While the efficacy of video in revealing the lies and misconduct that we could only argue about in the past (while judges, prosecutors and police officers laughed at defendants and their lawyers for engaging in the lunacy of an unprovable pissing contest) is beyond question, the heroes may not receive the mention they deserve.

One such hero is Carlos Miller.  His blog, Photograph is Not a Crime, has catalogued police arresting people for videotaping and photographing police. He’s put himself at risk, twice having beaten charges against him, so that our right to observe and document what really happens on the streets of America is secure.

Carlos’ efforts are usually highlighted when he posts about some of the more horrendous or absurd abuses, but watching one of the  latest videos he’s posted from the Occupy Oakland protest struck me as one of the most telling in its banality.

No one is being beaten. No one is being arrested. No flashbang grenades go off.  The officer involved, whose name is Hargraves, doesn’t say a word, though the look on his face speaks volumes of contempt.

The short video is about the officer covering his name on his shirt with black tape so that it can’t be seen.  The reason is why is obvious, to prevent the officer from being identified by name.  The reason why the officer doesn’t want to be identified is similarly obvious, that whatever may happen that day, whatever he may do, he doesn’t want to be held accountable.

It’s unlikely that this will cause the outrage that comes from images of police officers using force against people without justification, but this image may be far more telling about the nature of the relationship between police and everyone else than any particular instance of harm. 

This image represents the schism between citizens and those given a gun and shield, and the authority to use them.  This image reflects how the ordinary “us against them” has become.  As if it’s two species at war, part of an ingrained ecosystem where one goes about his daily life prepared to kill or be killed by his natural enemy.

The look between Lt. Wong and P.O. Hargraves is painful.  The former’s eyes appeal to the latter, saying

“but you’re one of our kind, not theirs.  You’re supposed to support me, defend me, not them.  How can you betray our trust?”

I’ve watched this video numerous times, and I’m mesmerized by what it shows. The look of contempt changing to pleading.  There is no question about the wrong of a cop concealing his identity so no one can speak his name should something happen on that shift.  There’s no reason to believe he plans anything bad, intends to use force, to beat some young man or woman.  But just in case, he made sure no one could name him.

Everything bad that happens between cop and citizen starts with this attitude.  Look at the eyes.  That’s where the beatings, the lies, the harm comes from.  It’s the mindset that covers the name before there’s any reason to be concerned that produces the outcomes we find outrageous.  This is where it all starts.  Everything else flows from this attitude, and we will never change the conduct without changing this attitude of hatred and contempt.

And without guys like Carlos Miller, we would never see it.  More importantly, those who laugh at us would never see it.

H/T  Radley Balko   

The reason Tim Lee holds the title of “adjunct scholar” at the  Cato Institute is that there’s no position called “adjunct moron.”  Consider his attack on Claudio Ballard*, published in the National Review.

In 1994, Claudio Ballard was an unemployed computer programmer with a great idea: a system to scan paper financial documents and store them on a secure server. Ballard built a prototype, raised venture capital, and founded a company called DataTreasury to commercialize his system. At the peak of the dot-com boom, DataTreasury had an office on Long Island with over 100 employees.

At the time, banks were still clearing checks by shipping them around the country, and Ballard knew they would save a lot of money by scanning checks and exchanging the images instead. He thought his system would be perfect for the job. But the major banks weren’t interested, choosing to work with other vendors or implement digital checkclearing systems of their own.

Lee goes on to use Ballard as the poster boy for patent trolls.  What he neglects to mention is that seconds after Ballard left the building, every bank he approached immediately went to their own computer guys to replicate his system, because Ballard was absolutely right.  They would save a bloody fortune using Ballard’s system, and a fortune saved is a fortune earned.  The only difference is that they could cut Ballard out of the deal.

Lee neglects to mention that judge after judge after judge, jury after jury after jury, have found that the banks shamelessly stole DataTreasury’s patents, their methods, processes, ideas, which were ground-breaking at the time, and used them to save a ton of money.  And yet Lee would make the banks the poor victims of Ballard?

It’s hard to see how anyone could build a digital check-clearing system without infringing this patent. I suggested to a company spokesman that DataTreasury had effectively patented the concept of digital check clearing. He disputed that characterization, but he struggled to explain what specific techniques the patents covers. And he couldn’t think of any kinds of electronic check-clearing systems that didn’t infringe DataTreasury’s patents. In 2002, DataTreasury, by then just a shell of its former self, launched a patent-litigation campaign against the nation’s banks. Those legal battles continue to this day, and have netted DataTreasury hundreds of millions of dollars in licensing fees and damages.

Today, the ubiquity of digital check clearing makes this all seem incredibly obvious.  The same could be said of the wheel, but somebody had to invent it.  Before Ballard, the poor banks had to do with what they came up with on their own, and it stunk.  After Ballard, they were floating in excess dough off of his patents, his efforts, his sweat.  Not so sweaty? So what?  He came up with it and they didn’t. 

The banks turned to their friends on Capitol Hill for help. In 2009, Sen. Jon Kyl (R., Ariz.) proposed an amendment to that year’s patent-reform bill that limited financial institutions’ liability for infringing DataTreasury’s patents, which the amendment listed by number. The bill didn’t pass, and the banks got a lot of bad press for the stunt. So this year’s patent-reform bill, known as the America Invents Act, is a little more subtle. A provision inserted by Wall Street’s senator, Chuck Schumer (D., N.Y.), singles out data-processing patents related to financial services for extra scrutiny from the patent office. The banks’ response to DataTreasury is a microcosm of the broader patent debate. The banks describe DataTreasury as a “patent troll”: a company that has no products of its own but earns a living by filing patent-infringement lawsuits.

The shoe does seem to fit.

While I share many beliefs with the guys at Cato, and always enjoy hearing from Tim Lynch about overcriminalization, it’s intellectual dishonesty like Tim Lee’s that cause me to turn away.  This isn’t about free markets, as some would try to characterize it, but about a person’s ability to create something and reap the benefits.  Banks don’t get to steal from others any more than anyone else. Well, at least they shouldn’t.

Still unsure of Lee’s intellectual dishonesty?  Try this on for size:

And DataTreasury is just one of the hundreds of patent trolls now shaking down productive companies. And the explosive growth of patent trolling is just one of the many problems created by our dysfunctional patent system. The America Invents Act is full of such technocratic provisions that tilt the playing field toward big businesses without doing anything to address the system’s deeper flaws.

So DataTreasury is the Goliath beating up on the poor little Davids, like Citibank and JP Morgan Chase?  This is just embarrassingly stupid.  Banks are “productive companies” while Ballard’s DataTreasury is just a patent troll.  There is simply no intellectually honest basis to contend that Ballard’s efforts, his creation of patentable methods that allowed for banks to save billions (which, I note in passing, they didn’t give back to their customers, not even a little bit) are societally worthless while we owe a debt of love to big banks for all the good and productive things they do for us.

A fundamental precept of capitalism is that a person can create something of value and reap the rewards.  This is the incentive that keeps America vital, pushes people to come up with new ideas.  Some involve products, hard things made of plastic that won’t break until minutes after the warranty expires, and some involve ideas that facilitate progress.  Lee values shiny things. Lee doesn’t care much for ideas. 

It’s hard to imagine that my pals at Cato are really as antagonistic toward ideas as this blitheringly misguided article suggests.  Or as socialist. 

Maybe it’s time they create a new position at the Cato Institute, and Tim Lee can be the first to hold it. All that will be required is that he trade in his tux for a jester’s hat.

*Let’s not forget that  I have an interest in DataTreasury.

It was a simple bust, as Police Officer Steven Lupo explained.

It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver’s door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.

Text book all the way.  The request for a medal for excellence almost writes itself.  On cross-examination, Michael Diamondstein played the “are you sure” game, locking Lupo into his testimony.  Close your eyes and envision the smug cop on the stand, calmly testify with that half-smile on his face, believing that he, Police Officer Lupo, was king of the courtroom.

In court, Diamondstein asked Lupo to confirm that account, according to a transcript of the hearing.

“Before you got to Mr. Farsi, did you open the rear driver’s side passenger door and take that individual out and pat him down?”

“No,” Lupo said.

Then Diamondstein asked, “I just want to make sure that we are clear that you certainly didn’t just open the door prior to any conversation, take him out, and pat him down. That definitely didn’t happen?” Diamondstein said.

“Correct,” Lupo replied.

Change the names and this could be the transcript from a thousand other trials.  Except what came next doesn’t happen often.

Then defense attorney Michael Diamondstein produced the video.

Turned out reality was different.

The video taken from nearby surveillance cameras contradicted key facts in Lupo’s report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued.

Straight down the line, Lupo lied, secure in the mistaken belief that he could plop his donut encrusted butt on the witness chair and tell a completely fabricated story about how he’s just about the dandiest cop ever, just doing his job, applying the Constitution and keeping us safe from the bad guys.  Except he was a liar, and Diamondstein had the video to prove it.

Judge Lydia Y. Kirkland tossed the case after the video was played.  Had no video been played, she would have been sentencing the defendant instead.

“I can just tell you from my experience,” said veteran defense attorney Diamondstein, “in the majority of cases, while the clients may not deny having narcotics, in the vast majority of cases the circumstances surrounding the arrest did not happen as it was described in the paperwork or in court.”

Years ago, New York Daily News columnist Murray Kempton coined the phrase, “there they go again, framing the guilty.”  It’s one I repeat often, as its point reflects the most problematic part of law enforcement and law.  Despite the fact that Lupo turns out to be a liar, there will be a great many people who think to themselves, “so what?”  The guy was a drug dealer, and who cares that a cop stopped a drug dealer, seized the drugs and then said what he had to say to lock the scum away.

The ends justify the means, especially when there’s an undercurrent that if it wasn’t for criminal-coddling technicalities that make a cop’s job so difficult, he wouldn’t have any need to lie.  In fact, in a perfect world, there wouldn’t have been a trial at all, Lupo’s word being all any law-abiding citizen needed.

This story was sent to me by a young Philadelphia civil litigator who was shocked (shocked!) that police officers would so brazenly lie.  He was outraged that such a thing could happen.

If they don’t press charges against the police officer for perjury, then our system of justice is a joke.  I don’t practice criminal law, but it’s like the courts downright refuse to make the police and prosecutors follow any of the rules, unless it’s so egregious that it ends up on the news.  (like Duke Lacrosse).  One way of looking at this is the prosecutor proffered perjured testimony… (though I hope the cop just lied to the DA).

To anyone who has spent time in the criminal law trenches, this has to raise a chuckle.  Even the implicit epiphany misses most of the problem.  Lupo wasn’t a lone indian, but working with his partner, and later a supervisor, all of whom studiously violated as many constitutional rights as they could get their hands on. What of the partner? What of the supervisor?  They were all complicit, both in the violation of constitutional rights as well as the conspiracy to lie to the court.  No one came forward to out Lupo’s lies.

But the bigger picture, as Diamondstein notes (and Kempton reiterated decades ago), is that this isn’t the outlier, but the norm.  There’s a game played in courtrooms, where testimony is provided that conforms to what naive or compliant judges and juries expect of police officers.  But cops know how things go in the streets, and laugh at the law.  They do what they think they have to do, what the believe they can get away with, and tell the story to the court they know it wants to hear. 

When it’s only a bad guy involved, there’s no hard feelings.  It’s a game.  We fight over rules, and they lie about them to put the bad guy in prison.  Everyone goes home feeling pretty good about themselves.

Had Diamondstein not been able to get his hands on a video that proved Lupo a liar, the case would have gone down the usual path.  Lupo would have gotten another ribbon for his shield, and the defendant would be doing some time in the pokey.  The judge wouldn’t have broken a sweat buying the testimony and imposing sentence, and the prosecutor would have enjoyed a beer and the admiration of his friends for a job well done.

There was a video, this time. 

After the video was played, and Lupo’s lies were revealed to even the blindest person in the room, the brazenness wasn’t over.

After seeing the video, Kirkland took over questioning. In response to her questions, Lupo admitted that his testimony about never having searched the trunk was incorrect.

“I totally forgot about he asked me to open it at one point,” Lupo said, referring to the supervisor on the scene.

“Without a warrant?” Kirkland asked. “Did you have a warrant?”

“No,” Lupo said.

He forgot.  All is forgiven.  Try that with anyone other than a cop and see how well it works out.

When the United States Supreme Court takes a case and rules, it applies to all.  When the issue is important, we all stand to gain or lose.  When the decision goes south, we all pay.  We don’t, however, get a say in who brings the case.

Rarely do we look behind the brief.  In Florence v. Board of Chosen Freeholders, we watched as a  car wreck happened right in front of the bench.  The case involved the strip search of a guy jailed for a mistaken warrant for a civil contempt, and people of my ilk would have such a search held unconstitutional.  Based on the way oral argument went, it appears that we’re due for the opposite conclusion, that everyone entering a jail, whether for minor or even non-criminal reasons, will have to squat and cough.

The  WSJ Law Blog provides the backstory to this fiasco.

For decades, federal appeals courts held it unconstitutional to strip-search people arrested on minor charges without a specific reason to suspect weapons or drugs were hidden in their body cavities. A lot of jails disregarded the rulings, and some have paid a high price.

Lawyer Elmer Robert Keach III, of Amsterdam, N.Y., says he and his colleagues have racked up $36 million in class-action settlements with jails across the Northeast and as far away as Texas. Roughly 30% of that went to attorneys’ fees.

Keach likes things as they are. Which is why, our colleague Jess Bravin  reports, he has taken to hurling insults at lawyer Susan Chana Lask, whom he fears may have ruined it all by bringing a strip-search case before a conservative-led Supreme Court. (The same court that, last month, suggested that blanket strip-search policies might be constitutional.)

The problem is that Albert Florence retained Lask as his lawyer.  He made this choice on his own, but we will all live with what she did.  And Keath thinks Florence did not choose wisely.

“Susan Chana Lask is an incompetent dolt,” said Keach, who predicts a 6-3 Supreme Court vote blessing blanket strip searches.

While Keach made a living off suing jurisdictions that strip-searched people for no good reason, and thus had a huge horse in the race, his efforts also forced jails to stop the practice.  Lask, by pushing her case to the Supreme Court, may make the practice lawful everywhere, overriding all the great circuit and state court decisions with one, huge, massive failed case.  And every person whose buttucks are spread will have Lask to thank.

But the story didn’t end with the WSJ expose, as Susan Chana Lask sought to vindicate her honor in a comment:

Susan Lask wrote:
Unfortunately, this article is repeating false information. I never went to keach for help at anytime. My case was fine and I won it in the District Court myself. before winning though, Mr. Keach contacted me the day of my oral argument that I won later, and told me he was going to try an dtake my case away from me. this is a tactic some lawyers do that is not accpetable, and in fact was so unacacpetable the Court rules against Mr. keach and the public record shows he was ordered to stay away from my case and the court stated clearly “Ms. lask was found to be very competant and appointed class counsel.” I would appreciate it of the WSJ would kindly get their facts straight and review the record so it is reported correctly. Also, I never ever refered to Mr. Keach as Mr. leech. your colleague ade that up for sensationalism. i accidenatlly said it when he called me and I said that was a mistake. Of course, your colleague unfirtunately abused that mistake and its really a shame that the WSJ thinks its newsworthy to pit people against each other. IAlso, I didn’t “lose” in the 3rd Circuit-0if you would check your facts, the jails appealed to the 3rd Circuit which before that case two otehr Circuits, the 9th and 11th, also held as the 3rd circuit–so the 3rd Circuit followed suit. If you would read the 3rd Circuit’s opinion, they literally state there is an issue and imply they need the Supreme Court to resolve the Circuit Split. So why dont you just name all of the other lawyers who “lost” cases in the 9th and 11th Circuits too–or you should state the truth that these are court decisions, not egotistical wins and losses. Also, you are falsely stating I asked keach’s help–that never happened. I had a conversation with him like many lawyers i conversed with throughout the US as part of my investigation in the case. Mr. Florence as well knows the facts and there are documents disproving your story. It is again a terrible shame this reporting the WSJ enngages in, but that will be handled appropriately and the public ses through this poor report.

Does this writing make you comfortable with your unchosen counsel?  Lask’s comment largely confirms the old saw that one should never confirm in writing what people only suspect.

Not to be ignored, Bob Keach also commented, though his appears at Orin Kerr’s post on this subject at Volokh Conspiracy :

Bob Keach says:
Counselors,
While I am reluctant to enter the fray here, I have been the victim of an unfair hatchet job in the Wall Street Journal, which clearly wrote its story to make lawyers, namely me, look bad. If I had this to do over again, I would not have participated.
Regardless, while I cannot address everything detailed above about me, all of my settlements involved seeking injunctive relief, and usually sought injunctive relief before any discussions of money or the like. My colleagues and I stopped this practice in 13 jurisdictions in four states, and several other dedicated civil rights attorneys did the same elsewhere in the Country. These cases led to countless other municipalities, and the Pennsylvania State Legislature through legislation, to stop strip searching misdemeanor pre-trial detainees. I am upset that Ms. Lask took her case to the Supreme Court because of my concern that the case is a loser, and will make bad precedent that will affect people’s rights all over the country. If she fails (and she most likely will), people charged with minor crimes (and likely non-criminal conduct, such as violating municipal ordinances) will be strip searched when they enter a local jail; something that disproportionately affects the poor, who cannot post bail. Ms. Lask should have resolved her case, in the best interests of her clients, rather than risk an adverse ruling on appeal in a legal landscape that was changing. My colleagues and I settled eight of these cases in the Third Circuit before Ms. Lask decided to undo a series of great District Court decisions and try her luck at the Third Circuit. Discretion is the better part of valor, and sometimes you have to know, as a plaintiff’s lawyer, when to settle.
I have dedicated my life to this issue for over 12 years, and won a number of important decisions in this area. To see all of this hard work undone is certainly a bitter pill to take. It is certainly a lot worse than being unfairly portrayed in the Wall Street Journal.
Bob Keach

Rarely do we get this kind of inside-the-onion view of back-squabbling among those who deal hands-on with such issues.  As Keach see it, this was the wrong case brought before the wrong court by the wrong lawyer, and there isn’t an imprisoned butt that won’t suffer for it.  Lask is not without a point, however, as her concern was not the law for posterity (or posteriors), but the representation of one guy named Albert.

We often question how the law devolved to a state of incomprehensibility, to such a dark and awful place that things we consider horrendously wrong receive the stamp of approval by a gang of harsh, robed figured in Washington.  This is how.

There we forget, there are lawyers who either aren’t up to the job, or harbor bizarre ideas (think “internet mobbing”) that could do monumental damage for society.  Whether they suffer from the Dunning-Kruger Effect or some unknown pathology, they are just as capable of petitioning for certiorari as the best among us.  And they are particularly capable of wreaking havoc with society. And they desperately want the opportunity to do so, to be heroes in their own minds but at our expense.

That’s how it happens sometimes.  When next a client complains about suffering the indignity of having been sent to jail for some trivial, even utterly mistaken, reason, only to have some screw with myopia within sniffing distance, remember Susan Chana Lask.  She wanted only to help Albert Forence, and (assuming the predictions of a horribly bad outcome are accurate), blew it for everyone.

Hank Skinner will eventually get the DNA tests he wants.  The only question is whether he’ll be dead already.

“We are deeply disappointed that the trial court has denied Mr. Skinner’s request for DNA testing.  Unfortunately, the trial court’s order offers no explanation for its conclusion that DNA testing is not called for in this case. It will now be up to the Court of Criminal Appeals to give Mr. Skinner’s case the deliberate consideration that is necessary to ensure a correct result.  We are confident that upon such careful review, the Court will conclude that DNA testing is necessary in this case to ensure the reliability of the verdict.  But for now, the Court of Criminal Appeals must stop the scheduled November 9 execution rather than allow itself to be rushed to a hasty and ill-considered decision.  The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing.”

– Robert C. Owen, attorney for Hank Skinner
– November 3, 2011

For those of us who breath non-Texas air, this seems to go beyond the realm of stupid.  We strain to understand why.  Why, given that the Texas legislature has  enacted a law for the purpose of enabling an inmate to seek DNA testing even when his lawyer failed to do so before trial?

Last June, both houses overwhelmingly passed a revision to the DNA testing law to clarify that inmates should be able to request testing even if their counsel did not request any at trial. Lawmakers even cited Skinner’s case in passing the legislation. Hank Skinner, it seemed, would finally get his DNA tests.

Yet the issue lingers, awaiting a ruling, while the execution proceeds with a speed that makes no sense at all.

November 9 is fast approaching.  There’s nothing magical about the date, compelling a judge to fix it so firmly, to resist every attempt, and all reason, to move it down the road sufficiently to get a ruling on Skinner’s right to have the DNA tested.  Sure, assuming that the ruling is against him, there will be an appeal, and that it will mean more delay before he gets his chance.  And then there’s the delay awaiting the actual testing.

So many potential causes for delay.  So what?  What is the need to rush the execution of Hank Skinner?  What fear strikes at District Attorney Lynn Switzer’s heart that compels her to fight the testing?

Dallas County District Attorney Craig Watkins, in the meantime, has  reportedly decided that it’s his duty to free Dale Duke, imprisoned since 1997, because he’s innocent.

 “The original prosecutor’s failure to provide critical information to the defendant coupled with overwhelming evidence that the initial allegations were false, convinced me that Mr. Duke was wrongfully convicted. After a thorough review of the case, I approved a recommendation to ask the court to exonerate Mr. Duke.”

But as I’ve been told by my friends in Texas, Dallas really isn’t Texas. It’s just some northern city mistaken plopped down in the wrong place.

For terrific background on Hank Skinner, read Radley Balko’s piece at Huffington Post.  For a rational explanation of why Hank Skinner can’t get DNA evidence tested, there’s no place to go.  As for why Hank Skinner is scheduled to be killed on November 9, it’s a Texas thing.  

One would have thought that a rational adult in a position of sufficient power would have put a stop to this idiocy before we came so close to November 9th.  In light of the ruling that his killing will proceed on the appointed date, one would be wrong.

This is just nuts.  And to anyone who would complain that Hank Skinner is a horrible murderer who deserves to die, the issue would have been over a decade ago if they just conducted the DNA testing in the first place and put the issue to rest.  You don’t kill first and test later.  You don’t kill first and deny testing.  And yes, if it were up to me, you wouldn’t kill at all.

Like most northern lawyers, I have little call to become embroiled in the doings of the deep south.  But as a guy who lives in the suburbs, I can appreciate grass.  Not weed (you didn’t think that, right?), but green, green grass.  Many suburbanites take their lawns very seriously, but apparently not nearly as seriously as the folks in Senatobia, Mississippi.

Via NEMS360, a bit of southern flavor:

A long time ago, Mark Bennett wrote a post about mapping the blogosphere.  It came in partial response to questions about whether the Practical Blawgosphere had grown stagnant, an issue arising among the first wave of bloggers who were feeling the malaise of “been there, done that.” 

Rereading Mark’s post, I grew nostalgic about the blawgers who have come and gone.  Some post occasionally, a flurry of posts here and there, and then disappear again into the mist. 

Aside: To those lawyers who pay to hear about how you simply must blog if you want to have a practice in the digital age, ask yourselves why so many have established well-known, well-respected blawgs, and then walked away from them.  Hint: It’s not because they became so wildly successful they couldn’t take on another client.

I came to the blawgosphere in the second wave.  There were well-established blawgs by lawyers who had been here from the beginning, and Simple Justice wasn’t one of them.  It took a while to learn who was who, what interested me and which blawgs and blawgers struck me as worthy of engagement.  And I engaged, as did others who came in the second wave like Mark Bennett. 

At first, we were ignored for the most part, the first wavers having seen blogs appear and disappear in the blink of an eye.  Until we showed that we were serious about being part of the blawgosphere, they wouldn’t bother acknowledging our existence, In time, dialogue ensued.  Sometimes friendly conversation. Sometimes argument. Sometimes downright acrimony. But there was life.  The blawgosphere was anything but stagnant.

It’s been almost five years since then.  And I’ve again noticed friends and enemies who have quietly faded away.  More importantly, the noise has died out, gone silent at times, and those times became more frequent. This past week, two posts at Kevin O’Keefe’s Real Lawyers Have Blogs brought some issues home.

The first was a peculiar post about trust, that establishing trust required citing and sharing with other blawgs.  Kevin’s gig is Lexblog, a turnkey blogging operation for lawyers. The continued vitality of the blawgosphere is crucial for the continued vitality of his business.  What made this post peculiar is that Kevin cited to some others who were long considered the poster boys for what was wrong with the blawgosphere, schemers whose claim to trust was an inside joke.

I took this post as Kevin’s way of telling his disciples to stop existing in their marketing isolation.  While there are a handful of Lexblog clients who had become part of the blawgosphere, the vast majority were completely unknown and ignored.  They never linked to anyone else. They never engaged in discussion, whether happy or angry. They just did their pro forma thing the way some marketing guru told them to, hoping that one of their 27 readers needed to hire a lawyer. 

The second post was by someone named Neil O’Shaunessy, who apparently blogged for Dell for a few minutes.  He wrote a post about how to write good posts, an irony if ever there was one.  It was as simplistic as could be, but apparently necessary for many of Kevin’s Lexblog clients because, well, their posts were awful.  Even someone who so utterly lacked any qualifications on how to write good posts as O’Shaunessy could make it better. That’s how bad it was.

Unlike most readers here, I occasionally check out Kevin’s Lexblog clients.  He has a feature, usually done by his son, Colin, called the Best of Lexblog, highlighting some of the posts by his client blogs.  The feature is truly awful, like a mother telling the other women how beautiful her baby is.  If you have to tell them, that baby must be butt ugly.  And indeed, most of the posts highlighted by Colin are butt ugly.

I know that Kevin wants them all to have the depth and interest of Dan Harris’ China Law Blog, the verve and wit of Staci Riordan’s FashionLaw Blog, or even the attitude of Max Kennerly’s  Litigation & Trial Law Blog.  But they don’t.  They are formulaic, safe, boring and isolated.  This is what comes of using blogs as marketing devices.

Some fear that links to others will send away their few readers to another blog that is smarter, better, more interesting, and they will never gain their business.  Some fear that if their writing comes under scrutiny by their peers, it will be revealed as insipid drivel.  That’s because it is insipid drivel.  Still others fear that they can manufacture strawmen that will appeal to the insane and stupid, if only they can maintain plausible deniability.  And they are happy to take money from the insane and stupid, as long as they’re offering.

There have been some new blawgs and blawgers recently, and contrary to the fears of those who missed the second wave, good idea and good writing continue to be embraced by those who didn’t.  This doesn’t mean that blawgers who came before you will agree with you.  We rarely agree with anybody, and never all the time. But we respect you, and welcome you as a solid voice in the blawgosphere. But there hasn’t been the consistency, the engagement, that’s needed to keep this place alive.

It’s begun to feel more like punditry than a conversation.  While those who can’t withstand scrutiny like it that way, real lawyers don’t .  It’s all about the conversation, whether happy, angry, or just pleasantly disagreeable.  Without it, this place is a bore.  At least for me.  And if it’s boring, then it’s not worth the effort.

Like Kevin, I’ve tried to nudge others to take stands, do something meaningful, write as if they give a damn, engage with the larger blawgosphere, and tell the marketing gurus to shove their lies where the sun doesn’t shine.  But the question remains, will the third wave want to join the blawgosphere, or is this only about existing in their marketing isolation.  If the latter, then the blawgosphere will not survive.

Lawyers make lousy defendants.  They can’t keep their nose out of things, and they have the darndest time letting go.  But eventually, every criminal defendant has to make a choice of whether to stand firm and assert his innocence, and face the great void of uncertainty that comes with it, or cop out. 

Les Jacobs is no different.  Via the Cleveland Plain Dealer :

Jacobs, 66, of Gates Mills, is accused of under-reporting his income from the Thompson Hine law firm by more than $250,000 from 2004 to 2007. That resulted in the underpayment of about $75,000 in income taxes.

Jacobs is a Harvard Law School graduate and the former president of the Ohio State Bar Association. He was recently named the 2012 Cleveland Litigation-Antitrust Lawyer of the Year by the Best Lawyers in America publication.

Jacobs has worked for Thompson Hine for 43 years, and is a senior partner in the firm’s Competition, Antitrust and White-Collar Crime practice group. He laments in his letter that “we live in an era when a legal problem for even the most obscure lawyer seems to provoke public interest.”

Les Jacobs was a lion of the bar, the sort of lawyer who gets named to blue-ribbon committees, who commands the respect of lesser lawyers who someday hope to be like him.  And apparently, a lawyer who screwed around with his taxes. It’s not inexpensive to live like a lion in Ohio.  And the story doesn’t even mention that he was past president of the Ohio Bar Association.  A lion. Roar.

One might think that as a lawyer with 43 years experience practicing white-collar crime, Les Jacobs would have a pretty firm grasp on how best to handle such matters as a plea.  You see, Jacobs pleaded guilty, and quickly found out why lawyers make lousy defendants.

Cleveland lawyer Leslie “Les” Jacobs pleaded guilty to a federal tax charge Wednesday after an exchange with a prosecutor over a letter Jacobs sent to friends, colleagues and clients about his case.

At a hearing in U.S. District Court, Assistant U.S. Attorney John Siegel took issue with the letter, which he said was worded in a way that could leave people with the impression Jacobs hadn’t done anything wrong and was coerced into pleading guilty.

Jacobs said he regretted that his words had been misconstrued.

There is a laundry list of things one shouldn’t do if you’re going to seek a downward departure based on acceptance of responsibility.  At the top of the list is denying responsibility. In writing.

The Oct. 10 letter, a copy of which was obtained this week by The Plain Dealer, characterizes Jacobs’ legal problems as resulting from a four-year dispute with the Internal Revenue Service over tax returns.

“The reason I write now is that I have reached a point where continued debate is pointless,” he states in the letter. “The government has been relentless; the levels of hostility and mutual recriminations have escalated in intensity; and the stress for [wife] Laurie and me has become intolerable.”

And so what?  Is he pleading guilty because he is guilty, and accepting responsibility for breaking the law, or is he capitulating to the overwhelming might, the “hostility and mutual recrimination,” of a relentless government? 

This is the nature of federal practice, and you would think that Les Jacobs knows this well enough not to screw up his deal.  A critical element of a plea under the sentencing guidelines is the acceptance of responsibility, and you can’t ask for it while claiming that your plea isn’t based upon your guilt, but rather succumbing to the stress and pointlessness of fighting.  You can’t have it both ways.

Jacobs claim is that his letter is being misconstrued.  That’s unlikely to win him any friends in the courtroom.  It’s far more credible that Jacobs is trying to salvage his lost dignity, to not appear as a disgrace to his friends and colleagues. Heck, he just won some lawyer of the year prize by the Best Lawyer in America.  Now you know how much that crap is worth.

Maybe Jacobs was in a financial hole, and he skirted the law to try to dig his way out.  Maybe he just can’t come to grips with the fact that his great lion roar is faded to a whimper.  Maybe he truly believes he did nothing wrong, but can’t face the uncertainty of trial and isn’t inclined to take the chance.  For all I know, his wrong wasn’t so wrong, and he just doesn’t have what it takes to stare at the jury foreman at the end of a trial.

But none of this, true as it may be, changes what he should also know as a 43 year lawyer who was the head of a white-collar crime department.  You can’t deny responsibility if you want the break at sentence.  And at the moment, there should be nothing more important to Les Jacob than getting the lowest possible sentence on his plea.  But then, lawyers make lousy defendants.

Why is unreliable eyewitness identification any different from unreliable anything else?

“I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Richard Guerriero, a lawyer for Barion Perry, a New Hampshire man convicted of theft based in part on the testimony of a woman who said she saw him from a distance late at night.

Very good empirical evidence doesn’t begin to cover it. There is no single piece of evidence that has been subject to as much scrutiny as eyewitness identifications, and the empirical evidence is overwhelming, beyond dispute, whether reasonable or not, that it’s uniquely unreliable and singularly persuasive.  If nothing else, it’s clear that unreliable eyewitness identifications contributed to 75% of wrongful convictions. 

So what does a court, in order to protect the due process of individuals hauled before it and subjected to the potential of imprisonment, maybe even death, do about this ridiculously unreliable and persuasive piece of evidence?

Most of the justices did not seem inclined to order a hearing in such circumstances, in part because of the lack of a limiting principle. Why stop with eyewitness evidence that was the product of suggestion? Why stop with eyewitness evidence at all?

Mr. Guerriero responded that eyewitness evidence is “probably the leading cause of miscarriages of justice” and should be treated with special care.

But Justice Kagan said the problems with such evidence may not be unique.

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

So it’s not the only unreliable evidence?

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.

The question may have been posed as a rhetorical, but there’s a very good answer.  Because it’s failed to suffice forever. Because part of the mythology is that eyewitness testimony is the best, most certain assurance around.  Because judges don’t allow lawyers to argue without evidence presented to the jury, and they won’t allow defense lawyers to present empirical evidence that isn’t directly material.  Because this doesn’t happen in the real world the way Supreme Court justices imagine it should.

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”

Exactly, except Nicole Saharsky isn’t arguing against the admission of unreliable evidence, but for it.  The state is arguing for the power to convict based on evidence that is empirically known to be terribly unreliable because it knows that it’s the most certain way to convict a defendant.  It’s as if she argued that if the court takes away her unreliable evidence, she’ll never be able to convict anyone of a crime, the guilty as well as the innocent. 

The argument before the Supreme Court laid out exactly what one would have expected, hoped for.  The proof of unreliability was accepted, as it could not be denied.  The impact was recognized, as it could not be denied.  And the justices embraced it, as they could do nothing else.

And yet, the justices were completely, utterly unmoved.

Assuming defense counsel is permitted to argue to the jury, even in the absence of testimony to support the argument, that eyewitness identification is inherently unreliable, it flies in the face of what everyone knows, what everyone believes, that there is no evidence more damning.  There is nothing with greater emotional force than a victim who says, with voice quivering, eyes fixed, that she will never forget that face.  There is no juror who watches this scenario play out whose heart is so cold, mind so clear, that she can say to herself, but this isn’t true.

And that’s why we need an appellate court, a cold, rational group of justices, to save us from a universal belief that’s overwhelmingly appealing, and utterly wrong, protect the integrity of our process, the uphold the due process of every individual subject to conviction, from the ubiquity of unreliable evidence.  Because that’s what courts exist to do, and our Supreme Court would never fail us so miserably. 

And if Justice Scalia’s view pervails, all unreliable evidence will fall with it, as no rational judge could ever suggest that our legal system should embrace outcomes based on unreliable evidence.

It’s time for a special edition of the reader’s mailbag.  Why?  Well, just because.

Dear Nice Friends,

Hello.  If you are receiving this email, then it probably means that you and I have at some point discussed books, or law, or books about law, or some other thing.  We are also not facebook friends (or maybe we are facebook friends, but I fear that you have long, long ago blocked my messages from coming anywhere near you).  I hope you will excuse this short, one-time message to let you know that my new book, The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions, has just been published by Beacon Press.  As the title suggests, the book is about a bunch of lesser known constitutional clauses that are nonetheless interesting and important.  As the first two paragraphs put it:

The Constitution of the United States contains some of the most powerful and well-known legal provisions in the history of the world.  The First Amendment, for example, gives us the right to speak our minds without government interference.  The Equal Protection Clause of the Fourteenth Amendment stops the state from discriminating against us because of our race or gender.  And the Fourth Amendment, as our television crime dramas constantly remind us, prevents the police from searching our homes without a warrant. In the past twenty years, I would bet that several hundred books have been written about these important clauses, and for good reason.  This book, however, is not one of them.

Instead, this book will shine a much-deserved light on some of the Constitution’s lesser-known clauses—its benchwarmers, its understudies, its unsung heroes, its crazy uncles.  To put it another way, if the Constitution were a zoo, and the First, Fourth, and Fourteenth Amendments were a lion, a giraffe, and a panda bear, respectively, then this book is about the Constitution’s shrews, wombats, and bat-eared foxes.  And believe me, if you’ve never laid eyes on a bat-eared fox before, you are in for a treat. 

Just so you know, the book makes a great stocking stuffer.  Provided, however, that the stocking we are talking about is rather on the largish side, and that the book is the only thing you plan to stuff into it. 

A SPECIAL NOTE FOR THOSE OF YOU WHO ARE FAMOUS:  You look terrific today!  Is that a new hairdo/pair of eyeglasses/nose?  As you probably know, the slightest whisper from you can make all the difference between a book that soars to the top of the bestsellers list and one, like my first book, that sort of quietly disappears into the twilight.   A generous mention on your facebook page to your 4,683 fans.  A small word to Jon Stewart during a commercial break.  The tiniest of tweets (I’m talking to you here, Shaq).  Throw me a crumb, won’t you?

A SPECIAL SPECIAL NOTE TO THOSE OF YOU IN THE MEDIA: Forget the famous people, you are the ones that really make things happen.  Say no more.  (call me.)

Thank you for your time,

Jay

Jay Wexler
Professor of Law
Boston University

In contrast to the very important self-proclaimed scholars and thoughts leaders, Jay is just a fun guy who happens to teach law.  Even when he posts at PrawfsBlawg, he’s funny. Even then very first time I stumbled across Jay, he was funny.   So I’m thinking, maybe his book is funny? 

I didn’t read his first book, but that’s because he never sent me a review copy and it’s not like I would ever pay for a book written by a lawprof, even a funny one.  If he sends me this new one for review, I will give serious consideration to reading it.  But having received and read this email, I’m seriously afraid of the book being a terrible letdown.  I would hate to watch Jay spiral into the abyss of scholarship and lose all respect for him. 

I immediately dashed off an email to Stewart about the book, but have yet to hear back.

On to other matters.  When I saw the headline come across my RSS readers, Your An Idiot, I immediately dashed off an email to Radley Balko:

You might want to change the title from “Your” to “You’re” given that you’re a big time professional HuffPo writer and all.

I then read the post and, after due deliberation, realized that I completely missed the point and sent another email retracting my first email, hoping that Balko would be a gentle, understanding soul and appreciate my good intentions.  He replied:

I will refrain from making a snarky reply. Except for sending this email noting that I am refraining from making a snarky reply.

This puts to rest the myth that libertarians have no self-control.  I appreciate Balko’s demonstration of enormous restraint.