Appellants would be more than happy if you only briefed one argument.  Provided it won. Otherwise, chances are pretty good that they will believe that you ruined their chances of “justice” by failing to raise that winner point, the one you left on the table.

But try to cover them all and you can anticipate some snarky judge to write what Third Circuit Judge Aldisert did in United States v. Bansal :

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

There isn’t always two sides to every story, but don’t try to tell that to the guy on the other side from you. If there is only one right side, they own it and you don’t.  You, of course, are absolutely certain they’re wrong, insane and controlled by Satan (or whatever evil deity you prefer). 

At Crime & Federalism, Mike writes of the greatest threat to free speech not being the government, but each other.  While he uses copyright troll Righthaven, one of the few private actors it seems everyone agrees is evil, and is being gleefully crushed by  Marco Randazza as I type, He notes:

But not everyone can afford legal help. Many people allowed Righthaven to extort it, as a purely economic matter. If defending a lawsuit costs $20,000 that you don’t have, then putting a $5,00 settlement on a credit card makes sense (especially when you consider that the maximum exposure for copyright infringement is $150,000).

Now some of you will be hard asses. “Freedom isn’t free.” Cute slogan that is ignorant of constitutional text. Speech is supposed to be free. The First Amendment protects, after all, “freedom of speech.” Read the Constitution. It’s all in there.

Well, yeah. It’s in there. Though most agree that freedom doesn’t mean complete, total, unfettered freedom, because people, being people, can say some really bad stuff sometimes.  Like lies. Like things that deceive others. Like things that are calculated to cause unjustified problems, whether for some pernicious purpose or just the lulz.  So it’s all about freedom, except when it’s not.

The problem is that people sometimes often disagree about what’s true and what’s false, what’s right and what’s wrong.  We can all agree that the right stuff is better than the wrong stuff, but which is which presents a problem.  It’s not about popular vote, where one against the world makes the world right and the one wrong.  Sometimes the sole voice is the right voice.  And most of the time the sole voice insists its the right voice, whether it is or not.

But the point of Mike’s post is that the testing, by litigation, is the killer.  Most would agree we need a way to separate the good from the bad, but the price is more than most of can, or are willing, to pay.  When someone decides they don’t like what another person writes, they can challenge it. The writer must then defend himself.  That’s where the nightmare happens for the good guy writer.  For the bad guy writer, the nightmare is endured by the person challenging. 

See the problem?

Not too long ago, Arthur Alan Wolk settled his beef with Reason. When Jacob Sollum announced the settlement, he closed his comments with this explanation.

Note to commenters: This costly and time-consuming litigation is over, and we do not want to see any further lawsuits filed as a result of comments on our site. Because it is impossible for us to screen and monitor all comments, we have disabled them on this post.

I was critical of his decision. Soon after, I received an email from Jacob asking if we could talk about it in the upcoming weeks. “Sure,” I responded, then never heard about it again. Recalling the request, I sent him another email and never heard back. Obviously, it wasn’t that important anymore.

I’ve  been sued for what appeared in this space. I’ve been threatened with suit numerous times. I’ve been threatened with harm a few times as well.  I can only shrug.

For those who don’t know better, the cheap talk about the wonderful benefits of blawging is nonsense. This blawg has not made me rich and famous, hasn’t shod by kids, and won’t pay for a Ferrari.  When there is a cost associated with it, it comes out of my pocket. That includes defending myself should I be accused of defamation.  Whether I can afford it isn’t the point. Nobody wants to pay it.

There is a cost associated with expressing an opinion in a public forum.  As bloggers talk about the potential deluge in new blawgs from the 94% who “plan” to start, and as  LexBlog honcho Kevin O’Keefe uses his good offices to urge n00bs to work hard to create meaningful content rather than drown out the signal with noise, nobody but Mike talked about the hidden cost.

The price for creating the vehicle, the blawg, the domain, the program, is one cost. Time lost to more productive efforts is another.  The emotional loss when you learn that you’ve been deceived, that blawgs are unlikely to come close to a viable ROI to justify their existence (sorry, kids, but that’s the truth; we’ve been there, this isn’t an argument). These are all the obvious costs of blawging.

There are ways to minimize your exposure.  Become the “go-to” blawg for caselaw and news stories on Iowa residential property line disputes, curating stories with nothing more controversial than a prefatory “interesting” or, get really risky, “curious.”  Add nothing more and chances are that you won’t be threatened too often.  And like Iowa Dirt Lawyer, chances are you will fade away when the pointlessness of it becomes manifest.

Or you can play it safe, close the comments, tone down the rhetoric, try your best not to offend anyone.  After a few of us, including Mike Masnick at  Techdirt and Paul Alan Levy at  Public Citizen, refused to cower in the corner, and  “chided” Jacob Sollum for closing comments, he tried to find a middle ground :

Again, we are glad this litigation is over and would like to get on with our other work, so we ask readers to exercise self-restraint in their comments so as to forestall any more claims that we are inciting others to libel. 

Endnote:  The title of this post reflects my view that we need national anti-SLAPP regulation as a means of providing a counterbalance to frivilous litigation designed to silence critical speech. It’s hardly a perfect solution to the threat of lawsuits to shut down underfunded critics, but it would provide a much needed disincentive to SLAPP suits.

You have to be in a select club to appreciate the relief that must have swept over John Rivera when he learned the news.  It had been a long fight.  From Oren Yaniv at the Daily News :

Rivera was convicted in 1997 of pumping a bullet into the head of his estranged wife, Kimberly, during a struggle over custody of their infant son, who was just a few feet away at the time of the shooting.

He claimed that his spouse, an NYPD scooter cop, was depressed and turned the gun on herself.

A jury acquitted Rivera of intentional murder but found him guilty of a fallback charge of depraved indifference murder.

After affirmance by the Appellate Division, and leave denied by the Court of appeals, he had only a habeas before the federal courts left.  But in the interim, there was a fundamental shift in New York law.  The  Payne and  Feingold decisions put an end to the common practice of double charging murder defendants with intentional and depraved indifference murder.  If they didn’t convict on the former, the prosecution got a second bite with the latter. That’s how they nailed Rivera.

On August 9, 2011, the Second Circuit  issued its opinion holding that Rivera, having been acquitted of intentional murder, could not convicted of depraved indifferent murder (both reflecting different formulations of Murder 2º). The preliminary issue on appeal was whether the standard on habeas review was the substantive state law at the time of his initial conviction by jury, or when the conviction became final.  The Circuit held that the appropriate law was that in effect 90 days after leave was denied by the Court of Appeals.

Viewing the evidence adduced at Rivera’s trial in the light most favorable to the verdict, as we must at this juncture, see id. at 319, a reasonable jury could have found either of two possible scenarios to explain Cassas’s death. First, a reasonable jury could have found, as the State argued at trial, that Rivera plotted his attack on Cassas in advance, lured her to his home on the night of the murder, and then deliberately “put a nine millimeter semiautomatic Beretta handgun to [her] head ․ and pulled the trigger.” J.A. 28. After Hafeez, however, such a “quintessentially intentional attack” could no longer be categorized as depraved indifference murder. See id. at 258–59, 762 N.Y.S.2d 572, 792 N.E.2d 1060. Thus, to the same extent as in Hafeez, in Rivera’s case, no reasonable jury could find Rivera guilty of depraved indifference murder rather than intentional murder on such facts.

Despite the fact that the Brooklyn District Attorney tried that case as purely an intentional murder, they tried to sell a new spin to the Circuit.

Alternatively, the State now contends—contrary to its position at Rivera’s trial—that a reasonable jury could also have found that, after bringing the gun to his meeting with Cassas in an attempt to scare or intimidate her, Rivera accidentally shot Cassas when the gun discharged during a struggle.1 The State argues that this alternative set of facts would support a conviction for depraved indifference murder because the act of “confronting [Cassas] ․ with a loaded weapon, thereby precipitating a struggle for the gun,” was sufficiently reckless to render Cassas’s resulting death depraved indifference murder. Appellee’s Br. 39–40. This argument is without merit, however, as such facts would not rise to the level of depraved indifference murder even under Register and Sanchez.

One might think that pretty much covers it, having both addressed the reality of the evidence offered in Rivera’s conviction as well as dismissing the fantasy offered to sustain it in the face of challenge.  As the Court expressly held, “no reasonable jury could find Rivera guilty of depraved indifference murder.”

But that was said in the heat of summer.  In the cool of winter, minds change, thoughts vary and, apparently, reversals disappear.

In a highly unusual move, Second Circuit judges pulled back a detailed, 23-page August ruling freeing John Rivera and substituted a four-page decision keeping him locked up. The new paperwork was made public last week.

The Second Circuit, without much fanfare, flipped completely and issued a new opinion in Rivera’s case. This time, Rivera lost.  Shocking.

What changed?

Subsequent to our decision, Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted “the necessity of deference to state courts in § 2254(d) habeas cases.

It’s not entirely clear why the court bothered to include respondent’s’ petition for rehearing en banc, inasmuch as that’s about as significant as a litigant threatening to appeal. So what?  Perhaps it was tossed in because the reliance on Cavazos just wasn’t going to pass the laugh test.

After much reflection, we now reverse course. Applying the law as it existed after Rivera’s conviction became final in July 2004, we find that although evidence of “significantly heightened recklessness,” People v. Sanchez, 98 N.Y.2d 373, 380, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder.

Is the court suggesting that gave only cursory reflection to reversing a murder conviction the first time?  The notion that the panel hadn’t given “much reflection” to its original decision, reversing Rivera’s conviction for murder of his police officer wife seems ridiculous. It’s impossible to believe that the court didn’t agonize over the reversal, giving its deepest possible reflection before deciding.

But then, what of the express holding that “no reasonable jury could find Rivera guilty of depraved indifference murder?”  It was suddenly reduced to “slim, at best,” but enough to squeak by.

Therefore, we have no choice but to uphold the decision of the state court.

And poof, the reversal of John Rivera’s conviction for depraved indifference murder, despite the acquittal for intentional murder and the evidence, except in some fantasy dreamed up while crossing the Brooklyn Bridge on their way to Foley Square, magically disappeared.

Flames shot up from the snarky comments because of Staci Zaretsky, a sweet young lady whose job it is at  Above the Law to find a lurid angle that will incite the unemployed children to a frenzy.  And so rather than look at the substance, she carelessly tossed in that Kaeseberg is a “hottie,” knowing full well that the trolls would say otherwise.

What Lauren Kaeseberg is, however, is a criminal defense lawyer.

Who is the (rather attractive) class of 2007 lawyer representing Blago, and why did a judge characterize her recent courtroom stylings as “harebrained”?

So, who’s the mystery woman we’re talking about?

None other than Lauren Kaeseberg, a 2007 graduate of Cardozo Law. She was admitted to the bar in 2008, and by the luck of the draw, she was hired to join Blago’s team of lawyers during his first trial, which ended in a mistrial on a majority of counts. She continued the representation through the former Governor’s retrial, where he was found guilty on most counts. Oh, and did we mention that she appears to be a hottie?

In her post-conviction motion, raising an issue arising from the subsequent revelation that a juror was in possession, and publicly used, a jury questionnaire that she should neither have possessed nor used, but was to have remained in the custody of the court.  Within the team of lawyers who remain beside the defendant, Kaeseberg was tasked with challenging this impropriety.

According to the Lake County News-Sun :

U.S. District Judge James Zagel took a mere three minutes Monday morning to dismiss a motion by former Gov. Rod Blagojevich’s attorneys as “harebrained.”

“The motion was prepared without any adequate thought,” Zagel scolded Blagojevich attorney Lauren Kaeseberg. “You should seek outside counsel . . . and send a letter of apology to the juror.”

Apparently, uttering the word “denied” wasn’t enough for Judge Zagel, who makes the all-too-common mistake of thinking that being swathed in black polyester permits him uncontrolled intemperance.  Calling a lawyer harebrained is inexcusable under any circumstances.  Unlike blawgers, who are entitled to great latitude in both hyperbole and vulgarity, judges are expected to constrain their nasty, sharp tongue.  James Zagel appears to have failed.

But the gravamen of Kaeseberg’s motion, the one compelling Judge Zagel to abuse his robe, was hardly of the sort to justify such a bizarre reaction.

Zagel said he could hold Kaeseberg in contempt of court but was cutting her slack because she was a fairly new lawyer.

“By the absence of precedent, I assume you couldn’t find precedent,” Zagel said, calling the filing “beyond my imagination.”

The handicap under which Zagel labors becomes clearer, as his admitted lack of imagination precludes him from conceiving of a motion without clear precedent.  His grasp is that of a follower, incapable of realizing that someone has to be the first to move for relief. 

There are a plethora of issues that arise these days that have yet to be addressed, no less become black letter after decades of rulings. Someone has to be the first to raise them, and its hardly clear whether they will be hugely significant or tossed on the pile of rules without consequences.

Lauren Kaeseberg did exactly what a criminal defense lawyer must do. There was an issue, and she raised it.  There was a question and she sought to get an answer.  Her job was not to ignore it, shrug it off, decide that an undecided question was unworthy. Her job was to take anything, everything, she could find that might serve her client and put it to its best use. Her job was to try.

Kaeseberg tried. For her efforts, a United States District Judge called her “harebrained.”  He demonstrated not only an lack of intellectual depth, but a lack of self-control.  He demonstrated that he cannot manage the judicial temperance required of him.

There are some brilliant and thoughtful federal judges around who understand that someone has to be the first to raise an issue, and that a criminal defense lawyer’s job is to take the risk of being that first one.  They may well have denied the motion too, but they would never have uttered such a disgraceful insult.  These judges would have understood what Kaeseberg was doing, and why she had to do it. They would have applauded her pluck, her effort, her zeal, even if they didn’t grant her relief.

These brilliant and thoughtful federal judges must have cringed when they heard Judge Zagel’s language.

But in an ironic way, Judge Zagel’s impropriety gave Lauren Kaeseberg a gift.  While the ATL story gave the children a snark opportunity to poke at her appearance (which, I note in irrelevant passing, is that of a lovely young lady, certainly attractive and playful), it made the rest of us take notice of a 2007 Cardozo Law School graduate who chose baptism by fire over sharing the basement couch with ATL readers.

Sitting in the third chair at the trial of Blago may not have made Kaeseberg a household name, but being lambasted wrongly for having stood up to the court and made the motion a hardened criminal defense lawyer felt needed to be made, is a very impressive thing for a young lawyer to do. 

Whether Lauren Kaeseberg will ever be required to endure a judge as inappropriate as James Zagel during the balance of her (hopefully) long career in criminal defense is unclear.  But where most young lawyers would cower in the well, Kaeseberg faced the challenge and proved that she has the guts to do the job, to be the person willing to risk the ire of the puny to serve her client.

Few young lawyers get the chance to be tested, and to prove they have what it takes.  That was Zagel’s gift to Kaeseberg.  And Lauren Kaeseberg performed in the finest tradition of criminal defense, from risking the court’s animus by raising a new issue to standing firm and proud despite the smack delivered by a judge who dirtied his robe.  As a criminal defense lawyer, I’m proud to count Lauren Kaeseberg among us. 

The image, in its own odd way, evokes a sense of Santa gone terribly wrong.

That’s not a beard, but a spit mask, blocking the mouth of Nick Christie, as he was photographed naked, in restraints, and covered in the pepper spray that finally killed him at the Lee County, Florida, Jail.  Via the Tampa Bay flavor of Fox :

The District 21 Medical Examiner ruled his death was a homicide because he had been restrained and sprayed with pepper sprayed by law enforcement officers. But to this day, nobody has ever been charged with a crime, and the Lee County State Attorney cleared the sheriff’s office of any wrong doing. 

This happened back in March, 2009, after the 62 year old Christie went to Florida to get away.  According to his wife, there was something wrong and he needed help.

She said her husband was depressed and was showing signs of erratic behavior a few days before leaving for Florida.

She called authorities and pleaded with them to take her husband to a hospital and be given his medications. Instead, he was taken to jail for disorderly intoxication.

That the cops took him to jail rather than the hospital isn’t particularly surprising.  It’s what cops do when they don’t care enough to think hard.  But how it ended up with Christie dead has never been explained.  The coroner’s homicide is the state’s attorney’s unfortunate accident.

It’s probably hard for the state’s attorney to figure out who did what and why.  As good as police may be at explaining why others are terrible criminals who deserve to be put away for life, they grow forgetful when it comes to themselves.  Even the best of cops tends not be forthright when it involves one of their own, both for his own sake as well as the empathy he has for the very difficult job his blue brothers do.  The job of killing Nick Christie wasn’t likely very difficult, but still.

The officers who killed this man probably didn’t think it would end this way.  They may not have realized what would result from spraying him ten times with OC, oleo-resin capsicum.  Note that I use the plural, as this is never the work of a single officer, even if others merely stand there and watch.  Sometimes they laugh at how they’ve humiliated a person.  What they rarely do is grab the arm of a fellow officer and tell him to stop.  What they never do is take a brother down to prevent a human life from expiring.

There will be a few officers who lost sleep over this, the image of Nick Christie replacing visions of sugarplums.  It’s been years since they watched it happen, though, and the cops who killed him, who did nothing to save him, will probably sleep fine on Christmas Eve.

These officers will wake up on Christmas morning and feel the joy of their children opening the wonderful presents Santa left for them under the tree.  Their Santa will be jolly, rather than the image of a man, strapped like an animal with a spit mask covering his mouth, dripping with pepper spray, because he needed another human being to help him,  

Since March, 2009, no cop has come forward to tell of what happened to Nick Christie on the night they made him look a bit like Santa Claus, then killed him.  Merry Christmas, officers.

Jerome Kowalski says it pretty clearly.

While this may be complete heresy, but if I see one more article telling me how important it is for me to grow my practice through social media, I may toss a grenade. If I see one more piece entitled “Seven Important Steps to Take to Improve Your Social Media Presence,” I may toss a brick at my computer screen. If I get invited to one more webinar in which the sponsor promises to deliver the real secrets of social media, I will probably toss my laptop out the window. And if I get one more solicitation from somebody who touts himself or herself as the world’s greatest social media expert (whose most recent prior work experience was working as an accounts payable clerk), I may see if I can lay my hands on one of those Army surplus “Fast and Furious” weapons. I think we are all getting burned out on using social media.

I predict that 2012 will be the year this mindset begins to change.

But what’s it mean for the rest of us — those who already have blogs and those who regularly read blogs?

Well, on one hand, I suspect it’s much ado about nothing. Despite their best-laid plans, I doubt all the firms that say they’ll launch blogs really will. And of those that do launch blogs, no doubt a good number will be abandoned or ignored, as seems to happen with many blogs.

On the other hand, I have no doubt that many new legal blogs will continue to launch and that a fair number of them will be worth reading. The more the merrier, I say. Like cream, good blogs rise to the top. Even if we have a flood of blogs, there will be those that stand out and those that do not.

Even more importantly, LexBlog needs to up its game in helping the 8,000 lawyers on our network know what it means to blog well. To offer value. To engage others. To understand blogging is not marketing per se, but a relationship and reputation enhancer.

Otherwise, LexBlog will not only be letting its clients and network members down, but polluting the net and legal dialogue with law blogs offering little value that will come and go.

Remember the survey that started this?  It didn’t suggest that law firms wanted to become part of the blawgosphere, join in the conversation, add to a body of peer reviewed knowledge.  The survey said:

94% of the AmLaw 200 law firms (200 largest law firms) plan to use blogs in their social media marketing initiatives.

The flaw seems obvious to me, though it’s likely because I’ve been around the blawgosphere, as well as the practice of law, for a while.  I read the gurus top ten lists the first few thousand times they posted them, learning that I do everything wrong when it comes to making rain, becoming a thought leader, impressing hotties and becoming a social media rock star.  Still, I’m here, having survived for almost five years now.  I’m no guru, but I am a fairly good observer.  And the only horse I have in this race is to see a quality blawgosphere survive.

If the purpose is marketing, don’t bother.  The return isn’t there. You will not find wealth and prestige blawging.  To the extent the gurus claim otherwise, there is a reason why their days are spent telling others how to market on social media rather than raking in the dough from their law practices.

The blawgosphere can’t handle a million blawgs.  If you are truly dedicated to the blawgosphere, you skim maybe 50 blawgs for something interesting.  That’s a lot, and most do far less.  Imagine a small town with 1000 daily papers. Even if they’re all brilliant, no one can read them all.  And if 990 of them are PennySavers, there will be a lot of untouched paper to recycle.

In 2011, the blawgosphere atrophied.  New blawgers, molded by the gurus, isolated themselves so no one knew they existed, paying good money for SEO that brought them all the way to page 7 on Google, right behind the Uggs advertisements.  There were a few great new entrants, but the vast majority were a waste of time, money and effort. No one mourned their death.

A long time ago, I wrote about Blawgospheric Darwinism.  It remains true.  The only real question arising from the anticipated deluge is whether it will crush the blawgosphere under a pile of crap.  Will every reader, every lawyer, feel like Jerome Kowalski, being sick and disgusted with the whole thing?

If the blawgosphere is turned into a massive and fruitless marketing initiative by over-moneyed and under-mindful law firms, big, small or solo, it’s conceivable that the noise will drown out the signal, turning off those who might otherwise be inclined to spend some time here.  Nobody wants a channel showing only commercials.

There is room for new blawgs. There will always be room for great blawgs, assuming the blawgosphere isn’t crushed under a pile of crap.  Few have the will and desire to produce a great blawg.  Fewer still will resist the effort to turn what they have into a marketing initiative.  You won’t make it. You will waste your time, effort and money.

I predict there will be 25 new blawgs in 2012 that will capture the interest and attention of the blawgosphere, will garner a meaningful readership and will contribute to a thriving blawgospheric community.  I predict yours won’t be one of them. I predict you will fail. I predict you will crash and burn.  And none of them will generate enough business to make a single blawg post worth your while.

Prove me wrong.  If you can’t, find a better way to spend your time and money. Social media isn’t going to change your life.

This is my gift to those of you who, like Kowalski, hear all the noise, and for those of you who, unlike Kowalski, think they’re missing some magic secret to vast wealth and prestige in social media.  Save yourselves before the deluge.

Whenever a motion is made for a bill of particulars in the Southern District of New York, the government’s response is the same: It would unduly prejudice the government to be required to disclose allegations of fact that would enable the defendant to know the specific conduct that forms the basis of the charge against him.  And the court agrees.

You know, telling the defense what exactly it says the defendant did that was criminal would indeed prejudice the government. It would give the defense half a chance to prepare its defense. Well, maybe only a third of a chance, but at least a chance.  Level the playing field, if only a bit?  Prejudice.

But when it comes to prosecuting “enemy combatants,” the ante is upped.  Way upped. Not only is the risk of individual failure at stake, but the reputation of a government that’s come to depend on a population who believes, with their every breath, that it can be trusted to ignore every safeguard around which are concept of a legal system is based, and still be fair.  The integrity of the outcome must be trusted, and yet the conviction of those denied their rights must be assured. 

What to do?  It’s not enough to deny the defense access to the evidence against the defendant. No, not the puny refusal to provide a bill of particulars, but wholesale denial of “state secrets.”  Still, a criminal defense lawyer gets used to thinking fast, working on the fly.  We don’t enjoy the luxury of depositions, document demands, the absolute necessities of civil practice where lawyers whine about not being allowed to use a proctoscope at least five years in advance of trial.  We prepare for surprises because we have no choice.  We deal with the unknowns, because that’s our job.

So the Department of Defense, because enemy combatants aren’t entitled to justice, came up with a new policy because the idea of allowing the enemy any chance of prevailing was too much to bear.  It’s revealed in ABA President  Bill Robinson’s letter to Secretary of Defense Leon Panetta.

We are therefore deeply troubled to learn that a new policy at Guantanamo Bay appears to violate both the letter and spirit of the attorney-client privilege. Lawyers for detainees report that their highly privileged attorney-client communications are being intercepted and reviewed by the U.S. government. It has even been suggested that content from these communications may be reaching the prosecution team.

Nice, right?  Robinson explains that the government’s need to violate confidentiality is purportedly justified by security considerations.

A security rationale has been provided in response to the lawyers’ objections; however, there is no information about any security violation or incident that prompted the recent change in policy. It is thus not surprising for Presiding Judge Pohl in the Military Commission trial of Mr. al Nashiri to conclude (transcript page 168) that the government screening procedures employed during baseline review in that proceeding “infringes on the attorney-client privilege.”

Infringes doesn’t seem quite adequate. Rapes and pillages confidentiality strikes me as a more apt description.  What this security rationale might be is unclear.  Do they fear that their Gitmo detainees are hiding secret cellphones on the north side of their sphincter, ready to call in air strikes via flying camels upon disclosure of top secret info from half a decade ago?

While Robinson’s stand is appreciated, in light of the alternative of the ABA being deeply engaged with more critical issues of the day, whether the iPad is mandatory for trial work and making sure Duncan Law School doesn’t get close enough to accreditation to sully the pool of unemployed lawyers, his expectations of the government are rather low.

We therefore urge you to take prompt action to immediately rescind this policy and restore the confidentiality of communications between lawyers and Guantanamo detainees. We respectfully request that the Inspectors General for the Department of Defense and the Justice Department investigate this matter and make their findings and conclusions public in a report. Finally, we request that the Office of Professional Responsibility in the Department of Justice determine how this serious breach occurred and take appropriate action to prevent any future violations of the attorney-client privilege. We believe that these actions will maintain public confidence and reaffirm the integrity of our justice system.

Thank you for your consideration of these issues.

The demonstrative appreciation of Panetta’s consideration is a particularly nice touch.  After all, one should never “urge” the government to provide minimal constitutional rights without showing due deference to important appointed officials.  He is, obviously, prevailing upon noblesse oblige to obtain a concession from the big boys. 

Not to seem completely vulgar and unappreciative, it might have been a good idea to demand that the government maintain the confidentiality of defense lawyers rather than beg for the government’s largesse.  Sure, the government is omnipotent in the eyes of the ABA and the powerful and important lawyers who end up getting the ABA President nod have spent their  careers being on committees to show that they’re worthy of being invited to cocktail parties thrown by people with official titles.  Nasty bottle-throwers never get invited to the really cool cocktail parties, or are handed titles of importance to list in their obituaries.

And it might also be worthwhile to question Robinson’s view that restoration of a wee bit of confidentiality isn’t all that’s needed to “maintain public confidence and reaffirm the integrity of our justice system.”  Until I read that, I hadn’t realized what a great job our government was doing in affirming the integrity of our justice system up until now.  And here’s I’ve laboring under the misimpression that Gitmo wasn’t the paradigm of excellence in the administration of justice. Boy, do I feel foolish.

But then, that could explain why I’m not the president of the ABA and Bill Robinson is.  Maybe my expectations are too high.  Maybe I’m just never satisfied.  Maybe I don’t get it when the government’s argument is that the playing field doesn’t favor it sufficiently.  Thank you, ABA and Bill Robinson, for standing up for the critical ability of defense lawyers to maintain some semblance of attorney-client privilege.  And hope you  enjoyed hanging out with Chief Judge Roberts and Fox News anchor Megyn Kelly.  Good times.

It’s not easy to create a thriving business that stands out in the Big Apple.  That’s why some use extreme methods to distinguish themselves, like the Naked Cowboy.  But what if you lack the talent to make music, or don’t like fabulous in BVDs?

Meet the Weed Man.



Funny?  Charming? Effective?  According to the New York Times, the Weed Man does good business.

Few scholars are considered more influential when it comes to the Fourth Amendment than George Washington Lawprof, and Volokh conspirator, Orin Kerr.  His latest article, just out in the Harvard Law Review, offers a novel, and quite remarkable, approach: An Equilibrium-Adjustment Theory of the Fourth Amendment.

While existing doctrine is complex and fact-specific, it is not at all a “mess.” Rather, it is the product of hundreds of equilibrium-adjustments made over time. Those  adjustments were usually made intuitively in response to felt necessities, but in rare cases were made out of a conscious recognition of the need for changes to keep the law in balance in the face of new practices and technological change.

Putting aside the personal anguish of not being cited for the proposition that existing doctrine is a mess (and missing perhaps my one and only chance of seeing my name in the Harvard Law Review), this assertion raises a very different view of the law, one that demands serious consideration.

Orin explains the theory by crafting a theoretical Year One, where neither cop nor criminal has any tool to enhance either the intrusion into, or the escape from, law enforcement scrutiny.  This establishes the balance that everything afterward adjusts to maintain.  Of course, from that theoretical moment in time, everything changes, develops, shifts, moves and alters the equilibrium.  The external pressures that affect the balance between cop and criminal are in constant motion.

As societal values change, so must legal rules. In contrast, equilibrium-adjustment always plays defense. It attempts to restore the status quo ante, not serve as an instrument of change.

So while technology changes, allowing (for example) criminals to hide liquor in the trunks of cars while speeding away from the revenuers, the law adjusts to maintain the balance that existed when the criminals were limited to riding around in open buggies.

To some extent, this may be the most cynical theory of the development of search and seizure law ever proposed, that the many decisions that appear to suggest there is a doctrine upon which society, and its lawyers, can rely, is really nothing more than a rationalization for maintaining balance.

While lawyers parse the words, argue the tests, ponder the continued viability of such doctrines at Katz’s “reasonable expectation of privacy,” the law is little more than maintaining the status quo in the never-ending fight between law enforcement’s efforts to maintain order and criminals efforts to thwart it.  All the words in between exist only to give the appearance of rationality or doctrinal adherence, rather than state the true purpose, to keep the two sides in check.

Frankly, Orin’s theory makes enormous sense in trying to explain the unexplainable.  Fourth Amendment law is, if one attempts to fit it into a logical construct, a disaster.  A general rule, roundly ignored, broken up by a multitude of always changing exceptions, often so wholly divorced from their initial rationale as reduce any attempt to make sense of it a farce.  It’s not easy to come up with faux rationales to justify an outcome that is based on nothing more than maintaining the balance of power.  As a method of explanation, it seems that Orin may well be onto something, as reflected in this exchange from City of Ontario v. Quon :

“Rapid changes in the dynamics of communication and information transmission,” Justice Kennedy continued, “are evident not just in the technology itself but in what society accepts as proper behavior.” Given the uncertainty, “[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises.”

In a concurring opinion, Justice Scalia scoffed at the idea of proceeding cautiously:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) — or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions — is in my view indefensible. The-times-they-are-achangin’ is a feeble excuse for disregard of duty.

But the article doesn’t stop at the point of explaining, but rather goes forward to argue that this explanation, equilibrium-adjustment, provides a sound basis for the future of search and seizure law.  This defense of the theory isn’t as easily swallowed.

It strikes me that there are two massive flaws with this balancing act as a basis for law: First, the relative balance isn’t between cop and criminal, but cop and citizen. We tend to forget, because there’s little reason to hear about all the unreasonable intrusions into the personal privacy realm of law-abiding, ordinary citizens who aren’t engaged in any wrong-doing whatsoever, that the Fourth Amendment protects all of us, even the good guys, from police over-reaching.

So criminals use telephones to conceal their conspiratorial chatter from the cops, and the cops in return use pen registers to know who the criminals are talking to.  Balance. But when those pen registers are used on my phone, and I’m not conspiring with anyone, the balance is shot to hell.  Why are my rights to privacy subject to balance based on what criminals do?  What role does the rights of the non-criminal play in the balancing of law enforcement intrusions?  None under this theory.

As the law has long acknowledged, the rights of citizens are vindicated through criminals, since warrantless search, ransacked house, results in no arrest, nothing happens. We’re left to wonder how many innocent people are put up against a wall to be seized and searched, and then sent on their way with no one to challenge the excesses of the police and violations of their rights.

Of course, there are some clues as to how often this happens, and how bad this problem can be, from the statistics developed by the New York City Stop and Frisk program, where cops are seizing and searching 600,000 people a year, only 5% of whom produce anything illegal.  What of the rights of the rest? Is this balance?

Assuming that equilibrium was a viable goal to be achieved, then the balancing act should be between cop and citizen rather than criminal.  The Fourth Amendment may be vindicated through those arrested, but it protects everyone.  Just because we don’t learn of the law-abiding citizens who suffer the indignity of intrusion doesn’t mean they don’t exist, or they aren’t entitled to the protections the Constitution meant to confer.

The second flaw is that equilibrium reflects balance as seen through the eyeballs of a very select group, rather than some sort of societal agreement.  At the highest level, it consists of an agreement between 10 eyeballs, all of which are deeply rooted in the viability of the government; five people decide the relative balance of privacy for the rest of us, as opposed to some cognizable doctrinal basis for enforcing the constitutional prohibition.  One doesn’t get to be a Supreme Court Justice without having a major stake in maintaining societal status quo.  Unlike the rest of us, they trust the system, though some more than others.

But the real fight isn’t on the Supreme Court level, but in every hot, dirty, packed courtroom around the country.  Every judge superimposes his or her vision of the balance of power between cops and defendants every time they rule on suppression.  Whether it’s elevating one fact over another to reach a desired outcome, or spinning what can’t be ignored to serve that goal, judges impose their sensibilities on every case before them.

If Fourth Amendment law is doctrinally based, at least it provides some measure of reason and predictability to limit judges from reinventing the law according to their personal sense of where the equilibrium should be.  There would be rules, and should judges adhere to the rules, there would be a minimum basis to argue whether police conduct violated them.  If, as Orin contends, the rules are just fluff, something to calm the natives into accepting that this isn’t just a matter of whatever a judge’s gut says keeps the balance, then we are awash in personal visions of where along the spectrum of privacy, or intrusiveness as the case may be, the law should fall.  This is, in effect, no law at all.

We tell ourselves that we’re a nation of laws, not men.  Yet the equilibrium-adjustment theory asserts just the opposite, that the law is whatever a select bunch of robed folks feels it should be from time to time to address the never-ending changes in technology, social mores and political perspectives.  The rest is just a big scam to give the appearance of reason when the only reason is that a judge thinks that an adjustment is needed to keep things in balance.

While Orin’s theory provides a very realistic explanation for how Fourth Amendment law has ended up defying anything remotely resembling reason, a mess, it is an indefensible theory.  If search and seizure law is nothing more than a bunch of judges’ personal sensibilities about where the equilibrium should be between police intrusion and personal privacy at any given point in time, that’s not good enough for a constitutional democracy.  And it’s most assuredly not what I swore an oath to.

We may argue all day long as to how reason applies to the varying facts and technological changes that constrain police and citizens in their struggle, but we do so based upon the belief that the Constitution has rational meaning.  That the development of Fourth Amendment law can’t be explained on any rational basis is one thing.  That this is an acceptable way for the law to develop is another.

The equilibrium-adjustment theory may well be accurate in explaining the mess we’re in, but it is most assuredly not an acceptable means of formulating the law intended to protect Americans from the over-reaching intrusions of their government.

The weather outside is frightful?  The fire is so delightful?  Especially when it’s burning those little rocks of crack in grandma’s pipe.  From the Albany Times Union :

A 44-year-old woman stole her 3-year-old grandson’s Christmas gifts and sold them for crack while she was supposed to be baby-sitting him, police said.

Andrea Ocasio was arrested early Saturday after her son came home at 3 a.m. to his North Lake Avenue apartment and found the door wide open. The 3-year-old was asleep on a couch by himself, Christmas presents were missing and Ocasio, who was supposed to be watching the boy, was gone.

A little “me” time perhaps?  Ocasio’s son saw grandma coming out of a crack house down the street and alerted police, who were kind enough to retrieve the presents for the three year old. 

Grandma Andrea fessed up to swiping the swag, no doubt aware of how many drug dealers happily exchange big wheels for anything remotely resembling snow this time of year as a gesture of good will toward man (and addict).

While many of us are busy finishing up our holiday shopping, putting that special finishing touch on the tree and wondering which gingerbread man to leave out for Santa, we tend not to put much thought into the fact that drug addicts are every bit as addicted in the latter part of December as they are any other time of year.  About the only positive aspect of this story is that Ocasio didn’t sell her 3-year-old grandson for crack.

Many talk about drugs as a consensual crime, and would leave crack addicts to their own devices.  While the War on Drugs certainly hasn’t helped to protect baby Ocasio or shutter the crack house down the street, it’s diversion of resources from meaningful treatment and education toward things like armored personnel carriers for local cops to crush chickens.

I suspect that few readers will be sweating the details of where to get that Christmas Eve fix this year.  But perhaps there will be a moment in the festivities to think of Andrea Ocasio.  Or if not her, perhaps her 3-year-old grandson, who didn’t chose to have a crack-addled grandma who would steal his Christmas presents for a fix.

It’s easy to blame Andrea Ocasio for being a truly awful person, putting her desire for drugs ahead of her concern for her own grandson.  But she’s a crack addict. Her mind doesn’t work that way, only craving the high and unable (not unwilling, but incapable) to consider the consequences of her action. 

Though society has dumped billions into a big black hole over more than 40 years because we were told that was the way to “solve” this problem, our adoption of the myth that we can win a war against drugs is every bit as worthless and foolish as leaving crack-addicted Andrea Ocasio to babysit her toddler grandson.  And America still struggles to embrace treatment rather than incarceration, after decades of being told that we had no choice but to sink huge bundles of cash to win the war, buy the equipment, pay the heroes, build the prisons so we could send all the evil druggies to the gulag, was the only way to win,

Wish Andrea Ocasio and her grandson a Merry Christmas. 

H/T  David Giacalone (who, I’m happy to say, is doing quite well)