or so, the duty will slide down the slippery slope, to lawyers with five years experience. Then ten. Then the rest of us, as part of registration renewal requirement. Sure it’s unfair to compel lawyers to fulfill societal burdens, when society hasn’t got the slightest interest in paying. Sure it’s unfair to single out lawyers, when no one else in society is required to do good against their will. But he has the juice to make it happen, and no one else will.

My bet is Judge Lippman knows that lawyers are hated, and this may be the only way to address fulfillment of the need for legal services while possibly getting back in the good graces of society.  He knows that we will bitch and moan about it, but that no one is going to burn their bar card and give up the profession over it. There’s no money to be made by walking away, and if lawyers are struggling to pay the rent, they can fill in the empty hours with some good deeds. We’ll find out it’s just not that big a deal. And we’ll do some good, maybe, in the meantime. And maybe people won’t hate us as much for it.

And since we’re professionals, and auto mechanics are not, and since we’re used to paying a price for the gift of a monopoly to practice law and this is just another mechanism to pay for the privilege, and since we can fit this into our not-terribly-busy day and help people in need even though it’s not exactly our sole responsibility to do so, maybe lawyers can become part of a long term solution to the problems plaguing society.  Not all the problems, but maybe some of them.

Yes, this scheme is replete with flaws. There’s a damn fine argument at every turn as to why it’s wrong and won’t work.  It is unfair. Plenty of good people will be harmed in the process, not the least of which are poor people who deserve better.  And still, it’s the only game in town to try and fix some vexing problems, and the only one that a chief judge can pull off on his own, without anyone else’s approval.

Jonathan Lippman is no fool, begging every twinkie law student to critique his idea like shooting fish in a barrel.  If you want to rip this plan to shreds, have at it, but look down the road and see where it’s heading before going after the low hanging fruit.  This is the start of a major overhaul, and Judge Lippman has everybody looking at the edges while he’s got his eye in the center. 

We’re all in this. It’s just a matter of time.  Bookmark this post and check it out ten years from now.

This just in the ol’ email box.

From: [email protected]
Reply-to: [email protected]
Sent: 5/2/2012 5:40:18 A.M. Eastern Daylight Time
Subj: OFFICIAL LETTER FROM FEDERAL BUREAU OF INVESTIGATION FBI.

 

OFFICIAL LETTER FROM FEDERAL BUREAU OF INVESTIGATION FBI
ROBERT MUELLER III EXECUTIVE DIRECTOR FBI FEDERAL BUREAU OF
INVESTIGATION FBI.WASHINGTON DC.
FBI SEEKING TO WIRETAP INTERNET
Email:[email protected]

ATTENTION: BENEFICIARY

FROM: ROBERT MUELLER III EXECUTIVE DIRECTOR FBI FEDERAL BUREAU OF

INVESTIGATION WASHINGTON DC. FBI SEEKING TO WIRETAP INTERNET

The federal bureau of investigation (FBI). Through our
intelligence-monitoring network has discovered that the transaction that the
bank contacted you previously was legal. Recently the fund has been legally
approved to be paid via Central Bank of Nigeria.

We the federal bureau of investigation (FBI) Washington Dc, in conjunction
with the United Nations (UN) financial department have investigated through
our monitoring network noting that your transaction with the Central Bank of
Nigeria legal. You have the legitimate right to complete your transaction to
claim your fund US$15.5, 000,000.00(Fifteen million five Hundred Thousand
united states dollars).

We the federal bureau of investigation decided to contact the FedEx Courier
Service Company in Nigeria for them to give us their procedures on how to send
this money to you without any further complain or delay. We just got an
information from the Central Bank of Nigeria that they have loaded your
US$15.5, 000, 000.00 in ATM CARD and submit to the
FedEx courier service company for immediate delivery to your doorstep.

***
Best Regards,

Robert S. Mueller III
Federal Bureau of Investigation
J. Edgar Hoover Building
935 Pennsylvania Avenue,
NW Washington, D.C.
20535-0001, USA.
Email: [email protected].

To listen to the fans of social media, it’s highest and best use is to trumpet your accomplishments so everyone can marvel at how fabulous you are.  Criminal defense lawyers have not only fallen into line with the use of social media as self-promotion, but some have gone so far as to give updates of their daily activities, no concern whatsoever of what information they’re giving up and whose lives they’re damaging in the process. 

But when Mark O’Mara started the George Zimmerman social media machine, contending that it would “irresponsible” to do otherwise, it gave me serious pause.  For decades, I’ve been doing it all wrong.

More than a decade ago, a guy sat down in my office chair to tell me about an investigation into a nationally renown non-profit for financial impropriety.  There were two primary targets of the investigation, and he was one.  The investigation eventually resulted in a big story in the media, one that rocked their niche. 

The other target was prominently named, and his lawyers gave press conferences and took calls from reporters.  No one, to this day, knows the name of my client outside of a very small circle of friends.  It was never mentioned in a single media report. He was not charged. He was not prosecuted. He continues to live his life in obscurity.  He couldn’t be happier.

To the extent humanly possible, my efforts have been directed at never handling a “high profile” case.  It’s not that the underlying cases weren’t newsworthy, but that a critical aspect of my responsibility was to prevent the handsome face of my client from ever appearing in the media.  Once that happens, their lives are changed, often ruined, no matter what the outcome of the case. Careers are destroyed. Futures lost.

It’s not that there aren’t opportunities to make a huge splash. Rumors of investigations spread, and calls from reporters come in.  Handling the calls is an art.  For some, the art is how to make sure your name is spelled right and your face makes it to page one, above the fold. For me, it was to kill the story, quash the rumors.  Nobody wants a boring story. Nobody wants a non-story.

There are times when you can’t stop the story, when the news has already broken and story is out there.  The question then is whether to feed the news cycle or do everything in your power to make it fade away.  There is always another huge story right around the corner, and memories are fleeting.  A small blurb on page 39 for one day is quickly forgotten, and if there is nothing interesting to write about, then chances are improved that it will never see a second story.

Or there can be a press conference, announcements, photo ops. Say something fascinating, controversial.  The reporters will hang on your every word.  For at least the few minutes while your story is top dog, you will feel like the most important person in the world.  You tell your client that you’re doing this all for him, to fight for him in the court of public opinion.  To salvage his reputation.  To protect him from the harsh words of the media.  And he will believe you as he watches his life ruined by the coverage of the worst experience in his life.  He trusts that you are doing the right thing, as you start to make calls to once-interested reporters who have moved on to other stories to tell them about what you plan to do next in your very fascinating case.

We’re experiencing a paradigm shift, where lawyers feel emboldened to promote themselves at every possible opportunity, even though it comes at the expense of their clients.  It’s almost inconceivable that a lawyer would do everything in his power to avoid publicity, the chance to get his name out there, to protect his client from the glare of the bright lights.  Isn’t this what we all want, to turn ourselves into momentary celebrities so that we can tell all our twitter followers what big time lawyers we are?

At Not Guilty, Mirriam Seddiq broke her silence the other and wrote:

If I had a dollar every time someone said to me “you must have some interesting stories” I’d have a whole lotta dollars. Probably like 20. Or maybe even 30. Oddly enough, I never tell anyone any of my stories. They are too personal and, for those of you criminal defense lawyers out there this comes as no surprise, they actually aren’t all that interesting. Or, the parts I think are interesting are probably not interesting to regular people.

No.  Not our team. Not the team of defense lawyers who try to keep a smile on their face and a positive attitude in the face of impending doom. But much to the surprise of defendants and the public, judges regularly become a cog in the wheels of prosecution, though it’s not necessarily as nefarious as it may sound.

After all, long before any defendant is arrested and any defense lawyer is retained, warrants get signed, ten day reports are submitted and, eventually lengthy and detailed discussions take place involving how many defendant will be shuffled through the courtroom in chains.  There needs to be a sufficient number of lawyers on call, since they can’t be arraigned without counsel.

There are logistics to manage throughout the courthouse, and they don’t happen by accident. It takes planning and forethought, both on the prosecution’s end as well as the court’s.  Did you think it was magic? Kismet? It’s no accident that the call went out to round up every CJA lawyer in town.

In an article in the National Law Journal, Alan Dershowitz and Ronald Rotunda  write about the notorious Agriprocessors take down in Iowa, where 600 riot-ready ICE agents and a Blackhawk chopper swooped in to capture 389 food workers in hairnets.  It was a glorious victory for law enforcement. 

The Big Boss of this heinous Kosher criminal conspiracy, Sholom Rubashkin, had to go down, which turned out not to be as easy as it seemed.  Trying every imaginable variation on a crime, the feds finally nailed Rubashkin on a hypertechnical bank fraud charge for certifying to his bank that his business was absolultely legit, when in fact there was a sneaky illegal working inside. Got him!  Iowa charged Rubashkin with over 9,000 offenses, and couldn’t nail down a single one.

Rubashkin was sentenced by federal Judge Linda Reade to 27 years, two more than the government sought.  Up to now, it sounds like a typical federal case, routinely unfair and absurdly disproportionate. Nothing to see here.  And then this:

But Reade did more than impose a disproportionate sentence. After Rubashkin’s conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss “charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related” to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge’s request, the judge stated that she was “willing to support the operation in any way possible, to include staffing and scheduling.” She was essentially part of the prosecution team.

The Supreme Court should decide to hear this case and use it as a vehicle to examine cozy relations between a prosecution that was too zealous and a judge who was too involved in pretrial prosecution strategies. The Iowa legal director of the American Civil Liberties Union, one of the groups that filed an amicus brief on behalf of Rubashkin, warned that the judge’s involvement with the prosecution “immediately gave the appearance of unfairness.” It was more than appearance. It was actual unfairness.

After my lame effort to point out the silliness of thinking that a cop swearing to tell the truth means he won’t take the stand and lie, Ed at  Blawg Review sent me a link to George Carlin who, of course, says it better and funnier than I possibly could. Enjoy.

Much as I thought Mark O’Mara’s handling of the bail hearing, providing George Zimmerman an opportunity to apologize publicly for killing Trayvon Martin, was a brilliant move, I’m not nearly as clear on his latest venture.

Now, defense attorneys for George Zimmerman, the Neighborhood Watch volunteer charged in the teen’s death, have entered the virtual conversation. In an unusual move, Mark O’Mara has started a blog and accompanying Twitter and Facebook accounts to communicate directly with the public.

That’s right. Meet the new social media portal for Zimmerman, GZLegalCase.com.  It’s a new world out there, kids, and if it’s not online, it doesn’t exist.  Apparently, that’s true for high profile criminal defense as well.  Don’t all rush to friend him at once.

At least one “trial consultant” thinks this is a great idea.

“This is a brilliant move on his part,” says Amy Singer, a Gainesville-based trial consultant. By engaging the public online, “you get a lot of comments, a lot of perspectives, a lot of discussion.”

Ah, Gainesville, that hotbed of cutting edge trial consulting. You also get a massive opportunity to screw up, but it seems that went unmentioned in the quote.

Because thousands of people give their opinions unsolicited through social media, services such as Twitter can put a defense team in the enviable position of being “a fly on the wall,” Singer said, monitoring how people react to each twist and turn.

O’Mara, she said, has just taken the next logical step. By creating a Facebook and Twitter profile, “all that they’re doing is joining in the conversation” already taking place online.

Therein lies the difference, and the “next logical step” isn’t necessarily next or logical, and may well be a huge leap. Over a cliff.  A very big cliff with sharp rocks at the bottom.

It’s one thing to monitor what “thousands of people” are twitting. It’s another, entirely, to affirmative put in writing on the internet assertions that relate to a legal proceeding.  Monitoring holds no risk, though it is no doubt a nightmare reading the nonsense and ignorance floating across your screen and not wanting to scream at the people who either get the facts all wrong (at least from your perspective) or offer opinions that are just mind-numbingly stupid.  But then, this could be your jury pool and, for better or worse, it certainly better to know than not know.

Getting involved, however, is a commitment.  Once something is put “out there” by the defense, they live with it. There’s no denying it. There’s no explaining it. It becomes a part of the case, and they won’t know how well it plays in Peoria (and eventually in Sanford, Florida), until the furor dies down.

This is a very risky proposition.

Acknowledging that the decision to take this route is “controversial,” today’s post states:

Using social media in a high-profile lawsuit is new, and relatively unprecedented, but that is only because social media itself is relatively new. We repeat our contention that social media in this day and age cannot be ignored, and it would be, in fact, irresponsible to ignore the robust online conversation.

Mind you, it’s unsigned, and, if O’Mara is as smart as I believe, written by someone substantially more social media savvy than he. Still, it’s attributable to him, and there is absolutely no plausible deniability.  Already, the posts seem to be subtly inconsistent, as two days ago, O’Mara explained that one of the purposes of his blog was to “dispute misinformation.”  Yet in today’s post, he writes:

We Will Not Use Our Online Presence As A Vehicle For Dissemination Of, Nor Will We Comment On Any Evidence Regarding this Case

One of our core objectives is to discourage speculation regarding the facts and evidence of the case. We commit to avoid even the appearance of any impropriety regarding information traveling through our website and social media profiles which could, in any way affect the proper presentation of the case where it is to be tried — in a courtroom. An example of that commitment is our evolving rules regarding the moderation of comments posted. We intend to remain very conservative in limiting such conversations so as to avoid any possible negative impact on the criminal justice system.

That didn’t take long. How exactly one disputes misinformation without commenting on information is a bit of a mystery.

The rationale du jour is that the “online presence” will serve to deal with the “enormity” of the public reaction to the Trayvon Martin killing. 

Our online presence was created in response to the enormity of interest which has inundated the firm since our first day of involvement. Literally hundreds of emails and phone calls came in within hours of our announcement regarding our representation of Mr. Zimmerman. It became readily apparent that an alternative forum was necessary to handle the high volume of interest we receive.

Social media is the obvious answer.

While I have no doubt that social media marketers and sycophants will adore this notion, I’m not buying. The best thing for George Zimmerman is to let the media interest die out, fade away and move on to the next biggest legal story ever in the history of the world. There will be another story tomorrow. There always is, and it pushes Zimmerman to the back page, below the fold.  It may not quite go away, but the lower the volume the better for Zimmerman.

This seems to be quite a different approach, as if they are courting continued media interest, doing everything possible to keep the profile of this case as high as possible.  Rather than quiet the lynch mob, they are encouraging it. How is this good for Zimmerman?

My suspicion is that this has nothing to do with Zimmerman, per se, but is a vehicle for legal defense donations. As usual, high profile defendants rarely have any money for counsel, and it can take a ton of time to court the media, if one is so inclined. Of course, if you just ignore the media, it takes no time at all.

The Zimmerman contingent has received donations of about $200,000 so far, which is being used to pay O’Mara as well as cover Zimmerman’s “living expenses.” This money came directly to Zimmerman, however, with no strings attached. I suspect O’Mara would prefer the money went to his paypal account instead.

While the rhetoric surrounding this “controversial” use of social media seems designed, if poorly, to appeal to people who aren’t inclined to think too hard, either about its internal consistency or the validity of the rationales, the bigger question will be whether O’Mara is sufficiently media savvy, and internet savvy, not to have this explode in his face. Based on what I’ve read thus far, I wouldn’t bet on it.

In a decision that only a legal apologist or circuit judge could love, the 8th Circuit in  U.S. v. Vega pulled a breathtaking move and twice screwed the defendant without breaking a sweat.  Via Federal Evidence Review, the Court upheld a drug conviction where the government was allowed to use prior bad act evidence for which the defendant had been acquitted, but denied the defendant to introduce the fact that he had been acquitted.

Cool, huh?

The defendant argued that the prejudice of the acquitted conduct, which the government introduced under F.R.E. 404(b), far exceeded it’s probative value.  This seems almost definitional to those of us who are not slaves to the proposition that anything serving to convict is inherently admissible, but not to Judge Smith, who wrote the opinion.

The key to the Circuit’s decision is that one of the foundational requirements for admissibility under 404(b) is that the bad acts need only be shown by a preponderance of the evidence, whereas a conviction requires proof beyond a reasonable doubt.  Just because the defendant was acquitted, therefore, doesn’t mean that it wasn’t more likely than not that he committed the criminal conduct.

What makes this more astounding is that this was all presented in the first trial, where the jury acquitted on the first count and hung on the second. At the second trial, the jury was presented with the 404(b) from the first, but only asked to decide the second.  And the defendant was precluded from telling the jury that he had already been acquitted.

…although a judgment of acquittal is relevant with respect to the issues of double jeopardy and collateral estoppel, once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted.

“[T]wo primary reasons” exist as to “why a judgment of acquittal is not generally admissible to rebut inferences that may be drawn from evidence that was the basis of a previous trial.” The first reason is that “judgments of acquittal are hearsay.” The second reason is that “judgments of acquittal are not generally relevant, because they do not prove innocence; they simply show that the government did not meet its burden of proving guilt beyond a reasonable doubt.”

Trial is scheduled to begin today for 22 protesters of New York Police Department’s notorious “stop and frisk” policy, in which hundreds of thousands of people are routinely stopped on the streets for spurious reasons, most of which have to do with skin color.  Lawyers for the protesters will argue a justification defense. It’s not likely to work.

In an op-ed, Brent Staples writes in the  New York Times of the cost of zero-tolerance toward marijuana arrests.  Most are trivial, even non-criminal but for the NYPDs trick of charging a public display after they take the pot out of a person’s pocket where it wasn’t on display. Many of the cases are eventually dismissed, under what New York calls an “adjournment in contemplation of dismissal.”  though the record of the ACD remains. Many of those arrested flow from the notorious stop and frisk policy.

For many, this means that New York City has a massive population of people with some criminal record, some “smirch” that appears, whether because of a garbage bust, an error in record keeping (it seems that the nice folks who input criminal history stuff are much more diligent about putting bad stuff into the computer than taking it out when the bad stuff turns out to be wrong; same with warrants) or payback from some cop to whom you failed to show sufficient respect during the course of a baseless yet humiliating rousting.

The upshot is that employment forms, which invariably include that little box to be checked which inquires whether you’ve ever been convicted of a crime, mean that a great many New Yorkers (which similarly means a great many whoever and wherever you are) will never find gainful employment.  Add to the little box effect that many corps run background checks through companies that search the internet for bad things you’ve done, whether true or false, and there remains a sub rosa prohibition on employment for very bad reasons, and often no reason at all. 

You were arrested for nothing? You were acquitted? You were never even prosecuted? None of that every shows. The search company reports back that you’re a criminal, and you won’t get the job.  And, you will never know why.

In another editorial, the  New York Times applauds the EEOCs “guidance” on the handling of criminal histories of applicants for employment.

The federal Equal Employment Opportunity Commission has reaffirmed and updated a 25-year-old ruling that bars companies from automatically denying employment to people based on arrest or conviction records. It is must reading for all employers.

Two developments made the new guidance necessary: computer-based arrest and conviction records — many filled with errors or containing cases that are supposed to be sealed — that make it easy for employment screeners to get and sell the reports; and the dramatic increase in the number of Americans who have been arrested for minor offenses, due to “zero tolerance” policing.

The guidance makes clear that an arrest alone is not evidence of illegal conduct or grounds for exclusion. In one hypothetical — a classic “driving while black” case — an African-American couple traveling to church in a predominantly white town are pulled over and questioned by the police. When the husband protests, he is arrested for disorderly conduct. The prosecutor declines to file charges. But when the arrest comes up on a background check, the husband is denied a promotion.

If he filed a discrimination case, the guidance says, the E.E.O.C. could find reasonable cause to believe that the employer had violated the law.