In a decidedly unsatisfying opinion the  Second Circuit ruled that Fengling Liu, an immigration lawyer who, inter alia, drafted the papers submitted by pro se litigants without disclosing to the court that it was her work, did not violate her “duty of candor” to the court.  The decision reversed the finding of the Committee on Attorney Admissions and Grievances, which concluded that she had, indeed, engaged in unethical conduct by “ghostwriting” pleadings.

For the stay-at-home unbundling lawyer, this strikes at the heart of their practice model, selling bits and pieces of lawyering to clients, without signing onto the case and taking responsibility for both the work they aren’t being paid for as well as the competency of the work they are.

The problem is that the decision does not hold that unbundling is not unethical.  Indeed, it recites over and over the reasons why it is.

However, a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. In Duran v. Carris, for example, the Tenth Circuit admonished an attorney for ghostwriting a pro se brief for his former client without acknowledging his participation by signing the brief. 238 F.3d 1268, 1271-73 (10th Cir. 2001) (per curiam). The court stated that the attorney’s conduct had inappropriately afforded the former client the benefit of the liberal construction rule for pro se pleadings, had shielded the attorney from accountability for his actions, and conflicted with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions, and papers be signed by the party’s attorney. See id. at 1271-72; see also, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir. 1971) (disapproving of members of bar “represent[ing] petitioners, informally or otherwise, and prepar[ing] briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar … of representing to the court that there is good ground to support the assertions made”); Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro se Prisoners’ Access to the Courts, 23 Geo. J. Legal Ethics 271, 285 and n.73 (2010) (“The  federal courts have almost universally condemned ghostwriting.” (collecting cases)).

On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting. The ethics committee opinions described in the following paragraphs are representative of the range of views on the subject and suggest a possible trend toward greater acceptance of various forms of ghostwriting.

The court let Liu off the hook not because it approved of ghostwriting, but because it concluded that, given these conflicting messages, it was unclear whether it was unethical.

In light of this Court’s lack of any rule or precedent governing attorney ghostwriting, and the various authorities that permit that practice, we conclude that Liu could not have been aware of any general obligation to disclose her participation to this Court.5 We also conclude that there is no evidence suggesting that Liu knew, or should have known, that she was withholding material information from the Court or that she otherwise acted in bad faith.

But then, the court drops a footnote that makes this decision more of a problem than an aid.

However, in light of the importance of the ghostwriting issue, and the fact that the effect of ghostwriting on disqualification issues is not discussed in the ethics opinions described in the text, we recommend to the Court that it consider the amendment of its rules to resolve the matter.

To the extent that Liu found refuge in the confusion, it seems that the court has now given her it’s one free pass, and this decision warns everyone else in the Second Circuit that unless and until the rules are clarified, no one can claim confusion as a safe harbor.

This should put a crimp in the social media twinkies’ pontificating about ignoring their ethical obligations because courts are just not sufficiently forward thinking and too far behind the times.  Whether that’s so isnt the point.  Try arguing your way out of discipline because somebody on the internet said so, particularly somebody trying to make a living by life-coach other lawyers because they’ve been disbarred, failed in practice or have a sum total of 12 minutes legal experience.  Do you really think the Second Circuit is going to be impressed with their number of twitter followers?

At Concurring Opinions, Dave Hoffman takes the “law school fail” discussion down a different path than others, raising the question of what role an individual law professor plays in advising the student.  After reminiscing about learning to dance at an Arthur Murray franchise, Dave muses:

But it got me to wondering about an issue tangentially raised by David Segal’s  embarrassingly  error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive. But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”) (Footnote [yes, footnote] omitted.)

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

While Dave sets up his question with a strawman right up front (note the “very moment” language), it remains that this is less about winning the point than about the deeply personal responsibility and decision of making or breaking some kid’s life.  It’s a huge decision, a life changing decision.  And a student has asked for help making it.

Dave answers his own question:

So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades.  (True, if success means money earned.)  I tell them that I felt confused in my first semester.  (True, and it’s also true that Contracts was my least favorite, and least understood, class.)  I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace.  (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.)  I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role.  In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.

Good answer?  Maybe, notwithstanding its Pollyanna-ish, rose-colored approach, material omissions and, most importantly, potential abdication of responsibility.  It’s understandable that Dave doesn’t relish the unpleasant job of telling a student that they aren’t cut out for the law.  I doubt he’s motivated by his conflicted need for a pay check, but more by the awesome responsibility of ruining a student’s dreams.

The strawman built into the inquiry, that the lawprof is put into the position of making a snap judgment, that “very moment” thing, needs to be addressed.  The lawprof has had the opportunity to see the student in action over the course of a semester, to hear his discussion, to assess his ability to reason and articulate reasoning.  It’s not like he’s never seen the student seeking advice before that very moment.  He does, or should, have a pretty good feel for the person asking, and have some the experience as a lawyer and professor to know whether the rosy future speech is appropriate.

Even if he wants to find out more, say speak with other profs, the student doesn’t have a gun to his head to demand an answer that very moment.  So what if you tell the  student that you need some time to think about it before giving a response.  It’s not like the student can make you answer immediately.

But more importantly, there is a duty on the part of a lawprof to give an honest assessment.  Both legal and moral.  By encouraging the student to remain in law school, you induce him to sink in more money, perhaps shoulder more debt, and commit himself to a career in the law.  Like the Arthur Murray dance teacher, you’ve told the student that he’s got a future as a dancer.  If that’s not true, then your inducement is a fraud. You’re a lawprof. You ought to know if the student isn’t going to cut it.

The moral piece, however, is the one that Dave Hoffman should find most persuasive. I’m sure he cares deeply about his students and wants the best for them.  Sometimes, the best is to break their hearts, dash their dreams, burst their bubble.  It’s cruel to encourage someone to pursue a career, and an expensive one at that, when they just don’t have what it takes.  Sure, it’s unpleasant.  But nobody said that responsibility was limited to pleasant things.

And i would take this one step farther.  If a lawprof becomes aware of a student who isn’t cut out to be a lawyer, then the moral duty is to hand him a dime and tell him to call his mother.  Even if he doesn’t ask for advice.  Culling the herd to those who belong is a responsibility of law school, and it’s about time lawprofs lived up to their unpleasant responsibility of brutal honesty.  That’s why they pay you the big bucks.

While some talk about sentencing as if it’s a science, notwithstanding efforts to make it more science by the Federal Sentencing Guidelines Commission, there’s nothing scientific about it.  It’s what one person in a robe decides it should be, with only history and experience for guidance. Hardly much of a basis to decide how many years to lock a guy up.

But it’s part of the job, and there comes a time when a decision gets made. Rule and roll.

When David Hall first stood before the court for sentence, he sought a downward departure despite the government’s agreement to hold to the mandatory minimums.  The argument was that if the defendant wanted out of his deal down, then the government wanted out of its deal up. 

The district court held a sentencing hearing on February 5, 2010. Based in part on the district court’s view “that the policy on the crack-to-powder ratio should be one-to-one,” Hall’s counsel sought a below-Guidelines sentence on Count 2 of 117 to 131 months of imprisonment. In response, counsel for the Government disclosed that prior counsel for the Government had told Hall’s attorney that the government had no problem with a total sentence of 15 years, which would have been the mandatory minimums on both counts. Government counsel explained, however, that this conversation occurred before the guideline calculations, and that, if the court were inclined to depart from the Guidelines on Count 2, the Government now recommended a sentence towards the top end of a range of 130 to 162 months. At the end of the hearing, the district court orally sentenced Hall to 156 months of imprisonment on Count 2, well above the mandatory minimum of 120 months, and 60 months on Count 4, to run consecutively for a total sentence of 216 months. The court did not enter judgment at that time.

Four days later, on February 9, the district court noticed a hearing for February 23 for the purpose of resentencing Hall. At the hearing, the court announced it would like to resentence Hall on Count 2 of the indictment, referencing the conversations at the time of the last sentencing hearing that presumably referred to the Government’s previous indication that it had no problem with a mandatory-minimum sentence on both counts. In light of the parties’ acknowledgment of the Government’s prior position, the court stated its revised view that the appropriate sentence would be 120 months on Count 2, the mandatory-minimum sentence for that count. The court announced that the 60-month sentence on Count 4 would remain unchanged and that the sentences would be consecutive as previously pronounced.

So it took Judge Barrett four days to realize that making the defendant pay three years of his life for having argued at sentence was, oh, insane wrong.  His fit of pique past, he was ready to undo his damage and clean up the mess he made of another person’s life.  Who knows, maybe he was in a bad mood, or just had enough of defendants (or their lawyers) always pushing, pushing, pushing.  Whatever, he acted like a baby and was man enough to admit his mistake and fix it.

Not so fast.  Federal judges are as close as humans come to omnipotent, declaring day to be night and innocent conversations to be conspiracies.  But apparently, they cannot turn 18 days into 14.  The 6th Circuit reversed. Via Doug Berman :

Eighteen days after originally sentencing Defendant-Appellee David Hall to eighteen years of imprisonment, the district court sua sponte resentenced him to three fewer years.   After fourteen days following the original imposition of sentence the district court lacked jurisdiction to resentence Hall; therefore, we must VACATE the district court’s revised sentence and REMAND for reimposition of the original sentence….

It is laudable that the district court seriously considered the sentence, returning again to the issues and prior statements of counsel to be certain that only the “appropriate” sentence would be imposed. That brings to mind Portia’s description of mercy:

The quality of mercy is not strain’d,

It droppeth as the gentle rain from heaven

Upon the place beneath. It is twice blest:

It blesseth him that gives and him that takes.

The Merchant Of Venice Act 4, scene 1, 180-87.  However, the Government seeks enforcement under Rule 35.   Thus, it appears that the “gentle rain” of mercy had to drop from heaven within fourteen days.  It took eighteen.

Because the district court lacked jurisdiction to resentence Hall more than fourteen days after originally imposing sentence, we are required to vacate the district court’s March 1, 2010 judgment and remand for reimposition of the original sentence announced on February 5, 2010.

The lesson here is twofold.  First, don’t impose a sentence out of pettiness that you will later regret.  Second, don’t delay more than 14 days to fix your screw up.

Notably, the circuit was completely untroubled by the fact that Hall would pay three years extra for nothing.  After all, if you’re down for 15, what’s another three?  It’s not like anybody other than the defendant and his family care anyway.  And it’s not like it’s science.

As pointed out by a commenter, “FPD” (federal public defender?), Hall didn’t appeal the original sentence, though it would make no sense for him to do so since he learned, four days after sentence, that he was going to be resentenced to the lesser time.  Because of this highly unusual process, the question remains whether the resentence to 18 years will be appealable, or whether it’s been waived.

The 6th Circuit’s opinion, poetic though it may be, misses the point when it applauds Judge Barrett’s “gentle rain” of mercy.  This wasn’t mercy. This was error, pettiness and wrong.  He wasn’t being a nice guy by resentencing Hall, but trying to clean up his flagrant mistake.  And even that he screwed up.

Following the  Pike pepper spraying of UC Davis students for violently sitting and adamantly refusing to ask “how high,” Brian Tannebaum writes that it’s time for a national conversation about law enforcement.

It’s almost a daily exercise, watching video of law enforcement conduct that raises eyebrows. The responses are always the same: 1) The video doesn’t tell the entire story, 2) We don’t understand the “adrenaline” that causes police officers to beat the living crap out of suspects after they are securely in custody, and 3) So what, the guy’s a criminal anyway.

We as criminal defense lawyers, civil libertarians, and yes, even some prosecutors and judges, watch these videos and know that there is a large segment of the country that finds this conduct just “part of the job.”

It’s time to have a real conversation about this. It’s time for the media, government, civic and business leaders, and law enforcement, to sit down and talk about this.

Things need to change.

Now.

Yawn,

Here’s the tactic: Find a public location which you know police will be forced to clear, make sure others are around to take pictures/video, interlock in a way to make it very difficult for police to move you, and wait.

It works. There is absolutely no way for the police to look good when they clear the area as they have been ordered to. Tons of videos show up on the internet.

Police are being ordered to clean out the various “Occupy” camps. Nothing too surprising there. Those among the “Occupy”ers who are dedicated or professional protesters or among the group of people who look at it as a right of passage to get arrested by the police while in college have resisted. Nothing surprising there. Videos are all over the internet and news.

In the end, the police cleared the sidewalk and the protesters got their moment of glory for standing up to the cops. They also got something to put out there to justify themselves.

The idea is symmetry itself. These officers are men and women who were to serve and protect the people. By attacking peaceful protesters they failed to protect those who needed their protection, and they instead served the political class by using violence against the people.

The people are insecure: they cannot trust the police because the police have shown themselves to be the enemy. That the people can’t fight injury with injury (the police are better-armed, and pepper-spraying a cop is likely a felony) does not mean that the people can’t fight back.

He suggests that every day, for the rest of his life, Pike should worry about whether a waiter spit in his food, or whether the guy who collects his garbage will forget to stop at his house. Again.  The battle need not be fought with violence, but with fear that the basic conveniences of life may never be his again.

The idea of sabotage can be as crippling as physical sabotage. I remember reading once of a saboteur who left empty sugar bags on the ground near the open gas caps of his adversary’s vehicles. He hadn’t added sugar to the gas, but the idea that he had forced his adversary take the vehicles out of service. Not every waiter need spit in UC-Davis police officers’ food. Not every check they send need be “lost in the mail.” But these officers should be forced forever to wonder what, out of the million things that anonymous people can make go wrong, will go wrong for them next.

He’s a devious fellow, that Bennett.  Let’s contrast him with the equally, maybe even more, devious Bill Otis at Crime and Consequences.

<sounds of crickets chirping, image of tumbleweeds blowing through deserted town>

While tough on crime thinkers like Kurt Scheidegger has crafter his very own Nancy Grace-esque name for the occupy protestors, which he calls the Collective Tantrum, Bill and Kurt were apparently too busy thinking about more important things to notice this happened.

Because I’m a generally fair sort of fellow, I gave some room to UC Davis Police Chief Annette Spicuzza’s explanation of events, which was followed by my explanation of why she was wrong. It’s not just me who says that it’s wrong to use force when there’s no threat of harm, but (thanks to Bennett’s commenter Mike Parr) the  9th Circuit Court of Appeals as well.

Because the officers had control over the protestors it would have been clear to any reasonable officer that it was unnecessary to use pepper spray to bring them under control, and even less necessary to repeatedly use pepper spray against the protestors when they refused to release from the “black bears.” It also would have been clear to any reasonable officer that the manner in which the officers used the pepper spray was unreasonable.   Lewis and Philip “authorized full spray blasts of [pepper spray], not just Q-tip applications,” despite the fact that the manufacturer’s label on the canisters of pepper spray defendants used “ ‘expressly discouraged’ spraying [pepper spray] from distances of less than three feet.”

The problem with having a national conversation is that we all need to be talking about the same thing.  Some of us want to talk about cops using force to harm people instead of serving and protecting, while others want to talk about why we just can’t follow orders.  And others just don’t want to talk at all, because their team has the weapons.

Of course, John Pike will never be certain, as his waiter brings him his big, greasy burger, what’s in that special sauce.  Maybe then he’ll want to talk about it.

Update: Via Balko/Gawker, here’s Fox News’ contribution to the national conversation.

“I don’t think we have the right to Monday-morning quarterback the police,” O’Reilly says, “particularly at a place like UC Davis, which is a fairly liberal campus.” God forbid! We’d never want to question Lt. John Pike’s decision to generously and indifferently dust peacefully sitting protesters with pepper spray from only a few feet away. Especially given that Davis is, you know, a liberal campus! And, gosh, even if we were going to Monday-morning quarterback the police, shouldn’t we remember, as Megyn Kelly tells O’Reilly, that pepper spray is “a food product, essentially”?

Tasty. Who doesn’t appreciate some fresh pepper on their Caesar salad?  If only someone would develop a parmesan and anchovie spray.

Scott Turow writes great stories, and is now trying his hand at constitutional amendments.  From Bloomberg News, Turow suggests the #Occupy Wall Street movement turn its energies toward an “intelligible goal.”

Ever see the guy who tries to sneak his half-eaten chip into the onion dip when he thinks no one is watching? Disgusting, right?  And not just because of the sores around his mouth. At best, it’s poor form. At worst, it’s repulsive. And it’s no better when it happens in the law.

When wealthy businessman Christopher Comins tried to shut poor blogger Matthew VanVoorhis down with a SLAPP suit the first time, everybody was watching.

So what does a shooter do when he’s caught on video and properly castigated everywhere?  He sues a blogger.

Matthew Frederick VanVoorhis has a blog called Public Intellectual, where he posted about Comins’ dog-shooting.  The title is Christopher Comins: Barbarian Hillbilly Dog-Assassin (w/Friends in High places). My guess is that Comins objected to being called a Hillbilly.  I bet Hillbillies objected to being associated with Comins.

The post is harsh.  Then again, trying to murder dogs, especially when the owner is screaming to stop and you’re close enough to see the collar around their necks, deserves some harsh words.  But Comins is a businessman.  He’s got both the wherewithal and motivation to make somebody pay for his getting caught.

The article itself was exceptionally mediocre.  Its point, that law school doesn’t teach students how to be lawyers, is old news. Its examples, an article from some philosophy journal, students who couldn’t do a megamerger on day one of practice, completely missed the boat and hardly proved the point.

But put an article slamming law school on the front page of the  New York Times and everybody throws a hissy fit. 

Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design.

Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

I don’t know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.

Not quite the orthodoxy, but not quite a traitor to the Academy. Well played.  And lest you think that only scholars’ panties were in a bunch, so too were the  friends of fishwives who saw this as an attack on their business model of teaching skill-challenged new lawyers how to deceptively market themselves to effectively scam the public and accomplish their chief task coming out of law school, to make a buck at any cost.

To the extent that Segal’s article struck a chord (or cut one, as they case may be), it’s nothing that we haven’t known for a very long time.  It was a crappy article about a significant problem, leaving tons of reasons to criticize it, but one reason to embrace it.  It’s failing.  It’s failing to produce lawyers who leave with the knowledge and ability they’ve paid for. It’s failing to produce lawyers who can be entrusted with the lives of other people, despite their ability to recite Kant.

Segal’s article gave law professors the opportunity to circle the wagons and engage in group denial, and they seized it.  So the “chin-stroking” example of “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory” was wrongly attributed to a law review than philosophy rag? Fair enough. So explain  Harry Potter and the Half-Crazed Bureaucracy , 104 Mich. L.R. 1523 (2006)? So Segal used a bad example. That doesn’t mean he was wrong.

While the clients of Biglaw aren’t necessarily inclined to pay for the education of young’uns, the point that no every student emerges from school to warm a library chair in some megafirm can’t be summarily ignored.  This leaves them exposed to the schemes of the unscrupulous, who fill their heads with images of sugar plum marketing fairies while they wouldn’t know what a motion looks like if it slapped them upside the head.  Why not just pepper spray your students, or worse still, the poor clients they mislead with their vague representations of “passion” in lieu of competence. No excuses are going to serve as substitute for the ability to represent clients.

Here’s the bottom line, what judges, lawyers, students have been screaming at you but hasn’t managed to be heard by heads too filled with scholarly self-importance.  You aren’t producing lawyers.

And for my good buddy, Orin, with my deep concern for the pain he could suffer on his fence, let me offer a question that might help him figure out where to draw the line:

How long must a man’s legs be?

As day follows night, explanation follows outrage. And the pepper spraying of students brought UC David Police Chief Annette Spicuzza to the podium. 

Spicuzza said Friday that about 35 officers from UC Davis and other UC campuses as well as the city of Davis responded to the protest about 4 p.m., wearing protective gear.

Spicuzza said officers were forced to use pepper spray when students surrounded them. They used a sweeping motion on the group, per procedure, to avoid injury, she said.

“There was no way out of that circle,” Spicuzza said Friday. “They were cutting the officers off from their support. It’s a very volatile situation.”

I’ve been to Family Court a few times over the years, but it was never a place where I felt at home.  Everything about it felt wrong, from the essential absence of anything remotely resembling rights, to the way everyone in the room talked down to children as if they existed so every adult in the room could lecture them.  The one aspect of Family Court that I never gave much thought was that the courtrooms were closed.

Closed courtrooms in criminal court are bad, where the  constitutional right to a public trial is violated by the secret happenings behind closed doors.  The only time they were allowed to throw everybody out and close the courtroom was when the undercover took the stand, and then only when he remained active and could articulate a threat, either to him or his assignment.  When the prosecutor asked that the courtroom be closed, we fought it. No star chamber would be allowed without a fight.

Somehow, this never translated to Family Court. I never gave it any thought, as it seemed appropriate when the subject was children that their identities not be made public, that their future not be burned for something that happened when they thought like a child.  I was wrong.

In an investigation in the New York Times, a reporter tried to enter Family Court courtrooms.  Apparently, the Chief Judge of the Court of Appeals at the time, Judith Kaye, had ordered that they be open to the public.

New York State’s Family Courts were ordered to be opened to the public with much fanfare in 1997, supposedly allowing anyone to witness the cases of domestic violence, foster care and child neglect that inch through by the hundreds of thousands every year. But now, 14 years later, the Family Courts remain essentially, almost defiantly, closed to the general public.

What’s striking about this that we’re talking about courtrooms, the physical situs of law and people, where the groundlings are held accountable for what the law, as manifested by robed judges sitting on elevated benches.  This is the one place, more so than any other place, where adherence to the rule of law should be honored.  And it was just completely, inexplicably, ignored.

Some courtrooms were locked, and many were marked with “stop” and “do not enter” signs. Court officers stationed at courtroom doors repeatedly barred a visitor, sometimes with sarcasm or ridicule, frequently demanding to know who he was and what he was doing. Armed court officers at times appeared so rattled by a visitor’s efforts to enter courtrooms that, in several instances, a group of them nervously confronted the visitor, their holsters in easy reach.

On the fifth floor of Family Court in Downtown Brooklyn, where people waited in bleak assembly areas for their cases to be called, an officer was asked whether a member of the public could attend — as is permitted in other New York courts. “Not allowed, not in Family Court,” he said flatly. Outside Judge Susan Larabee’s courtroom in Manhattan Family Court, an officer flashed his badge and said disdainfully, “You don’t just walk in.” In Staten Island Family Court, three officers challenged a visitor even as they stood beneath a sign that took official note of the 1997 rule:

“The court is open to the public.”

That I took for granted that these courtrooms were special, somehow distinct from all other courtrooms, reminds me of how easy it is to mindlessly adopt the norm, the culture, without questioning whether it’s proper and right.  Without giving it a second thought, I would have said that Family Court isn’t open to the public, because that’s how it’s always been done. 

I suspect that the court officers, blocking doorways and questioning the reporter who was trying to gain entry to a place he had every right in the world to be, similarly never thought there was any chance they were wrong.  That’s how Family Court was always run, and anyone who suggested otherwise was either insane or a moron.  Turns out they were the fools. Just like me.

Imagine if the reporter refused to identify himself, show his press pass, push his way into the courtroom, through the armed officer who told him he couldn’t go in.  It would have gotten ugly, and there would be blood on the tracks.  The court officers wouldn’t have had the slightest reservation stopping the reporter, physically, to keep him out of the courtroom.  And the reporter, well aware of his right to be inside, would have still felt the pain of cuffs being tightened around his wrists.

Judge Kaye went her order to the judges who administer the courthouse, and no doubt they sent the memo around to all the chambers and courtrooms in their building.  If they read it, they forgot.  Then they went back to doing what they always do, keeping people out of the room because that’s what they do in Family Court.  This article is quite embarrassing to judges, whose lectures on the law are repeated a hundred times a day to recalcitrant kids with faces showing their disdain for authority, or their fear and humiliation when they recognize that their joke went too far.

And now those judges look like they are clueless. Or just as disdainful as the children they lecture. 

On Thursday, Edwina G. Richardson-Mendelson, the administrative judge of the New York City Family Courts, was told of the many blocked attempts to enter courtrooms. She said she was troubled to hear that courts around the city had not been open and said she planned a review. It was an opinion echoed by several other court officials apprised of the reporter’s efforts.

“We don’t have policies or rules for them to be ignored,” Judge Richardson-Mendelson said. “We’re a court of law, and law matters.”

Troubled?  You bet, but nothing close to an explanation for how this happened.  And how this happened under her watch.  And how this happened in a building filled with judges, all of whom are supposed to not only know the law, but adhere to it.

Courtrooms can still be closed when a judge makes an individualized finding that it’s needed, but there was no reason to even consider need when the rule was that nobody was allowed to enter a courtroom in Family Court.  And that means that for all these years, nobody really knew what happened behind those closed doors.  But we do know, now at least, that things happening behind closed doors to children in Luzerne County, Pennsylvania were a travesty, and went on until maybe 6500 children were lost.

The doors of courtrooms, all courtrooms, should be open, as should the minds of all lawyers who may take the culture of closure for granted.  I’ve learned my lesson.

Watching Lt. John Pike of the UC Davis police calmly walk down a row of young people and, with the nonchalance of sociopath, spray them with noxious pepper spray, a point must be made.  This post is for any cop who stumbles over here and reads it. This is a personal note from me to you.

Take a look at these kids, these people you’re hurting.  Some are war vets, the very same people you think so well of and you support. Many of you were in the military, and you stood beside these guys in far away places. They were your brothers then, and yet now they’re some other animal, some inconsequential creature.

Some are your neighbors, the ones who helped push your car out of the snow bank.  They’re the waitress who served you a coffee, and you gave her a nice tip because she made sure your cup was never empty. 

But these young people sprays by John Pike are your kids. They’re the children on the little league team you coached.  You clapped for them when they got a hit, or caught a pop fly.  You taught them how to block out the sun so they could see the ball coming.  You showed them how to plant their front foot so they could put their weight into the swing. Remember those kids?  Remember how proud you were of them when they won the game?  Even when the lost? These are the same kids.

These aren’t the mutts and skels, the street toughs and the ones you always knew would get into trouble.  Not that the human beings you decide are unworthy deserve your disdain, or to suffer your anger and physical abuse because they fit into that category in your head of things to be taught a lesson.  But we both know that there’s nothing anyone could say, especially someone like me, to convince you not to teach the people you hate a damn good lesson.

But these aren’t those people.  These are the people you welcome into your home.  These are the people you would let your child date, when you slip them the $20 so they can get popcorn at the movie.

You are pepper spraying the kids from your baseball team.

If you knew his name was Sam, could you spray him?  Would you let the other guy on your detail spray him?  Wouldn’t you say, “wait, that’s Sam. He’s okay,” and put your arm out to stop your brother cop?  If you saw him bring his baton back to split Sam’s head open, you wouldn’t let it happen. You know Sam. You know he’s the same Sam who cried when he skinned his left leg sliding into first, and you held him, you put some cream on his leg and wiped his tears.

And now you’re about to split Sam’s head open?  So what if you don’t think Sam’s politics are right.  So what if you think this whole Occupy thing is stupid.  Maybe it is.  You never asked Sam’s dad whether he voted Republican when he pushed your car out of the snow bank. You appreciated the hand, as you would offer to any neighbor.  It didn’t matter whether who he voted for.  He was a guy helping another guy out of a jam.  That’s what neighbors do for each other. That’s what people do for each other.

If you were on your day off, wearing civvies, would you take a baseball bat and hit a kid?  Would you even consider it?  It’ crazy, right?  And yet these are the very same kids you would never consider hurting. But there’s something about putting on the uniform, especially the riot gear, and it changes your view of everything.

Outsiders, guys like me, don’t get it.  We think you feel empowered, full of your authority and entitled to smack down anyone who doesn’t do as you say.  But you know that it’s not power, but responsibility. You now have a responsibility to keep order, to make people do as you tell them because you are what stands between order and chaos. You believe this. All they have to do to avoid getting hurt is follow your orders. It’s so easy. Just do what you say and they go home safe that night.  Just like you.

We can disagree about whether this compulsive belief that you need to maintain order is as important as you feel it is.  Many people will chastise me for not screaming about how you’re evil, vicious, using your authority as an excuse to vent your own anger and frustration. How you are just having some sadistic orgy of violence when you hurt a kid. 

But I’ve talked to you, face to face. We’ve had a cup of coffee, and you’ve told me that this isn’t who you are.  You’ve told me how I can’t understand what motivates you, how you have a duty that no one but another cop can understand.  I listened. I heard you. No, I don’t agree with you. I argued with you. I explained that your need for order isn’t worth splitting open some kids head. I reminded you that your daughter will walk down a street one day and some other cop will look at her and see her as someone who threatens his world.

It’s hard to remember this, to think of it this way, when you’re on a detail with orders not to let these people get in your way. You’re told to clean them out, and that’s what you’re going to do. You tell them what to do, and you expect them to obey you, and you have the club to make them.  Yes, you have all the tools, all the weapons, to make them pay with hurt for their insolence. You can make them hurt.

But they are still the kids on your baseball team.  That’s who you are spraying, hitting, pushing, throwing to the ground.  They didn’t hurt you. They won’t hit you back. These aren’t people you need to fear, people who might stop you from going home tonight to have dinner with your own children.  These are your children.

Don’t hurt these children.  Don’t hurt these people. The chaos will end and order will return on its own. No one has to be hurt.  Don’t beat the kids on your baseball team.

Update: From this comment, the  Boing Boing interview of one of the students undermines my basic idea here, that by seeing their targets as human beings rather than something less, some part of the their brain will register so that the cops, not being sociopaths, will not inflinct mindless harm.

W. tells Boing Boing that Pike sprayed them at close range with military-grade pepper spray, in a punitive manner. Pike knew the students by name from Thursday night when they “occupied” a campus plaza. The students offered Pike food and coffee and chatted with him and other officers while setting up tents. On Friday, UC Davis chancellor Linda Katehi told students they had to remove their #OWS tents for unspecified “health and safety” reasons.

“Move or we’re going to shoot you,” Pike is reported to have yelled at one student right before delivering pepper spray. Then, turning to his fellow officers and brandishing the can in the air, “Don’t worry, I’m going to spray these kids down.”