At Volokh Conspiracy, University of Pennsylvania lawprof  Stephanos Bibas has been guest-blogging about his new book, The Machinery of Criminal Justice.  In his first post, it was interesting enough in its discussion of colonial criminal justice, which Bibas describes as:

How America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers.

According to Bibas, it was a quick and dirty system of crime victim against defendant, each telling their story to the lay judge in front of their peers, who knew them, their families and their reputations.  His descriptions foreshadows his underlying purpose:

Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution’s case. Criminal trials publicly aired each side’s story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.

In his next post, Bibas’ simplistic grasp of the system reveals itself.  Lawyers become “insiders” to the exclusion of the people, who represent both the victims of crime and the public precluded from participating in the system, and thus maintaining confidence in its integrity.

From the point of view of these insiders, plea bargaining made perfect sense. Lawyers who have seen a lot of trials can predict with some accuracy whether a jury will convict and what sentence a judge will likely impose.

In exchange for offering a charge or sentencing discount, prosecutors free up time and resources to pursue more cases. Defense lawyers cap their clients’ sentence exposure, receive discounts, and get cases over with quickly. And trial judges clear their dockets and avoid the possibility of embarrassing reversals on appeal. Just as private bargains make both sides better off, because each side gets something it values more, so plea bargaining makes all the participants feel better off.

There are two fundamental flaws in Bibas’ glib assertion that plea bargaining makes everybody happy. First, he completely ignores the possibility that defendants aren’t guilty, or at least not as guilty as the prosecution alleges, as if pleas of convenience didn’t exist.  Second, he assumes that the incentives are entirely self-serving for the insiders, as if the whole bunch of players want nothing more than to keep the wheels spinning and be home in time for cocktails.

The silliness is exacerbated when Bibas takes up arms for the victims:

But that perspective leaves out the public, the laymen to whom criminal justice is not a private bargain but a public morality play. From the public’s point of view, plea bargaining is opaque, it cheapens justice by commodifying it, and it is often dishonest (as when, for example, a charge bargain reduces attempted murder or rape to aggravated assault). Victims may feel sold out and excluded, and defendants may feel they have gotten away with something.

Bet you didn’t know that our system was a big shame to allow the defendants to get away with something.  That the victim may feel left out of the system isn’t terribly controversial, but then, it assumes that the victim is entitled to a role in the “public morality play.”

The third post argues that insiders (meaning lawyers, whether defense or prosecution) have subverted democratic “accountability and responsiveness in order to process cases efficiently.”  He pines for the old ways:

Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.

Whether this reflects a concern that criminal prosecution has grown unduly harsh or he’s just blunting potential criticism that the morality play almost invariably serves as a one-way street, isn’t clear. There’s a hint of jury nullification in there, with a huge dose of local vengeance.

In the fourth contribution, Bibas finally gets to his point.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

Whenever an argument resorts to “naturally deserve,” it becomes apparent that reason has been abandoned in favor of melodrama.  The notion that criminal laws exist for the purpose of creating an ordered society is ignored in favor vindicating the personal feelings of victims.  Bibas still tries to couch his point in neutral terms:

The law could surrender its monopoly on criminal justice by once again making more room for the parties’ interests and voices. That doesn’t mean transferring the monopoly to victims; prosecutors need to keep a leading role to ensure accuracy, equality, and fairness. But victims and defendants deserve greater speaking roles, both in court and in mediation. Judges and juries must filter the partisans’ voices, empathizing yet reflecting and keeping critical distance, to keep retribution from collapsing into vengeance.

Relying on the merciful victim (because, you know, that could happen), Bibas double-teams the defendant, so that the victim, merciful or not, get the speaking role they “deserve.”

We need to take seriously the metaphor of a debt wrongdoers owe both to society and to victims. As the victim suffered the direct loss and holds a share of the wrongdoer’s debt, he may either insist on payment or forgive his share.

Notably, the metaphor has always been a debt to society, not the victim. Bibas slips the victim in through the backdoor, as if he was always there, and us legal insiders pushed the victim out of the way when he wasn’t looking.  Except that was never the metaphor, nor the justification for criminal law at all.  Indeed, one of the fundamental rationales for the existence of crime and punishment, as opposed to civil restitution designed to make whole a victim, is precisely that the offense is to the sovereign’s rules and not any individual’s personal sense of justice.  Crimes aren’t defined by personal morality, but by clearly defined rules of behavior meant to guide all member of society in their conduct.

Curiously, Bibas’ book comes on the heels of the  New York Times op-ed by Stanford lawprof Michelle Alexander, naively calling for criminal defense lawyers to shut down the system by refusing to plea bargain.  Didn’t Bibas say defendants loved plea bargains, as it lets them get away with something? While they may approach the problem from different sides, it smacks of the academic flavor of the month to rid the system of plea bargaining.

It’s understandable that scholars strive for doctrinal purity, but that doesn’t explain the need to manufacture a world that never existed, or dismiss fundamental justifications for the system by throwing around their normative views of morality.  Trench lawyers stare reality in the face daily, and it’s hardly the sanitized view that academics see from their Ivory Tower.

The good news is that Stephanos Bibas’ description of his book at Volokh didn’t spell the death of any trees. The bad news is that the same can’t be said of publication of his book. Later today, his final guest post will reveal his solutions to our misbegotten system. I’ve chosen to write about it in advance, in anticipation of his hopping on the victims rights bandwagon, lest I be accused of my view being colored by my loathing of inanity.  If he’s got something more valuable to offer, rather than old wine in a new bottle, it’s worth another post.

Update:  Bibas’ final installment is in, and I nailed it.  Worth noting are such gems as:

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control.

I know that the bottom-line, cost-benefit approach is foremost in my thinking. And there’s:

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

Never before has eschewing the rhetoric of moral judgment been treated so kindly. I would have thought it in favor of sound evidence and rational thought, but then I’m no scholar.

Radley Balko called this the  nerdiest video every made on police abuse. That’s a tall order, but if not the nerdiest, it’s up there.



On the other hand, there’s nothing like a pissed Trekkie (on his 40th birthday) to put together an interesting yet damning video of the banality of everyday police work.  Just doing his job, you know.

There was a time when Harvard criminal law professor Alan Dershowitz was considered a radical, espousing some wild views that garnered him significant media attention.  He was young then, but the warm glow of the klieg lights is hard to forget.  Dershowitz may be older now, and hardly radical, but apparently he misses the attention.

This is inescapable conclusion from this otherwise pointlessly self-aggrandizing effort that appears in The Daily Beast entitled “Alan Dershowitz convicts DSK.” 

The theater-style, fluorescent-lit classroom at Harvard University’s law school was virtually silent on a crisp fall afternoon. And why not? It’s not every day that law students get the chance to see one of America’s most famous defense lawyers assume the role of prosecutor.

There, in the pit of the classroom, Alan Dershowitz was in effect holding court as one of Manhattan District Attorney Cyrus Vance’s bulldogs, making the prosecution’s closing arguments to jurors in the sexual-assault trial against Dominique Strauss-Kahn that never was. Dershowitz was convinced he could secure a guilty conviction, even with the victim’s credibility problems. And he was intent on teaching his students a lesson on how a courageous prosecutor could divert a jury from the weaknesses of his star witness to focus on the evidence of a sexual attack and the preposterous defense of an elitist Frenchman.

Let’s be clear. There is nothing wrong, nothing, with taking the side of the prosecution in any given case. The defense does not sit at the right hand of God, and sometimes, often actually, the prosecution is not only right in its position, but doing the job we ask and need of it. These aren’t football teams where we each root for our favorite, and there’s nothing wrong with agreeing that the other side deserves to win. Sometimes.

But that’s not what Dershowitz is doing here.  He’s putting on a show for all to see. Hey everybody, come watch Dershowitz, “one of America’s most famous defense lawyers assume the role of prosecutor.”  Was the use of the word “assume” deliberate?

According to Dershowitz, Sofitel lawyer Lanny Davis sought him out, desired his approval, even though the New York County District Attorney’s office had already decided not to proceed.  You know, because obtaining the approval of Dershowitz is almost as good as reality.

Davis was convinced after lobbing hard questions at Diallo during a two-hour interview on July 18 that the housekeeper was mostly telling the truth about what happened in Strauss-Kahn’s hotel suite back in May. And after carefully reviewing the evidence from the hotel—especially the time stamps on the hotel security logs and the outcry witness testimony of Diallo’s hotel colleagues—he was certain prosecutors were mistaken in some of their claims that Diallo had changed her story. He saw problems with the investigative work and understood the communication gaps that a shy Guinean immigrant might face when confronted by New York’s grittiest prosecutors in the pressure cooker of a court case with international consequences.

How one “lobs” hard questions remains unclear, but as every lawyer knows, there’s nothing more persuasive than a one-sided story.  And Dershowitz was persuaded.  So what was his next move?

Soon after, Dershowitz called me [writer John Solomon] up at Newsweek to describe his change of heart. He was willing to go on the record saying so.

Memo to John Solomon: When someone calls you to tell you that they have a thought that no one cares about, it’s really not accurate to describe them as “willing to go on the record.”  It’s more like desperate to get you to write about them.  Just sayin’.

Having stood on the diving board screaming to everyone in earshot to look at him, now Dershowitz had to make a splash.  He came up with a stroke of genius.

And he wanted to do one better. For weeks he had been looking for a fresh subject for his fall legal-ethics class at Harvard. Now he had a theme: how would you, America’s future lawyers, handle the DSK prosecution?

“Ladies and gentlemen of the jury,” he started, “we have enough evidence to convict this man beyond a reasonable doubt even if you don’t believe the accuser. In fact, we are prepared to concede that based on statements she’s made in other contexts, you would be within your right to have some suspicions about her credibility.”

How cool is that, an exercise in contrarian pedagogy that happens to find a friend in a Newsweek reporter?  Dershowitz gets to grad a headline and claim he’s only doing it for the children.  This is the stuff that small, rural congressional races and unconstitutional state laws are made of.

And so he indulges in the classroom exercise, surrounded by his doting students, and argues the strawman of Lanny Davis’ making.  Because, you know, it’s not like there could be any argument that the defense might make that could counter the persuasiveness of Dershowitz left to his own devices.

The post goes on for pages of Dershowitz arguing on his own.  The initial concession, that the “victim” had a credibility problem, disposes of the entirety of the defense, and makes the balance eminently fair and reasonable.

So where did Vance’s team go wrong with Strauss-Kahn? Dershowitz says Vance “accepted a general rule that you can’t win a sexual-assault case unless you believe the victim, and I believe that is a flawed analysis.” Second, prosecutors failed to realize that had they taken the DSK case to trial, “his defense would have sunk him. Then it would become a case of who is more likely to be lying. And jurors would ultimately see he’s much more likely to be lying even if she is a liar on other counts,” he said.

No need to ponder whether “much more likely” is sufficient to surmount the “beyond a reasonable doubt” threshold.  Dershowitz has pigeonholed both sides, and there can be no one more reasonable than he, particularly as he’s characterized the defense as seven minutes in heaven.

“Now the theory of the defense is that she looked at him and could not resist her lustful temptations to have seven minutes of oral sex with this man. She simply couldn’t control herself,” he continued, a touch of sarcasm in his voice.

Sarcasm is easy when there’s no one arguing against you. He ridicules the notion that a young, attractive hotel housekeeper could find a flabby old man attractive. He ignores that DSK is a flabby old fabulously wealthy and powerful man.  And that’s just assuming that the issues don’t stray from Dershowitz’s strawman.

A continuing theme for lawyers inclined to spout publicly is that they not leave readers stupider for having been there.  Unfortunately, as people become more desperate for attention, more needy for the spotlights that once shined on their ideas when they had something to offer, their concern about such existential concepts often takes a backseat to just one last headline.  Dershowitz got his headline here, but we’re all the worse for it. 

Everybody watch Alan Dershowitz put on a play. Sadly, it was in the theater of the absurd.

When I  first stumbled across Marc Randazza, he was misbegotten adjunct professor at brand X law school, rough around the edges and ready to stand his ground against any foe.  He was tough. He was coarse. And that was just the start.

Over the years, I’ve come to admire Marc Randazza enormously, both for the effectiveness of his legal work which, I can say from first hand knowledge as he represents me in the Rakofsky v. Internet case, is exceptional, but even more for his  unrelenting boldness in his support of the First Amendment. As much as we’ve become friends over the years, I have no doubt that he would be the first to rip my lungs out were I to take a position that he disagreed with.  Fortunately, I leave that to the  Feminist Law Profs and the Cyber Civil Rights crowd.

It’s not always easy hanging out with Marc Randazza. He doesn’t mince words, and most of the ones he uses begin with “f” and end with “uck.”  When compelled to use phrases, they tend to include such vivid images, like “circle jerk.”  Surprisingly, not everyone  feels as kindly toward such colorful language as Marc does. But that’s a large part of Marc’s point, that we get all hung up on concealing thoughts behind “nice” or inoffensive language,  

Marc Randazza uses words that make refined folks wince. it’s not an accident.  While he enjoys making others uncomfortable with his language, it’s not without good reason. They’re just words. Get used to them. Get over them. Deal with the ideas behind them, even if the words aren’t pleasing to your eye. 

Writing at the  Legal Satyricon (where I, and not Marco, coined the name for his peeps, Satyriconistas, though he tries to claim it),  Marc Randazza has never been afraid from taking a stand. Some are a bit wacky, but all reflect the strength of his convictions on the First Amendment.  He has no qualms about people disagreeing with him. He’s all about robust discussion.  Take you best shot if you think he’s full of it, but don’t be surprised when he takes his best shot back.  That’s how ideas get vetted, with hard and real argument, and  Marc Randazza is as ready for a fight to defend his beliefs as anyone you will ever meet.

Of course, anyone who shows any guts on the internet is going to make enemies, and  Marc Randazza has his share.  They range from the Happysphere to the tin foil hat club, and the worst of them will show no reluctance in manufacturing a litany of insane complaints.  Then again, his  litany of successes is not only longer, but true.

This is a feature, not a bug, of the internet, as no one who shows the fortitude of his beliefs gets away without making enemies.  The more outrageous the attack, the more important the belief.  It’s a badge of honor to have enemies. Without them, you haven’t done anything worthwhile.

But when it comes time to fight for real, to challenge those whose goal it is to silence the internet, to shut down the speech that makes them feel badly about themselves or to whine about the hurtfulness of someone who disagrees with you, there is no better friend than Marc Randazza.  In a fight, he’s the guy you want standing beside you.

If you believe in the First Amendment, if you feel that the greatest weapon against bad speech is good speech, if you have the guts to stand up for the things you believe in, then look to  Marc Randazza as your role model.  You don’t have to share his love of the vernacular to appreciate his point, and regardless of whether your favorite amendment is the first or fourth (or even the ninth), his fortitude makes him the sort of person who keeps the internet safe and free for all ideas.  And that’s why  Marc Randazza is one of my heros.  He should be one of yours as well.

Judge Ann Pfau was the perfect choice for Chief Administrative Judge of New York State, having been a court administrator since leaving law school.  When she was appointed to the top, everyone nodded their approval.  She was right where she belonged.

And now she’s sitting on a bench in a dump in Brooklyn.  From the New York Times :

On Dec. 1, Ann Pfau, now 64, stopped being New York State’s chief administrative judge, a bureaucratic job that is like being the queen of the courts. After stepping down and being replaced, she wound up in the grimy Supreme Court building in Brooklyn with workaday responsibilities. Among other things, she is now trying jury cases for the first time in a long career, having worked in court administration since graduation from law school. Here, every day is “Judging 101,” and Judge Pfau’s Rules are piling up.

This isn’t to question whether Judge Pfau is smart, fair, hard-working or competent. No one rises to the exalted level of queen of the court without these attributes. But it compels a question that has to be asked: What the heck were they thinking?

Judge Pfau has never tried a case. Not as a lawyer. Not as a judge.

Judge Pfau has never spoken with a client. Judge Pfau has never waited for a decision while a client’s life, business, fortune has disintegrated before her eyes.  Judge Pfau has never had to explain to a child why they won’t be seeing their daddy again until they are fully grown. Judge Pfau has never had to explain to a client why a judge just got it completely wrong and destroyed their lives. 

Instead, Judge Pfau is trying to figure out, for the very first time, how to survive life on the bench. It starts with the basics:

Do not think you are as funny as the lawyers say you are. Sit up straight on the bench. Get the keys to your chambers.

These are a few of Judge Pfau’s Rules, and they are the product of a most unusual judicial education.

It goes on to the banal.

The just-do-it rule. “ ‘Just dive in head first. It’s not like we haven’t all made mistakes,’ ” Justice Laura Jacobson said she had offered as advice.

The tough-it-out rule. “Every judge says that to me: ‘Pretend you know more than you know,’ ” Justice Pfau said. “ ‘Don’t let them see you sweat.’ ”

The you-could-look-it-up rule. There are publications about an amazing selection of judicial topics, including what to do when lawyers shout, “I object!”

Justice Pfau said: “You have to know there is a book called ‘New York Objections.’ It’s a great book.”

The sometimes-you-just-have-to-decide rule. “I was always looking for the rule,” Justice Pfau said, “and someone said, ‘You know, there’s not always a rule.’ And that was a revelation to me.”

The poker-face rule. Judges are supposed to look alert and neutral. “I have to say to myself: ‘Sit up straight,’ ” Justice Pfau said. “And you can’t let your facial expressions show if you think it’s the stupidest question ever asked.”

The when-in-doubt rule. “The only advice I gave her,” said Justice Karen B. Rothenberg, “was, ‘If you have any trouble with anything whatsoever, it’s a good time to take a recess.’ ”

Not all of Justice Pfau’s lessons can easily be reduced to rules. For example, she said, one judge seemed to be asleep. But then he would snap to. What would be the lesson there? Try to keep listening if your eyelids get heavy?

These are the “rules” from the judge’s perspective, the tools to survive in a courtroom stuffed to the gills with lawyers who try case, represent real-life breathing clients, live and die in the courtroom.  But understanding these rules, and knowing which applies when, and more importantly, the impact of these rules on the lives of real people, requires context.  Without experience in the courtroom, there is no context.

Of course, after leaving her post as Chief Administrator, what else could Ann Pfau do than be a trial court judge? She had no practice to return to. She already had the robe.  It’s hard to leave a life where people behave obsequiously around you. Judge it is, then.

On the other hand, had she been a lawyer working in some other bureaucratic capacity her entire career, and decided at 64 that she wanted to be a judge, would anyone have even given her a second thought as being qualified for the job?  Her application wouldn’t have made it past the circular file. There isn’t a thing about her experience that suggests qualifications for the bench. Nothing.

And yet, she now sits in Kings Supreme in charge of a civil trial part.

It may turn out that Judge Pfau is a fabulous judge, one of the best ever to preside in the New York State Supreme Court. Weirder things have happened. I certainly hope so, as no doubt do the litigants and lawyer who will appear before her.  But it doesn’t answer the question.  Rule and roll, Judge.

Over at the Agitator, Radley Balko has a post he’s titled “Scary Numbers.”

In September 2004, Mark Warner, then Virginia’s governor, ordered a random audit of 31 old criminal cases after a vast trove of biological evidence was discovered lying around in old case files saved by state forensic serologists. The testing of those 31 samples led to the exonerations of two convicted rapists. Warner, embarrassed by the revelations, then ordered in late 2005 that every sample obtained between 1973 and 1988 be rechecked. It amounted to thousands of files . . .

It goes on to suggest something truly horrible:

UVA’s Garrett suspects that the error rate may actually be as high as 17 percent. As he discovered in his own research, Barbour’s conviction, based on the testimony of a single eyewitness, reflects the reality that of the first 250 people exonerated by DNA testing, a whopping 76 percent were misidentified by eyewitnesses.

Thank God for DNA, right?  Well, of course, because without DNA for use in subsequent exoneration, the number of innocent people convicted under this study would be zero.  There could be a stray somewhere along the line, where someone else confessed or some smoking gun piece of evidence came out of nowhere, but once a person is convicted, they are guilty.

The presumption of innocence is gone. Their every denial is jaundiced and suspect.  Guilty people obviously deny they did it. Happens all the time. But we know they’re guilty.

What DNA exonerations have done is exposed the legal system’s worst nightmare; that it fails to distinguish the guilty from the innocent with a frequency never before believed.   Justice Scalia once suggested that there was a wrongful conviction rate of .027%.  This, he thought, was acceptable, as no system is perfect.  The old “take one for the team” argument never persuaded me; it’s a great unless you or your loved one happens to be the innocent asked to suffer for the system’s flaws.

But this assumed rate was nonsense from the outset.  It was based on the handful of proven innocents, the beneficiaries of DNA exonerations by the Innocence Project, as a percentage of all people convicted.  In other words, Justice Scalia failed to extrapolate the percentage of wrongful convictions in that tiny class of cases where DNA evidence is involved to the general universe of convictions.

The reason is clear. If they aren’t proven innocent, they’re guilty. And if they’re guilty, the system works. Not perfectly, but with a wrongful conviction rate so minimal as to barely be worth a yawn from Justice Scalia.

Or, the same influences that produce wrongful convictions in this tiny sphere of DNA cases exist in almost every case that comes before the court. They are:

• Mistaken eyewitness identification
  
• Perjurious testimony (testilying)
  
• False confession
  
• Racial influence
  
• Guilty pleas of convenience

The only difference is that there is no DNA evidence to be used to subsequently exonerate the defendants. They get convicted. They stay convicted. Everybody (except the defendants and their families) sleeps well at night. Job well done.

But this is a delusion. Not to blame the Innocence Project, or the miracle of DNA exonerations, but this has put an enormous emphasis on innocence as the primary concern. Certainly, we do not want to convict the innocent.  But when the only question asked is whether the defendant was innocent, we continue to feed the monster of wrongful convictions, overcharged convictions and the faults of the system.

If we knew in advance who was “really guilty,” this might make sense. Perhaps we would demand that prosecutors and police work harder, spend more time, look deeper, be more honest, when it came to those for whom everybody felt there was some doubt as to their guilt.  And there are a few defendants for whom such doubt exists, but prosecutors feel compelled to press the charges nonetheless.

Most of the time, however, prosecutors and police are absolutely certain they’ve got the bad guy. We see this even after the DNA exonerates the defendant, and they still insist he was guilty.  We see this every day when prosecutors inform us of how they’re absolutely certain the defendant is guilty, when we know otherwise. They take comfort in their certainty. There’s no comfort for the defendant against whom the evidence is overwhelming, except for the fact that he didn’t do it. This happens too.

The point is that the flaws of the system remain, whether the defendant is guilty or innocent, and doom both without discrimination.  The “tried and true” means of conviction are every bit as dangerous to the guilty as the innocent, because the system can’t tell them apart.

We know they are flawed. We know they produce the desired result of conviction, even though they are untrustworthy. They’ve been used forever, and the law is nothing without stability and precedent, even if we merely perpetuate the system’s flaws.

The problems are known.  DNA has produced the proof to support the issues we’ve long argued, but the next step, the extrapolation to the general population of the convicted, seems to never really make it into the discussion.  I would argue that it’s because we need to be able to sleep well at night, and judges, cops and prosecutors wouldn’t be able to do so knowing that they were responsible for sending innocent people to prison 17% of the time.

But the truth is, that would never happen, because they remain absolutely certain that they are never that wrong, and that all the people, save the .027%, are guilty.  And for the rest of us, those of us who aren’t being asked to take one for the team, we don’t seem sufficiently bothered by these flaws in our system to lose much sleep either.

Had the Puritans taken a more northerly tack, Anna Gristina might be honored as an innovative entrepreneur rather than sitting in the dock as the latest Million Dollar Madam. But they didn’t, and so it’s a crime for women to do with their bodies what lawyers do with their minds.

How exactly the prosecution arrives at the conclusion that she’s made many millions of dollars remains unclear.  No doubt there’s an algorithm for it, just as a kilo of coke can be portrayed as a million dollars worth with the right assumptions.  And without all the zeroes, the story wouldn’t be nearly as interesting.

Yet, despite her declared wealth, she sits beside her appointed lawyer, Richard Siracusa, who has been at the criminal defense game for 37 years.  I would like to his website, but he has none. He hasn’t even claimed his Avvo profile.  He has no logo. 

On her other side sits another lawyer, Peter J. Gleason, admitted 2004, but who nonetheless has no website, though he does have a logo-less LinkedIn profile.   According to the New York Times :

Mr. Gleason wanted Mr. Siracusa removed from the case. The judge saw no reason to comply with that request, and Mr. Siracusa characterized Mr. Gleason’s role as a “hindrance.”

“She is an intelligent, stoic, strong-willed person with some very sound ideas on the type of person she wants to represent her,” he said, adding that Mr. Siracusa did not fit the bill, partly because he had not visited Ms. Gristina on Rikers Island. Mr. Gleason, who said that he was representing Ms. Gristina at no charge, asked that Justice Merchan remove Mr. Siracusa from the case.

Justice Merchan then asked Mr. Gleason to describe his experience handling criminal cases. Mr. Gleason replied that he had never tried a felony case but had handled elements of cases involving disorderly conduct and assault.

Let’s recap. Mr. Siracusa is assigned to defend Ms. Gristina and has 37 years experience in criminal defense. Whether he has an iPad is unknown. 

Mr. Gleason will represent Ms. Gristina at no charge, but he’s never tried a felony case. He has, however, “handled elements” of disorderly conduct and assault cases. Whether he’s ever tried any case is unclear.

Mr. Gleason did demonstrate the curious judgment of having Ron Kuby appear as his attorney, which didn’t turn out all that well for Ronny as he was told to get his butt out of the well.  Why, exactly, he needed a lawyer wasn’t entirely clear, but then, I would never suggest that any person go anywhere without their lawyer.

The assistance from Mr. Gleason didn’t end with a free ride, but with some icing on the cake that might turn a few heads:

After the two co-counsels consulted briefly, Mr. Gleason told the court that he wanted to put up his TriBeCa loft as security to help Ms. Gristina make her bond of $2 million. He added that Ms. Gristina and her family could then move into the loft with him while she awaited trial.

The prosecutor raised the obvious retort:

[Assistant District Attorney] Charles Lenihan, objected, saying, “We believe it’s unethical.”

Whether this is accurate depends on a few factors, not the least of which is what motivates Mr. Gleason to put his own home at risk for the benefit of a client.  Of course, there is nothing per se unethical for a lawyer to post bond.  Why would he do so?  According to the never-hyperbolic Kuby :

“I think Pete Gleason has a passion for justice and a congenital hatred of bullies. And when he sees someone being pushed around, he intervenes,” said civil-rights lawyer Ron Kuby, who is aiding Gleason.

Of course, Ronny feels that way too, yet he isn’t putting his home up for bond. Perhaps Gleason is a really, really, passionate guy. Really passionate. Go figure.

Rarely does the chance to represent an indigent defendant give rise to such in-fighting.  If a defendant wishes to be represented privately, and the lawyer is willing to be engaged, even if he’s not being paid, it’s not up to the court to supplant the defendant’s choice just because it sounds, well, ridiculous.  We make our own bed, for better or worse. Yet Anna Gristina didn’t utter the words, “I want Gleason to be my lawyer.”  Then again,  she didn’t tell Siracusa to get lost either.

So what makes lawyers fight over the role of defending an indigent Madam?  It could be the chance to hold a press conference, and get their handsome face on the telly. It could be their deep belief in justice, even if it’s never been manifested in prior legal representation.  Or it could be something more unseemly. 

When it comes to lawyers putting aside their pecuniary interest and doing the hard work of representing a person accused of being a Million Dollar Madam, there is apparently no shortage of willing lawyers.  And they say indigent criminal defendants are an underserved population.

I haven’t been kind to Crazy Sheriff Joe in the past. From pink underwear to armored vehicles used to effectively take out chicken coops, Sheriff Joe has been the subject of some derision here and elsewhere in the blawgosphere.  Of course, his hatred of illegals and constitutional rights has been the target of the greatest criticism. Perhaps I’ve been unfair.

As this news report makes clear, he has been working hard in our national interest to clear up one of the most vexing and important issues confronting law enforcement. Not just in Maricopa County, but in the nation.  And he has not received the appreciation his hard work deserves.

A long awaited press conference was given by Maricopa County Sheriff Joe Arpaio, a five time elected Sheriff, which should have made national and international headlines. Arpaio’s credentials include serving in the United States Army from 1950 to 1953, service as a federal narcotics agent serving in countries all over the world with the U.S. Drug Enforcement Agency (DEA), and served as the head of the Arizona DEA. Without doubt, this is a serious Law Enforcement Officer, not one to be taken in by tin-foil-hat wearing loons.

Arizona sheriff finds Obama presidential qualifications forged

And who broke this story of monumental national significance?  Pravda.

You didn’t read it in the New York Times. You didn’t read it in the Christian Science Monitor. Not even the Maricopa Gazzette. How is it possible that a story of this importance didn’t change the course of our nation?

In fact, there is a lengthy press conference conducted by Crazy Sheriff Joe,  captured in a video for all to see. Granted, it runs over an hour and twenty minutes, but aren’t you sufficiently patriotic to spend that small amount of time to learn what Crazy Sheriff Joe’s six month investigation reveals?  After all, this is a “serious Law Enforcement Officer, not one to be taken in by tin-foil-hat wearing loons.”

The video has, as of this writing, been watched almost 50,000 time, and the comments reflect the strong support Crazy Sheriff Joe is receiving for his serious law enforcement diligence.

God Bless Joe, and Arizona. God help America.

 the son of a whore is guilty of treason and will be tried for under house bill 107.

i doubt if the communist jew controlled media will ever have a full story!

 i say that the “o” is a son of a whore by the way……ROFL

what do you think it means then? what do think it means when the race of his father is listed as “African”? was barack sr. “ever” married to barack jr.’s mother? do you think barack obama sr. was even his father? do you think barack obama was a citizen of idonesia? why did barack obama support his cousin odinga?

These are the appreciative voices of your fellow Americans, recognizing the diligent efforts Crazy Sheriff Joe employed to save our nation.  And, for those of you who practice civil law, meet the “reasonable person” standard, up close and personal, coming to a jury near you.

As you put on your shoes this morning, thanking the lord that you live in a nation as great and mighty as the US of A, take a moment before you make the bunny ears and show Crazy Sheriff Joe some gratitude.  Where would we be without him.  And ask yourself, why won’t the Main Stream Media honor this fighter for truth, justice and the American Way.  As revealed by Pravda.

You can’t make this stuff up.

H/T Ed of  Blawg Review 

In a story about the legal quagmire facing Rob Will, a death row inmate in Harris County, Texas, who may well be innocent, the  New York Times included this tidbit:

In Mr. Will’s first appeal, his first state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Mr. Will’s case. Mr. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers.

But in a January ruling, Judge Keith Ellison of United States District Court lamented that even though he was concerned Mr. Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

There’s a chance this may change with the Supreme Court’s consideration of an Arizona case, Martinez v. Ryan. Then again, Justice Scalia has already made clear that the Constitution protects process, not outcome. And process includes waiver. Rob Will had his appeal, and Ribnik blew it. Bummer.  Nor does the Constitution provide a right to effective counsel on appeal, though some states see it differently.

Trying to figure out just how badly Ribnik dropped the ball, or if the ball was really dropped (since oftentimes information comes to light years later, and the lawyer is held to a retrospective standard that couldn’t possibly be met at the time), it seemed prudent to do a bit of digging.  As it turned out, this was his problem :

(Feb. 26, 2006)–The court-appointed attorney who handled the death penalty appeal of condemned serial killer Angel Maturino Resendiz is being criticized for filing a nearly identical appeal for another death row inmate.

The Austin American-Statesman reported Sunday that Houston lawyer Leslie Ribnik wrote the virtually identical appeals for Maturino Resendiz and another condemned prisoner, Robert Gene Will.

Except for different names, the first 20 pages of both appeals are identical, including the same capitalization error on page 17.

The briefs, which center mostly on a single technical challenge to instructions given to Texas death-penalty juries, also give incorrect conviction dates for both men.

Ribnik has apologized for the mistakes but says the appeal argument is valid.

So he just changed the name in the caption. Mind you, this was a death penalty appeal, meaning that a man was going to be put to death if the appeal failed, and the best effort Ribnik could give it was to change the name in the caption. 

Before you spit out epithets about Ribnik, however, consider this: Is everything you’ve ever written on behalf of a defendant sui generis?  Do you start from scratch, deal with the specifics of the case, the issues, the nuances, the subtleties? Or do you just change the name on the motion and mail it in?

Let’s be frank.  The most common request on the local criminal defense lawyer listserv is “does anybody have a motion…”  Some will say that it’s just a template, a foundation from which they will draft brilliant, wonderful papers that address with great specificity the issues arising in their own case. Many will just change the name. You won’t admit it, but it’s true.

As criminal defense lawyers, one of our most important tasks is to present written work on behalf of our clients. Whether pre-trial motions, memoranda of law or appellate briefs, these are the foundations upon which all the flashy stuff is based. It’s hard work.  It can be drudgery.  No one, especially the client, watches as you parse words and admires you for sitting in front of a computer for hours, days, researching, writing, re-writing.  The client who thinks that the full extent of your effort on his behalf is comprised of the 30 seconds before the judge has no idea that you gave blood to prepare his papers. “You ain’t done nothin’ for all that money,” you’re told.

You know better. You know that you labored for hours to find the caselaw that supports your argument. You sat there, thinking, about how to take something that smells awful and turn it into a legally viable argument. Or not.  Thinking can make your head hurt.  Why make your head hurt when no one appreciates you for doing it. Clients are often impressed with the weight of papers, the bunch of black marks on white sheets, and really have no clue whether the papers are any good. Bad papers get just as much love as good ones, right? No one will know.

We even have some really cool phrases to justify being lousy lawyers. Why “reinvent the wheel?” After all, there’s nothing new to be said, and we have form books that give quick and dirty papers that somebody, somewhere, decided were good enough to suffice. Don’t judges plagiarize all the time? If it’s good enough for them, why not us? It takes time to create new papers from scratch, and who is so arrogant as to think our work will be better than anyone else’s.  And who will know?

You will know. The judge will know. And sometimes, the New York Times will know and put it into an article about an innocent man whose life may be lost because you couldn’t be bothered to do more than change the name. But most importantly, you will know.

So before you go all “hater” on Leslie Ribnik, take a hard look in the mirror and ask whether the person you’re staring at is Ribnik lite.  It may not be a death case.  It may not be an innocent defendant. So what? Your job is to defend that person, whether he’s paid you well or not at all. This is the life you chose, and you have no excuse for doing it poorly.

Maybe an innocent man will be put to death because of a Harris County lawyer who couldn’t be bothered to do more than change the name.  Are you any better than he?

Anyone with a keyboard and an internet connection has a million opportunities to express an opinion online. That doesn’t mean they have an opinion worth expressing, but more importantly, that doesn’t mean others on the internet have an obligation to either respond or treat them as kindly as they want to be treated.

This basic reality has given rise to a demand for remedy, ranging from the proposal of a criminal  anti-meanie laws in Alabama to renewed demands for the elimination of anonymity.  Couldn’t we all just be nicer toward each other?  Did no one heed Rodney King?

There is an underlying flaw in the reasoning of those who seek to create an internet where no one’s feelings are hurt.

Seattle lawyer, Collette Vogele (@vogelelaw), of the nonprofit group,  Without My Consent, providing paths to justice for victims of online harassment [argues]

…[O]nline harassment cases–such as that of blogger Kathy Sierra, who was driven offline after receiving anonymous threatening e-mails on her blog–illustrate other threats from anonymity. Requiring identities will keep things civil.

While the  Kathy Sierra situation has become the exemplar of online harrassment, it’s the outlier. Some have tried to use it to argue that this is a gender issue, giving birth to such intellectual monstrosities as Cyber Civil Rights, while others use it to prove that the internet needs to silence mean speech. For the children.

This isn’t about death threats via the internet, however, but the banality of people demanding attention and validation of their ideas.  While Kathy Sierra is a one-off matter, every day a million cries of “bully” arise online because someone, somewhere, didn’t think you were as compelling as you thought you were.

As expected, free speech advocates disagree.  No one is promoting the idea that people should be mean, but rather that speech happens as it happens, and sometimes it happens mean.  To put it otherwise, it’s better to have free speech and risk the possibility that someone’s feelings will be hurt than limit free speech, together with the ideas it contains, and preclude the expressions that might hurt someone’s feelings.

For lawyers, this is somewhat problematic. We espouse ideas for a living, and they are often in direct conflict. One of the reasons there are judges is to both keep a lid on our argument as well as decide which of competing ideas wins.  There are no judges on the internet.  Because of this, some lawyers want to argue their point ad naseum, which adds nothing to the discussion, is ultimately boring and annoying, and accomplishes nothing.  Once you’ve made your point, there’s little more to say. The other guy doesn’t agree? Do you think if you repeat yourself 27 more times, it will change?

But there has been a cry recently for civility, what some want to cast as professional courtesy, in the course of discussion.  Wouldn’t that be lovely? I think so. Now if all the morons, nutjobs and lying marketers would kindly disconect from the internet, we could have a wonderful, civil discussion.

That’s my perspective, you see. Not yours? That’s the problem. Each of us brings our own perspective to what’s worthy of discussion and what’s so blitheringly stupid or inane as to be immediately dismissed. Some are delicate teacups, and easily hurt by anything shy of complete validation. Some are pugnacious, and demand your time and energy to engage in their fight. Sometimes, a subtle point is clear without being expressed in overtly harsh tones, but more often, people don’t get it unless they’re clobbered over the head.  Nobody like being clobbered.

This was one of the problems that drove me away from blawging. Obviously, not so much of a problem as to keep me away, but a problem nonetheless.  Whether in the comments here, or by the stray twit, two demands are made: first, that I embrace the worthiness of somebody I don’t know, never heard of, by dropping everything and spending as much of my life as they demand to engage in a discussion with them on the subject of their choosing. Second, that I treat them civilly.

Whether the source of this demand is the baby lawyer who believes that his inchoate views on the practice of law is on par with that of the experienced lawyer, or the legal marketer who is deeply hurt by views that don’t show sufficient respect for the value of stringing words together in meaningless phrases, they net result is the same. They are entitled to attention.

Fail to show them the respect they demand and they get all angry and huffy.  You are mean. Tell them they’re ideas are ridiculous and you are a bully.  Ignore them and they are outraged at your lack of professional courtesy. 

One of the constant tools of the ignorant is the misuse of the Latin phrase “ad hominem.”  It doesn’t mean what they think it means.  If a point is foolish and you say so, they accuse you of the dreaded ad hominem attack. They’re wrong, but then,  Dunning-Kruger prevents their ever realizing it. Does the erroneous accusation make it your problem?  Not in my book.

If this post sounds vaguely familiar, it’s because this is a subject I’ve written about a few times over the years.  My views haven’t changed, but the internet has. New people show up and raise the same old civility and bullying arguments. Why aren’t you nicer to me? Why won’t you stop your life and pay attention to me? Why won’t you agree with me?

Because credit is only given where due. Just because you have a keyboard and an internet connection doesn’t mean your opinions are worthy of anyone else’s time and attention. Just because you breath doesn’t mean you exist. At least not to anyone else. No law, no call for civility, no heart-felt plea, is going to make you suddenly fascinating to the rest of the internet, so much so that you will be loved, admired and win every argument you decide to start.

On the internet, we’re all bullies. None of us, truth be told, loves humanity that much that we become best friends with everyone who twits at us, comments on our blawg, Facebook friends us or plusses our Google. We need to grow up and get over this. 

We all pick and choose. Sometimes, we don’t choose you. And no one makes you choose me etiher. It’s not a crime.