Turk asked me the other day how outraged I was over potential employers  asking job applicants for the Facebook password.  I think I surprised him when I responded that I agreed with the Deputy Sheriff, Rusty Thomas, who explained:

The Age of Plea is now official.  Not that it wasn’t real before, but Justice Anthony Kennedy put it in writing.

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.  “To a large extent . . . horse trading [between prosecutor  and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is.  It is not some adjunct to the criminal justice system;  it is the criminal justice system.”

This is not merely an acknowledgement of reality, but a tacit condemnation of what we’ve allowed the system to become.  That there is anything controversial about demanding (not merely aspirationally expecting) effective assistance of counsel throughout the process is absurd.  That it subverts the idea of challenging the government by putting it to its proof, a  favorite  of late among scholars, is obvious. That it’s a  necessary evil is similarly obvious, reflecting again how the quest for doctrinal purity by scholars demonstrates their inability to grasp or appreciate the real dynamic of the criminal justice system.

Whether this is seminal or the death knell of the system is a matter of where you stand.  It’s not as if the questions surround plea bargaining haven’t been beaten to death over the years.  That there is any controversy about criminal defense lawyers being competent from start to finish is like poking a hot dagger in my eye.  That Justice Kennedy arrived at the curious split-the-baby remedy of discretionary relief in order to make the “windfall” problem more pallatable is just silly.

But this is all a bunch of silliness, if you step back and take a look at it from a distance.  Not silliness in the funny clown sense, but silliness from the very hard, cold perspective of people’s lives at stake.  We should never have needed a Supreme Court decision to tell criminal defense lawyers not to be incompetent. It is inexcusable that a lawyer fails to convey a plea offer to his client. 

Short of his falling dead of a heart attack on his way to tell the defendant of the deal, it just can’t happen. Ever. Under any circumstances. Absolutes tend to make for poor positions, but I’m going out on a limb here. Never, ever, ever, can this be excused.

The fact that the system has developed into a huge plea bargaining machine, with between 97% in federal court and 94% in state court (see Laffler at 11) of cases resulting in negotiated pleas, is the culmination of a multitude of mistakes made in the effort to achieve whatever the prevailing sense of justice may be at any given moment.  What we learn from a distance is that we’ve created a monster that everybody hates and nobody thinks works very well.  Even the Supreme Court now concedes that a system devised to try cases has been reduced to a system designed to coerce almost every criminal defendant to accept some form of plea and sentence rather than take a chance and pay the price.

The Supreme Court has officially recognized the trial tax as well.  The court noted that the prosecutor, by offering a plea to a reduced charge with a similarly reduced sentence, acknowledged the lower sentence to be sufficient for the crime.  And yet,

In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

With Justice Kennedy’s eyes shut tight, the final nail in the coffin isn’t struck.  If the sentence offered in the plea bargain was sufficient, in the eyes of the prosecution, to satisfy the legitimate purposes of sentencing, then the sentence after trial (“3½ times more severe”) was excessive.  Want to rid ourselves of the ugliness of plea bargaining? Does this not suggest a way out?

And that’s why the Laffler/Frye decisions are silly. They’re stopgap decisions, a half-hearted attempt to fix problems that should never exist. On the one hand, the criminal defense lawyers have no excuse for being incompetent at any stage of the proceedings. On the other hand, a system that coerces nearly all defendants to cop a plea rather than risk the trial tax has turned an adversary system into horse trading, even when the evidence stinks, constitutional rights have been mangled and/or the defendant is innocent.

To put a cap on the silliness, I would be remiss not to mention the “headline” offered by Stephanos Bibas doing his best Doug Berman impression :

Wowza! Oh boy! Court Fryes prosecutors, gives defendants the last Lafler.

If so, why is there so little about any of this that I find pleasing.

A call came in the other day from a young lawyer, Josh Camson, who is chronicling his move from judicial clerk to criminal defense lawyer at the  Lawyerist in a series called “The Shingle Life.” I hate the title too, but Josh is a serious young man who shows great promise.

During the conversation, an interesting issue arose.  As a judicial clerk, Josh has had the opportunity to watch lawyers whose performance was so lackadaisical and mundane as to make him wonder how they ever managed to get a ticket.  The answer, of course, is that they weren’t always that way, concerned only with going through the motions and getting out of there as painlessly as possible.

Young lawyers are filled with zeal, believing that they will be brilliant advocates and rise to fame and glory.  They are smitten by their bright futures. What they aren’t is the bored, dull, routine and careless lawyers who show up in the well everyday, say the ordinary words and walk away.  The ones who don’t care and don’t even try. They just go through the motions.

Josh knew who I was talking about, and asked a great question.  What can I do to make sure that I don’t become that lawyer?

The lawyer who “mails it in” didn’t start out that way. He was just like every other new lawyer, full of zeal and dreams.  He believed, like most other young lawyers, that he could achieve greatness. He cared. He was smart and talented. He was just as grandiose in his self-image as every other young lawyer. Sound familiar?

Today, young lawyers enjoy ridiculing those experienced lawyers who fail to appreciate their brilliance.  We don’t get it. We don’t understand. Of course, they don’t connect the dots, that we were them once, and now we’re them with ten, twenty, thirty years of experience.  If you are so brilliant and zealous at year 1, how did you become such a blithering idiot at year 30?

As proof of their thesis, they point to the mail-it-in lawyers, the ones who have experience but have lost the desire.  Aha! The proof is in the well. And indeed, it is, but not necessarily the proof they think.

Josh’s question got me to thinking, as it’s quite a quandary.  What went wrong between the first time a young lawyer stands up before the court, ready to argue for his life, and five, ten years down the road, when he chants the courtroom plea mantra in the same monotone as he does every other day.

First, not every new lawyer is as smart and talented as he believes.  It’s easy to be full of your brilliance when it’s never put to the test. It becomes far more difficult to live the fantasy when there’s someone with a robe to tell you “denied.”  Nothing kills the dream faster than a harsh dose of reality.

Second, spend time in a courtroom and you meet the guys who hang out there day after day, going through the motions and making the wheels of justice crush people’s souls.  You become friends. You talk. You bond.  They explain to you how the system really works, that no one ever wins and that it’s not worth the effort. They teach you the shortcuts, the moves, the methods that have served them well.  They tell you the secret language of hallway lawyers, that gets them paid and back to their office without breaking a sweat.

You are young, and despite your bravado, realize that the old hands in the courtroom know the great mysteries you were never taught in law school.  You are flattered by their attention, and hang on their every word.  They seem to know exactly what to say when they stand up on their cases, and never miss a beat as the recite the magic words that result in their client being led away in cuffs. And little by little, inch by inch, you adopt their ways.

These lawyers don’t mean to steer you wrong. Rarely do they perceive themselves as mailing it in, but rather playing the game of being a lawyer.  The game becomes a routine, but they still believe they are doing their best, and that their efforts really are for their clients benefit. And indeed, sometimes they are, and they will proudly point to those anecdotes to show that they aren’t pedestrian lawyers, doing as little as possible to make it through the day.

What the young lawyer doesn’t often get to see is the lawyer who doesn’t carry a list of 20 names into court every day, and stand before the court, case after case, repeating himself.  The lawyer who spends most of his day thinking, researching, writing and rewriting, rather than sitting on a hard bench doing the crossword, waiting for a name to be called, is largely invisible to the young lawyer.  It’s much harder to make friends with that lawyer, as he’s in and out, he’s busy, he has obligations to fulfill.  His time is taken up by trying to come up with the way to win the case the other guy pleads out.

Of course, it’s more nuanced, more circumstantial than can be explained here. It varies from lawyer to lawyer, and unduly simplistic characterizations fail to explain the mechanics of how a lawyer with dreams ends up  spending his days in the hallway hoping someone with cash will ask him to stand up on a case.

I doubt my response to Josh was adequate. It was mostly aspirational, that knowing that he doesn’t want to be the lawyer he despises is the best start, and not to allow himself to become so inured to the routine that he wakes up one morning and realizes he’s just mailing it in.  Yet most of the brilliant, zealous young lawyers today will end up doing just that, mailing it in.  I wish I had a better answer.

The tragic killing of Trayvon Martin, a 17-year-old black youth, by white, armed, “community watcher,” George Zimmerman, raises many questions, from racist perceptions, such as looking “suspicious,” to the efficacy of Florida’s “stand your ground” law, permitting someone to kill rather than avoid killing. 

The fact that Zimmerman was roaming around with a gun, whether in search of something suspicious or just to fulfill some macho fantasy, is a problem that goes well beyond this instance. While the focus is usually on police officers who use needless force, as its more likely to be a cop than a Zimmerman who does the damage, the dark side of the legal carry crowd can’t be ignored.

When  Joel Rosenberg was alive, he would be the first to argue that men and women who were lawfully allowed to carry handguns, properly trained, would provide an extra hedge against crime and a calming influence on violence.  If a perp feared that the person he was about to attack was armed and ready to act, he would be less inclined to take a chance.  On the other hand, if a legal gun carrier happened upon a person’s life being threatened, and there was no cop in sight, his gun could prove the difference between life and death. All good things.

What nobody really wanted to talk about was the Zimmerman effect.  That there were people who had nothing in their background that precluded their obtaining a carry permit, who superficially appeared sufficiently sane to be allowed to possess deadly force, and relished the opportunity to do so.  When Joel described the carry crowd, they were all good, solid people, more like inchoate heros than potential killers.  As the t-shirt Joel sold for his licensing business said, reluctant participants.

Not every person who carries a gun is quite so modest.  When they also carry a shield, there are other implications worth considering. They are trained. They are supervised. They are subject to certain scrutiny, both before they pull the trigger as well as the moment they do.  This is not to say it always works out as planned, but that systems exist to theoretically keep a close watch on the use of deadly force by police. 

When it comes to citizens with guns, there’s some scrutiny at the outset and some scrutiny if a bullet from their gun lodges in the body of another. Between those points, no one knows they exist. 

Given the circumstances of Trayvon Martin’s death, and the evidence surrounding it, things aren’t looking as good for George Zimmerman now as they did when the local police decided not to arrest him for the shooting.  He’s suddenly under the microscope, and isn’t bearing out terribly well.  After going through some minor criminal history, the Baltimore Sun notes that:

His father, Robert Zimmerman, told the Sentinel that George, the third of four children, is a former altar boy. And he insisted his son is not racist.

“Anybody who knows my son knows and routinely tells me that they don’t believe one thing of what’s reported in the media,” his father said in an exclusive interview last week.

* * *

Zimmerman expressed an interest in law enforcement when he applied to the Seminole County Sheriff’s Office citizens’ law-enforcement academy in 2008, and has demonstrated that, although he’s not a cop, he is willing to take action that resembles policing.

In 2003, records show, he pursued a 24-year-old Lake Mary man he had seen shoplift a 24-inch TV from an Albertsons supermarket, following the suspect’s car until a deputy arrived. The next year, he followed a man who he claimed had spit at him while driving.

It doesn’t appear that Zimmerman was a white-hooded racist. But there he was, a neighborhood watcher in a mostly white community acting out his law enforcement fantasy, with the nagging suspicion that a black teen was more likely up to no good than not.  More of any ordinary white guy, inherently suspicious of blacks but not so overtly so as to make him stand out among others of his ilk.  Just routine, everyday, banal feelings about race. Nothing special.

Except he had the toxic mix of being a cop wannabe, waiting for the moment when he could be a law enforcement hero, the inherent racism that most of us deny but carry around somewhere in the back of our head, and a gun.

Another neighbor, 55-year-old Frank Taaffe, defended Zimmerman as “not a racist.”

Taaffe, a marketing specialist who had been a watch captain with Zimmerman until December, said he may have been “overzealous, maybe,” but “his main concern is the safety and welfare of the community.”

He said Zimmerman had been doing watch patrols for about a year and was a stand-up guy who was diligent but did not have a fanatical demeanor.

Curious how neighborhood watch-types adopt military rank, which could be explained as a way to effectively organize or a way to pretend they’re the last defenders of their way of life.  The description of Zimmerman as “overzealous, maybe,” must raise eyebrows now, but didn’t trouble his watch captain before.  After all, when the main concern is the welfare of the community, much can be forgiven.  Maybe even the killing of a black teenager.

Mistakes happen, of course, though they seem far more likely to happen with an armed white guy killing an unarmed black teen.  With Zimmerman following Martin because the latter struck the former as suspicious, maybe even confronting him about what Martin was doing in Zimmerman’s community, it would have carried no less racial overtones.  This sort of thing happens everyday, but no one hears about it because both walk away, angry and offended, when it’s over.

Not so when the neighborhood watcher has a gun and decides that this is the moment he’s been waiting for, the chance to use it.  Things don’t always work out the way Joel hoped they would, and the guy with a gun but no shield can kill someone just as effectively, and just as wrongly. 

It could have been over in a flash.  After word broke of the Department of Justice fiasco that resulted in the conviction of Alaska Senator Ted Stevens, and the massive, concerted failure of the United States Attorney to disclose to the court and defense the exculpatory and impeachment evidence that mysteriously never surfaced, the DOJ “fixed” the problem.

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public.

appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Shuelke’s 525-page report was released, over the loud objections of DOJ lawyers.

– unawareness of the existence of the Brady/Giglio information;

– denial that some information was exculpatory;

– forgetfulness;

– Agent Kepner’s failure to write an FBI 302 of Mr. Allen’s interview on April 15, 2008;

– failure to review their notes of that interview;

– failure to scrutinize important source documents;

– a rushed and unsupervised Brady/Giglio review;

– delegation of the Brady/Giglio review to FBI agents and to other

– prosecutors unfamiliar with the case;

– the compressed trial schedule: 52 days between arraignment (July 31) and the start of jury selection (Sept. 22);

– reliance on the judgment of others;

– failure to supervise;

– micro management of the trial by DOJ’s “front office”; and

– inexperience and lack of Brady/Giglio training

Missing from the list is the most obvious explanation. No one thought they would get caught. And indeed, getting caught is at the core of all Brady/Giglio failures, since the defense (and the court, maybe) only learns about what it should have been given but wasn’t because someone spills the beans or by pure happenstance. If it happens at all, it’s during trial (when recognition and use of Brady/Giglio is at best limited and at worse too late) or after a conviction, when the burdens have flipped.

Mason notes some of the more disengenuous aspects of the government’s excuses.

First, there is no excuse, in my mind, for the FBI’s refusal to record witness interviews.  The FBI is one of the last holdout agencies in this regard, and I have never gotten a satisfactory answer as to why.  Here’s one that an agent once told me (I assume he had heard this at some point in a training lecture):  “When an FBI agent raises his hand and swears that something happened, that should be good enough for any juror to believe that it happened.” 

I can almost hear J. Edgar Hoover saying these words. I can picture him wearing pearls as he does, but that’s just me.  This is the zealots creed, where nothing should stand in their way as they serve Justice, and are entitled to get there any way possible. 

The FBI’s (and other federal law enforcement agency’s) refusal to record interviews is long-standing travesty. They have the ability to do so, obviously, and deliberately refuse, so that the only “record” of what was said is the agent’s recollection. It’s essentially impossible to dispute. They know it. We know it. The courts know it. And yet, it remains blessed.

And it’s worse: the government decided to get tightfisted with discovery and not do full-file discovery (as many US Attorney’s offices and DA’s offices do).  So that meant that the government now had an obligation to go through all its evidence and identify everything that might reasonably be of value to the defense—whether negating the charge or impeaching a witness.

Curiously, Mason adopts the government’s claim that this was just one big accident, born of a thousand small errors. It could be based on his former position as prosecutor, as every critique of prosecutorial conduct is required to include the standard caveat of how they are honorable, wonderful, well-intended folks. To entertain the notion that they knew what they were doing and did it anyway is not permitted, as that would mean they are malevolent and dishonorable. Better stupid than evil, though they smarten right up when it comes to everything else they do.

Based on these generic overarching views, Mason suggests that the fix is easy and obvious, that all interviews be recorded and that all prosecutors provide full-file (also called open file) discovery.

Seriously: if you want to get an order of protection for something that needs to be kept secret, go to the judge and get it.  But otherwise, turn over the file.  All of it.  If you can’t win your case with full-file discovery, then you’re in the wrong line of work.  That is, if the government couldn’t convict Stevens with Allen being impeached with the April interview and with the Bambi affidavit, then they should either have dug up some better evidence or dropped the case.  

His point is well-taken. The government still argues, routinely, that they would be unduly prejudiced by disclosure. It’s a totally irrational argument, as if what they contend to be the evidence, the facts, becomes less factual by revealing it to the defense. The real fear is that providing hard information to the defense allows the defendant to prepare, to investigate, to challenge, and thus makes it harder to sandbag the defense at trial.  This is the “level the playing field” argument, a bizarre fallacy that courts blindly embrace.

Completely missing from the disease, and hence the cure, is one critical factor, that one almost no one in government (any branch) is willing to utter. The government (by which I mean agents and prosecutors) sometimes lie, conceal, manufacture, fabricate. Whether it’s intentionally malevolent or rationalized by zealous righteousness doesn’t matter. The result is the same.

Perhaps Mason’s cure would help somewhat if we lived in the fantasy world where all the government’s men (and women) were honorable and well-intended, unconflicted and prepared to see a crime unresolved for the sake of fairness and adherence to the law.  But we don’t.  And even now, after a 525-page report, no one will admit it.

What could go wrong?  Remember that numbskull who ran the red light and almost killed you? In West Virginia, all you need do is whip out your handy-dandy smartphone and click. That’s right. There’s an app for that.

West Virginia has launched a smartphone app that’s one part clever crowdsourcing and community engagement and one part sinister report-on-your-neighbor Big Brotherism. The Suspicious Activity Reporting Application is exactly what it sounds like. See something that looks like a violation of the law, no matter how insignificant? Snap a pic, tag it with GPS, and anonymously report it to the state. Parking illegally will never be the same.

Developed as a project between the West Virginia Department of Homeland Security and Emergency Management and the West Virginia Intelligence Fusion Center (yes, West Virginia has an Intelligence Fusion Center), the app–available in both Apple iOS and Android flavors–is being touted by the state as an improved means of community policing. The authorities can’t be everywhere all the time, and the more information they have the better they can serve their citizens.

It’s the next logical step following anonymous tip lines and the ubiquitous “see something, say something,” campaign the government enjoys to make us all part of the team. 

We share a general desire to see crime reduced, if not eliminated.  Since we can’t carry around our own personal cop, the next best thing is to play one on our iToys.  The app eliminates the need to call less-than-enthusiastic dispatchers, who may not be nearly as concerned about our lousy neighbor parking too close to the fire hydrant (urgghh, that’s so annoying) as we are.  With people doing bad things everywhere, it’s too hard to navigate the voicemail system. And besides, they still ask for our name, and nobody wants to get involved.  With this app, all our problems magically disappear.

Yet it’s not without some issues.

But it’s easy to see how this could also spiral quickly into a mechanism for a lot of municipal and state waste, with police officers spending their hours checking out instances of dogs off the leash, neighbors parked in front of fire hydrants, and other trivial matters that don’t necessarily require police action.

Of course, triviality is in the eyes of the beholder. When it’s my neighbor parking in front of my fire hydrant, it’s hardly critical. When it’s yours, that’s an entirely different story. Please keep our police free to handle more important matters, the ones that affect me. 

And then there’s the potential for abuse, which naturally I would never do but I can’t be so sure about you.

The fact that it allows tipsters to remain anonymous is also a bit troubling. No one wants to be known as the neighborhood snitch, but without any kind of accountability it seems like an easy avenue by which feuding neighbors or angry lovers or anyone else with a grudge can drag the state–needlessly and wastefully–into their disputes.

Unmention is it’s lulz potential. Need that special youtube video? A quick set-up photo and watch the Keystone Kops come and bust up the wedding down the street. Guaranteed to go viral.

What this doesn’t account for is the ongoing trend toward turning all of us into snitches, even if we were to handle this power with care and sincerity.  Whether it’s the well-intended watcher who sees a white grandfather chasing playfully after his black granddaughter, and perceives a child kidnapping in the making, or  bottles of spicy pickles mistaken for a bomb,

Most of us are reluctant to be the neighborhood snitch, or to rush to fearful judgment that we realize could prove disastrous to some innocent person.  We’re not particularly adept at distinguishing the slightly unusual but easily explainable from the criminal, and we not inclined to become hysterical at any moment.  The time it takes to think whether we see something truly criminal allows us to reflect and decide whether we’ve just observed a real threat or are feeling bit paranoid and getting worked up over nothing. We decide not to call.

This not only saves the police from wild good chases, but our fellow citizens from encounters that can too easily become tragedies. 

Of course, that urge for revenge or to give that guy who cut you off on the highway some payback is strong.  Combine it with anonymity and the ease of reporting that this app will bring and the damage we can do is obvious. Ah, how we can laugh and laugh as the police surround him with guns drawn, just waiting for the furtive movement opportunity. That will teach him not to mess with us, right?

For now, it appears to be limited to West Virginia.  Yet another good reason to stay out of West Virginia. But just think of the fun you can have when it comes to your smartphone.  Unless, of course, your neighbor takes a picture of you first.

A brisk walk about the blawgosphere this morning to see what’s up.  On Friday, a New Jersey jury convicted former Rutgers student Dharun Ravi for a host of crimes relating to invasion of privacy and bias intimidation resulting from the suicide of Tyler Clementi. 

At Wally’s place, there is a link to a post by David Link at independent Gay Forum called Trivializing Hate. The conviction reflects one of the worst aspects of the criminal justice system as reflecting transitory moral outrage (of the sort  Stephanos Bibas argues it should reflect) because of a subsequent, and at best arguably related, tragedy.

Everyone will read a different moral lesson into the conviction of Dharun Ravi for invading the privacy of Tyler Clementi and intimidating him because Clementi was gay.  Some see the verdicts as the reason we shouldn’t have hate crimes laws, and others view this case as the vindication of those laws.

I have always been divided.  No hate crime can occur unless there is an underlying offense, and those offenses – whether murder, assault or anything else – are already crimes irrespective of who the victim is.  Penalty enhancements because of a motive beyond that to commit the crime itself do raise troubling questions about government intrusion into thoughts, and there are few areas where the government’s machinery is more destructive and menacing than in criminal prosecutions.

David Link persuasively argues that as “bias crimes” go, this barely touched the issue. But for Clementi’s suicide, no one would have ever given Ravi a second thought, but this case was no Matthew Shepard. Save the outrage for when it’s warranted, and let’s fear the manufactured excuse to get worked into a lather over trivialities as much as hard-core hatred.

At Constitutional Daily, BL1Y considers an attempt at  PrawfsBlawg to crowdsource teaching Federal Courts and Trial Advocacy. 

A friend who’s vapping now asked me to put up some crowdsourced resources regarding teaching fed courts and trial advocacy. . .  But I admittedly don’t know many trial ad teachers, so please use the comments to weigh in with suggestions for what new folks teaching trial ad should know about in terms of teaching and scholarly resources.  

BL1Y immediately sees the absurdity of this request.

Trial advocacy is of course a special case, it’s a skills class. You can’t get skills from a book, you get them from experience. Books help, but you don’t learn to drive by reading traffic rules, and you certainly can’t teach someone else how to drive.

The problem is not merely that it’s ridiculous to suggest that “scholarly resources” provide a path to teaching advocacy, nor that law students are charged for the pleasure of being taught by someone who couldn’t find a courthouse if his life depended on it. The problem is that it’s something law students really need to learn, and this is what the get instead.

I offered a  comment at Prawfs suggesting my “best practices” for preparing to teach trial advocacy:

Try 100 cases to verdict before a jury. For every 10 cases you try, argue an appeal. By the end, he will achieve minimum competence to teach trial advocacy.

The rest of you are poseurs.

I suspect that Dan Markel won’t embrace it in the spirit it’s given. In fact, I suspect he might even delete it as being hurtful and crude, particularly since it will make all the lawprofs feel inadequate rather than bolster their self-esteem.  But he asked.

This month marks the 20th Anniversary of one of the all-time great lawyer movies, My Cousin Vinny.  Jim Dedman at  Abnormal Use came up with an interesting concept, to have a bunch of lawyers post about the film:

Keeping with this week’s theme – the commemoration of the twentieth anniversary of the release of My Cousin Vinny – we asked some of our favorite bloggers to share their thoughts on the film and its place in cinematic history.  As previously noted, these are some real heavy hitters in the legal blogosphere.  This week, each of them published their own post on the film’s anniversary and the lessons that we as lawyers can learn from the characters in the film.

Having used portions of the movie during cross-examination lectures, both because it provided excellent instruction and it saved the audience from having to listen to me, this struck me as a great idea.  Unfortunately, it failed to take into account one problematic aspect. Lawyers have the uncanny ability to take something truly funny and turn it into something, well, lawyerly.  I left a comment :

With this endeavor, you have managed to accomplish what was previously thought impossible: You made My Cousin Vinny boring.

Most lawyers fancy themselves as stand-up comics. Of course, we also fancy ourselves as being reasonably smart.  In response to my comment, some wag using the nom-du-comment “SHG-translation-service” responded:

This project really could have used more me in it.

That’s for sure.

The 2012 Legal Marketing Association held a big conference in Grapevine, Texas this week, always fascinating for providing insight into how a top ten list of empty truisms can serve as a reason for a bunch of consultants to submit to TSA scope and grope.  It made the timeliness of  Seth Godin’s post about the difference between what we say and what we do all the more real.

We say we want local merchants to offer great service, deep selection and community values, but we cross the street to the big box store to save $3.

We say we want companies to honor their promises and act transparently, but one new product or big discount from a business that has deceived us in the past and we come right back for more.

We say we’re disgusted with Congress, but almost all of us vote to re-elect the dufus we sent there in the first place.

We say we hate spam, but we send it. And sometimes buy from it.

We say we’d like people to think first and act later, but we get cut off in traffic and all bets are off.

We say we love art, the brave work that touches us, but we listen to oldies and rarely head out to hear live music or visit a cutting edge gallery.

Hypocrisy may be an epidemic, but the problem isn’t in what we say. It’s what we do.

Be authentic, right?  In the twits for #LMA12, former  laundry detergent turned lawyer marketer Sonny Cohen made an astute point :

Remember, if you can brand water, you can brand a law firm.

Of course, the disciplinary rules for water are a bit different.  At least for the moment.

And finally, Danielle Citron, the Patron Saint of Cyber Bullying Victims (also known as girls), announces at  Concurring Opinions that she’s writing a book to be published by Harvard University Press called Hate 3.0.  For those of you who fear that such pandering may create problems of overbreadth, Citron tried to put your mind to rest:

Cyber harassment refers to online behavior that causes a reasonable person to suffer severe emotional distress.  Cyber stalking has a more narrow meaning: it covers online behavior that causes a reasonable person to fear for her safety.  Cyber stalking and cyber harassment often involve explicit or implicit threats of violence, calls for others to hurt victims, privacy invasions, defamation, impersonation, and/or technological attacks.  The abuse tends to appear in e-mails, instant messages, blog entries, message boards, and/or sites devoted to tormenting individuals. 

It’s unclear whether she’ll be sending me a copy to review, but I’m not counting on it.  Instead, as soon as I hear it’s publicly available, I plan to rush down to my local feminist book store to grab a copy, where I expect it to be prominently displayed in the humor section.

When Ryan Smith decided that he wasn’t feeling  particularly happy about the Buffalo Police telling him that he had to submit to a second DNA test because a judge issued an ex parte order, he gave them an idea they really liked:

Ryan S. Smith refused a judge’s order last fall to give a DNA sample, insisting to police that he didn’t care what court papers said.

“You are gonna have to Taser me if you want my DNA,” an officer reported Smith saying.

So police did just that, jolting Smith with electricity before swabbing the inside of his mouth.

Many were outraged by the use of a taser to compel Smith to submit, but Niagara County Judge Sara S. Sperrazza was not among them.

Sperrazza wrote in her ruling, based on police testimony, that when Smith refused to give another sample, Detective Lt. William Thomson phoned [ADA  Doreen M.] Hoffmann about it, and Hoffmann “instructed him that they could use the minimum force necessary to obtain the sample.”

But McDonell wrote in his report, “It was relayed that officers could use any means necessary to secure the sample.”

No reason to quibble over details. After all, it was just a quick tasing, and they did get the buccal swab, which is all that really matters anyway.

The DNA obtained was subsequently used against Smith at trial, where he was convicted of a laundry list of crimes. By his attorney, Mark Funk, Smith appealed, and the Appellate Division, Fourth Department, issued its decision reversing the conviction on both primary grounds, that he was denied due process by the issuance of an ex parte order to compel Smith, then a suspect, to provide DNA, and that no matter what, the police cannot tase a suspect into compliance with an order.

In an opinion by Justice Erin Peradotto, the court held:

We reject the contention of the People that no notice was required because defendant failed to appear in opposition to the People’s first application for a buccal swab. Defendant’s failure to object to the first order compelling him to provide a buccal swab does not constitute a waiver to any subsequent such orders inasmuch as each order constitutes a bodily intrusion warranting notice and an opportunity to be heard (see Schmerber, 384 US at 770; Abe A., 56 NY2d at 296; King, 161 Misc 2d at 452).

Further, we disagree with the dissent that, because defendant received notice of the first application for a buccal swab, the People were not obligated to provide notice of any further such applications. In our view, it does not elevate form over substance with respect to defendant’s due process rights to require the People to provide notice to an uncharged suspect each and every time they seek authorization to invade the individual’s body in search of evidence of guilt (see generally Schmerber, 384 US at 770; Abe A., 56 NY2d at 296).

Although the People may not need to make a showing of probable cause upon each successive application, defendant could contest, among other things, the need for further buccal swabs and the availability of less intrusive means of obtaining a DNA sample (see Abe A., 56 NY2d at 291). Inasmuch as the second order pursuant to which the DNA evidence was obtained was entered in violation of defendant’s due process rights, we conclude that the DNA evidence must be suppressed on that ground (see Latibeaudierre, 174 Misc 2d at 61-62).

(Quote broken into paragraphs to enhance readability.) The prosecution obtained an order for a first swab, with proper notice, but then sent it to the wrong lab and, poof, it was lost. They then needed a new swab, but this time didn’t bother with notice. After all, once granted, why bother? As the court held, because the defendant has a right to be object each time, and there is no waiver by his failure to contest it once.

Notice notwithstanding, Justice Peradotto smacked the cops and prosecution on the bigger issue, the quickest and easiest means of getting a suspect to be more, oh, cooperative: the handy-dandy taser.

It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a “minimal” degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that “extreme pain can be inflicted with little or no injury” (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

What is remarkable about this decision is that if police can’t use a taser, the use of force and a means of inflicting pain, in order to get a person to submit to the order of a court, then they most certainly can’t use the same taser as a means of compelling a person to submit to the mindless commands of cop.

An order issued by a “neutral magistrate,” even if issued with slightly less than adequate notice, remains an order of substantially greater legal weight than the noise that routinely emits from the mouths of a police officer.  If a cop can’t tase an otherwise non-violent and non-threatening person into submission based on a court order, then he certainly can’t do so because a person didn’t produce his drivers license fast enough.

Of course, this doesn’t preclude a cop from calmly explaining at the suppression hearing how he felt threatened by granny’s furtive gestures and nervous demeanor, as the hearing judge closes his eyes as tightly as possible and adopts the officer’s testimony as gospel.  But at least the Fourth Department provided a floor to the use of a taser as the method of choice for making a recalcitrant suspect see the light.

H/T Our hinterlands correspondent, Kathleen Casey

On the one hand, as I sit before a screen, I can see, talk to, interact with people from anywhere in the world in an instant.  Just seconds ago, I deleted hundreds of spam comments from a hard-workiing fellow in Bangalore, India, who had his spambot placing them as quickly as I could delete them.

So it’s just like being there, right? Hardly. My butt stayed in precisely the same place it started, and I’ve gone absolutely nowhere. Sure, the computer gives me the impression of movement, of adventure, but the closest I came to moving a muscle below my waist was when my shin itched. Other than that, I was completely immobile.

At the curmudgeon stage of life, this isn’t uncommon. But the young are supposed to leap from the nest, spread their wings and fly.  There’s plenty of time to sit still later, once you’ve been everywhere.  Fly. Fly away.  Except the Millennials aren’t going anywhere.

But sometime in the past 30 years, someone has hit the brakes and Americans — particularly young Americans — have become risk-averse and sedentary.

The likelihood of 20-somethings moving to another state has dropped well over 40 percent since the 1980s, according to calculations based on Census Bureau data. The stuck-at-home mentality hits college-educated Americans as well as those without high school degrees. According to the Pew Research Center, the proportion of young adults living at home nearly doubled between 1980 and 2008, before the Great Recession hit. Even bicycle sales are lower now than they were in 2000. Today’s generation is literally going nowhere.

There are so many reasons why this may be, When the world comes to you, maybe there’s no need to go out and see it. Virtual is close enough, and you don’t get your hands dirty. Or maybe you’ve grown into a tub of lard, and lifting your bulk out of the chair and moving is just too much work. Or mommy’s home is just so warm and comfortable, not to mention cheap, and the kitchen elves cook your food while the bedroom elves make your bed.

But this was a shocking newsflash:

In the most startling behavioral change among young people since James Dean and Marlon Brando started mumbling, an increasing number of teenagers are not even bothering to get their driver’s licenses. Back in the early 1980s, 80 percent of 18-year-olds proudly strutted out of the D.M.V. with newly minted licenses, according to a study by researchers at the University of Michigan’s Transportation Research Institute. By 2008 — even before the Great Recession — that number had dropped to 65 percent. Though it’s easy to blame the high cost of cars or gasoline, Comerica Bank’s Automobile Affordability Index shows that it takes fewer weeks of work income to buy a car today than in the early 1980s, and inflation-adjusted gasoline prices didn’t get out of line until a few years ago.

At 8:30 am on the morning of my 17th birthday, I took my road test.  By noon, I was cruising down the highway in my mother’s Cutlass Supreme, feeling a sense of freedom that was the stuff of dreams. Most of my kids’ friends don’t have drivers licenses, or any plans to get one. When I ask why, they tell me they’re afraid of the road, and rationalize that they don’t really need one. “Someone will take me wherever I need to go.” Forever? You want to spend your life relying on someone else?

All this turns American history on its head. We are a nation of movers and shakers. Pilgrims leapt onto leaky boats to get here. The Lost Generation chased Hemingway and Gertrude Stein to Paris. The Greatest Generation signed up to ship out to fight Nazis in Germany or the Japanese imperial forces in the Pacific. The ’60s kids joined the Peace Corps.

But Generation Y has become Generation Why Bother.

While a cute play on words, this lethargy reflects an abdication of the American birthright, the ability to take to the road at will and discover the world, and ourselves, at the same time. The Slackoisie have raised whining about their problems to fine art, but won’t take the risk of walking out the door to find their destiny.

At the end of summer, 1975, I drove up to Ithaca, New York to start my life. I would have cut off a limb before every thinking of moving back home. The very notion of returning to the womb would have made me sick; it was now my life, and I was going to make it happen.  Note, not wait for it to happen to me, but make it happen.

Times are different now, you say.  Jobs are tight and things are expensive. If I move back into the bedroom with the cowboy sheets, it won’t cost me anything and my clothes will be washed for me. How easy. How comfortable. You have an iPhone with four gigs of internet access, but not enough money to find an apartment on the wrong side of town? 

My first apartment had a bookcase made of discarded boards and borrowed milk crates. My television was black and white (you know, the type where every television show displayed in shades of gray) with rabbit ears. Yes, there was such a thing as color television and remote controls. I just didn’t have them.  And I couldn’t have been happier. Life was an adventure.  Stuff meant nothing. There would be plenty of time to be comfortable later, when I wasn’t bursting at the seems to get out the door and find out what new would happen today.

I traveled to Paris, living in a fourth floor walk-up in Montmartre, just below Sacre Coeur, where the fact that I didn’t know a word of French made no difference. I traveled to Tangiers, where I was strip-searched at the port because, dressed in a djellaba, I told the immigration official I was Sheik Yerbooty.  I did some naughty things as well, but I’m not telling.  I have a million experiences from my youth. You have stories of other people’s experiences.

But you can’t afford to go to Paris? Sure you can. Sell your iPad and buy a cheap ticket. When you get hungry, find a restaurant with dirty dishes or a fence that needs painting. You have student debt? You’re not paying it off sitting in the basement eating Cheetos, are you? 

Meet people. Touch their hand. Maybe one of them will ask you to come to work with them tomorrow morning. Maybe not, but you can bet you won’t meet them sitting on the couch playing Xbox.

It’s a big world out there. All those pretty images on your computer screen are of real places. Yes, it’s scary and there are many unknowns. But it’s real and it’s happening as you sit and look at them.  Take a chance. Give mom a kiss on the cheek and walk out the door. Your life is out there. Find it.

When  Stephanie West Allen sent me a link and asked if I had seen the latest attempt by the major players to bring rules to the internet, I dismissed it out of hand.  But as the movement picked up steam, it struck me that these self-annointed rulers of the digital world could do some damage.

In the New York Times, David Carr wrote about butthurt journalists who felt that their works for hire weren’t getting the respect they deserved.

O.K., you can almost hear the digerati seizing with laughter at the idea that a pew full of journalism church ladies is somehow going to do battle with the entire Internet. But Mr. Dumenco compares his effort to the editorial rules promulgated by the American Society of Magazine Editors, which have come to shape how magazines distinguish editorial from advertising. It’s an imperfect system with a fair number of outliers, but over time the magazine group devised guidelines that had significant influence and at least set standards that people could argue about.

An august list of names has signed on to the effort: David Granger, the editor in chief of Esquire; James Bennet, editor in chief of The Atlantic; and Adam Moss of New York magazine. Of course, all three oversee robust Web sites that do a fair amount of aggregating themselves.

The concern wasn’t so much the explosive growth of “curators” and “aggregators” in the blogopshere, efforts which I personally view as the lazy person’s way to pretend they matter as they add no substantive value and reflect the antithesis of thought, but that these parasites weren’t doing enough to send readers back to their sources and bolster the bottom line of “real” journalists. You know, the people who get paid by the word and the periodicals that advertise various hygiene products.

One of the things they came up with is the curator’s code, which  Megan Garber at the Atlantic describes as the way to steal things without being a jerk about it.



Pretty cool looking symbols, right?  Do you care? Me neither.

I’m all for attribution, not because the Overlords of the blogosphere tell me I must, but because it’s the right thing to do.  One of the great beauties of organic growth is that there is an intrinsic reward for doing the right thing, as well as a natural smack for being naughty.  It’s inconsistently applied, and often ignored, but norms develop and when they make sense, they get used.  Not because someone puts a gun to our heads, but because bloggers embrace good ideas because they’re good ideas.

At Gawker, Hamilton Nolan has some fun, writing “We don’t need no stinking seal of approval from the blog police.”

The day that I ask the editor of Esquire for a seal of approval on my blogging is the day that I sign a fabulously lucrative contract to write for Esquire.com. And you, Adam Moss—no. No.

Look, what Dumenco is trying to do is simply to codify “how to blog without being a huge prick” guidelines that all decent online writers already know. Give credit to sources of information, link back, don’t blockquote to a ridiculous degree (you guys at The Atlantic might want to double check on that one), etc. Everyone who cares about not being a prick already does these things, or tries to do them, and, if notified of not doing them, should correct them.

And that’s how normal people do stuff. If their problem is with the outliers, the “rebels” who refuse to adhere to the rules, good luck trying to get them to obey.  But the blogosphere has always dealt with its own when someone gets hinky.

If there are grievances over these types of editorial blogging issues, there is already a system in place to deal with them: someone writes a pissy diatribe, someone else writes a pissy diatribe in response, and everyone argues over who’s right and who’s wrong. Thesis, antithesis, synthesis: This is what makes the media blogosphere go. Ceding this discussion to some committee of self-ordained experts would be a bore

Just as growth in the blogosphere is organic, so too is its ability to self-police, which it’s been doing since the beginning.  Someone says something stupid or does something inappropriate, and someone else jumps down their throat.  If a blog sells crap, no one reads it.  If a blogger steals from others, others call it out and ridicule it unmercifully.  This was how the wild west and the blogosphere worked, and worked incredibly well.

Sure, there are always the nutjobs who ignore all protocol, or the mousketeers who only want smiley faces on their readers, but here’s a newflash: these aren’t your audience regardless of what others do, and you don’t really want them anyway. If someone doesn’t find your writing organically worthwhile, you can’t put a gun to their head and demand they love you.  Plus, it would be a crime against metaphors.

Many of the people who now want to sit on the Blog Judgment Committee started out as upstarts themselves. So they are self-aware enough to know, deep down, that this sort of endeavor is doomed to fail, simply because it presumes that the upstarts of tomorrow will fall in line. That’s not how this blog thing works.

They can make whatever rules they like.  They can create symbols full of deep meaning that don’t exist on my keyboard. I don’t care, because it won’t change a thing about how I write or how the blogosphere works.  As long as I don’t have to join a club to keep my Capt. Marvel Secret Blogosphere decoder ring, I couldn’t care less.

Of course, if someone I respect tells me I’m acting like a jerk, that would matter. See how it works?