In my effort to restrain the number of posts on law school issues, I combine two otherwise largely unrelated posts because I’ve come up with a somewhat cute title that makes them seem almost connected. 

At Inside the Law School Scam, Paul Campos channels Orwell by addressing the delicate nature of intellectual discourse.

One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds. 

Law in general and law school in particular is already too full of fake politeness, fear-induced groveling, craven appeasement of dubious authority figures, unappetizing obsessions with hierarchical status, and other forms of soul-crushing inauthenticity.  Like minor aristocrats surrounded by court flatterers, we’ve lost sight of the deep anger — and is it not a just anger? — hidden behind the faces of those who, for the moment, feel they must still curry our favor.

Randazza was one of the original participants in the discussion about Danielle Citron’s Cyber Civil Rights, the online symposium that brought about some great, and some less than great, discussion on her controversial proposition that by turning cyberbullying into a sexist thing, it would justify suppression of free speech and anonymity.  Yet Randazza was excluded as a “symposiast”.  Worse still, when a crack developed in the closed circle of “open-source academics” and Randazza had a chance to get a word in, he was either ignored or berated by other lawprofs. 

Though I think the law school demand side is a very important component of this story, the question in the title of this post is meant to urge discussion of the law school supply side.  In particular, I would like to hear view from anyone inside or outside the law school marketplace as to whether law schools ought to be, in light of modern labor realities, significantly reduce the sizes of their graduating classes either by letting in many fewer students or failing out many more students before these students accumulate huge law school debts.

While Doug alerts us that he has an “innovative solution” which he intends to reveal after the rest of us have made fools of ourselves by answering his question, I will play my part and offer my two cents.

Both. But for different reasons.  Reducing the size of law school classes to reduce the supply of lawyers in a society that can no longer absorb them may be “dream crushing” to some, but beats being “debt crushing” to many, as well as critical to maintaining a society that doesn’t have a lawyer per capita.  Too many lawyers, un- and underemployed, as well as underutilized, are the devil’s playground.  Since it’s not about the dreams of wannabe lawyers, but the harm we wreak on society when we have nothing to keep our hands occupied day after day, the need to reduce the butts in seats is manifest.

And yet, even those who score well enough on the LSATs and have plenty of As on their transcripts may not prove to have the chops to be lawyers.  When I went to law school, the dean would give that great speech where he told us to look to our right, look to our left, that one of us would not be graduating.  Not every kid who gets into law school has the capacity to be a lawyer. Not every student will prove client safe.

We, meaning the public as well as more experienced lawyers, expect law schools to vet their students, to thin the herd, so that people who would make extraordinary interior designers but awful lawyers don’t get spit out the other end.  My understanding, sadly, is that as long as they pay tuition, never a problem as long as student debt can be assumed, they get to remain in law school.

Part of the obligation of law schools, and law profs, is to make sure that the students from whom they take money, and the students to whom they given the imprimatur of competency, has the ability to one day make a competent lawyer.  Not everyone does.  And yet they get their degree just like everyone else in their class.

Do your job. Thin the herd.  Do it for the children.  Do it for everyone.

While other locales like Houston have chosen to shut down red light cameras, radical mayor Michael Bloomberg has chosen to play contrarian and  expand their use in New York City.

In keeping with that very modern desire to find complex solutions to problems that don’t exist, New York City mayor Michael Bloomberg expressed his desire on Monday to put cameras on “every corner of the city” to enforce observance of red lights and, eventually perhaps, speed limits.

At least a dozen cities and 9 states have banned traffic cameras, according to AP, which reports that opposition cameras is based partly on fiscal reasons (they can be money losers) and politics (voters are no fans of them.)

But opponents have also pulled out their trusty Constitutions, contending that red-light cameras violate due process rights and constitute an invasion of privacy, AP reports.

But New York City doesn’t learn from others.

“I think we should have ’em on every corner if we could,” the mayor said of the controversial cameras that trigger tickets to drivers caught running red lights.

“If people didn’t go through red lights, you’d save a lot of lives of elderly and kids,” Hizzoner told reporters Monday during a press conference.

True that people running red lights can be a problem, though saving “a lot” of people is bit of unjustified hyperbole since not “a lot” of people get run down without them. But even a billionaire mayor can take the logic one step farther, considering whether red light cameras stop people from running red lights. But is that really what’s on Bloomberg’s mind?

Bloomberg was responding to a Daily News report on the $52 million in fines the city issued last year to drivers caught by cameras – really a $55 million haul with penalties included.

One thing billionaires understand is money, and New York, like every other city, could use the money.  Missing from Bloomberg’s pitch is any recognition of the constitutional issues at risk.

In 2007, the Minnesota Supreme Court struck down Minneapolis’ traffic camera program, concluding that it improperly presumed that the owners of vehicles were the ones caught on camera violating the law.

This National Review Online editorial today also argues that traffic cameras improperly presume guilt.

“There are certain questions that are germane to establishing the severity of an offense: Was the accused keeping up with traffic? Were the roads wet? Was the speeder reacting to a dangerous or reckless driver?” the piece states. “Machines cannot answer these questions, only people can.”

The argument, that it’s only money, maybe meaningless to Bloomberg, but isn’t necessarily so easily ignored by those who end up receiving the bill for something they may have had nothing to do with, or something that was lawfully justified but for which there is no opportunity to challenge.

Whether the red light camera is a step on the slippery slope of cash and carry criminal collections, or merely a one-off means of circumventing proof and constitutional protections in an effort to use technology to maybe cut down traffic violators and fill a city’s coffers, it’s fraught with flaws,  Aside from the technical, the cost of operating and maintaining, the counterintuitive safety problems and the potential that they will cost more money than they will take in (as if all this isn’t enough), the price of constitutional rights can’t be so easily measured by a fine.

To add insult to injury, Bloomberg isn’t satisfied just collecting the lucre from the evil red light runners, but wants to use it as a weapon as well:

The mayor mused that the city could put up the cameras – then try to embarrass the rule-breakers.

“Maybe what we should do is do it and start publishing in the paper who does it and then a list of the senators and assemblymen who keep us from having cameras \[that can levy fines\],” the mayor suggested.

A double-edged weapon, where he can not only humiliate the violators (remember, there is no due process, so they’re presume guilty from the outset), but humiliate lawmakers who, unlike Bloomberg, have a passing familiarity with the Constitution on the basic premise that the public can grasp a baby run down by a car easier than a constitutional right run down by a mayor.

A picture is worth a thousand words.  It may be worth a thousand bucks as well if Bloomberg has his way.  What are the chances Albany won’t give him the green light for this misguided plan? 

When the  New York Times editorial decried the “justice gap,” my reaction was that they seemed all too happy to experiment at risk to the poor:

Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.

Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.

Is the difficulty for ordinary people to obtain access to a lawyer a serious problem?  You bet it is.  It’s also a problem for ordinary people to obtain access to high quality diamonds or exotic automobiles, but access to legal help is a necessity for the normal functioning of an ordinary person in society.  Wills, divorces, house closings and basic civil litigation are part of the basic functioning of society.  We’ve made society legal-dependent, and so legal counsel and representation has become a need rather than a luxury.

But why the Menckian solution?

It’s not just the Times.  It’s the Wall Street Journal.  And if that’s not enough to fill the bed, even Tim Lynch at Cato has jumped under the covers.

From a Cato paper : “Every state . . . prohibits the unauthorized practice of law (UPL); a person must possess an attorney’s license to hold himself out as a lawyer. UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.”

It’s unanimous.  Get going state lawmakers—deregulate the legal profession.

Without getting too hung up on Tim’s calling a profession “a legitimate occupation,” that costly barrier to entry is an education.  Granted, it may not be quite the education that lawyers think it should be, but consider the alternative.

Would we want anyone but a qualified electrician to juice up our homes?  We want our brain surgeon to know the frontal lobe from the medulla oblongata.  There are some things that require a bit of knowledge to do.  Law is one of those things.

Neither the Times, the WSJ, Brookings or Cato buy it.  One view is that what lawyers do just isn’t that hard, and therefore anybody can do it.  Granted, some of the functions are pretty routine, though it’s not necessarily routine to know whether the routine is appropriate or sufficient to meet a person’s needs.  Even then, however, it’s remarkably easy to screw up even the simplest of legal documents. 

The simple will, for example, which, assuming it satisfies the needs and desires of the testator, can be prepared from a fill-in-the-blanks form.  Whether it’s the correct vehicle for a fellow requires a judgment call, of course, but once past that decision, the blanks themselves are fairly self-explanatory.  But does the guy who bought the $19.95 will know that he can’t cross out his brother’s name when he has a falling out and fill in his sister’s?  Does he realize that his executor may have to locate the witnesses some day to prove the will, when he pulled a couple folks off the street to complete the execution?  Of when he rips the will in half to show his kids what could happen if they continue to piss him off, does he realize that he can’t tape it back together?

Why not let anybody who wants to open a storefront, Wills-R-Us, do so?  Because the nice people who walk in the door will have no assurance that the people at the desk have a clue what they’re doing.

Which leads us to the subtext in this debate.  The forces for deregulation don’t think lawyers know what they’re doing either.  Sure, we go to law school for three years, but nobody (with any credibility) contends that law school produces client-safe lawyers.  And every person who has ever had the misfortune of having to find a lawyer has a story about the blithering idiots they came across in the process.

Here’s a bit of harsh truth:  There are far too many people with licenses to practice law who are kinda dumb.  We used to be a learned profession.  Now, we’re a guild with some better, some worse.  Too many worse, unfortunately.

Earlier this morning, I was having an email discussion with  Eric the Turk and  Brian the Tan about a  National Law Journal article that was just awful; superficial and worthless. When the boys bemoaned the poverty of thought of the article, I bemoaned that any lawyer would read it.  If no one read it, the NLJ wouldn’t publish it.  Similarly, the Lawyerist and the “small law” columns at Above the Law are so bad that they shouldn’t possibly exist or survive, yet they do.  In fact, they’re pretty darned popular.

It would seem impossible that any reasonably intelligent lawyer would read such fluff.  And it is, and that’s the problem.

The deregulation of law isn’t the answer; the competent practice of law requires specialized knowledge that can’t be obtained or assured just by opening a storefront and taking money from unsuspecting people.  That we need to find a way to provide legal services to those who can’t afford it is beyond question, but that doesn’t mean the overly-simplistic solution is viable.

On the other hand, if the people licensed to practice law are as dumb as would appear, maybe lawyers aren’t any more competent to practice law and hold people’s lives in their hands either.  Maybe we’ve sufficiently dumbed-down the profession to the point where we aren’t doing any better than the guy who was assistant manager at Dairy Queen last week and has opened up his own law office this week.

Maybe the reason the New York Times, Wall Street Journal, Brookings and Cato think we don’t deserve the exclusive right to practice law is that we have forsaken our intellectual and educational authority to help others.  But the solution isn’t to place law in the hands of everyman, but to elevate the profession to those worthy to practice it.

As for the cost, I have an answer, but that will be another post.

In 1974, the Supreme Court held in  Geduldig v. Aiella that it was not discriminatory to refuse disability benefits to pregnant women because pregnancy was not a protected classification.  The rationale was that not all women choose to be pregnant, thus dividing the lines by pregnant persons (who are only women) against non-pregnant persons (who are men and women).  We’ve come a ways since Potter Stewart wrote that decision.

Southern District of New York Chief Judge Loretta Preska, however, wasn’t prepared to accept the notion that pregnant women are entitled under law to work/life balance.  From Vivian Chen at the Careerist :

Calling the evidence against Bloomberg “insufficient,” Preska goes to town on what she thinks is the real subtext of the lawsuit. She writes:

At bottom, the EEOC’s theory of this case is about so-called work/life balance. Absent evidence of a pattern of discriminatory conduct . . . the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide work/life balance.

And the law, she reminds us, “does not mandate work/life balance.” Preska essentially says that “balance” is a personal matter–not a corporate obligation.

Cue Helen Reddy, as the outrage begins.

No surprise that Preska’s opinion is upsetting a lot of women. “By Judge Preska’s logic, even the most dedicated, career-driven mother is going to be penalized for taking time away from work to have a baby,” says Michelle Gerdes in The Wall Street Journal.  “She hardly hides her contempt for women with kids who have ambition and want top-paying jobs,” Sonia Ossorio, the executive director of National Organization for Women, told The New York Times. “If you read her comments, she says that basically if a workplace culture is work 24/7, then they have a right to have that type of culture.”

Or perhaps what Judge Preska is saying is that we all make choices, whether to dedicate our lives to one thing or another.  Want to leave the office at 4:45 every day?  No problem, but then you can’t be the Master (Mistress?) of the Universe.  It’s about choice.  Bloomberg, the company, has no problem with women, and in fact has a significant number of women in powerful positions.  But it needs them to work.

In the decision, Preska quotes Jack Welch, General Electric’s legendary CEO: “There’s no such thing as work/life balance.  There are work/life choices, and you make them, and they have consequences.” A company like Bloomberg, she adds, explicitly states that it expects “all-out dedication” from its employees in return for a hefty paycheck. Thus, “making a decision that preferences family over work comes with consequences.”

This not only flies in the face of those who really, really don’t want to face consequences for their choices, but who hate the philandering Jack Welch.

And Ms. magazine says:

Did she say “Jack Welch”? Yes, he was a business icon at one time. His leadership was heralded at Harvard Business School in the early ’80s. But his rein in the world of influential ideas was then and this is now. . . . We can no longer afford to dismiss half of our human resource capital because it happens to be female and sometimes bears children . . . the Bloomberg case’s reasoning and citing of a business dinosaur reminds us that business culture still has far to develop.

Imagine if Judge Preska quoted Aristotle.  Curiously, Chen tries to back both sides of the argument.

Business culture does have a long way to go on the work/life balance front, but is Preska making the problem worse? I don’t think so. Nor do I find her unsympathetic to the plight of working mothers.

Like it or not, there’s a lot of truth to what Preska says–though it seems uncomfortably retro to admit that high performers in the business arena often lack balance in their personal lives. That’s certainly still the case in the world of big-firm practice, where time is still money.

The problem with business culture, and that includes law culture, is that it gets in the way of doing what you want.  The Slackoisie assert that their work/life balance is more important to them than achievement at the office or fulfillment of responsibility toward clients.  Fair enough, but then the consequence is that you don’t get the corner office and the hefty paycheck.  Oh, you want that too?  Now we have a problem.

There are occupations, and jobs within those occupations, which will suit any work/life balance desires, but they may not be the ones you want.  Is that unfair?  Chen says business culture has “a long way to go,” and those who find hard work on their employer’s or client’s terms unpalatable are in complete agreement.  How do we change the culture to allow for business to proceed apace while some take off from work at mid-afternoon while others take up the slack?

The argument is that women are left to not only bear the children, but care for them, rear them, nurture them, while male executives and lawyers pound their desks and make important decisions.  If the men want “little me’s” to carry out their legacy and bear their name, they have to accommodate the very demands they place on women to make this happen.  As for the top female lawyers or executives, they can either pound on desks of their own or pick up the kids at the school bus.  Somebody has to do it, and the men surely won’t.

It’s a problem.  It’s unfair that the “burden” of children falls on one gender more so than the other, and lest we live in a fantasy, that gender would be female even though there are some men who wait at the bus stop too.  The problem isn’t business culture, which is properly focused on the needs of the business rather than the wants of the burdened gender.  The problem is that business can’t function when the big money executive isn’t doing her job.

This isn’t to blame women for their choices, or to relieve society of the sense that it’s just not fair that women carry an inordinate burden for children.  But life isn’t fair, and it’s not the fault of business or law that women are expected to bear the consequences of their decisions just like everyone else.

Jessica Beagley, the Anchorage mother whose 15 minutes of fame on Dr. Phil proved less fun than expected, was convicted of child abuse.  From the AP :

A woman who squirted hot sauce into the mouth of her adopted Russian son for lying about getting in trouble in school was convicted Tuesday of misdemeanor child abuse in what prosecutors said was a ploy to get on the “Dr. Phil” TV show.

Jessica Beagley, 36, made a videotape of how she punished the boy and submitted it to the show. The tape shows Beagley yelling at the crying boy, then tipping his chin up and pouring hot sauce in his mouth.

Beagley then had the screaming boy stand in a cold shower for sword-fighting with pencils in school.

According to Beagley (and Gary, her Anchorage cop husband), they had tried more conventional methods of disciplining one of their adopted Russian twins, to no avail.  What’s a mom to do?

Let’s be clear, the use of hot sauce (not to mention cold showers filmed for later television viewing) isn’t my idea of proper child rearing.  To me, it goes way too far.  But here’s the kicker: Who cares what I think?  My sensibilities aren’t the dividing line between lawful and criminal conduct.  Neither are yours.  Or at least they shouldn’t be.

One of the fundamental requirements of a criminal statute is that it alert people to what constitutes a crime.  Parents are entitled to, indeed, supposed to, discipline their children when they do something wrong.  They can give the kid a time out, lecture them about the evils of whatever they think is evil.  Some say it’s okay to spank a child, others not.  But hot sauce will land you in jail? 

As with so many other things we each believe we possess, though others may differ, like common sense, we each have our own concept of where the line should be drawn when it comes to appropriate discipline and child abuse.  As with common sense, each of us is certain that we’re right, though everyone else disagrees (because they too are certain that they’re right).  So there’s a bright line, but it’s different for everyone.  Not much help.

For most people who hear about Beagley’s punishment, it’s a matter of religion that she’s on one side of the line or the other.  What people don’t recognize is that they are merely judging based on their own sensibilities.  Some people won’t wear white after labor day, while others think it’s a ridiculous rule.  Of course, harming a child isn’t comparable to wearing white, but the rationale is similar: It’s just what we believe to be right.

Historically, we were a tough nation when it came to disciplining children.  “Spare the rod and spoil the child,” was once the rule of thumb, but few of us have a woodshed out back anymore.  Instead, we ponder whether to deny them the Gameboy, leaving them only with the X-box to keep them occupied.  The Puritans shudder at our weakness.

It’s not to advocate more severe punishments, but rather to question where the authority of parents to decide how to punish a child gives way to criminal conduct.  That Beagley tried lesser punishments without success, leading to increasingly harsh punishments, isn’t that unusual.  Some parents find themselves with recalcitrant children, and they are at a loss for how to control them and, hopefully, teach them how to behave.  We expect parents to do this, and their failure to teach their children well is a failure of parenting.

Certainly, conduct that causes real or permanent physical harm to a child, or anyone for that matter, exceeds the bounds of lawful conduct.  While hot sauce may be a painful punishment, does it rise to the level of serious harm that demands sanction?  It seems to be that a good whipping with a switch caused an awful lot of pain as well, not to mention the potential of permanent scarring.  And yet this was a standard punishment in this country for centuries.

I don’t know where the line should be drawn.  And that seems to be the problem, since without knowing, it’s impossible to limit one’s conduct so that we don’t cross the line.  And that’s what distinguishes criminal conduct from merely going too far.

There’s a tingle in the air as talk spreads that the Supreme Court will consider eyewitness identification when it hears Perry v. New Hampshire, the first the court will take a “hard look” at the issue since Manson v. Brathwaite in 1977.

Adam Liptak talks about this in his  New York Times Sidebar column (yes, Liptak’s still around).

“There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, quoting from a leading study, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

But of course, eyewitness identification has been the subject of many studies in the past 30 years, all of which show that it’s effectiveness is only trumped by its unreliability.

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are to wrongful  wrong about a third of the time, a pile of studies suggest.

Mistaken identifications lead to wrongful convictions. Of the first 250 DNA exonerations, 190 involved eyewitnesses who were wrong, as documented in “Convicting the Innocent,” a recent book by Brandon L. Garrett, a law professor at the University of Virginia.

Of course, the eyewitnesses were absolutely certain in their identifications.  And the juries believed them. And almost always do.  How can you doubt the nice witness who says, “I will never forget that face”?  Even knowing how deeply flawed such testimony can be, it’s compelling.  And nearly impossible to challenge.

The only scrutiny that now applies to these identifications relates to those initially made under “unduly suggestive circumstances,” meaning that the suspect is shown to the eyewitness with a neon sign over his head, “this is the guy who did it,” or in a line-up where he’s the only black guy among a group of white men wearing priest collars.  Even then, it’s only suppressed where the prosecution can’t prove that the witness’ memory as eyewitness is so awful that there’s no independent basis for the ID.  It’s a tough burden.

Will the Supreme finally grab the bull by the horns and address the fact that eyewitness identification is at the heart of more wrongful convictions than any other type of evidence?  Well, here’s  the issue coming before the court:

QUESTION PRESENTED:

When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-of-court identification and any subsequent in-court identification are reliable before either may be admitted into evidence.

Question: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?

Could the issue get much smaller?  Granted, non-police arranged identifications are a fairly common occurrence, with the eyewitness stumbling upon a person on the street (or from her apartment window, as happened in Perry) who looks like the person who did ’em the dirty.

The current state of the law, under Neil v. Biggers , is that only police arranged identifications are subject to scrutiny.  The unfortunate premise is that suppression of a bad ID is to teach the cops a lesson, a la the exclusionary rule, as opposed to making sure that innocent people aren’t convicted on bad identifications.  Yet again, the gatekeepers of evidence don’t concern themselves with keeping bad evidence out, but only with smacking the hands of law enforcement for being the enablers of bad evidence.

While there are a number of amici, like the American Psychiatric Association , who are trying to slide through the side door the research challenging the underlying reliability of eyewitness identifications, hoping to have the Supremes require that courts scrutinize all identification procedures for reliability under the due process clause, the likelihood of the court seizing the opportunity to make a big ruling, one that addresses the inherent unreliability of IDs, or the procedures that are still being used which we know to contribute to erroneous identifications, like the typical line-up procedure instead of a double-blind.

Will there finally be some relief from incredibly powerful and yet inherently unreliable eyewitness identifications?  Don’t hold your breath.  The Supreme are barely capable of making a decision that provides a complete answer to the question before them, no less a broader rule that actually provides a framework for the courts to use going forward. 

Under the guise of judicial modesty, expect the most narrow ruling possible, and a refusal to acknowledge that any question exists but that eyewitness identification is the most powerful evidence available.  After all, without it, a vast number of prosecutions would fail, and defendants be acquitted.  That would include the guilty as well as the wrongfully convicted innocent, and we can’t let all those bad people walk the streets when we know they’re guilty as sin.

And if some innocent people are convicted because of the absolute certainty of the mistaken eyewitness, the court will take comfort that the mistake can be corrected by some appellate or habeas court later.  Hopefully before they’re executed.

Update:  And ironically, today the New Jersey Supreme Court  dealt a blow to bad eyewitness IDs:

New Jersey’s highest court ordered changes today to the way eyewitness identifications are used in court, saying the current system is not reliable enough, fails to deter police misconduct and overstates jurors’ ability to evaluate the evidence.

Currently, a defendant has the burden of proving there was undue suggestion during the identification process. That won’t change. But the court has ordered that when a defendant can show some evidence of suggestiveness by police, a pretrial hearing must be held to explore it.

The court also requires a system be developed to better explain to juries the potential flaws with eyewitness identifications.

It’s not a cure, nor does it cover all the inherent evils, but it’s a darn good start and better than we can anticipate from the Supremes.

H/T Ambitious Blondes

The longest I can recall was Supreme Court Justice Edward Greenfield, but those were civil cases. So what if a judge failed to decide a motion for a while, even if that “while” was nine years.  It was merely fortunes, reputations, people who wanted to move forward with their lives but were constrained to wait.

The answer we all keep in our pocket when a litigant gets antsy and demands to know why the court hasn’t yet ruled on his case is that we can call up the judge and yell at him, but it’s not likely to make the judge any more inclined to rule in our client’s favor.  That usually shuts them up.  You see, we all know the maxim, “justice delayed is justice denied.”  But lawyers know that an adverse ruling is invariably “justice denied” to the losing party.  Such is the nature of “justice.”

But what about freedom delayed?  The delay didn’t work out too well for Omer Harland Gallion, who waited for United States District Judge Percy Anderson to rule.  From the L.A. Times :

Justice delayed was justice denied for Omer Harland Gallion. He died in prison in his sixth year of waiting for U.S. District Judge Percy Anderson to act on a decision that he had been wrongfully convicted and should be released or retried.

Anderson took no action until December, when he dismissed the matter as moot after an attorney brought Gallion’s death to his attention.

Two other cases in which junior judicial officials found grounds for striking prisoners’ felony convictions also languished unattended by Anderson for five and a half and eight years, respectively. Another prisoner who petitioned for relief in 2002 is still waiting for an answer.

“Judge Anderson is an excellent judge,” said Chief Judge Audrey B. Collins. “I have absolutely no reason to believe there was any bias that permeated his handling or played any part whatsoever in this.” She noted that the district’s 25 active judges carry caseloads that should be spread among at least 36.

The arrest and prosecution of Dominique Strauss-Kahn didn’t begin in a typical fashion, and surely isn’t ending that way.  Having whisked him off a plane to France, the New York County District Attorney’s office had a hot potato on their hands.  DSK was exceptionally wealthy, politically huge as potential president of France and about to leave the jurisdiction so that they would appear to have let a rapist slip through their clutches.

Every decision in the early hours of the case had the potential to explode in the prosecution’s face. 

The rush to indict was a product of New York’s law, CPL §180.80, requiring the release without bail of a defendant charged with the felony but unindicted after 144 hours. Had they not indicted and DSK hopped the next AirFrance to Charles De Gaulle, the failure would have tantamount to complete incompetence.  That wouldn’t have played out well.

Even in the  first 48 hours of this case, there was an odd odor emitting from the shifting narrative.  The “facts” relied upon in support of the “compelling” evidence of guilt would appear and disappear without explanation, or, for the matter, any critical scrutiny.  But then, that’s the nature of rape allegations, which are sacrosanct in the hierarchy of debatable crime.  Not until something explodes can they be questioned or doubted.

DSK’s subsequent release, on extraordinary bond conditions, by Judge Michael Obus was fortuitous for all involved, and reflected one exceptionally good decision and one extremely fortuitous event.  The decision was to retain Ben Brafman, an honest-to-God criminal defense lawyer rather than a Biglaw former AUSA poseur whose skillset is knowing all the shortcuts to race to the prosecutor’s office. 

The combination of Brafman and an unlimited budget for defense investigation was not merely a huge benefit to DSK, but a matter of enormous concern for the prosecution.  If there was anything to be found that would undermine their case, the defense would find it and exploit it.  For those who harbor the inexplicable belief that the defense would somehow be wrong or disingenuous by using every bit of evidence available, that’s exactly what it’s supposed to do.  And exactly what the prosecution would have done as well.  This is war, not tea.

The fortuitous event was that the indictment was wheeled to Judge Obus, and bond was set for DSK’s release.  It was monumentally high bond, with extreme terms, but still it got him off the Rock, and that gave everyone some breathing room and the ability to spend time on other aspects of the case.  Had the case gone to another judge, this might not have been the case.

A third occurrence, which grew from an entirely external source, that influenced what would subsequently transpire, came from the effort’s of DSK’s accuser’s lawyer.  Normally, victims don’t need an attorney.  Nafissatou Diallo, the Sofitel maid who claimed rape, retained Kenneth Thompson, who seized his moment in the limelight and spent more time talking up the case to the media than helping his client conform her story to the truth.

As it turned out. Diallo’s credibility was slightly below a turd, and the more she talked and investigators dug, the worse it got.  The point is made that even liars can be raped, certainly true.  But liars make bad witnesses, and the nature of the proof of rape is largely dependant on believing the alleged victim’s story.  There was physical evidence, semen, but that doesn’t make it a rape.  And Diallo’s was wide open to all manner of motives to lie.

The prosecution was again confronted with a host of unpleasant choices.  Their star witness was anything but.  The world was focused on this case, making it not merely a local or even national high profile case, but one with international implications.  The defense had the ability and capacity to slice and dice this case.  The prosecution had no good options available to it, assuming that dismissing a case to which they were so deeply committed couldn’t be called a good option.

Was it different because DSK was wealthy and prominent?  Of course, and from a multitude of angles. Had he not been wealthy, his ability to mount a devastating defense would have been called into question, and the equation would have been different.  Had he not been prominent, the country and world wouldn’t have been watching, and scrutinizing what it watched.  Losing at trial isn’t the biggest deal provided no one is watching.  Losing when everyone is watching, and then being exposed to criticism for having pursued a case with such dubious proof is another matter.

That it shouldn’t work quite this way makes for a nice fairy tale, but fairy tales don’t often come true.  Every case should get the defense DSK got, but they don’t. Every case should be investigated as deeply as this one, but resources are scarce and are sometimes dedicated on a media triage basis.  The life of every defendant should receive the same concern as DSK’s.  This costs nothing to do. There’s no legitimate excuse for the fact that such serious thought is only exercised in the rarest of instances. 

The prosecution filed a 25 page  motion to dismiss the indictment.  Ken at Popehat surmises that this isn’t the way it usually happens, and he’s quite right.  The normal course is an oral application, granted immediately with a smile.  This document isn’t really a motion, but a press release, an explanation of the decision for the benefit of others. 

The big question is whether this prosecutorial fiasco teaches any lessons from which we can draw conclusions about our legal system.  Each of us will take from this case whatever supports our religion, our desire to find support for our preconceived notions of the system.  There’s enough in this case to satisfy every perspective, and enough to allow us to argue that no other perspective could possibly be correct.

Rape victims will hate New York County District Attorney Cy Vance for refusing to believe Diallo and prosecuting this heinous rapist.  The wrongfully convicted will applaud the result, but harbor deep resentment that they, lacking the wealth and prominence of a DSK, didn’t receive anything close to similar scrutiny.

Those who believe that the wealthy receive a better brand of “justice” than the rest of us will use this as proof of their proposition, though they forget that had it not been DSK, the defendant would have been given substantially lower bail in the first place, and likely not have been arrested before his plane took off.  They also forget that the wealthy and prominent are as likely to be treated more harshly as they are more leniently. But it’s certainly true that they are not treated the same.

Law and order supporters will rationalize how difficult the job of prosecutor is, and how they are caught between a countervailing forces outside their control, having to make a choice between bad and worse decisions.  Sometimes this is true, though let’s not ignore that they, at least, have a choice, which can’t be said of the defendant.

And then there are defense lawyers, like me, who will see this as another example of a horribly imperfect system, one upon which lives are at stake, that just happened to work out well this time for an array of reasons
that are unlikely to happen in our cases and will change nothing for the defendant arrested tomorrow.

A while back,  Mark Bennett ripped to shreds the “suggestion” by the United States Department of Education’s  Office of Civil Rights initiative to undermine all those nasty rights and procedures that interfered with achieving the desired outcome in determining claims rape and sexual assault cases at Stanford University.

In a Wall Street Journal editorial, Stanford’s Peter Berkowitz railed against the presumption of male guilt again.

At the cost of losing federal funding—on which all major institutions of higher education have grown dependent—colleges and universities are obliged under Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to thoroughly investigate all allegations of sexual harassment and sexual assault on campus, including the felony of rape.

OCR’s new interpretation of Title IX “strongly discourages” universities from permitting the accused “to question or cross-examine the accuser” during the hearing. In addition, if universities provide an appeals process, it must be available to both parties—which subjects the accused to double jeopardy.

Most egregiously, OCR requires universities to render judgment using “a preponderance of the evidence” standard.

One might think this effort to facilitate the “correct” outcome, by eviscerating all those nasty things that stand in the way of guilt, would worry the Academy, or at least those engaged to teach law.  Not necessarily so.

At PrawfsBlawg, Rick Hills takes up arms to explain why universities don’t need no stinkin’ rights when it comes to allegations of rape.

Peter styles the OCR’s guidance document as an “illiberal” attack on due process driven by the “dogmatism” of “postmodernists, radical feminists and critical legal studies scholars” who are “institutionalizing a presumption of guilt in sexual assault cases.”

According to Peter, these recommendations are rooted in Feminist orthodoxy that “men are controlling, angry and deceitful” and that “women neither lie nor make errors in alleging that they have been sexually assaulted.”

This sort of ad hominem posturing is exactly the sort of thing that makes contemporary politics so dreary. It causes even the best of us to ignore our deep principles as soon as our opponents embrace them, just to score points against people we generally dislike.

Smart move by Hills, given that the only thing on campus that trumps reason is the fear of being called a misogynist.  And indeed, nobody wants to be “dreary,” even if the description, though harsh, seems entirely accurate.  Rick then questions Peter’s motives:

Frankly, neither I nor Peter nor anyone else who has not spent a lot of time in university administration can have any worthwhile opinion about how much process is properly “due” in these sorts of university hearings on campus rape. As a conservative guy with a bit of a law-and-order streak and a daughter in college, I am not sure that Peter’s call for more process in these hearings is a great idea: Maybe it is more important to assure a sense of security in a close-knit community than to insure the protection of the innocent.

Really, who cares about innocence when there is a sense of security to consider?  Not the TSA. Not the OCR. Not Hills.  On a more substantive note, Hills argues that the lack of basic rights is nothing new.

But Peter cannot be serious that all of the rights appropriate for a criminal case (where the stakes are loss of life or personal liberty) ought to be imported into an administrative hearing (where the stakes are suspension or expulsion from a particular educational institution).

Hills provides a litany of matters, from public housing to immigration, where process falls a bit shy of due.  Of course, the alternative reaction is that these other, collateral civil penalties, ought to be afforded greater due process, a higher standard of proof.  Rather than bring university rape cases down to their level, they ought to raised to the higher standard? 

But then, the argument ignores an even more critical point:  If reduced standards and presumption of guilt are appropriate in an academic environment, why then does this only apply to rape and sexual assault?  Is Hills arguing that beating the crap out of somebody because you hate blacks or gays is fine with him?  OR maybe he’s good with selling drugs on campus, or stealing laptops in the library?

And what exactly is the innocent male student to say when asked why Stanford kicked him out on his butt based on rape allegation for which there was scant evidence but he was presumed guilty?  Nothing like being saddled by your college as a rapist for life for the sake of not offending feminist orthodoxy. 

But Hill’s isn’t an apologist for the Office of Civil Rights.  He contends that Berkowitz missed the really important flaw of the letter.

Take Peter’s denunciation of the OCR’s proposal, couched as a call for more protection for the accused in university “campus rape” hearings. He focuses entirely on the OCR’s motives — all that male-hating feminism — but he says nothing substantial about the actual merits of the OCR’s process. Meanwhile he ignores the one genuine flaw in OCR’s proposal that is unrelated to the alleged feminist origins of the proposal — namely, that the policy is simply too centralized.

In other words, rather than the federal government telling universities across the board what to do, Hills’ beef is that it’s should be left to each university to eviscerate rights on its own, and this is another power-grabbing federalist scheme to ram otherwise good ideas down academia’s throat.

While concern for the accused may no longer carry much sway in academia, at least we can take comfort in their resort to anti-federalist ideology in the name of imposing politically correct outcomes, not because the government tells them to, but because they want to themselves.  Small comfort.