When Southern District of New York Judge Jed Rakoff decided not to be a rubber stamp for the settlements of the SEC, it was like spitting in the government’s face.  Who is he to question what the minions of the executive decided, especially since they hope to be gainfully employed after leaving government service. This was a game where everyone knew the rules, and yet Judge Rakoff wasn’t playing fair.

The  WSJ Law Blog reveals a truth hidden beneath the robes in its profile of Jed Rakoff.

Before he found the death penalty unconstitutional in 2002, Rakoff says he suspected his ruling would be reversed because he knew a majority of judges on the U.S. Second Circuit Court of Appeals would interpret a Supreme Court decision on the issue, Herrera v. Collins, differently than he did. (He thought he might get lucky if he drew a 2nd Circuit panel that included the few judges who would agree with him.) The judge, who still believes he “had it exactly right on the law,” also told his wife before the controversial ruling that it would likely prevent him from being promoted to a higher court. “You’re having more fun in the district court anyway,” he recalls her saying.

In a land of feigned meritocracy, this tidbit says more about the judicial system than any lawyer’s rantings.  One day, a lawyer who was sufficiently respected and avoided pissing off enough people to obtain a nomination to the district court and manage to avoid disapproval in the Senate was forced to make a decision that, in his mind, spelled the end of any potential to climb higher on the judicial ladder.  And he made a choice.

I’ve liked Judge Rakoff ever since I testified before him in a §1983 action, because he got my jokes. I can’t fathom why his height of 5’8″ is an issue, as raised by the WSJ, as it’s the perfect height for a man in my humble opinion.  His beard is fine, but nothing to write home about.  And while I may not agree with all of his decisions, I’m fairly certain he doesn’t care what I think.

When we argue to a judge, we realize that judges, like the rest of us, harbor prejudices and beliefs about right and wrong, the world around us, everything.  We attribute characteristics to them that we assume to be favorable or antagonistic to our positions.  We may try to formulate our argument to be as appealing as possible to the judge’s bias, but arguments are self-constraining.

What we rarely do is recognize that a judge, who might otherwise give us a perfectly fair hearing in conformity with his own belief system and prejudice, has another, less savory, concern lurking in the back of his head.  His future.

This issue has arisen with one of my favorite judges,  John Kane in Denver. who as a senior judge has come to grips with the fact that his judicial career will end in the district court.  He will never be nominaterd for the circuit, and will never need to look for a house in Washington, D.C.  Because of this, and life tenure, he is free to do what he believes is right.  He can make enemies and take risks. He can be a judge.

The issue also arises when discussions about elected versus appointed judges flare up.  The argument is that the former is ridiculous, as voters lack any basis whatsoever to elect a judge, voting instead down party lines or for the one who puts the most posters on telephone poles.  On the other hand, appointed judges are presumably vetted for competency, but what about decsions dictated by the desire to please those whose fingers will sign off on their next appointment?  Or more accurately, to not offend their patrons. 

We want to believe that every judge is bold enough to rule without fear that it will impair their personal interests.  This “outtake” from Jed Rakoff reminds us that our belief is naive.  Judges have a career path just like assistant managers at Dairy Queen, and they will never reach the pinnacle of success if they put too many sprinkles on an ice cream cone.

I don my cap to Jed Rakoff for sacrificing his personal interest in moving to a higher bench to make the ruling that he believed to be right, even if politically unpopular and destined to end his forward progress.  I hope all judges would do the same thing, though if they would, this thought would never have entered Judge Rakoff’s head.  We all know this, but rarely see it spelled out so clearly and honestly.

And so I dedicate one of my favorite songs to a judge of great stature.

If football has anything to do with choices, then there’s no point in any discussion.  Joe Paterno is a legend in college football, and at Penn State.  But there is no separate set of rules to guide the lives of college football legends.

Two people witnessed Jerry Sandusky molesting children, though molesting appears to be too kind a word.  Raping a ten-year-old boy in the Penn State showers is another way to put it.  One witness, the janitor, now suffers from dementia.  The other was then-grad student Mike McQueary, former quarterback, coaching hopeful. A young man who was hardly equipped to deal with what he saw, but he knew he had to do something.

As the lowest man on the coaching totem pole, he went to the top.  He told JoePa, who sent him straight away to the Athletic Director.  Joe Paterno was an old man, but no better equipped to handle what happened than the kid.

With three games left to another great football season, Paterno has been fired by the Penn State Board, after having submitted his resignation after the end of the season.  The University president, Graham Spanier, is out as well, though nobody really cares since he doesn’t coach football.  Oddly enough, it leaves Mike McQueary on the sidelines.

In an ugly episode that has torn at the soul of a proud university, set off criminal investigations and ended the career of one of the sport’s most accomplished and revered coaches, McQueary has occupied among the strangest of positions: he could be the star witness in the coming criminal cases against senior officials at the university; he has become the target for widespread criticism for not having acted more decisively himself nine years ago; and he could well be on the sideline Saturday for the game against Nebraska, helping execute a game plan devised by the coach he once dreamed he might succeed. A Penn State victory would leave it in position to reach a major bowl game.

From the way it’s described, you have to feel badly for Assistant District Attorney Donna R. Andrieu.  She stood there, the face of the District Attorney of Orleans Parish, Harry Connick the elder, as justice after justice smacked her for speaking the words her boss demanded.  If Harry, Sr., was half a man, he would have had the balls to go there and argue Smith v. Cain himself. 

From the New York Times :

Justice Kagan said she could not understand why the Orleans Parish District Attorney’s Office persisted in defending its conduct. “Did your office ever consider just confessing error in this case?” she asked.

Justice Sotomayor made a broader point about the office, which has repeatedly been found to have violated Brady v. Maryland, the 1963 Supreme Court decision that requires prosecutors to turn over favorable evidence to the defense.

“There have been serious accusations against the practices of your office, not yours in particular, but prior ones,” Justice Sotomayor said. “It is disconcerting to me that when I asked you the question directly, should this material have been turned over, you gave an absolute no.”

“That’s really troubling,” Justice Sotomayor added.

The underlying case doesn’t matter, to the extent mass murder cases don’t matter, beyond the fact that it was a one witness ID where the one witness told the police that he couldn’t identify anyone.  Of course, he later did identify someone, and that someone was the defendant, Juan Smith.  Nobody every told the defense of the witnesses earlier statements.

There is no question that a statement by the witness who identified the defendant as the murderer that he was incapable of identifying anyone is critical for impeachment.  Even Nino knows that.

Justice Antonin Scalia said of the evidence, “Of course it should have been turned over.”

Yet the position taken by Connick, with Andrieu standing there to take the beating, is that it wasn’t “material.”  For non-lawyers, materiality is that which has a significant impact on a fact. It matters.

She acknowledged Chief Justice John G. Roberts, Jr.’s suggestion that the defense would have liked to have known that Boatner at one point told police that he could not identify any of the attackers, but then Andrieu insisted that this was not “material.”   Ginsburg then again criticized the prosecutor’s view of what was “material,” and Justice Antonin Scalia joined in to say that the trial did not depend solely on Boatner’s testimony but, in fact, his was the only evidence against Smith.   She insisted there was more.

As a general rule, it’s frowned upon when an advocate at oral argument persists in asserting an argument that is clearly frivolous. To deny the materiality of the eyewitness’ statement that he couldn’t identify anyone who committed the murders was nuts, and Andrieu took a beating for it.

The problem is that she was just the surrogate, the person told to stand up and take the beating for the Orleans Parish District Attorney.  She did her job and took her licks, while Connick was safe at home, perhaps a bowl of jambalaya in front of him so that he wouldn’t be hungry while his assistant was getting her butt kicked.

You see, he’s the same Connick whose name will forever be associated with a defendant named Thompson, who spend 18 years in prison, 14 on death row, and then lost a $14 million judgment for having been imprisoned and nearly executed because Connick’s assistants didn’t bother to disclose Brady material. But the Supremes tossed the verdict because  Thompson couldn’t prove that this was Connick’s official policy.

So there they were, beating up on poor Ms. Andrieu who kept to her script for making a frivolous argument that something that’s obviously Brady isn’t Brady because it’s not material even though it’s completely, totally, obviously material. It doesn’t get more material.

Why are they blaming poor Ms. Andrieu?  They know that she can’t do anything without Connick’s blessing, and if she concedes that they withheld Brady, she’ll never taste decent jambalaya again as there will be cops blocking the Danziger Bridge when she tries to make her way back home.  They know she’s doing Connick’s dirty work.

As for Connick, he’s only doing what the Supreme told him to do in Thompson’s case.deny it all and play stupid.  That’s the beauty of Brady, Wild Bill Douglas’ greatest joke on the law.  It’s the carrot that one can never quite reach, a fabulous and critical “right” without the necessary limits and parameters that allow it to work by holding the prosecution to any discernable test. 

In Thompson, the Supreme Court had a chance to make the prosecution pay a price for violating Brady. You see, there’s no price to be paid in any individual criminal prosecution. None.  Withhold Brady and the worst that can happen is the conviction is tossed. But provide Brady and you wouldn’t get the conviction in the first place, so nothing to lose. Every incentive is to deny it exists.  Or, as poor Ms. Andrieu argued, deny materiality.

If it becomes official, however, then defendants like Thompson win verdicts after their conviction is tossed and get compensated for the years of their life lost to the prosecution’s thievery.  That’s money out of the budget, and a government can feel that bite.  This is something real to lose.

When Juan Smith’s conviction came on the heels of the Supreme Court’s decision in Connick v. Thompson, it seemed pretty darned hard to ignore. Maybe, just maybe, the justices were mind-numbingly wrong in  Thompson, that the Orleans Parish District Attorney had a calculated policy to deprive the defense of Brady material so that they could convict who they wanted to convict without any of that nasty excuplatory or impeachment stuff screwing up their trials.

But all they had to do to beat the problem was shuffle their feet and play stupid, as in arguing that they didn’t know it was material, and all is forgiven.  Connick may lose his conviction of Juan Smith, but that’s no big deal.  If it had been disclosed that the witness couldn’t identify anyone anyway, he never would have gotten the conviction in the first place. No downside at all.  But he didn’t lose a dime to Thompson, and that’s all that really matters.

It seems like poor Ms. Andrieu did her job incredibly well.  There will be a big bowl of jambalaya waiting for her when she returned to New Orleans.

At the South Carolina Criminal Defense Blog, Bobby Frederick raised an interesting question.

Plus, if I am going to blog about police misconduct and prosecutorial misconduct (which somehow doesn’t find it’s way into ethics opinions), I need to balance the blog with some defense lawyer misconduct as well, right?

The post provides a laundry list of lawyers suspended or disbarred for various types of misconduct, some egregious and some merely foolish.  Apparently, Bobby has caught some flak for putting the unpleasant stuff by his brethren on the small screen.

I’ve gotten some negative feedback from attorneys for putting links to disciplinary opinions on my blog. My only response is that I do not typically put the attorney’s names in the post – I don’t want people to find this blog and the link if they google any particular attorney’s name – and the opinions are available to the public anyway. I am not trying to shame any attorney by blogging about their disciplinary matter. Although some are a disgrace to the profession, many made a mistake or an error in judgment that could happen to anyone, and some are excellent attorneys who will continue to serve the public as effective and ethical advocates.

I can well understand that sense of imbalance, writing about the wrongs of cops and prosecutors without mentioning that lawyers do wrong as well.  It feels dishonest, as if we’re beyond reproach while the others guys, the ones who so many criminal defense lawyers and those who sit on our side of the courtroom whether or not they like or hate lawyers, are subject to constant scrutiny and criticism. 

Bobby’s position is in stark contrast to the Happysphere folks, who would only have blawgers mention the agreed-upon enemies of the tribe, and never write an ill word about their own.  It’s a tried and true method of marketing, where the group circles the wagons for their mutual protection and promotion.  Bobby specifically notes that by posting about the misdeeds of fellow lawyers, there’s nothing to gain for himself.

Obviously, blog posts about ethics opinions serves no marketing purpose for myself – I have never represented attorneys in disciplinary proceedings and I’m not interesting in doing so. I read them for my own education, and the opinions I put on the blog are either related in some way to criminal law, or they are just interesting enough that I want to share them with my readers (all three of you).

While there are arguments to be made that any content that brings eyeballs to a blawg serves a marketing purpose, there’s little doubt that Bobby’s intentions are exactly as he claims.  He’s just trying to be a straight shooter, an honest broker, whose virtue in calling out the cops and prosecutors for their wrongs is demonstrated by his willingness to lay bare the errors of his own. 

Yet, there’s something about providing a laundry list of lawyers that doesn’t quite sit right.  What struck me first was that Bobby doesn’t name the bad ones.  If they’re bad enough to write about, they should be bad enough to name.  Bobby says he doesn’t want to shame them.  Why not?  Lawyers who engage in unethical conduct harm clients, and that’s a very good reason to shame them, just as we shame prosecutors who harm defendants, or cops who beat them to a pulp.  We shame them because they need shaming.

The reason, I believe, that Bobby doesn’t name the bad guys is that they don’t find their way into his posts because of the particulars of their conduct, their outrageous conduct or the terrible harm they caused.  Rather, it’s a laundry list, inclusion being based on nothing more than a significant bar sanction.  The point of the list is to provide  that sense of balance, fairness perhaps, in general. 

Bobby’s posts regularly note all the bad stuff done by local cops and prosecutors, a list of local horribles.  In one sense, this list begets the next.  But there’s a reason why Bobby would provide this list, this being the focus of his blog, and the interest of those who look to his blog for information.  This isn’t the South Carolina blog of bad lawyers, a conduit for the bar association to air out grievances.

There is nothing here to fault, as it’s both fair and right that we are as tough on our own as we are on the other side.  It is, as Bobby tacitly asserts, necessary if we are to maintain the integrity to criticize the cops and prosecutors.  There are too many within the ranks of criminal defense lawyers who lack this integrity, though it doesn’t stop them from naming names.

But our integrity means that we never shy away from making a point when there’s a point that needs making.  If it involves highlighting the misconduct of one of our own, then the Happysphere can shove it.  Bobby is absolutely right to post about lawyers as well as cops, prosecutors and judges.  The moral imperative is no different.

Yet, we write about things that demand exposure not because it fills the blank page, but because there’s a point to be made.  There are far more wrongs committed by cops than appear on these pages, and we pick and choose which ones to discuss because of what they contribute to the discussion.

The same is true for lawyers, for our own kind.  Rather than a laundry list of those lawyers subject to discipline, without any discernible reason to put someone into a post beyond the fact that a sanction was imposed, write about those whose conduct compels discussion.  Write about those to make a broader point, to serve a greater purpose.  And when you do, name them. 

If they aren’t worth naming, then they probably aren’t worth writing about.  Don’t be afraid to make enemies, but make enemies for a reason.

While the post is utterly devoid of any evidentiary support for the vague and fatuous claim, lawprof Danielle Citron has come up with yet another avenue to justify her claim that anyone who says anything which, in her bizarre view, hurts a woman’s feelings on the internet should be criminalized.

From Concurring Opinions, where the quest for politically correct civility trumps any possibility for disagreement.

With the help of law and changing norms, invidious discrimination has become less prevalent in arenas like schools, workplaces, hotels, and public transportation.  Due to our social environments, anti-discrimination law is fairly easy to enforce.  Because leaders usually can figure out those responsible for discriminatory conduct and ignore such behavior at their peril, bigotry raises a real risk of social sanction.  So too hate discourse in the public sphere is more muted. 

Aside from taking credit for the absence of any new claims that support her position that the internet is a hotbed of invidious sex discrimination, Citron hasn’t let that quell her quest.  Instead, she now find the silence proof of “hate discourse,” even more invidious than the flagrant stuff.

But a new era is not upon us.  Instead, hate’s explicit form has, in part, repackaged itself in subtlety.  In public discourse, crude biological views of group inferiority are often replaced with a kinder, gentler “color-blind racism,” as sociologist Eduardo Bonilla-Silva calls it. The face of modern racism is, in journalist Touré’s estimation, “invisible or hard to discern, lurking in the shadows or hidden.”

So if there’s evidence of it, it’s bad. And if there’s no evidence, it’s worse.  So much for any pretense to the intellectual high ground, as Citron’s position lapses into the tin foil hat arena.  It’s all a grand conspiracy to discriminate against women and stop their voices by hurting their feelings, even when their feelings aren’t hurt at all.  And men are shooting gamma rays at them to cause premature menopause too, right?

But the real insanity comes across in the comments to this post, where the discussion centers on Citron’s raising of the five year old claim that threats of violence to Kathy Sierra are rehashed. For those unfamiliar, in 2007, Sierra, a popular blogger, received comments that were extremely offensive and threatening, and as a result, canceled a speaking engagement because she feared harm.

Citron brought it up, for lack of much else to justify her ongoing foray into turning internet nastiness into cyber civil rights and criminalizing speech that isn’t vagina-friendly,  Seth Finklestein responds that while the comments were indeed horribly offensive, the “fear” and subsequent accusations without evidence were unfounded. 

Kathy Sierra responds.  Danielle Citron responds. This is where it goes:

Good god. This never ends. Seth, I am going to say this again: you do not know what actually happened. You cannot possibly *know* that it was *not real* unless you know exactly who did each part, and if you do, then you are withholding that from the law enforcement officials who investigated….

It is not lost on me that the third Google hit for your name, Seth, is a person accusing you of stalker behavior. Have you counted the number of times you have tried to edit my wikipedia bio? Or the number of comment threads like this one that you just keep finding? Are you doing Google searches on my name, still? Because you just keep showing up wherever I am mentioned in this context, and often dropping subtle references to libel and defamation, also perfect ways to keep victims from going public. It has been nearly five years, Seth, and I have not returned to my blog. Please STOP. You are being irrational and creepy about this and what the hell else do you want?

Plus:

Ok, last time Seth: the Boulder county sheriff’s department was convinced there was enough to take seriously, enough, in fact, to take to the DA. The claim of “no rational person could be scared…” well, I guess that makes the law enforcement in Colorado irrational. That’s what you’re going with?

Because if the Boulder County Sheriff’s department says so, it must be true. To which Citron adds her “thoughts”:

First, let me say how sorry I am to Kathy Sierra that my post led to her being confronted by someone whose efforts to discredit her and deny her experience has silenced her. And despite the fact that Kathy told him so, in our comments yesterday, how he still continues in this comment thread is astounding.

All of this, sadly, proves my larger concern. Whenever people speak out about online harassment, they are dismissed as making it up–as Seth and Daily Kos founder suggested of Kathy. They are told it just a joke and that they ought to get over themselves, that it’s the blogosphere, stupid, so ignore it or turn off your computer. As we are seeing, one cannot write about the experience of online harassment victims without people trying to discredit the victim and somehow claim that those involved in the victimization are victims themselves.

While this would have been more than enough to bring my post to its conclusion, it doesn’t end yet.  Add lawprof Lawrence Cunningham’s voice:

Danielle,

Thanks for cleaning and clearing up all this invective. Your post is, characteristically, interesting and important, a contribution to civil discourse on the problem of cyber vituperation. The thread, though unfortunately polluted compared to this blog’s standards of civility, reaffirmed the urgency of the post, and of your book project.

I hope that further comments on the thread respect the mutual requests of the antagonists by hurling no further scorn over the merits of one of the several incidents you reference. The broader problem is real and requires civil discussion, not vitriol.

LC

There is no shortage of threats to substantive free speech in our world, but these aren’t the tin foil hat wearing conspiracy theorists or the government security-at-all-cost law and order demagogues.  These are law professors.  These are individuals who are entrusted with young minds, whose vision of discourse is that it ends where it conflicts with their sexual politics or delicate sensibilities.

While most of us prefer to ignore academics because we consider them irrelevant, have no doubt that such ideas will be seized upon by those who want to shut the rest of us up, eliminate “incivility” from the internet.  And voices such as Citron’s will be their justification.  And the best part is that they won’t need any evidence of a problem because, as Citron argues, the absence of any identifiable wrong proves that its worse now than ever, because we can’t even see it.

This is insanity.  These are our lawprofs. This is about our right to free speech being sacrificed on their alter of hurt feelings masquerading as civil rights.

In summation, the prosecutor argued that the defendant must have provoked the police officer to fear for his life or he would never have fired.

It’s insane to believe that a police officer, a man with no personal animosity toward the defendant, no reason in the world to single the defendant out for attack, would simply fire at the defendant completely unprovoked.  Does that make any sense to you?  It’s ridiculous. It would never happen, and that’s why you must convict.

Kevin usually posts about the strange and humorous aspects of the law.  He found nothing funny about what happened here.

This video, taken by the shootee, makes it pretty clear that everybody is just calmly standing around until (at about :33 in the video), one of the officers suddenly raises his weapon and shoots the guy with a rubber bullet (or possibly a bean-bag round), for no apparent reason.

In a rational world, this couldn’t happen and yet it did.  Most people would ask why, but the “shootee” couldn’t possibly answer that question.  How would he know why a police officer decided to shoot him despite the absence of any apparent reason?  And so the argument that this couldn’t have happened this way prevails, because of our need to believe we live in a rational world.

Carlos Miller, unlike Kevin, doesn’t write about funny things. 

Scott Campbell, the man who was shot, uploaded the video to Youtube on Saturday, but the incident took place early Thursday morning after the general strike Wednesday.

The cop who fired the rubber bullet was one of many dressed in indistinguishable riot gear.

Chances are, black tape was covering his name tag.

Unfortunately, this type of behavior is not isolated.

Carlos’ final reference is to the argument of last resort when wholly inexplicable and violent police conduct happens, that it’s an “isolated incidents.”  This is a critical argument, that we need not fear such conduct because it never happened before and could never happen again.  But this video shows otherwise.

The shooting for no reason whatsoever is bad enough, but the reaction of the group of police officers, suited up in the paramilitary black, laughing and cheering the shooting, is what should strike fear in the heart of every judge, prosecutor and citizen.  Which one of the black-suited cops will be the next hero to emerge to the applause of his peers for shooting someone in the head for kicks?

You want a reason for this behavior?  Look no further than cop culture.  And yet no judge has ever sustained an objection to a prosecutor’s summation that argues a police officer would never behave in such a violent and irrational way.  Yet the videos prove otherwise.

Update:  Within minutes of posting, I read  Jonathan Turley’s post about his op-ed in  Los Angeles Times covering the right to photograph police. It should be read in its entirety for its discussion, like Kevin Underhill’s post, of the 1st Circuit’s holding in Glik that citizens have an fundamental right to photograph police in public, as well as his discussion of  Judge Richard Posner’s reaction to the same argument.

But other federal judges might not be so sure. Take Richard Posner, the intellectual leader of conservative judges and scholars who sits on the U.S. Court of Appeals in Chicago. Posner shocked many last month when he cut off an attorney for the American Civil Liberties Union , which had filed suit to challenge an Illinois law preventing audio recording of police without their consent.

The ACLU lawyer had uttered just 14 words when Posner barked: “I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Posner then added his concerns about meddling citizens: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.”

We certainly can’t have “civil liberties people” telling the police how to do their business.  That could result in, well, civil liberties.  What sort of society would that produce?  One where this wouldn’t be  the daily recitation of wrongs perpetrated by those who we entrust to protect and serve.

If your interest is law, this post isn’t for you. Many readers here are relatively young, either with very young children or the potential to someday in the reasonably near future plant a seed.  This post is for you.

Regular readers know that my youngest child, my son, fences epee, and that for the past few years, we have traveled about the country in search of great barbecue and a medal in the North American Cup circuit.  As he’s now reached his senior year in high school, he’ll be leaving home soon to find his way in college. 

I’ve grappled with this for a while now, just as I did when my daughter went to college.  At least with her, I had a child at home to fall back on.  No more.

A problem arose this year because of logistics, a position that we wouldn’t travel to competitions in second class cities in the midwest unless they offered at least two competitions.  The cost just didn’t make sense otherwise.  But now that he’s aged out of the “Under 17” competitions, and there is only one NAC that offers both “Under 20” as well as Division 1 (where the big dogs fence), our options were limited.  This season, the only NAC that provided two competitions will be held in Portland, Oregon, where Dr. SJ has a dear friend.  Normally, only my son and I travel to NACs.  For Portland, Dr. SJ is coming with us.

There is a NAC in December in Kansas City, Missouri.  There will be a Div 1 competition, as well as some others which don’t apply to my son.  One competition.  The rule is we don’t go for less than two.  The cost is significant, and the travel is a burden. It interferes with life as we know it, school work, business, comfort.  It wasn’t on the docket.

Yesterday, it occurred to me that this NAC in Kansas City is likely to be the last time I will ever take a road trip with my son.  Sure, there will be plenty of fencing, but he won’t need me to be there with him.  He’ll go with friends, teammates and his coach. 

What was I thinking?  Who cares what it costs?  Who cares that it’s burdensome and fails to meet some arbitrary metric?  I may never have the opportunity to go on the road with my son again, just him and me, talking, joking, fighting and eating barbecue.

Aside: In Kansas City, we go to Jack Stack Barbecue .  The last time we ate there, the meal wasn’t great.  But they sent me a box of barbecue to make up for it, and for that, they have my devotion.  And the barbecue they sent me was terrific. 

What? You thought it would be this?

Like spring follows winter, the latest spate of New York Police Department scandals has brought a  New York Times editorial questioning whether the police can police themselves.

A series of scandals and crimes — very few of them uncovered by the New York Police Department — should leave no doubt that New York needs a strong, independent agency to investigate serious complaints about the city’s police.

There’s nothing more enjoyable than starting out with a logical fallacy, that the obviousness of a problem suggests the obviousness of a solution, in this case a “strong independent agency.”  But before dealing with the issue, even the Times’ editors know that they must first pay homage to the cops lest their reporters cars get papered with an inexplicable flurry of tickets.

Over all, New York’s 35,000 police officers have done a good job in recent years of protecting the city from crime and terrorism. But several corruption cases and a federal lawsuit alleging racial bias in the department’s stop-and-frisk policies have raised disturbing doubts about the management of the department and its ability to root out its own problems.

Sorry for the digression, but I would be remiss not to note that even the Grey Lady isn’t so arrogant as to piss off the police.

The problem isn’t that there’s a need, but that the solution comes around every generation.  Remember Serpico?  The Knapp Commission?  Does the Dirty 30 strike a bell?

Almost 20 years ago, a commission investigating corruption in the New York City police force recommended the creation of a “permanent independent oversight body” to oversee and investigate police and their Internal Affairs operations. Instead, Mayor Rudolph Giuliani created the Commission to Combat Police Corruption, which is supposed to oversee internal police investigations but has no power to demand documents or testimony.

Rudy and the cops didn’t get along very well, mostly because he and Bill Bratton were fighting for headlines in the New York Post.  But there’s one thing that everyone agreed on, that you can’t actually let outsiders have any influence over the police because they just don’t get it. Only cops understand cops.  Ask any cop. He’ll tell you.

Notably missing from the Times editorial is the CCRB, the Civilian Complaint Review Board.  From its own hype :

In 2006, the CCRB received 7,669 complaints from civilians, and closed 7,399 cases, of which 2,680 were full investigations (meaning that the civilian participated, the officer(s) were identified and an investigation was closed after doing a full and through investigation). Approximately 6% of the full investigations resulted in a Substantiated disposition. 262 cases were mediated, which is an option for certain complaints provided the officer does not have an extensive CCRB history, there was no arrest made and severe force or abuse of authority were not involved. In mediation, the officer and civilian both voluntarily bypass the investigative process and meet each other one-on-one with a third party mediator to discuss the incident and resolve it. This results in no disciplinary action being taken against the officer and often results in a more satisfied civilian as an outcome.

Wow, about 6% of complaints, out of those deemed worthy of a full investigation, are “substantiated.” resulting in a firm admonition not to be a bad boy again. Yup, that’s got ’em shaking in their boots. 

And so we have more “scandals,” because the old commissions worked so well.  Official people, which includes the editorial board of the New York Times, love committees, commissions, boards, groups of all flavors.  Between the diffusion of responsibility and the dynamic of groupthink, the love of consensus and compromise, the ability to appoint friends and supporters to positions that they can put on their resume and provide fascinating cocktail party chatter, there’s nothing better than a committee.

Ironically,  Seth Godin recently explained the nature of committee as it relates to a business trying to get something done.

If committees told the truth

“Hi, we’re here to take your project to places you didn’t imagine.

With us on board, your project will now take three times as long.

It will cost five times as much.

And we will compromise the art and the vision out of it, we will make it reasonable and safe and boring.”

That’s how committees work at their best.

Police Department spokesman Paul Browne has argued against the need for new oversight. He said that the Internal Affairs Bureau has been expanded in recent years and that it has often helped with investigations started elsewhere. That is not good enough. New Yorkers need to have confidence that any problems with the police are fully and fairly investigated. A truly independent agency, with real powers, is the only way to ensure that.

I know. Let’s create another commission!  I’m sure the next one will work.  Even though they won’t ask anyone with guts and a healthy skepticism of police and government to be on it, and it will be filled with all the blue ribbon types, with vested interests in government and an eye on their next important appointed position, perhaps with a NYPD parking permit.

But even if they did, it wouldn’t matter.  It’s a committee, and by definition, it won’t work.

The joke is that a jury is made up of twelve people too stupid to find a way to get out of jury duty.  It was put to the test by Judge Gregory Holder in Tampa, who  called in 246 potential jurors who failed to appear.

Hundreds of failed jurors sat in Judge Gregory Holder’s courtroom Friday morning, summoned back to listen to what the judge had to tell them.

They hadn’t shown up when they were called for duty Oct. 3, and Holder ordered them back to court. If they didn’t respond to explain themselves, Holder said last month, he might issue an order for their arrests.

Arrest?  Commit a crime and you have maybe a 50-50 chance of being arrested.  Of course, if you’re called for jury duty, they know where to find you, which is more than one can say about police investigations.

The judge first called Dovay Compton to the stand.

Holder told Compton that someone had called the courthouse asking for the Tampa resident to be excused from jury service because he was in the military. But Compton admitted Friday he wasn’t in the military.

Holder, visibly upset, said he had served in the military, as had his wife, son, mother and father.

The judge told Compton to sit.

Not satisfied with defying the call to jury duty, Dovay Compton figured it was a pretty decent lie that would get him out. After all, who was going to spend the time checking it out?  Judge Holder later admonished the group of American citizens, called upon to perform a vital civic duty, who chose not to do so.

People fight and die every day defending constitutional freedom, he said.

“We rely upon you men and women to come into court for a brief period of time,” he said. “We try to be efficient with respect to your time … This is your courthouse. You built it with your tax dollars.”

Though some trials can last for weeks, Holder said he recently tried two jury trials in one week.

“We’ve become a McDonald’s world,” he said. “We want it our way.

“But folks, this country asks very little of you. The state asks very little of you. Vote and serve on juries.”

Therein lies the fallacy of the demand.  Is that all the government asks of its potential jury pool, “vote and serve on juries?”  Granted, people aren’t particularly good at doing either, but then, there are a few things left off the list.  Pay taxes?  That’s a pretty big one, and hard to imagine the judge forgot about it just as some potential jurors claimed to forget about showing up.

And what about endure the plethora of forms, in triplicate, one has to complete in black pen so one’s child can have a lemonade stand? Oh, plus pay the fee and have the nectar tested by the health department.  Or get on one’s knees and be obsequious to a police officer who stops you for no particular reason?  Maybe it’s a meeting with a school administrator who didn’t like the shirt your child wore or the word she used on Facebook to describe her math test?

Jury duty has always been a critical, and distasteful, duty of citizenship.  I refuse to help friends and family escape the burden, explaining why the system fails when ordinary people won’t sit on juries.  They explain why it’s a burden to their jobs and families, but the true explanation is that in the scheme or priorities, it falls below pretty much everything else they have to do.

At  Court-o-rama (the least dangerous blog), Ann Skove’s view of Judge Holder’s admonition, the bane of everyone engaged in the effort of court administration, is reminiscent of New York’s former Chief Judge Judy Kaye.

We read stories like this pretty often. These judges provide a good reality check for people who think it’s OK to not show up.

What if we spent as much time on jury reform? Little things, like helping jurors find lunch and parking? Bigger things, like keeping those source lists up to date?

There’s no doubt that jurors were treated with disdain, to put it mildly, by the system. Herded like cattle and left to fester in dirty rooms with nothing to do but sit and wait.  Less then a thrilling experience to begin with, only to be treated like idiot children, while their businesses are left unattended, by uncaring officials. 

Many court systems have tried to make the duty less unpleasant, as well they should.  It should be less unpleasant for all participants, but jurors in particular.  They have eliminated exemptions to create the appearance of fairness, that the duty applies to all citizens, not just the most pathetic among us.

Yet this hasn’t made jury duty more palatable to anyone.  No one yells “yippee!” when the notice arrives in the mailbox, and the first thought in most people’s mind is how do I get out of this.  Still.  Except for the outliers, the small group with an ax to grind who want to be on a jury so they can apply their personal version of justice provided they can conceal their true purpose from lawyers and court in voir dire. 

Judge Holder’s pep talk, unintentionally, hits on something significant.  If our duty as citizens was limited to voting and serving on juries, maybe people wouldn’t resist with such vehemence.  If citizens believed that participatory democracy worked, they would be willing, if not happy, to make the sacrifice.  But that’s not all government asks of us, or does to us.

Between a loss of faith in government, and suffering the constant burdens of a government whose demands never seem to end, jury duty is one step over the line.  We pay our taxes.  We pretend to be respectful to cops.  We restrain ourselves from smacking the smarmy petty bureaucrat who informs us that we used the wrong color pen to fill out the form needed so can keep the dialysis machine in our dying child’s bedroom.

And yet that’s not enough to sate our government’s demands of us.  On top of everything else, it demands that we give up our lives to appear for jury duty, to participate in what we believe to be a failed system.  Comfortable chairs and available parking aren’t enough, and the other problems aren’t so easy to fix.  When 246 people refuse to show on one day for jury duty, the jury has spoken.

Despite my early protestations, I’m on twitter.  I’m followed by a lot of other twitterers. I don’t follow them back because I have no interest in buying what they’re selling.  I don’t follow them back because I don’t know who they are or have any reason to believe I want to engage in a discussion with them.  I don’t follow them back because they’re nuts, stupid, childish or just not funny.

I have a facebook account, a LinkedIn account and a Google Plus account. I never use them.

Still, I hear from a lot of people about social media.  They tell me they have to use it because this is the future.  They tell me that if they don’t, they’ll “miss the train” and all the other people who do use it will make oodles of money, take all the good cases, sell their wares, while they just sit there waiting for the phone to ring.

So I ask, “and are you making oodles of money off social media?”

No.  They’re not.  They’re spending hours of time at a stretch, chatting it up with people they don’t know who are busy trying to create bonds of trust with them so they will buy.  But nobody’s buying. Everybody’s selling.  They don’t really trust anyone, but engage in a mutual bond of desperation.  They play with disembodied characters on a screen, afraid to be so rude as to not reply for fear that this person will be the one who has the big case or will make the big purchase.  They pretend to care. Or maybe they really do care, for lack of anything real to care about. We’re reduced to caring about disembodied characters on a screen.

If only they knew that it was some kid who prays that someday they’ll have a pot to piss in, hoping that the old time lawyer will throw them a bone.  You won’t make any money off them, but you spend time away from your children for them.  This is your life?  Your future? 

While social media technically uses only a couple of our senses, the one that I use the most is my sense of smell.  I smell the stench of desperation.

Take a gander at my twitter followers.  One of the latest, a criminal defense lawyer no less, includes in his twitter bio that he has “easy payment plans.” 

Is there no dignity left?  Is there no one so shameless that you won’t do anything for a few pennies?

A few years ago, the question was how long it would take for social media to go mainstream, so bring in the majority of Americans who ignored their computers and sat on the sidelines of social media.  It was killing the early adopters, those who hoped to be social media rock stars and bask in the adoration of converted luddites.  They were so important within their inconsequential sphere, and wanted to be appreciated by the broader swathe of society that had yet to learn that they absolutely had to jump on the social media train or be left to die like the dinosaurs.

Someone else can crunch the numbers and let me know if the majority of Americans are now engaged in social media.  I don’t follow it because I don’t care.  I’m nothing more than an observer of this phenomenon.

What I observe is a nation so desperate, so shameless, so lacking in anything remotely resembling a spine or self-respect, that they have turned these tools into a black light district.

It’s not that I’m special. I’m not.  Just another guy with a twitter account, and one whose twits are remarkably unworthy of anyone else’s time.  But then, people aren’t following me because they think I will twit something pithy or witty.  They follow me because they wrongly hope I will buy whatever they’re selling.

I’m disgusted. Is that the reaction you’re trying to evoke?  Every day, this video becomes increasingly real.