There is absolutely nothing wrong with having a logo. Logos are fine. Sometimes, they’re pretty cool.  This is not about telling anyone that they should not have a logo.

Of course, I don’t have a logo. I never have. What was I thinking?

But as I sometimes do, I wandered into the pool at Lawyerist, where a very nice young lawyer, Josh Camson, decided to write about his “journey” in opening a two-man criminal defense practice.  It’s not a particularly scary pool, as it’s a mile wide but only an inch deep.  When Josh began this venture, I was dubious of its value; spreading bad information isn’t a virtue, even if it amuses other baby lawyers who want to “share” in the experience.  But then, being an old curmudgeon, I likely couldn’t appreciate the benefit of crowdsourcing among new lawyers and marketers.

And I was just so damn negative about it all. Nobody is negative at the Lawyerist. It’s a supportive place, no matter how blitheringly stupid something may be. Never is heard a discouraging word.

There was the post about the name of the firm. Josh came up with a cool variation, running the two names of the partners together without a space or ampersand.  I’m not sure it whether it was cool, but it was certainly different.  He chose, however, not to use a misleading name, such as one that would suggest they had associates when they didn’t, or multiple offices when they didn’t, despite expert advice to the contrary.

Then came a post that disturbed me.  The firm logo.

My partner and I knew from the beginning that we wanted the firm to have an identity.

Now, had Josh begun his post with something along the lines of, “I realize that this is silly and utterly inconsequential, but having already spoken with my mentors today, signed up for some skills CLEs and shined my shoes, I have nothing better to do,” I wouldn’t have been troubled at all.

But that’s not what he wrote.  Instead, he wrote this:

In the end, we went with the logo we thought would look good in black and white as well as color. We plan on doing some mailers that may be black and white, so we had to take that into account. It had to look equally good on a business card, our website, and any marketing materials we send out.

In other words, the logo mattered. To Josh. And to the marketers who applauded Josh. And to the baby lawyers who offered supportive comments to Josh.  One marketer with “vast experience,” Karin Conboy, who apparently also writes insipid posts for the Lawyerist, had this to say:

Having a successful logo is not meant to be a reflection of your competence, and no one is suggesting that it is. It is meant to be a representation of your brand and reputation and a method for clients to cut through the clutter of competing messages. A logo is a critical part in the development of any business. SHG, when do you suggest that should Josh be thinking about his logo?

Never would be a good time. Or when he’s sitting there staring at the silent phone and has absolutely nothing useful to do would be a good time. But never would be a better time, since the silent phone would be the sort of snarky comment that opens the door to the marketer.  If only he markets the crap out of himself, the phone will ring, they say. Let’s investigate, shall we.

Will clients call this budding criminal defense lawyer because he has a fabulous logo? No. Never. Won’t happen.  Consider this “hater” dialogue.

“So Joe, did you get a good lawyer?”
“Yeah, Sid. You should see his logo.”
“Has he ever tried a case?”
“Well, no, but the blue in his logo really pops.”

What if a potential client actually did call, spying this logo and saying to himself, any lawyer with a cool logo like this is the lawyer for me.  And this highly impressionable client retained Josh’s services to defend him in court. And the client wanted to go to trial.  And Josh, whose experience in the law thus far has been limited to a stint as a clerk for a judge, is constrained to tell this client that he’s never tried a case. He’s never opened. He’s never closed. He’s never cross-examined a witness. He’s never made an objection. He’s never picked a jury. He’s never made a Batson challenge or won a Batson challenge.

But he has a logo.

Karin Conboy, the marketer, might argue that he’s got to start somewhere, so why not bring in clients with his logo and worry about defending them later?  At least he can put some food on the table, if not a client in the clink, and isn’t that really what the practice of law is all about?

This where mean old men, like me, get unhappy. It’s a matter of sequence, where first a new lawyer concerns himself with gaining the competency to be a lawyer.  Later, he can worry about marketing, though if he’s done step one properly, he won’t have to. He will have already, inadvertently, “branded” himself as a competent, diligent lawyer.  Old lawyers never called this branding, of course. This was what we called practicing law.

My pal from Portland, David Sugerman, saw some of the hubbub I created at Josh’s post and twitted:

Why bother? Talking to these pinheads is like pissing in the wind.

Because these pinheads are the future of the legal profession.  Because these pinheads may one day hold someone’s life in their hands.  It may well be a worthless effort, ignored and rejected as just more hatred by old lawyers of new, who are jealous of their coolness, youth and vigor, and who smack them around to make ourselves not feel so bad about being past our prime.  But to leave these pinheads to their own devices is to abdicate the responsibility we have toward our profession and the public.  So what if they think we’re a bunch of nasty old morons. The obligation persists.

Then again, I don’t have a logo. In almost 30 years of practice, I never realized that I should. It never dawned on me to sell myself like laundry detergent or a pick-up truck. Having done it wrong all this time, and no client having shown the decency to tell me that they retained me despite my lack of a logo, Josh’s post has made me realize this gaping hole in my law practice.

Anybody have an idea of a logo for me?  And no phallic symbols, please, you snarky people.  Why shouldn’t an old dog like me be cool too?  Turn my frown upside down.  To make this even more fun, whoever produces the cooliest logo will win a prize.  More pie.

And the logo will mean absolutely nothing to anyone ever.  That’s okay, however, because I can cross-examine a witness.  My clients tend to like that about me.

This wouldn’t even qualify as a dirty little secret but for the fact that no judge seems aware of it. Cops lie.  NYPD Police Officer Michael Carsey, 31, was  convicted of perjury for lying. Way to go, Cy. You got one.

Mr. Eiseman, 39, and Officer Carsey, prosecutors said, said they had smelled marijuana coming from an illegally parked van. In seeking a search warrant for the driver’s home, both testified that the man had admitted to having contraband in his apartment, where drugs and a gun were later found. But the two had actually learned of the contraband when they found pictures on the man’s phone, prosecutors said. The case against the driver was eventually dismissed.

The backstory involves two of the most common themes in street arrests uptown, the car stop and the smell of marijuana.  So you know, the testimony of the officer who claims to have smelled the marijuana will describe it as “pungent.” That”s the code word for unsmoked marijuana. They’re actually taught to use this word, and it appears in every instance. Search Lexis. It’s no joke.

There there’s the vehicle aspect.  Unlawful turn, failure to use blinkers, illegally parked, whatever. There’s no driver uptown who doesn’t realize that he can be pulled over at any time for something or nothing. That’s just how they roll uptown.  There are no rights because these nice people are unworthy of rights. They are the subjects of the power of the State, and they know only too well that when they cross 92nd 96th Street, they forfeit any rights that downtown people have. 

All it takes to make this happen is for a police officer to utter magic words:

I observed the defendant change lanes without signalling, so I stopped him.

Disprove it. You can’t.  The cop said that he saw it, and there is no judge who will disagree.  The defendant can testify.  The passenger in the defendant’s car can testify. Twelve unrelated witnesses who watched the  stop can testify. Cop wins. Always.

A: As I approached the driver’s side, the defendant opened the window and I smelled the strong odor of marijuana.

Q: How did you know it was the smell of marijuana?

A: Based on my experience and training.

Q: And what did it smell like?

A: It was pungent.

Disprove he smelled the strong, pungent odor of marijuana.  The reason this testimony works is that the officer, after stopping and searching the car, found some pot.  If there was pot in the car, bingo, the search is good.  If there is no pot in the car, and the cop has no particular need to bust the defendant, whether for fun, a lesson, a quota or overtime, then the driver goes on his way and the stop never happened. Life is good.

What makes this case curious is how this went from one of a hundred (a thousand? Who knows how many, since the stops where nothing is found disappear) that happens every day in the Big Apple to a case that made the Official Corruption Unit take notice. 

It’s not that the New York County District Attorney’s Office Official Corruption Unit doesn’t mean business. The
do. Unlike the line prosecutors who grow to love their cops too much, these prosecutors have no problem trying to clean up the mess. The problem is distinguishing between the disgruntled defendants who claim the cop is lying and the cop who is lying.

So what made Michael Carsey stand out?  What made Michael Carsey’s lie different from the rest?

On rare occasion, there’s a video that proves the cop was lying. While video is becoming increasingly pervasive, we’re still a very long way from having a video of everyday police interactions. Reading various stories about the case, there is nothing to suggest why Carsey (and his training supervisor, William Eiseman, who pleaded guilty earlier) were outed as liars.

This is the rub. Why Carsey?  Why did he get caught when he did nothing different than what so many other cops do daily?  What made the Official Corruption Unit take this seriously when claims of baseless stop, lying cops, are made every day?  This is the piece of information that most interests me, and there is absolutely nothing to suggest an answer.

In the course of trying to find out, I came across a  comment, offered after Eiseman’s guilty plea, that pretty well sums up the attitude behind this conduct:

Bill Eisman should only be found guilty of taking his job to heart. He went the extra mile to protect our youth from low life drug dealers and protect our society from careless and dangerous savages. If he recovered a gun with a technically illegal search, he may have saved the life of someone’s precious child. If the majority of the population continue to believe that low lives carrying drugs and guns deserve equal civil rights, the world will just be more miserable for the people who do good because it becomes just too difficult to fight crime. I say give Bill Eiseman a medal of honor and give him back some respect for the hard work he did which most people like me would be much too terrified to do.

There are great many people who will nod in agreement, naturally caring little unless and until they’re on the receiving end of a bad stop and a lying cop.  But it’s long been clear that people aren’t particularly sympathetic to “low life drug dealers” and that our concerns about lying and constitutional rights aren’t universally shared. 

The line between getting a medal and being prosecuted is a thin one. So what caused Michael Carsey to end up on the wrong side of that line?  What can be done to make sure all dirty, lying cops end up there as well?  Without knowing this, the most that can be said is that one perjurious cop was taken down. For the rest, it’s business as usual. Life goes on.

At Sentencing Law and Policy, Doug Berman posts part of the  Constitution Projects’ statement urging Congress to enact legislation to ensure that federal prosecutors fulfill their obligations under Brady v. Maryland.

We, the undersigned, are current and former judges, prosecutors, law enforcement officers, defense lawyers and others, all with substantial professional experience within the criminal justice system.  We call upon Congress to address the persistent problems with discovery in the federal criminal justice system by immediately enacting legislation that clarifies federal prosecutors’ obligations to disclose information to the defense and that provides appropriate remedies when prosecutors fail to do so.

We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act.  Self-regulation by the DOJ has been tried and has failed.  It is ultimately not a solution to the injustices that continue to occur. 

Key to this statement, aside from its support by “credible” folk rather than just criminal defense lawyers, is the strongly worded assertion that the DOJ cannot be trusted to manage Brady on its own.  The decision, which I’ve called Wild Bill Douglas’ greatest joke, requires the government to turn over to the defense any information that may tend to be exculpatory or (per the Giglio decision) tend to impeach a prosecution witness.  The problem is that the information must be material and credible, holes big enough to drive a truck through.

Then there’s the problem of the Brady ever reaching the prosecutor.  Federal agents tend to be pretty well trained, and they know that evidence that undermines their case could end up in the wrong hands and spell the acquittal of someone they’re absolutely certain is guilty. Can’t have that, now can we? So it ends up in the wrong file, often circular, and the prosecutor never sees it. You can’t turn over what you don’t see.

Or then there’s the time dilemma, as Brady never spoke to the issue of when the prosecution is required to provide exculpatory information. While the duty is to provide it before trial, that just as easily means 30 seconds before as 30 days before.  The defense will demand it early. The prosecution will respond that it’s under no duty to turn over Brady until  trial.  The judge snores.  Nothing to see here.

The problem is that Brady material isn’t always a smoking gun. It’s materiality often takes some thought, and it’s utility often requires some subsequent investigation. These things take time, which isn’t available when you’re in the middle of trial.  Then there’s the problem of integrating it into the trial strategy, which isn’t easy when the significance of the Brady isn’t clear until midway through summation.  In other words, it’s become part of a game, even when it is disclosed, designed to make sure that it’s of the least possible usefulness to the defense.  That’s what the government calls leveling the playing field.

There are two great comments to Doug’s post, the first by Michael R. Levine providing an exceptional list of cases that might have “prompted” the conclusion that the DOJ wasn’t up to the job.  The second comment goes through an extremely common, and invariably egregious and essentially insurmountable, problem of federal agents who refuse to record defendant statements, leaving only their own notes to “prove” what was said and how the statement was obtained.  This raises a host of other issues, beyond the scope of this post.  Nothing against commenters here, but I’m jealous of Doug for getting such thoughtful and informative comments.  Hint?

This call for legislation is a great first step toward making Brady work.  The statement goes on to suggest a four-point solution for the problem.

1. Provide that the scope of the prosecution’s discovery obligation extends to all information—regardless of admissibility at trial—that could reasonably be considered favorable to the defendant, with respect to pretrial motions, guilt, impeachment of witnesses, or sentencing. Requiring disclosure of all “favorable” information requires less room for interpretation on the part of the prosecutors than a materiality standard.

2. Clarify that prosecutors have an obligation to exercise due diligence in obtaining any favorable evidence, beyond what is in their possession, from other parties involved in the investigation and/or prosecution, including federal, state and local law enforcement or other agencies.

3. Require that prosecutors disclose favorable information without delay, as soon as they become aware of it, thus clarifying that the Jencks Act does not trump this disclosure requirement. If the government has legitimate objections to disclosure due to concerns about a witness’ safety, a desire to protect classified information, or other reasons, prosecutors may raise those concerns with the court, which can issue a protective order if appropriate.

4. Impose an appropriate remedy in the case of non-compliance, including exclusion of evidence or witness testimony, a new trial, dismissal of the charges, or other remedies to be determined by the court. Courts generally have the power to fashion appropriate remedies under their general supervisory powers, but this law would clarify that the court shall use that power to fashion an appropriate remedy each time a violation of the disclosure requirement has occurred.

It’s not that there’s anything wrong with this, but it’s still the typical warm and fuzzy approach that relies exclusively upon the good will of prosecutors for its fulfillment. It’s a step forward only in theory; in practice, it’s the same old same old.

The underlying problem is that while Brady is critically important from the systemic perspective of establishing some basic integrity to the system, no one has ever been able to figure out a way to make it work while maintaining that prosecutors are just good ol’ boys doing the best they can with a confusing system.

Our experience leads us to believe that the vast majority of prosecutors act in good faith to fulfill their constitutional and legal obligations. However, federal courts, the DOJ and other entities have for years articulated inconsistent, shifting, and sometimes contradictory standards for criminal discovery, leaving it up to individual prosecutors to navigate this legal maze and determine the scope of their obligations to disclose information.

Our experience leads us to believe that this is crap. I’ve know prosecutors who honored their duty and prosecutors who haven’t.  Both tend to be exceptionally smart and don’t need legislation to help them to “understand” their obligations. They know exactly what they’re supposed to do.  And yet it doesn’t happen.  Until this harsh truth is admitted, there is no way to meaningfully address the failure of Brady.

With some new technological marvel emerging every 6 to 8 hours, there is no shortage of legal technologists imploring lawyers to get on the train before we’re left behind.  Whether they get a third of all sales they generate isn’t clear, but their adoration of innovation is beyond dispute.

The problem with being contrary is that you’re immediately labeled a Luddite, dinosaur and hater. Using a great analogy,  Mark Bennett provides a particularly cogent argument as to why this is nonsense:

Buy a standard 10mm combination wrench at Sears, or at Harbor Freight, or off the Snap-On truck, and it’s going to be about the same length: 6.25 inches. You can get a longer 10mm wrench, but it is “long-pattern,” not standard. A standard 10mm box wrench has evolved to the length it is so that you can’t comfortably apply more torque than a fastener with a 10mm head can handle (around 10 ft-lbs, so 20 pounds of pressure in a small area on the palm of your hand); if you apply a long-handle wrench to a standard problem, you can easily apply more torque, and you are likely break something.

In other words, things evolve for a reason, and stop evolving for a reason as well. It’s not about hating innovation at all.

What I know best is criminal law; in criminal defense there is little room for innovations to fail. If I try something radically new in the courtroom, and it flops, someone is liable to go to prison. (Nobody has to know that it was my innovation that lost the case, which creates another problem for courtroom innovation: it’s difficult to measure success.)

This is not a paean to the old ways, but an obligation not to let the use of unproven innovative techniques, what we often call shiny toys, cause harm to another.  Despite technology, the core job remains unchanged, to zealously represent our clients. The only purpose to technology in the courtroom is to allow us to do that job better.

Will it?  Does it?  Which of your clients is willing to put his life on the line to find out?

Despite the youthful arrogance that presumes that old-timers know nothing about innovation, we too were raised with it in our own way.  I never ate a fresh vegetable at dinner growing up, as every piece of brocoli was freeze-dried by Clarence Birdseye and my morning orange juice came from a jar called Tang.

It was the space age, and if it was good enough for our astronauts, it was good enough for me.  It took decades to realize that most of the good things about vegetables were lost in the process. It was quick and easy to make, and time-saving innovation was all the rage.

What old-timers also know, however, is that we often fail to appreciate what we give up in the process of embracing innovation.  We know how many times innovations that seemed so promising eventually failed, or were revealed as a fraud.  We know that the trade-offs that once seemed worthwhile later turned out to be less than fair; Tang was simple to make and less expensive than orange juice, but it tasted, well, lousy. This was not the hey-day for food, as Swanson TV dinners were considered the height of haute cuisine.

This is not to suggest that innovation is bad. Not at all. In the past two decades, lawyers have adopted far more by way of innovation than in the five decades before.  We use copy machines rather than carbon paper. We use computers, allowing us to crank out 37 page contracts where two page contracts used to suffice. Okay, that may be a bad example.

We communicate today with near immediacy, whether by email or cellphone, when before we sent a letter and anticipated a response within two weeks.  On the plus side, we can reach each other when we need to. On the minus side, we can be reached when we don’t want to. Pick ’em.

In the middle there was the fax machine.  Remember them? They were all the rage for a while.

While those of us who aren’t first on line for the next gen iPad have to endure the sneers of the techno-razzi, the underlying assumption that every device with an “i” before its name is worthy of adoption is flawed. They may well be, though I suspect many will admit in confidence that they really can’t figure out a use for some of them or how they are any better than last week’s toy.  As Bennett notes, a lot of products have to fail before one emerges as offering an advancement that we can rely on to improve our ability to zealously represent our client.

You want to use the newest iToy for your personal enjoyment? Knock yourself out. If it impresses your friends and neighbors that you are the first on your block to have the latest innovation, all shiny and glimmering, and you’re not inclined to move to a better neighborhood, then be first on line at the Apple store and flash it around while the other hipsters drool.  This post doesn’t mean that you can’t have any toy you want, and can afford, given how many techno early adopters seem to be perpetually short on rent money.  But it’s your life.

The difference for lawyers is that we do not have the right to place our client’s lives in jeopardy in order to see whether any particular innovation will pan out.  This isn’t a matter of discussing, or arguing, whether some new device is the coolest, most innovative thing ever. This is a matter of putting the client first, even if it means using the dreaded yPad because the computer froze and your notes for cross-examination were lost.  Try explaining that to your client.

Attorney General Eric Holder  made the pitch on behalf of the administration that we should trust President Obama to exercise the utmost care before executing Americans without trial or conviction.  This didn’t fly when Nixon was president, but then, Holder was smart enough not to invoke that particular ghost.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.   But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”

 

Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment.   It is clear that, once again, we have reached an “hour of danger.”  

 

We are a nation at war.  And, in this war, we face a nimble and determined enemy that cannot be underestimated.

It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

***

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.

***

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

The distinction is a fine one. When the president deems it necessary, it’s not an assassination. That would be unlawful.  But when the target of “lethal force” is someone who presents an “imminent threat of violent force,” it’s entirely different. A good killing.

Lawyers like to take ideas to their logical extreme. It’s a game we play to see whether the rationale holds up to scale, because experience shows that once authority is taken to kill people without trial or conviction because we call them terrorists in our War on Terror, it’s just a baby steps to apply it to our other wars.

To be clear, the use of the word “war” as a rhetorical trick has been around for a while.  In the 60s, we had a war on poverty.  Fortunately, the poor weren’t shot.  We’ve since had war on drugs, war on crime, now war on terror.  The beauty of calling an initiative a war is that it causes pride to swell in the hearts of patriots.  As on part of the body grows larger, it tends to edge out space for another. In this case, the losing body part is usually the brain.

There is a real thing called “war.”  It’s where sovereign nations, with armies and armaments, decided that the best way to address their respective might was on a battlefield. You knew who the enemy was, and there was a natural beginning and end, when one mighty army defeated the other mighty army.  Then it was over and we all went back to whatever we were doing before, with the exception of returning soldiers who were given a parade before they were ignored and forgotten.

The problem with our loosey-goosey use of “war” is that it fails to comport with the definition that allows us to bring it to an end.  If the only criterion was the number of Americans killed, we would be fighting the war on automobiles rather than bailing them out of their financial woes. It’s way too easy to add the words “war on” before a perceived evil and thereupon invoke the power of the executive to fix the problem with extreme prejudice.

GW Lawprof  Jonathan Turley wrote a good op-ed about AG Holder’s speech.

Holder became highly cryptic in his assurance that caution would be used in exercising this power — suggesting some limitation that is both indefinable and unreviewable. He promised that the administration would kill Americans only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” He did not explain how the nation in question would consent or how a determination would be made that it is “unable or unwilling to deal” with the threat.

There is no shortage of threats to our American way of life, though we tend to exclude those threats that could conceivably put us in the firing line.  If the only limitation is that the evil in the Government’s crosshairs is one with popular approval, then pretty much any “war on” will do. It’s a very effective publicity stunt, much like Reefer Madness was in its day.  With a catchy phrase and perhaps a decent theme song, it’s not particularly  hard to get the nation to back up the President on who we should hate today, who is destroying the fabric of our society.

So today it’s President Obama with his finger on the trigger. And today it’s the operational leaders of Al Qaeda, who everybody knows are terrible, evil people bent on destroying our nation.  Who doesn’t want them gone?

And tomorrow, there will be someone else with his finger on the trigger. And tomorrow, there will be someone else in the crosshairs. And if the Government has the authority to kill whoever it deems undesirable today, it will have the same authority to do so tomorrow. But then, what do you care? You won’t be the enemy of our nation.  Right, Pogo?

If Yajira Quezada was my daughter, she would be looking at some very lonely nights ahead, as there would be some serious punishment for mouthing off to her principal the way she did.  Then again, if she was my daughter, she would already know better than to do that. Having done so, consequences must follow.  Just not these consequences.

From NECN :

Eleven-year-old Yajira Quezada, a sixth-grader at Colorado’s Shaw Heights Middle School, was handcuffed and taken to a holding facility for disobeying the orders of an assistant principal during lunch and being “argumentative and extremely rude”.

An Adams County Sheriff’s Office incident report says the assistant principal found Yajira walking in the hallway during lunch because the girl claimed she was cold and needed to get a sweater from her locker.

The report says the assistant principal was in mid-sentence when Yajira, “turned and walked away saying, ‘I don’t have time for this.'”

When intervention efforts with a counselor failed, Yajira was handcuffed and put in the school resource officer’s patrol car and taken to a juvenile holding facility called “The Link.”

Steve Saunders, director of communications and community relations for Adams County School District 50, says anytime an incident rises to this level, officials take a close look at what happened.

“You hate to see something escalate to where it becomes a police matter. Once they step in and take over a case, it is really in their hands. The conclusion was, as far as the district was concerned, everything was handled appropriately,” Saunders said.

I couldn’t have anticipated an announcement of such enormous magnitude. Mark Bennett, running for the Texas Court of Criminal Appeals, is huge, and there was no way I was going to miss the opportunity to have my say.

But truth be told, I was bored.  After this post, I figured it wouldn’t be much of a stretch to wake up and enjoy the ideas and writing of others.  The next morning, I sat there, staring at the screen, my fingers twitching.   Dan Hull left me a  comment that said “writers gotta write.” I told him it was a pretty smart thing to say, but he informed me it was something I once told him.

With a lot of free time on my hands, I read stuff that I had previously neglected.  Some of it was scary bad, ranging from dead wrong to numbingly superficial, and saw how ignorance feeds upon itself.  My joke is that it’s like giving nuclear waste to a group of kindergartners and telling them to figure out a good way to dispose of it. Rather than come to the realization that the  risky shift was at work, and their mutual hugs and support of poor ideas might not be a great way to turn them into lawyers, they circled the prams to defend their right to think like children.

There were a ton of stories, cases and issues that arose during my hiatus, and left unmentioned in the blawgosphere.  Some blawgers complained that there was no reason for them to write because I was too prolific, writing about matters before they got a chance and leaving them only the crumbs.  So without a peep out of me, I figured they would step it up. Still, my RSS readers was pretty barren every morning. Very disappointing.

Not every blawg by a young or new lawyer made me wince. Not by a long shot. One young Philly lawyer, Fishtown’s own Jordan Rushie, really cranked up the machine and showed he’s got both the moxie and the desire to be a lawyer.  As much as others made me feel badly about not being the cranky old lawyer who throws a wet blanket on the babies’ beach blanket bingo, Jordan reminded me that there are young lawyers who want nothing more than to serve their clients. How could I not be there for him?

All of the reasons that compelled me to stand down remain.  They were there long before February 13th, and they are likely to remain for a long time to come. As much as I appreciate (and I sincerely do) all the comments, posts, emails and phone calls, blawging can be a huge burden. As I continually emphasize, the social media marketers are utterly full of it. This is not the way to get rich and famous. This is not the path to success and prestige.  It’s just a  pie eating contest where the prize is more pie.  Eventually, you have your fill of pie.

So when I wake up in the morning and crank up the computer, chances are pretty good that I’ll have something to write about. Whether it will be the same as before, I don’t know. Whether I’ll be crankier, more curmudgeonly, seems awfully likely.  If SJ didn’t suit your style before, don’t expect it to be warmer or fuzzier. But there will be words on the screen for as long as the need to write something strikes me.

Writers gotta write.  At least for now. Thanks for reading and enjoy a slice of pie.

Talk is cheap. A video, on the other hand, speaks volumes.  Aside from the issues surrounding the treatment of Americans (and everyone else) at airports (and elsewhere) under the rubric of saving us from terrorists by placing their body parts against our body parts in ways that would result in long prison sentences if it was done by anyone out of uniform, the concepts falls apart if it’s not effective.

This video is quite persuasive. While the use of body scanners, even if they did serve their intended purpose, fell shy of justifying the imposition of the government on the public as far as I was concerned, this seems to put the nail in the coffin.



Still feel safer?

H/T Randazza at the Legal Satyricon.

Update: It appears that the TSA doesn’t want you to see this video, and has “cautioned” journalists not to write about it. Via Ken (Mr. “I prefer to take long walks anyway”) at  Popehat, who asked TSA spokesgal Sari Koshetz whether it was true:

I expected the TSA might ignore me. I expected the TSA might say “no, you idiot, we didn’t strongly caution anyone against reporting a story, and we didn’t imply a threat to anyone.”

I did not expect a weak semi/non-denial that seems to corroborate that reporters were, in fact, “cautioned.” In fact, an uncharitable reader might note that Ms. Koshetz didn’t specifically deny making implicit threats, didn’t specifically deny strongly cautioning journalists against reporting a story, and in fact only made an ambiguous statement that could be read several different ways, some of them ominous.

The catch-line for the original television commercials was “I”ve fallen and I can’t get up.”  Lots of people thought it was pretty funny, but at the same time realized that it reflected a deep concern, that older folks living on their own needed a way to summon help if something bad happened.  Well, something bad happened to Kenneth Chamberlain, Sr.

From the New York Times :

Somehow the uncle, Kenneth Chamberlain Sr., a former Marine who had heart problems and wheezed if he walked more than 40 feet, triggered his Life Alert pendant. The Life Alert operator came on the loudspeaker in his one-bedroom apartment, asking: “Mr. Chamberlain, are you O.K.?” All of this is recorded.

Mr. Chamberlain didn’t respond. So the operator signaled for an ambulance. Police patrol cars fell in behind — standard operating procedure in towns across America. Except an hour later, even as Mr. Chamberlain insisted he was in good health, the police had snapped the locks on the apartment door.

The law recognizes two discrete functions served by the police. One is law enforcement, and the other is public safety.  But just because the law sees them as distinct doesn’t mean cops see them the same way.  No matter what function they’re supposed to fulfill, the  First Rule of Policing still applies.  So what if they’re on the scene to help someone in distress? 

They fired electric charges from Tasers, and beanbags from shotguns. Then they said they saw Mr. Chamberlain grab a knife, and an officer fired his handgun.

Boom! Boom! Mr. Chamberlain’s niece Tonyia Greenhill, who lives upstairs, recalls the echoes ricocheting about the hall. She pushed out a back door and ran into the darkness beneath overarching oaks. He lay on the floor near his kitchen, two bullet holes in his chest, blood pooling thick, dying.

Shockingly, the White Plains Public Safety Commissioner declared the shooting “warranted” because, well, they invoked the First Rule.  Not that it wouldn’t have been a good idea for the police to have remained calm and de-escalated the situation, calming an old man who might have been in some emotional distress.  After all, they didn’t know what was happening, which means they had to break into his room.  Sure, he told them he was fine at the door, but the police can’t trust the word of the person they’re there to save.

Some may wonder how it’s lawful for police to break into a person’s home without a warrant or probable cause, but this is where the rules applicable to their public safety function differ from their law enforcement function.  They were there to save Chamberlain. They were not there because anyone suspected him of having committed any crime, but to help.  When cops are there to help, they can do whatever they need to do, including breaking and entering a person’s home. After all, they’re there to serve.

Regardless of whether the police are summoned by Life Alert or the bat signal, of course, the same rules of engagement still apply.  After all, even ill people have to be absolutely compliant if they don’t want the police to shift gears.  The First Rule still applies.  If it becomes a choice between the welfare and safety of a citizen and their own safety, the citizen always loses.

There will likely be more information to be had about what happened to Kenneth Chamberlain, as there were video cameras in addition to the Life Alert recording, on the whole time, which captured this prediction:

His son recalls hearing his father say on tape: “This is my sworn testimony. White Plains officers are coming in here to kill me.” A few minutes later, a bullet tore through his rib and heart.

The police tasers also had cameras.  There are claims that he was taunted by police, and that a racial epithet was heard.  An amorphous claim that he was “known” to police is thrown in for good measure, though there is nothing to suggest he had every done anything criminal.  Plenty to consider, though its relevance isn’t clear.

What is clear is that a man who may or may not have needed help at the outset is dead.  What started out as the makings of a real life television commercial ended as an episode of cops.  The question doesn’t appear to be whether this could have been handled better, but whether the end result of a dead man whose Life Alert went off can be explained away sufficiently to rationalize his killing. 

Expect words like “threatening, fear, belligerent,” to be used to explain how reasonable the police were to shoot him. If it had been a drug bust, they would use “furtive gestures.” If unsmoked marijuana was involved, you would hear the word “pungent.” These are magic words that have long made stumbling blocks disappear.  Cheap words are usually sufficient to explain a death when the killing is done by a cop. That’s how the First Rule works.  Remember, it only applies to police, so don’t try it at home.

The scene when the police arrived was that an old man pressed his Life Alert button, and to which the White Plains police responded to help.  By the end of the encounter, he had indeed fallen and he couldn’t get up. That’s because they put two bullets in his chest.  That’s a very different scene.

Jay Rodney Lewis is a winner. He won. Big, big win. Complete acquittal.  But you wouldn’t want to be him.  From the Des Moines Register :

Lewis had just finished 112 days in jail because he didn’t have the cash to make bail. When jurors finally freed him on Feb. 9, Lewis walked out homeless, unemployed and minus most of his possessions.

Lewis, a Kansas native, moved to West Des Moines in fall 2010 to take a job in an Internal Revenue Service call center.

A former security guard and law enforcement officer, Lewis also is a hunter and gun collector and came to Iowa with a permit to carry a concealed weapon.

Lewis found himself in a road rage incident with a 35-year-old guy named James Scott Ludwick, described as a former soldier and convicted felon, who was driving home from a party, with his blood alcohol content at .189.  An accident happened, and Ludwick got out of his car and attacked Lewis, who warned him to stop and eventually shot him. It was captured on the 911 call made by Lewis.  Shockingly, Lewis was still on with the 911 dispatcher awaiting police assistance as things came to a head, the police nowhere to be found. 

According to Polk County officials, most pre-trial inmates spend 20 days in jail until they make bail and get back to normal.  But Lewis couldn’t make bail.

West Des Moines police arrested Lewis for failing to back off and avoid the gunplay. He was charged with two counts of intimidation with a dangerous weapon and one of going armed with intent.

The initial bail asked Lewis to post $225,000 cash.

Lewis, who made $32,359 a year at the IRS, didn’t have the money. So he sat in jail.

Given how common it is for those IRS employees to flee, it’s easy to understand why the prosecution would seek an amount that assured the defendant would remain incarcerated pending trial, and why the judge would go along.  What is less palatable is the police decision to arrest Lewis for defending himself.  Certainly, it’s easier to decide that the fellow who shot from inside his car the guy who was attacking him from the outside was wrong, despite warnings, but then, the easy way is always, well, easiest.

That Lewis spent only 112 days in jail until his acquittal is remarkable.  In other jurisdictions, trial wouldn’t happen for far longer, with a year and a half, may two, being within the realm of probability.  Less than four months from arrest to trial is pretty fast, all things considered, though not fast enough to prevent Lewis’ eviction.

One week after the shooting, a lawyer for [Lewis’ landlord] Regency Woods typed up a notice that eventually was posted on the door of Lewis’ apartment. It described Lewis as a “clear and present danger to the health or safety of the other tenants.” As evidence, it cited Lewis’ involvement in “an assault with a weapon within 1,000 feet of the property described above” and the fact that he’d been arrested because of it.

Amazingly, the landlord won the eviction.

Documents say a process server tried twice the next day to contact Lewis at the apartment. Lawyers also sent him a certified letter. Lewis was never there.

Despite the fact that Regency Woods knew Lewis had been arrested, no one ever contacted him at the jail. Instead, the apartment complex won a default judgment when Lewis failed to appear in court on Nov. 22.

And of course, when someone is evicted, something has to be done about his “stuff.”

The evicting deputy seized four handguns, three rifles, a shotgun and a machete that had been left in the apartment. But all his clothing and furniture disappeared on Nov. 30, along with a laptop containing the only copy of his fourth novel (a western).

“That was several decades of my life that got flushed down the toilet,” Lewis said. “I had a beautiful flat-screen TV. It’s now in somebody else’s living room. … For a while there, every time I turned around it was like, ‘Can it possibly get any worse?’ ”

It seems his belongings were left out at the curb.  Inexplicably, they weren’t still there when the jury returned the verdict of not guilty on February 9th, more than two months later. Go figure.

Stories like this are often related in hushed tones about how the legal system works, how an innocent man fought the charges and was ultimately vindicated.  This makes us feel good about legal system, trial by jury, the best system ever created for the administration of justice.  After all, justice was done, because Jay Rodney Lewis walked out of jail and headed straight for Fudruckers to get his first decent meal in almost four months.  It doesn’t get any better than this.

And so we hold the travails of Lewis up as a beacon to what a wonderful job we do.  The system has a name for guys like Lewis: Winner!  He beat the rap.  Too bad the ride destroyed his life, but that’s the price of our wonderful system.