Every so often, an image appears of police using force against a person who committed a heinous crime, the sort that harms an innocent person very badly and gets any normal person’s blood boiling.  At law blogs, we take the detached view, that it’s not left to police to administer vicious punishment on the street, no matter how much we can understand the visceral reaction to the horrific conduct of such a person.  We demand that cops keep their cool, retain their self-control, bring the perp to court where guilt, even if no one seriously doubts it, is determined and then, and only then, punishment is imposed.

And then there’s the tagger.  A tagger is a graffiti “artist.” Some think of them as vandals, while others see graffiti as street art.  Some see this as a blight while others appreciate their work, if not their choice of canvas.  Few think that the tagger falls into the same category as the guy who molests a child or beats a woman.  That’s not the case for Portland Police Officer Benjamin J. Davidson.

Via Radley Balko and Boing Boing :

Police took down Dan Halsted while he was just innocently walking home. The officer stunned Halsted five times with a Taser in the back because he thought he sprayed some graffiti.

Halsted was tackled by a Portland police officer in the Northeast Portland neighborhood of Sullivan’s Gulch four years ago.

“I was walking home and all of a sudden a flashlight came on in my eyes and I stopped, and I heard a voice say, ‘Get him!’ And I heard footsteps coming at me, so I turned and I ran.”

Police had mistaken Halsted for a tagger who hit a nearby building.

“This is a police officer doing his job, under difficult circumstances in the dark, with the tools given him,” Rice said.”The level of force was brought on by Mr. Halsted when he started to run and fought with police officers.”

“The arresting officer in his police report, he made up a whole other story and said that I had been running down the street with a couple other people.”

That’s the same thing the officer testified to in court when Halsted sued. In reality Halsted had been with friends at the Rose and Thistle Restaurant and was never charged with any crime.

During the trial, the city’s attorney tried to use Halsted’s classic kung fu film collection against him, saying it proved he was violent.

While it boggles the mind to think a judge allowed this argument, the jury rejected it and awarded Halsted $206,372.70. Good verdict? Here’s how it breaks down:

$6,372.70 for medical expenses.
$75,000 in non-economic damages (pain and suffering)
$125,000 in punitive damages

While some may think that $200,000 doesn’t begin to cover what Halsted went through, and that the amount will be paid by the taxpayers of Portland, with Officer Davidson, who remains on the force, not having to waste a dime of his donut money, the award has a bit of a local contingency worthy of mention.

I was surprised to learn that under Oregon law, 60 percent of punitive damages awarded in suits like this go not to the brutality victim, but to a fund for crime victims. And another 10 percent goes to . . . a fund for Oregon state courts. Really.

As punitive damages are intended as punishment, it’s not entirely unfair that they go toward a purpose other than the victim.  On the other hand, one governmental hand giving money to another hardly strikes me as much of a punishment.

The Portland City Council approved a settlement for $258,000, covering Halsted’s legal fees as well as the amount of the verdict. 

And the worst that could be said, even assuming the cops nabbed the right perp, not lied about it, not raised one of the most ridiculous arguments possible, is that he was a tagger. The good news is that the money won’t be paid to Halsted’s estate. Other than that, Portland’s a pretty nice place.  Seriously, try the maple bacon donut at Voodoo.

At his Philly Law Blog, Jordan Rushie recounts how he went from self-absorbed law student, utterly clueless as to what he’d gotten into and where he would be heading the rest of his life, to lawyer.

Admittedly, I had no idea what lawyers did on a regular basis. I had only met small town lawyers in my neighborhood. Most of them seemed pretty interesting. My view of lawyers was shaped by John Grisham novels, Law and Order, To Kill a Mocking Bird, and A Civil Action. Law seemed like a pretty interesting profession. My goal was to get into prosecution, and then maybe become a criminal defense lawyer. That sounded cool.

Why, yes, we lawyers really are cool. Small children stare at us in awe, appreciating the cut of our suit as they once appreciated the rugged looks of a firefighter.  Cool and awesome. But then, what exactly is it that lawyers, well, do?

On my first day at the office, I was still kind of confused by what I was told by career services and what reality was. Mark Everhart’s practice consisted of him, a receptionist who he shared with other lawyers, and his paralegal. Although he was the “senior partner” this seemed a little different than what we talked about in law school. Mr. Everhart called me into his office and gave me some tasks: write a research memo about something, start to prepare a motion, and draft discovery. “Yes, Mr. Everhart. Sure thing, Mr. Everhart.” I was on my best, most formal behavior.

Later in the afternoon, Mr. Everhart called me into his office. “Listen, I know you’re excited about this job. And you should be. But stop calling me Mr. Everhart. It’s Mark. Once you get your law license we’re going to be colleagues and equals. Let’s grab a beer after work.”

Your mileage, naturally, may vary, but that isn’t the point. The point is that in the summer after his first year, Jordan got a job with a real lawyer, and this real lawyer showed him for the very first time what real lawyers do, at least in his office, on a daily basis.  And Jordan was smart enough to realize that this, in general, would be the way he would spend every working day for the rest of his life.

As it happens, Jordan met a good guy who not only showed him life as a lawyer, but went on to steer him well as a mentor.  And Jordan, in return, realized that the real world of lawyers, rather than the fiction in his head when he signed up for law school, was where he belonged.  All’s well that ends well.

Over at The Legal Whiteboard, Lawprof Bill Henderson, who started as a firefighter until he realized at his kid’s second grade Career Day how much more cool and awesome lawyers are, is doing his darndest to find ways to incorporate this transition into law school.

In retrospect, it looks pretty simple:  (1) find a convenient time for 1Ls, (2) provide pizza, (3) invite successful lawyers to talk about their careers, (4) have law faculty gently moderate, and (5) implement a modest attendence requirement tied to a 1L substantive course.

Why does this matter?  If students have better information and have a broader view of the profession–created through a balanced and well structured programming–they can make sense of the world more quickly and in turn make better decisions related to their own professional development. 

One might well wonder why this isn’t true of students applying to law school, when the biggest decision is made. But then, it’s not like law schools have any control over what silliness exists in the minds of their entering students, and if applicants are foolish enough to sign up for a career about which they know nothing more than what comes over the TV in a one-hour drama, who’s to blame?

Career Choice events were typically organized around practice settings (i.e., small firms, big firms, in-house lawyers, personal injury lawyers, prosecutors, public defenders, state agency lawyers, public interest lawyers, business and nonprofit executives, etc.) and substantive areas (IP, sports and entertainment law, international law, family law, bankruptcy, etc.)  An ideal panel would be one where the practitioners moderately disagree with each other — this is why we like having more than one lawyer in at a time.  When lawyers disagree, students have to engage their minds in order to make sense of the differing perspectives.

Though it lacks the depth and personal touch Jordan enjoyed, at least the diversity of opinion on the panels offers greater insight than a lone ranger, cheerleading his point of view.

When guest speakers are available to stay for dinner, the same alumnus also pays for dinners for speakers and three to five students.  Over the years, I have attended roughly two dozen of these meals.  Many times students tell me that the insights shared over these dinners are among the most memorable and fulfilling learning experiences of their 1L year.

There’s a message in here for lawprofs, that these meetings are so memorable and fulfilling.  Henderson gets it. The opportunity to connect with real lawyers, to have some insight, any insight, into the world they are paying a bundle for and will soon be entering, fills a huge gap in their understanding and experience. They need this connection. As hugely impressed as most lawprofs believe students must be when their scholarship is published in some law review, it doesn’t hold a candle to a chance to talk with real lawyers about the practice of law. Sure, it won’t help a lawprof get tenure or the admiration of his fellow academics, but it will help law students.

Can a law school program like Henderson’s Career Choices compensate for a lack of experience of a Jordan Rushie working for a summer in Mark Everhart’s office?  Henderson’s explanation of the evolution of the program provides a clue.  A few of the developmental “lessons”:

• Choice matters.  Students can have pretty fixed ideas on who is worth listening to.  This is a constraint.  But when students can exercise some choice on speakers, they show up with a positive attitude and higher levels of curiosity.  These positive experiences bring them back voluntarily –now, voluntary participation is well beyond the minimum.  The choice created the way for buy-in.

• Timing really matters.  Pizza is not enough to get students to give up a lunch hour.  The winning combination is lunch plus content plus a time period when students are not scrambling to read for class.  Moving from Wednesdays to Thursdays was huge for student participation–albeit it was less convenient for faculty.  We learned that faculty need to bend as much or more than students.

Coddle much?  Perhaps the lawprofs can give the students foot rubs to enhance their enjoyment and participation?   Practicing law is inherently inconvenient and occasionally unpleasant. If they can’t happily suffer some personal inconvenience in law school to find out what they’re getting into, it bodes poorly for their willingness to endure the hard work of being a lawyer.

• Respect student preferences. During the 1.0 version, we had four mandatory sessions at 4:30 on Thursday afternoons — and as a result, we were leaning heavily into a headwind.  A minority of students resented the imposition on their time; and this negativity affected the general mood of the students, which created an uphill battle for even the finest guest speakers.  It is easy to conclude what students “ought” to value.  But such judgments don’t improve the situation at hand.  The smart person accepts; the idiot insists.

I’ve added emphasis to the last sentence, because this reflects a distinction in how such a program can survive within a law school environment as opposed to the harsh lesson these students will learn in the real world.  No judge will acquiesce to the students desires.  No law firm or lawyer gives a flying crap about the students’ “general mood.”  What they eat, and whether they eat, will never be a subject of discussion.

It’s understandable that the program has been designed around the interests of law students, the better to get them to participate, even though practicing lawyers might feel the urge to smack these students for the arrogance.  For a lawprof, making it work trumps the expectation that snot-nosed kids grow up, take some responsibility for their choices and learn the things they need to learn. 

The alternative is to make this program voluntary, given at terribly inconvenient times and require students to bring in food, not only for themselves but for the lawyers who have given of their time to speak to them.  And to keep a role of dimes handy, to pass out to any students who fails to avail herself of the opportunity.

As much as I respect Bill Henderson’s efforts in trying to institutionally create the experience that these law students ought to “value,” I can’t help but wonder whether the good that comes from learning what real lawyers do is undermined by the collateral lesson that it comes at their convenience. 

Bill says the smart person accepts; the idiot insists.  Maybe the smart person avails himself of opportunity and the idiot goes home.  Of course, the object of our respective views is an entirely different person.  I wouldn’t be deeply troubled if Bill had to hand out the whole role of dimes. If a class was weeded down to one Jordan Rushie, that wouldn’t be such a bad thing.

Never before in the history of man has a lawyer letter generated more lust than Ken’s. It came as a response to an embarrassingly bad cease and desist letter, barely comprehensible, replete with errors and conceptually bizarre, and stood up for the right of some folks at Etsy to speak their mind without being subject to a lawyer’s threats.

The folks at Regretsy went bonkers.

That Ken jumped into the fray, pro bono, to stand up for commenters on the internet who appeared to be attacked by a lawyer threatening all sort of horrible things is, to say the least, admirable. Ken’s letter was somewhat long-winded (don’t worry, I already told him that privately) and routine, but it was perfectly fine work.  Not quite the stuff to make hot women drop their bloomers, and yet demands for his naked pictures abounded.  Ken tells me he thinks they were satirical because he’s a humble guy, and knows what he looks like disrobed, I’m not quite sure that’s true.

And so he had about 24 hours to enjoy the outpouring of love and admiration before the frenzy got out of control.  That’s the thing about whipping up the masses into a frenzy. It creates momentum that’s hard to stop.  While most people have a bit of fun but temper their conduct with a basic grasp of propriety, there may well be a few who either can’t control their worst impulses or are, how shall I say this, batshit crazy.

A day after the celebrations, Ken was constrained to post again. It seems that some didn’t stop at requesting nude pictures of Ken, but went on to threaten the family of the lawyer, including his child.

I stand by what I wrote in my response to the cease-and-desist letter. Nobody who reads this site is likely to doubt my commitment to freedom of expression. But allow me to be blunt: if you are the sort of person who thinks it is funny to react to this sort of situation by making threats, or targeting somebody’s kid, or engaging in harassment that crosses the line into illegal behavior, you are not a friend of free speech, and you are not my friend. You’re an enemy. 

On the internet, things have a tendency to spiral out of control without warning. As much as we anticipate that readers are reasonably normal and will conduct themselves within the parameters of propriety, it’s impossible to discount that a number of crazies who also happen to agree with general propositions are reading as well. They’re behavior may not comport with law or norms.

You want to argue? Fine. You want to criticize? Fine. You want to ridicule? Fine. But when you threaten, and if you cross the line into unlawful harassment, and if you target families of controversial figures, you’re hurting the cause you think you’re fighting for. You’re also making it easier for law enforcement, and legislatures, and courts to justify censorship. You’re a problem. And if you become my problem, I’m going to use my First Amendment rights to make you pay. You won’t enjoy it.

A valiant effort, and hopefully one that will succeed in this instance, but a very important lesson to be learned here. As much as writers (including hottie lawyers like Ken) may think it’s all fun and games on the interwebz, we never know what will catch the fancy of the crowd and go viral.  We never really know who is reading and what they will take away from it. We never really know what someone whose grasp of reality is tenuous will do.

My first reaction to the Regretsy adoration was amusement, as the idea of Ken as sex symbol gave rise to several meme possibilities that could rival lolcats.  But soon, it dawned on me that the frenzy was getting a bit uncontrolled for comfort.  Creepy was a description used as well, and indeed it was.  When I read Ken’s post trying to rein in the threats, I was not surprised.  It struck me as only a matter of time before things would boil over.

I doubt that those who threatened a child are concerned with how their actions impact the fight against censorship. I suspect they aren’t anywhere near that thoughtful or rational, as thoughtful and rational people don’t do such things.  I don’t know whether Ken’s threat to make them pay is going to change their behavior.

In fact, my concern has shifted to Ken.  Not only did he take on the responsibility of standing up for target of that awful cease and desist letter, but he’s now taken on the responsibility of telling the craziest of his adoring fans that they’re not friend of his. This is an incredibly risky thing to do, particularly as they’ve already demonstrated that they lack the sound judgment to conduct themselves appropriately and rationally. Whoever thought it was a good idea to send a video of a kids school, a disgusting and reprehensible threat, could easily shift from adoration to hatred.

Beware the love of the masses on the internet.  There are people around who are dangerous, who don’t think clearly and can’t conduct themselves lawfully and properly.  And as much as they may love you one moment, they can turn on you the next. 

That Ken took the risk of standing up to his own adoring fans who went off the deep end shows the depth of his fortitude, a very admirable trait.  I hope that it won’t come back to prove the adage that no good deed goes unpunished.  And should that happen, I hope that his friends, his admirers, of which I am one, will not let Ken stand alone.  He did the right thing, both in his response to the letter and his confronting the crazies. But he took a great risk in doing so. Don’t let Ken stand alone.

At Concurring Opinions, visiting Penn State lawprof Erica Goldberg writes about the unfortunate and intellectually bankrupt intersection between free speech and content on campus. 

Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom.

Scholars love free speech.  Absolutely adore it. Unless it touches on a subject they don’t like, or supports a position with which they disagree, or hurts someone’s feelings, in which case they lock arms and scream to ciminalize it. 

Goldberg, who has demonstrated a penchant for both clear thought and strong and consistent beliefs, calls it out.  After her stint at Co-Op, I’ve really come to appreciate her views, though her writing is a bit too thick and heavy for a simple trench lawyer like me, but that’s the price I pay to be a Philistine who reads scholars.

Goldberg runs through a litany of campus hypocrisy, where every time the content of speech is deemed unpleasant to delicate academic sensibilities, the vaunted right of free speech gets tossed on the funeral pyre and the campus shows up at the speaker’s door with pitchforks and torches. 

What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?

Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.

It looks pretty ugly when someone puts it altogether in one place, right?  Perhaps one can explain it away, or pretend it doesn’t happen, relying upon the old standby “isolated incident” defense, but the reality as reflected in Goldberg’s laundry list is that it’s a pervasive problem: There is no place where speech is more at risk than on campus.  There is no group for whom the sacred cows trump free speech than academics.

Goldberg concludes by confronting the free speech hypocrisy that pervades academia head on:

It is almost irresistible to censor those with opinions one finds particularly odious or wrongheaded. That is why speech advocates are often wrongly accused of being partisan. The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus.

At PrawfsBlawg, Howard Wasserman recognizes the validity of Goldberg’s point (with the caveat that it’s nothing new, which of course is true but fails to address the fact that it’s not getting any better, and appears to be getting worse).  He writes:

Finally, my conclusion from Erica’s last sentence (quoted above) is that we’re never going to be able to stop worrying about the state of free speech on campus (or anywhere else for that matter). The free speech principle is inseparable from the content of the speech being protected. And not only in the political realm, but also in the legal realm. Consider how often courts, in the course of protecting especially heinous speech, find it necessary to include some disclaimer either disociating itself from the speech or taking a potshot at the speaker.

Does this suggest that all those brilliant scholars, working within those Ivy covered buildings, are just too fragile to be expected to overcome their own hypocrisy, disingenuousness and cowardice?  Are they such slaves to political correctness that their delicate ears can never hear impolite words? Are the students who suffer lives ruled by their political ideology doomed to silence?

Apparently so. 

Free speech has come under massive assault of late, with legislatures passing anti-bullying laws criminalizing speech based on hurt feelings as the latest cure-all for low self-esteem.  But nowhere is this as bad as our bastion of intellectual pretense, academia.  Campus speech codes (not to mention notions of basic due process) are at monumental risk of turning any politically incorrect utterance into cause for imposition of the academic death penalty. 

Where are the scholars who stand up for the right to speak, even if they despise the content?  Meet Erica Goldberg.  And what of the ones who shrug and say that people have always conflated the right to speak with the content, so get used to it?

It’s perfect fair, and understandable, for someone to say that they despise a speaker’s content. ideas as manifested in speech can be wonderful or reprehensible. But the solution isn’t to silence ideas you despise, but to talk back and overcome bad speech with good speech. Yes, speech can hurt someone’s feelings or denigrate a beloved ideal, but even academics can toughen up a bit and stop sacrificing free speech on the alter of happy thoughts. 

There is no excuse for this hypocrisy from those who lay claim to intellectual superiority.  Everybody does it is not an excuse. 

The  Toronto Star has conducted an extensive investigation and discovered a outrage. Cops lie. I know, shocking, right?

The first time Toronto police Det. Scott Aikman deceived the court, a judge denounced his “misleading” testimony and threw out a cocaine charge against a man.

The second time, Det. Aikman’s story explaining why he and his partner searched a minivan led to the acquittal of four suspects accused of masterminding an international credit-card data-theft ring.

Aikman “either fabricated or concealed evidence” to justify the van search, the judge said. The four suspects, charged with a total of 321 offences, walked free.

The lede is good for a laugh.  The first time?  Or the first time he got caught?  On the other hand, at least the judge didn’t sigh, shut his eyes as tightly as possible and let it happen.  In a companion article, the Star describes the problem of how lying police “thwart justice”:

Visibly nervous, papers shaking in their hands, Toronto police officers Jay Shin and Joseph Tremblay testified under oath that they stopped Delroy Mattison’s Chrysler Intrepid on the afternoon of July 18, 2011, because they saw him using a cellphone.

The officers were lying, just not very well.

In Mattison’s trunk that summer day were a stainless steel .357 Smith & Wesson revolver and 31 bullets. Mattison, who had a previous conviction for armed robbery, was on his way to a drug deal. Under the law, these officers needed a reason to stop and detain Mattison. Without one, they would never have found the gun.

The problem is they never seized a cellphone or noted the existence of one in paperwork filled out at the scene.

The message sent is significantly different than the message received.  Rarely do we find officers “visibly nervous, papers shaking in their hands.”  If only this was the case.  The cops who is nervous is either a rookie or suffering from bad sushi. The norm is clear, concise testimony presented with assurance and aplomb.  It just happens to be a complete lie, but they feel no qualms about the fabrication as they are certain they are on the side of truth and justice.  After all, the defendant is guilty and it’s their job to make sure he gets convicted. What’s another lie to make justice happen?

The irony is that we rely on oaths, as if we are still living in the Victorian era.  Police officers take an oath of office, swearing to uphold the Constitution and the laws of their jurisdiction.  On the witness stand, they swear to “tell the truth, the whole truth, and nothing but the truth.”  And we, in our manifest naïveté, pretend that means they’re going to tell the truth.  

Because why?  They will feel just horrible for lying on the stand?  They won’t sleep that night?  They will have betrayed the higher being who guides their moral compass?  Grow up.

 A nationwide Toronto Star investigation shows judges are frequently finding that police officers lie under oath. The dishonesty comes with little consequence to the officer, particularly in provinces such as Ontario where there is no law or policy requiring a prosecutor or police force to investigate the courtroom conduct.

This is what passes for shocking news in the 51st State.

“The credibility of a police officer is sacrosanct. Our entire profession is based on the principle that police officers will act and be held to a higher level of accountability,” [Edmonton Police Chief Rod] Knecht told the Star. “Every instance of deceitful behaviour damages the collective reputation of police everywhere. Once damaged, that reputation is hard to restore.”

See how easy it is to say the right words, like sacrosanct?  By reassuring everyone that he would never, never, tolerate deceitful behavior, we can all breath a deep sigh of relief, confidant that the problem is solved.

Of course, it’s not always easy to know that a cop lied, even when some point-headed liberal judge says so.

At the Toronto force, Chief Bill Blair would not be interviewed. His spokesman, Mark Pugash, accused Star reporters of bias and said “your story cannot be taken seriously.”

“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said. “The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.

“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings.”

No reason to note the curious juxtaposition of the ease with which the guilt of defendants is assumed, while a cop lying is unprovable in the absence of video from twelve separate angles plus the Pope as a witness.  But then, that’s because the credibility of cops is sacrosanct. 

To its great credit, the Star’s series raises the public consciousness of two perpetual and foundational problems with the criminal justice system, that cops lie and that nothing is done about it.  At best, the occasional defendant walks, which hardly provides much of an incentive to the police witness to tell the truth since he doesn’t suffer personally from the outcome and doesn’t change the outcome for the 100 times he got away with it.

On the bright side, this comes from Canada. It’s not like it could ever happen in the United States, where we have the best legal system ever conceived. I know this because it says so over the door. Aren’t we exceptional?

H/T Canadian Olympic curling hopeful, Ed at Blawg Review.

At An Associates Mind, Keith Lee discusses a shift in the expectations of those nice people who get to decide whether a criminal defendants goes home or spends his life in prison. No, it’s not about libertarian tendencies, or love of freedom.  It’s not about the compulsive need for order and submission to the shield. If only it were that easy.

“If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.”

November 2008, Lord Chief Justice of Great Britain, Sir Igor Judge.

What do Millennial jurors wants? They want you to put on a show! Not just any show, but one that conforms to their attention span, their love of video; their inability to sit and pay attention, their inability to hear testimony and process it sufficiently to either understand its significant or question its gaping holes.  They want to be entertained.

Based on a post at Legal Skills Prof., Keith points out, correctly, that trials are, and always have been, theater. While the meat of the trial is testimony, the garnishes include everything we can muster to enhance the strength of our positions and diminish its weaknesses. He raised the “nerd defense” of putting eyeglasses on street thugs. It runs from dressing the hipster defendants in cardigan sweaters to having an alleged rapist sit next to a woman at counsel table. There is no denying the theatrics.

But then, that’s not the type of show Gen Y wants to see.

Droning on about the facts in front of a jury composed of mostly Millennials isn’t going to cut it. In an ideal world it would. Jurors would still still and be attentive, carefully weighing the arguments and evidence as it is presented. When you find such a place, call and let me know.

In the meantime, Millennials will be sitting in the jury box, twitching, unable to check the smart phones lest the judge catch and reprimand them. They probably resent being there. They’re looking for something to engage them and hold their interest. Something to make them forget where they are and capture their attention.

Despite our best efforts, droning on about the facts in front of the jury is the main event.  And don’t think for a second that we can’t see the jurors shifting about in their seats, desperate to get out of the box.  If someone accidently made the new twit sound in the courtroom, the box would explode and jurors would start having seizures.

The problem isn’t that we don’t know that the Slackoisie are sitting in those uncomfortable chairs. The problem is what to do about it.  And the problem is exacerbated for the criminal defendant, as we don’t control the case in chief, and often have no real idea how the prosecution intends to put its case before the jury until it happens.  Civil lawyers are always astounded by the fact that they get discovery that dwarfs by magnitude what is provided the criminal defense.  We go in, essentially, blind. It’s hard to prepare a video to counter the mystery of the prosecution’s case.

The easy answer is to smack the Millennials around, tell them this isn’t a television show (or is that already an archaic reference?) and the evidence upon which they will have to reach their verdict will be presented primarily by words. They may not like the idea of sitting around, passively listening, for days on end, but that’s the deal.  Suck it up.

But the better solution isn’t to be right, but effective. (h/t Bill Henderson)

The desires of the Slackoisie presents a huge advantage to the prosecution. They choose the case. They present the case in chief, and know how they’ve going to put their evidence in beforehand. They have the wherewithal and opportunity to create a show that appeals to the sensibilities of the Slackoisie, and the favors of the judge to allow them the latitude to do so.  As if they needed another advantage at trial.

The defense rarely has much of a case to present. Witnesses? If only. Experts? On the rare occasion the defendant can afford to retain one, it’s even rarer that the case calls for one.  We are left to poke holes, to point out inconsistencies, to exploit the mistakes when and where we find them. And until the words leave the prosecution witness’ mouth, we usually have no clue when the opportunity will present itself.

Prepare a video? Of what? Without witnesses, the only opportunity to use it is on cross, and no one ever really knows what will come out on cross beforehand. One errant word by a witness, or worse yet, one truthful word, and our whole preplanned attack collapses.  Planning is a wonderful thing, but it’s not as if we have any control over the other side’s witnesses.  If there’s anything that defines the criminal defense lawyer, it’s tolerance for ambiguity and the ability to shift gears on the fly.

The host of reasons why this won’t come easily is long, but none of it changes the desire of the jury to feed it information in the small and interesting bites demanded.  While it’s sad to say that droning on is what we do best, it’s usually all we’ve got.

As posited by Dr. Mary Noffsinger in her Texas Law Journal article, The Millennial Juror,

Verbally presented messages should be accompanied by demonstrative exhibits (e.g., photos, videos, illustrations), which foster improved attention, reduced boredom, enhanced memory, increased credibility, and entertainment value.

Speaking in “sound bites” and utilizing technology is more important than ever with Gen Y jurors, given their tendency to process information visually and rapidly and the likelihood that elaborate explanations and protracted arguments will make them bored and impatient. Adopting an interactive style helps to empower these digital natives as listeners and learners.

If true, and I believe it is, we’ve got a problem. Frankly, it’s unclear whether the nature of a criminal trial offers the defense any solution.

My old pal Niki Black took time off from singing the praises of clouds to post at  Sui Generis about a New York State Bar Association ethics opinion on lawyers being mean to other lawyers.  For you sad people who aren’t New Yorkers, bear in mind that the NYSBA is a volunteer organization with no power whatsoever over anyone.  Unlike other jurisdictions, lawyer licensure and discipline is handled by the state, and the State Bar is only good for an occasional party, a CLE about the fabulous value of SEO and a way to sink money into a black hole of utter worthlessness. 

Still, the folks who like to join organizations like the State Bar and pretend that makes them matter have a Committee on Professional Ethics, where people can ask questions and they provide answers as if their thoughts on the issue matter.  As Niki notes, they recently hit on an  interesting ethics issue about blogging.

The question posed was:

May a lawyer host or participate in an internet blog established as a forum for lawyers to recount their experiences in dealing with an adversary whose past professional conduct is considered by them to have been unethical, harassing or abusive?

Seriously?  Someone thought it worth their time to establish a blog for the sole purpose of beating the crap out of another lawyer?  And others thought is sufficiently worthwhile to join in this endeavor?

The Committee’s response was short and to the point:

Assuming that the blog criticism is sufficiently accurate and in context not to run afoul of Rule 8.4(c), the question is whether there are any limitations arising from Rule 8.4(d) on a lawyer’s factually sustainable public criticism of another lawyer.  We believe there are none. 

Rule 8.4(c), as everyone knows, prohibits lawyers from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentations,” and we know that would certainly never happen on the internet, where honesty and integrity invariably prevail.  The Committee throws in a caveat about using nasty language to attack a colleague, which it notes is “aspirational” and reflects a deep concern for those sensitive eyes and ears that flinch too readily.

There’s one huge issue with the Committee’s response, and they know it.

Rule 8.3(a) imposes a reporting requirement upon a lawyer who “knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.”  To the extent that the negative information to be published about an attorney’s professional conduct is both significant and truthful, Rule 8.3(a) may require reporting such misconduct to a “tribunal or other authority empowered to investigate or act upon such violation.”

If there is a lawyer out there who’s conduct is so “unethical, harassing or abusive” that it warrants a blog for the sole purpose of providing a forum for lawyers to “recount their experiences,” then we have a more serious problem than whether the blog is ethical.

Are you people nuts?

Lawyers are perpetually accused of lacking the guts to out unethical practitioners within the profession, clucking about how bad some other lawyer is while being too chicken to grieve for fear that their fellow lawyers will think ill of them or that they live in a glass house.  There may well be a very real question as to whether another lawyer’s conduct is so horrific that it merits a grievance, and we shouldn’t be rushing to file complaints about others just because they pissed us off on a case or called us a mean name (unless you’re a very delicate flower, in which case you might consider getting an office next to the appellate division).

But when a lawyer’s conduct is bad enough to justify a blog dedicated to how much you hate him, it’s time to put on your big boy pants and do something a bit more meaningful about it.  We have a duty under Rule 8.3(a) to report our own, when there is a “substantial question” about the lawyer’s honesty, trustworthiness or fitness to practice.  If he’s blog-worthy, my guess is a substantial question exists.

The issues raised are foundational.  Don’t lie. Don’t deceive. Don’t misrepresent. Do lawyers really need to be reminded of this?  Or is this about using the internet, the “truth-free zone” where anything goes and anybody can say anything, whether about themselves or others?

Or is this a question about whether lawyers are weenies, telling the truth but fearful that saying mean things will violate the rule against being a hater?

As is often noted, the internet is nothing more than a tool, an additional (even if cool and addictive) piece of equipment in the lawyer’s arsenal.  It has nothing whatsoever to do with alleviating the obligation to act with integrity in all aspects of our conduct.  By the word “all,” I mean even on the internet.  Whether it’s to criticize that which demands criticism, or to tout that which might leave a reader confused as to the truth, the rules prohibiting “dishonesty, fraud, deceit or misrepresentations” are every bit as applicable to your online existence.

Do you really need to inquire of an ethics committee to know that, as a lawyer, you need to tell the truth?  And if some other lawyer is so utterly awful that you need to create a blog to show how much you hate him, then for crying out loud, protect the public and grieve about him. If he’s not that bad, then say your piece and find something more worthwhile to write about. 

When Arizona decided to put an end to people who spoke with accents sullying the manicured lawns of their fine retirement communities, there was an uproar.  After all, a law predicated on imposing a mandatory police duty of ascertaining citizenship status from people who police “reasonably suspect” are illegals is, well, pretty darned outrageous.

Enter the Supreme Court to save us.  Oral argument in Arizona v. United States (and case names are rarely this clear) was held, and we can all breath easier, even Justice Sonia Sotomayor who was reportedly required to show proof and answer a few easy American history questions before being allowed into One First Street.

According to Adam Liptak at the New York Times, things didn’t go well.

“You can see it’s not selling very well,” Justice Sonia Sotomayor, a member of the court’s liberal wing and its first Hispanic justice, told Solicitor General Donald B. Verrilli Jr., referring to a central part of his argument against the measure.

Mr. Verrilli, representing the federal government, had urged the court to strike down a provision requiring state law enforcement officials to determine the immigration status of people they stop and suspect are not in the United States legally.

It’s not that the questions from judges suggested that blond hair and the first name of Sven was cause to hold a guy for a check.  Rather, the case before the Court was about the Supremacy Clause and federal pre-emption.

The Arizona law advances what it calls a policy of “attrition through enforcement.” The Obama administration sued to block the law, saying it could not be reconciled with federal laws and policies. In legal terms, the case is about whether federal law “pre-empts,” or displaces, the challenged state law.

As a general matter, federal laws trump conflicting state laws under the Constitution’s supremacy clause. But no federal law bars the challenged provisions of the Arizona in so many words, and the question for the justices is whether federal and state laws are in such conflict that the state law must yield.

While the federal government owns immigration policy, Arizona’s point is that it’s law is consistent with federal law and policy, and just helps it along by making reporting of illegal aliens mandatory rather than haphazard.  The 9th Circuit held the law pre-empted, and Arizona (along with 25 other states) disagreed.

While federal pre-emption is one way to kick the crap out of state immigration law that will cause misery on the streets of Phoenix, assuming the Supremes go along with their dear brethren in Frisco, the absence of another monumentally significant issue from the case is astounding.  The Supreme Court is considering the propriety of a law that is hugely controversial and will, by definition, cause huge misery to a great many people whose names end in vowels, and yet isn’t considering this aspect at all.

It’s not that the Court doesn’t see the issue.  It’s not that the Court lacks empathy (though whether it has empathy remains a question).  It’s that procedurally, the only issue before it at the moment is federal pre-emption.

Indeed, Chief Justice John G. Roberts Jr. signaled that the court was not closing the door on such a challenge, making clear that the case…was about the allocation of state and federal power. “No part of your argument has to do with racial or ethnic profiling, does it?” he asked Mr. Verrilli, who agreed.

As lawyers, the procedural limitations imposed by the issues for which certiorari was granted makes perfect sense. We’re schooled in the ability to distinguish issues, to wear blinders that allow us to focus on a specific aspect and not notice the 800 pound gorilla sitting next to us.  But cases like this suggest that our facility in ignoring gorillas is pretty ridiculous.

Assuming, as Liptak suggested based on oral argument, that this didn’t go well for the United States and the justices aren’t likely to affirm the 9th Circuit’s pre-emption ruling, the Arizona law will go into effect.  No one has yet to suggest what aspect of rounding up folks who cops “suspect” to be illegal aliens is going to fly, whether because they speak with an accent (or no English at all), have dark colored skin, slanted eyes or black (or blond, for that matter) skin. 

Does that make them aliens? Does that make them illegal? As a nation of immigrants, we’re all at risk, but you can bet they won’t be narrowing in on guys named “John Smith” who speak the King’s English for proof of citizenship.  As for the rest of you, well, suck it up in the name of immigration purity.

But it will be years before the case gets back before the Supremes to determine whether the law is so ridiculously unenforceable without engaging in rampant and rank racial and ethnic profiling.  And during those years, human beings will suffer. That it’s going to happen is obvious, even to Justice John Roberts, who was allowed into the courthouse without having to show proof of ancestry or answer any questions about who won the 1948 World Series.

During the hiatus, how many people will be snatched off the street by Arizona cops for having dark hair or the wrong inflection?  We know this will happen. We know this presents a massive problem, an enormous evil, and yet the Supreme Court heard argument on the validity of this very law without hearing a word about it.

Another guiding force in the utility of the legal system is judicial economy, not wasting the court’s time even though procedure might dictate the contrary.  To what end does the Court ignore the 800 pound gorilla (who will likely be incapable of proving citizenship) hearing argument and rendering a decision on a law like this? 

The law has come before the Court. The law has massive issues, and should it not be pe-empted, will cause substantial harm to a great many people.  And the Court could stop it before it happens, pre-empt the harm if you will.  Yet not a word was spoken about it, as if the tens of thousands of people who will most assuredly be seized to prove their worthiness of being in Arizona don’t matter at all.

A call came in a few days ago from a young lawyer who was feeling kinda lost.  His question was simple: How do you do it?  The background to the question was key.  He was trying to do his job, to play by the rules, to represent his clients competently or better, and get them something reasonably close to a fair shake.  The problem was the judge wasn’t playing along.

He had taken the responsibility of a shift in one of the new-fangled specialized courts, designed to move humans through the system like cattle by eliminating all the time-consuming niceties, like conferring with defendants before pretending to stand before a court and represent them, like arguing their cause and having a judge give the argument fair consideration. 

The judge gave the young lawyer a second or two between meeting the defendant for the first time and going through the motions of representation.  The judge then sent the defendant to jail, one after the other, which is where he intended to send them when he started his day and where they all ended up when the day was done.  Quick, easy and eminently efficient.  A fine day’s work.

The best advice I could offer the young lawyer wasn’t much at all.  He could throw a monkey wrench into the well-oiled machine designed to incarcerate people as quickly and painlessly (for the system) as possible by refusing to play along. He could inform the judge that he could not speak to the defendant’s case as he had not had a sufficient opportunity to speak with the defendant, and until he did so, he would not stand next to a human being and pretend to be his lawyer. 

The young lawyer sighed, fully understanding that such intransigence on his part would both get him into deep trouble with the judge, and replaced in the courtroom.  Some criminal defense lawyer would happily earn a day’s pay for being a part of the machinery of incarceration.  After all, it’s all about getting paid, and it’s not like defendants are really people.

There is nothing as frustrating and disheartening as the intransigent judge.  Get a bad one and the system becomes a farce.  Get a reasonably intelligent bad one and they can cover their tracks sufficiently to assure that they have destroyed any chance at fairness, at due process, while providing a sufficient appearance to get them past appellate review.  As if an appeal is a sufficient remedy.

Judges are supposed to be honored.  But then, they are supposed to be honorable.  Some are. Some are less so.  Some are just brutally awful.  Get wheeled  out to a really bad one and try to figure out a way to make sense of it to a defendant.  It’s easy to explain that he had the monumental misfortune of getting a hanging judge, but it’s never sufficient.

There is no good explanation why the person wearing the black robe see the job as making sure every defendant goes down.  That they will not get a fair chance. That they lost before they began. That there is nothing to do about it.

I’ve been there. We’ve all been there. I envy jurisdictions where they get a one free request for a different judge. 

My advise to the young lawyer was to try, even though it was doomed to failure, because there was no other option.  We can’t give up and walk away, any more than a defendant has the option of saying never mind and going home.  And there is nothing that will change the frustration, the outrage, of knowing that another judge would have given a defendant half a chance, but this judge won’t.

What I often wonder is what the other judges think about all this. I remember a friend who went rogue and became a judge telling me about another judge who was intransigent.  He was more prosecutor than the prosecutors, and never apologized for using his bench to push his agenda. My friend was well aware of the problem, and told me that they all knew what he was up to but could do nothing about it. 

What he meant was that nobody was willing to take him on and risk their own position. Nobody wanted to make enemies, and nobody believed it was worth it.  I told him he was a coward, and he told me I was naive and foolish. What good would it do for good judges to make waves and put themselves at risk, leaving only the bad judges on the bench?

I’ve never been able to come up with a solution for this problem, and my advice to the young lawyer was, frankly, pretty worthless.  Just keep fighting, I said. And losing, but I didn’t say that part. His head already hurt badly enough from banging it against the wall, and there was no reason for me to make his head hurt worse.

Soon enough, I’ll have to tell another defendant that he drew the wrong judge, and he’s screwed.  He’ll ask me what can be done, and I’ll tell him nothing.  We’ll fight, I’ll say, and fight hard.  But it won’t matter. The harder we fight, the more the intransigent judge will create excuses for the cops and prosecutors, and cover up whatever failings happened in the vague rhetoric of discretion and deference. It can take some effort to make sure a defendant hangs, but they’ll do it because that’s what they do.  The intransigent judge will not be moved.

The only answer I’ve ever come up with is to keep fighting, because it’s the only thing we can do.  And even old lawyers feel the pain of banging their heads against the wall, and frustration of explaining to their clients that they’re screwed.  It never gets easier.




 

It’s a fiasco all around.  And yet, it’s as American as apple pie.  When the  New York Times broke the story of rampant bribery at Wal-Mart’s Mexican subsidiary, the dreaded Foreign Corrupt Practices Act went from being “reformed” to being the primary weapon in the war against the dreaded Wal-Mart.

The allegations cover all the bases. There were $24 million in bribes paid to locate stores in Mexico, where Wal-Mart is hated for undermining local businesses, the claim being that for every job Wal-Mart created, four were lost in business that died in its shadow.

When the company became aware of the bribery, and its scope, it quelched the investigation. Then Wal-Mart became a righteous force in FCPA reform. Then, when it learned that the news was about to break bigtime, it reported itself a mere six years too late and denied that it reflected “who we are or what we stand for.” 

Wal-Mart stands for business. Wal-Mart stands for cheap products, cheap prices, an efficient supply chain and making money. Not necessarily in that order.  Wal-Mart stands for America, now more than ever.

As Walter Olson noted in his Cato post, Wal-Mart’s biggest problem here was that it didn’t even bribe smart, opening itself to charges when, had it smurfed its bribes, nobody would have broken a sweat.  He notes, via Stephen Bainbridge, that honest companies are burdened by FCPA, while dishonest ones violate it anyway.  He notes that efforts to take this mutt of a law and attempt to reform it, at least to the extent that it not make American multinational corporations chose between being criminals or uncompetitive, is dead.

It’s enormously hard to be sympathetic toward Wal-Mart, whose history of corporate behavior has been unsavory, to say the least.  But Wal-Mart is huge, and the costs associated with these charges, from internal investigations to defense to likely fines will dwarf the alleged $24 million in bribes.  On the other hand, the dirty little secret of doing business, certainly internationally and, if one doesn’t become a slave to rhetoric, at home as well, is that everybody has a finger in it and wants their piece of the pie.

This could well be the clash of the titans that America needs to come to grips with reality.  The Foreign Corrupt Practices Act is the corporate version of blue laws, a reflection of American idealism born of our Puritanical origins, our Pollyanna-ish denial of how the sausage of business is made, our jingoistic belief that we are so integral to the economic functioning of the world that we can dictate a cultural and moral code for everyone, and they can either comply with our great American will or suck eggs. 

It’s a fantasy of self-righteousness, and even Wal-Mart got caught in the reality that the business of business is business, and not puffy-chested Americans can bully Mexicans into succumbing to our moralistic ways. 

It would be a wonderful world if businesses weren’t told to hand over the cash, or a Ferrari, or whatever some tin-horn local Poobah demanded.  But on their turf, they’re in charge.  America doesn’t own the world, despite our belief to the contrary. Tin-horn local Poobahs don’t care about our Almighty Congress, or the vast power of the Department of Justice. They have their hand out, and if its not filled, you don’t do business on their turf.

The FCPA criminalizes companies that don’t play by the rules of purity, as viewed through the prism of Assistant United States Attorneys, who, in their vast business experience, decide what meets the approval of our Puritan forefathers and what should cost business millions.  Granted, Wal-Mart’s conduct, if true, is so far over the line, both in its commission and cover-up, that there’s no explaining it away. This was a flagrant violation.

Perhaps it’s time for a corporation as large, as important to the American economy, as Wal-Mart to stand up and proclaim:

We did it. We had to do it to do business. We covered it up because there’s a ridiculous, misguided law that says we can’t do it, but we did it anyway.

If you don’t like it, America, Department of Justice, Congress, Judge, we’ll pack up our bags and leave. We’ll close our stores and leave a few hundred million Americans with no place to buy stuff at low prices.  We’ll fire our 2,100,000 employees, and you can put them all on welfare and feed their families.  You’ll have to manage without our sales taxes and payroll taxes and income taxes, so you can pick up the cost of living up to your ideals.

We didn’t pay bribes because we wanted to be evil, but because it was demanded of us. That’s how life works in Mexico. We didn’t like paying the money any more than you do, but we had no choice. It’s not terribly different than contributing to your campaign fund, Senator, if you catch my drift. Or building the new children’s center you demanded in exchange for a variance. You got yours. They got theirs.  And that’s how we get ours.

This is America. This is the world. This is how business gets done. Grow up already.