It’s not as if the trial of Casey Anthony for the murder of her 2-year-old daughter, Caylee, isn’t sensational enough, but it will now go down in history as the trial where a piece of forensic evidence was introduced for the first time.  Scent.

Can you smell that smell?  According to the prosecution, they’ve bottled up (canned actually) the smell of decomposing human flesh from the trunk of Anthony’s car, and have offered Arpad Vass from the Oak Ridge National Lab as an expert to testify that it is, indeed, the smell of death.  From the Orlando Sentinel :

[Assistant State Attorney Jeff] Ashton questioned an expert witness in forensic anthropology and introduced the novel science of human-decomposition odor analysis. It was another first for an American courtroom, at least within this specific area of research.

It remains to be seen whether associating specific chemical compounds with dead bodies will emerge as an effective tool in the criminal courts. And it is uncertain how the jurors in this case will value this evidence.

It will certainly be effective to the extent that a witness admitted as an expert says it scientifically proves a point, since that’s the whole purpose of expert testimony, to provide an opinion beyond that which a jury is capable of reaching on its own.

In fairness, it’s really not just about the odor.

Toward that end, prosecutors are introducing testimony by researcher Arpad Vass of Oak Ridge National Laboratory, the story says. Vass took an air sample from the car’s carpet and injected it into a gas chromatography/mass spectrometric to identify substances it contained. Then he compared them to chemicals identified in his research of decomposing bodies at a facility dubbed the Body Farm.

When witnesses testify about cool scientific stuff like gas chromatography and mass spectrometry, it goes a long way toward adding to the scientific panache of the tests.  Jurors are impressed with the use of such devices.  Who wouldn’t be?  But ultimately, Vass’ testimony was about the smell.

Vass backed up prosecutors’ theory, testifying Monday that he smelled an “overwhelmingly strong” odor of human decomposition in the air sample. He told jurors that his machine found high levels of chemical compounds observed when the body breaks down, such as chloroform, in the sample taken from Anthony’s car.

The issue isn’t really whether this is some completely fabricated science, like duct tape analysis, Identifying chemicals in the atmosphere by their color through gas chromatography has been going on for a long time.  It has not, however, been used in this fashion, or to provide information with this degree of specificity.  Nor has it been put through the wringer on various issues related to trials, it’s collection and storage methodology.  No doubt someone with far more knowledge in the science involved would have more astute observations.

In its infancy, almost every forensic science tool has been shown to be wrong to some extent.  Whether greater testing, knowledge, experimentation will prove that it’s viable or a complete fraud has yet to be seen, but the flaws that exist at its initiation eventually come to light.  Later on, we will all laugh and laugh at how silly and simplistic we were in our consideration of some new forensic science when it first emerged on the scene.  Everyone will laugh except the defendant and her lawyer.  Maybe a juror or two will feel badly about buying into a science yet to be adequately vetted for accuracy and all the collateral issues and problems that no one knew about at the time.

Anthony’s attorney, Jose Baez, noted the importance of acceptance to Vass of his work.

During cross-examination Monday, Baez suggested that Vass stood to make money off of his method if it is adopted by police departments.

“You sir, have a financial interest in your testimony here today, do you not sir?” Baez said Monday.

“Not in my opinion,” Vass answered.

Whether that response will add to his credibility or sound facile and disingenuous has yet to be seen, but other scientists, who have no horse in the race without being forced to rely on such a convenient opinion, recognize that this science isn’t, at least not yet, ready for prime time.

But two defense scientists say Vass’ technique is too premature for use in criminal cases.

“To allow the presentation in court of the findings … in this case would lend it an aura of scientific authority not justified by its novel nature,” said Barry Logan, an expert in toxicology.

Florida International University analytical chemist Kenneth Furton said no scientifically valid method of identifying human remains based on chemical residue existed.

“Previously touted techniques for locating human remains have not been demonstrated to be reliable,” Furton said in court documents. He added that Vass’ methods “are still in the experimental stage.”

Despite this, Judge Belvin Perry held that the evidence passed the smell test, and the age of odor science was ushered into the courtroom. 

“His opinions and theories range from the interesting to the bizarre,” Anthony’s attorneys said in court documents. But Circuit Judge Belvin Perry ruled that any decision about the reliability of Vass’ methods should be left to jurors.

An interesting, and dangerous, ruling, given that the qualification of jurors to sit requires no proof of their scientific acumen.  How in the world are they expected to judge and reliability of novel forensic science?  Was this covered in 8th grade science?  Is the world flat if 12 jurors decide so? 

The judge is the gatekeeper of scientific testimony, whether it satisfies the Frye test (to which  Florida adheres so no one will have read needless caselaw like Daubert) by showing “general acceptance” if not scientific reliability.  To shrug and kick it over to the jury to decide is mere abdication of responsibility, the judicial equivalent of a punt.  And so the smell test comes in because a judge failed to do his job.

How long will it be before a panel of distinguished scientists reveal that the courts have once again acted prematurely and improvidently by letting another forensic science skunk into the well?  As anyone who has had the pleasure of sniffing the scent of death will tell you, it’s smells horrible.  But then, so does this new bit of novel forensic evidence.  And yet, it’s now been admitted, almost on a lark, and we’ll spend the next few decades figuring out why it stinks and how we ever let this happen in the first place.

To any parent, the death of a child is an experience that defies description.  There are no words to express the anguish and loss, nor should there be.  It’s not supposed to happen, but it does. 

But for Jason Kirchner, the death of his 7-month-old daughter, Abigail, left him little time to mourn, as he was accused of her murder.  Don’t blame the cops, as they investigated and found no wrongdoing.  Rather, Erie County Chief Medical Examiner Dr. James Woytash pushed for the prosecution.

The prosecution’s case against Kirchner was based on Dr. Woytash’s testimony. He said Abbigail suffered a head injury 4 to 6 hours before her death, that the injury was inflicted and that it caused her death.

Aside from the Supreme Court’s  sheer disdain for the defendant who suffered from prosecutorial misconduct as demonstrated in its  Connick v. Thompson decision, holding that a defendant who was concededly denied Brady information cannot sue for failure to properly train prosecutors in their duty to disclose, it presents a conundrum:  It’s in the prosecution’s best interest not to teach assistants about their duty.  Once again, ignorance prevails.

At PrawfsBlawg, Western New England law school professor Giovanna Shay raised the question that if prosecutors aren’t teaching their minions of their obligations under Brady, what are law schools doing about it?

Justice Thomas reasoned that the D.A. had not been deliberately indifferent to the need to provide line prosecutors with on-the-job training regarding their Brady obligations–in part because prosecutors attend law school.  Although I was dismayed by the result in Connick, I decided to view it as a validation of my decision to spend significant class time on Brady v. Maryland.  And I wonder: how can we in the legal academy more effectively teach Brady?

I cover Brady in my Postconviction Rights course, where the doctrine appears in numerous habeas cases, and also in Professional Responsibility (PR).  In PR, we devote one day to defense ethics and one day to prosecutors’ obligations.

Don’t laugh. So what if the entirety of professional responsibility in criminal law is covered in two days.  We’re lucky it’s covered at all.  The more important question is what is taught.

I put my students in the prosecutor’s role and read them each statement in turn.  We discuss whether they would turn it over.  (We also talk about potential differences between the constitutional Brady doctrine and MRPC 3.8).  This conversation usually surfaces some familiar quandaries (e.g., “But I know he’s guilty!”  or “But I know she’s suffering from battered spouse syndrome!”) 

I like that the problem is set in the DV context.  Some students who typically would sympathize with the defense find themselves more conflicted in a DV situation, thus providing better conversation. 

Is “better conversation” the point?  From an academic perspective, no doubt it is, though the rigors of teaching future lawyers that there is a duty to disclose even when they really don’t want to may well be lost, as students are given the opportunity (in their single class on the subject) to rationalize the failure to disclose.  Teach students that it’s legitimate to conceal evidence if can rationalize away constitutional rights and we end up with the system we now enjoy.  From Patrick S. O’Donnell‘s comment to Shay’s post:

 The fact that Brady is “more honored in the breach…” is testimony to the inordinate power of prosecutors generally and the ongoing failure to sufficiently cabin the discretionary power of prosecutors in particular. By itself, Brady can hardly change the fact that “prosecutors continue to engage in illegal behavior with impunity.” As Angela J. Davis writes in Arbitrary Justice: The Power of the American Prosecutor (2007),

“The Supreme Court has established nearly impossible standards for obtaining the necessary discovery to seek judicial review of some forms of prosecutorial misconduct. Inappropriate or unethical charging decisions, intimidating conversations with witnesses, selective and vindictive prosecutions, and grand jury abuse all occur in the privacy of prosecution offices—away from the public and the parties whose cases are affected by the harmful behavior. As a result of Supreme Court rulings, prosecutors know that it is highly unlikely that any of the behaviors will be discovered by defense attorneys or anyone who might challenge them.”

Aside from the brutal commentary on the failure of Brady as a practical matter, this would seem to argue that lawprofs better cut out the pedagogical crap of a “better conversation” and start banging some heads together to drill into those mushy minds that withholding exculpatory evidence from the defense puts innocent people in prison.  There is no legitimate feeling about “but I know he’s guilty” involved.  The only thing to be taught on the subject is that this is a Brady violation, and this is an outrageous wrong.

Whether characterized as yet another example of the disconnect between law school and the practice of law, or merely scholarly curiosity in lieu of teaching students to adhere to rules that rely solely on the integrity of a prosecutor to comply despite the fact that it’s not in the best interests of winning to do so, it’s nearly impossible to detect when she’s failed to do so, and there are no negative consequences to her for having done so. 

Shay asks whether more time should be put into teaching Brady, given the decision in Connick v. Thompson.   It strikes me as the wrong question.  It’s not about the amount of time, but about what is being taught.  O’Donnell seems to get it, that Brady is a joke if subject to rationalization and wiggly lines based on feelings of right and wrong.

The only time anyone seems to care about Brady violations is when an innocent person, proven extrinsically, ends up in prison or on death row.  Nobody, aside from the defense, gives much consideration to the fact that in the absence of available extrinsic evidence of innocence, the same innocent person would spend the rest of his life, however long that turns out to be in light of the sentence, because some prosecutor decided that there is no reason to reveal exculpatory evidence when “he knows the defendant is guilty.” 

If that’s what you’re teaching law students, then it really doesn’t matter how much time is spent on your “better conversation.”  They may pass, but you fail.

It’s the new confession, and not only does it come from the defendant’s own hand, but in advance as well as afterward.  Texting, from your fingers to cops’ eyes.  It bought Mark Pickens the death penalty.

Mark Pickens was in Noelle Washington’s apartment minutes before she and two children were heartlessly shot in the head and murdered in 2009.

Pickens knew he was being investigated for raping Washington, despite his insistence he knew nothing about the charges.

Those two pieces of information would have been difficult to prove in court. They also wouldn’t have been enough evidence to convict Pickens of three murders and send him to death row. But when Hamilton County jurors combined that information with a mountain of text messages, a clear picture emerged of Pickens’ guilt.

Pickens was 19 and a self-described ladies man in 2009 when he got into an argument with sometime girlfriend Washington and then raped her.

Police went May 31, 2009, to Pickens’ apartment and, because he wasn’t there, put a business card in his door asking him to contact them.

The next day, Washington was shot as was her 9-month-old baby, Anthony Jones, Jr. Three-year-old Sha’Railyn Wright was also shot and killed. Sha’Railyn was the daughter of Washington’s best friend, Crystal Lewis.

“It’s extremely difficult to argue statements on that phone because they are on that phone,” [defense attorney Norm] Aubin said.

It’s especially hard for defense attorneys to beat text messages in court, because you can’t confront them like a human witness.

“This doesn’t lie,” [Assistant Hamilton County Prosecutor Katie] Burroughs said of texts. “This isn’t someone summarizing their memory.”

Jurors, Aubin said, love that.

Text messaging is exploding – there were 5.9 billion text messages each day last year in the United States, said Amy Storey of CTIA-The Wireless Association, an international association for the wireless telecommunications industry.

I could have bet money that the foreward would be written by one of two people.  As it turns out, one wrote it while the other wrote the introduction, thus allowing both of the big names in whose reflected glory he hopes to bask to serve as his endorsers.  Without them, who would care what he has to say?

Norm Pattis has been working on his book for a while, and now it’s here.  It’s called Taking Back the Courts, and the foreward, introduction and first chapter are available online for free. I read them.  It was sufficient.  A few years ago, Norm might have asked me to review his book. That was when we were good friends, sometimes confidants.  Norm doesn’t like me anymore.


The old Norm Pattis

As business died, and the money it brought in with it, Norm had to adapt to a changing world.  A tough, nasty, lawyer gave way to a melodramatic marketing, whose every word was carefully crafted to wrench the heart.  Provided the reader wasn’t bound up in critical thinking, it was a moving experience.  Tears flowed.  Emotions swirled.  Feelings oozed.  That was the way the “leading American trial lawyer” rolled, at least as far as his marketing and branding company, Platform Strategy, thought it best done.

I have followed the new, carefully packaged Norm’s efforts from afar, reading his blog posts from time to time, as he once wrote strong stuff, interesting stuff, thoughtful stuff.  It’s now like watching a car wreck, his strained, pedantic prose ranging from the overly simplistic to the unbearably disingenuous.  He’s been caught a couple of times for some horrifically bad judgment, whether impugning his client with improvident twits or flagrant hypocrisy.  He fights to deny it, but persuades no thinking person.

For the most part, I’ve laid off commenting about Norm’s efforts.  As an old friend, I saw no purpose in undermining his marketing efforts.  If he wanted to blather about misery, whether his or others, what did I care?  Some were laughable.  Some were offensive.  Some were just dumber than dirt. 

They had an audience, whether nutjobs or young lawyers filled with more zeal than comprehension.  Whether that audience included potential clients with the money to retain a lawyer is another matter.  But Norm built up a following among those who still enjoy a soap opera.

But just the other day, Norm crossed the line again, with a post grounded in the world he’s manufactured to promote his fiction of Norm as the poor, lone David facing a world of Goliaths.  It’s a continuing theme for Norm, to set himself up as the lone fighter for truth and justice, and castigating all others as the evil self-righteous mob in a conspiracy to subjugate poor Norm to their will. 

There’s truth that others, myself included, have been critical of Norm.  It’s a lie that it’s because some conspiracy exists to bend Norm to our will.  Whether grandiose delusion or marketing ploy, I can’t say, but the criticism comes because it’s well deserved.  We are all subject to the criticism of our peers from time to time. Most of us take it in stride. Norm whines about it, fabricates grand conspiracies and uses it to his marketing advantage. 

There have been a few posts that were so shockingly wrong that I was nearly moved to write about them.  But I exercised self-restraint, realizing that those who had any depth of knowledge would immediately see that Norm was shooting blanks, and those who couldn’t see it wouldn’t grasp the problem anyway.  Still, I admired in a perverse way Norm’s sheer, unadulterated gall, his facility to denigrate others to promote himself.

He does it well, admitting his strawman faults, but then using them to show that he’s only human and in his effort to be the only honest person in law, the only lawyer who truly cares about the downtrodden, the only lawyer who would give his flawed life for others, he blames everyone else for being evil.  It’s a great shtick, provided you don’t think too hard or pay attention to the last few times he played that card.

The last time he did this, in his  turnaround post on Joseph Rakofsky, Norm needlessly attacked a broad swath of blawgers in order to justify his newfound grasp of the obvious, that Rakofsky wasn’t another downtrodden David, like Saint Norm, against whom all the evil blawgers piled on.  Norm discovered that Rakofsky was wrong. 

He had previously written about Rakofsky, in a mind-numbingly stupid post, designed to serve his contrarian marketing purposes.  Since Norm wouldn’t get any marketing value out of agreeing with others, he decided to go down a different path.  Only later did he realize how ridiculous his post was.  Nowhere does Norm mention in the second post, which pretends that he only later saw the evidence of Rakofsky’s incompetence, that if this were so, his first post reflected his willingness to opine in the total absence of knowledge.  Ignorance isn’t a good marketing tool, so he needed to come up with a better excuse.  Of course, the evidence was everywhere, and there’s no rational way he can claim that when he wrote his first post he had no clue what he was talking about.  Nor, of course, is being clueless a good reason to write about something, but that’s too obvious for words.

Norm’s willingness to harm others, including some who thought he was their friend, for no purpose beyond self-aggrandizement, is more than I can stomach.  Whereas I wouldn’t undermine Norm’s marketing efforts before, and I silently tolerated the fictional world Norm created where he was the hero and everyone else the villain, old friendship was stretched too thin when his self-promotion came at the expense of the few who still tolerated Norm despite his self-serving manipulations.  It made clear that Norm cared about no one and nothing but Norm.  There was no going back.

The foreword to Norm’s book is written by F. Lee Bailey, a disbarred lawyer of great talent and even greater hubris.  The introduction is written by Gerry Spence, the master of self-promotion and emotional angst.  This is the company Norm hopes to keep.   He will send love notes to foolish young lawyers who think that they can bask in the reflected glory of greatness, just like Norm, but only so that he has adoring fans.  Maybe they will buy his book and gush about how sensitive he is.  The book will likely be a big hit with the tin foil hat crowd, who love simplistic vilification.

I won’t buy the book.  I already know Norm’s message, and it holds no interest for me.  That Norm chose to harm others in the process of promoting himself is the last straw. Norm can wallow in his guilty verdicts by himself.  I have no sympathy left for him. He’s chosen to be despicable, and his pathetic attempt to pretend he’s forced to do so because of the vast conspiracy against him no longer suffices.

At the end of Norm’s second Rakofsky post, he complains (after writing that he has no cause to complain, which naturally doesn’t stop him from doing so) of being attacked:

But today. Well, today, I illustrated the point I attacked in this piece: the Internet to rageaholics what bars are to drinkers: places where it’s too easy to go on a toot without regard for the consequences. So much though I don’t regret the flame war — it felt good; I regret the descent into simian rage. Mea culpa.

Every hockey team has its enforcers, guys who go out to draw penalties and try to distract opponents from the game at hand. Better players know to ignore then enforcers. I failed today, and hence draw some time in the penalty box. Live and learn, over and over and over again. 

I first heard his name when he called me years ago. He was launching SImple Justice and called around to other bloggers to introduce himself and get tips on what works and doesn’t. The call amazed me. This was a guy who was going online with a design. I turned down the offer to co-author his page.

There was a time when the reaction received when some enterprise, to which you paid money in exchange for a service, failed to deliver ranged from defensive to antagonistic.  The former meant some person, usually hidden in a secret bunker in the midwest, would tell you about their problems, The latter meant that if something went wrong, it was by definition your fault because they were never wrong.

This made people angry.  It was bad for business.

Then somebody got it into their head that a simple apology would often go a long way in diffusing the anger, and so was born the ubiquitous response to all problems uttered by every young lady on the telephone in far away places:  “I’m sorry for your inconvenience.”

At first, there was a certain charm to the expression of concern.  It was certainly better than its predecessor, that the customer was always wrong.  Sure, it was banal and insincere, but at least it didn’t inflame an already unpleasant situation.  But that was due to the juxtaposition of the old script and the new.  The day has past.

This morning, upon cranking up the computer, I began my morning ritual as I always do, first checking my email.  I tend to have a lot of email, which makes me pretty much like every other semi-computer literate lawyer around.  Most are inconsequential, and produce the deep impression on my delete button.  A few are interesting and/or funny.  A few are critical.

This morning, there were none.  Not because I received no emails, but because the program I’ve used since the early 1990s to manage them decided that it wasn’t going to give them to me today.  For those who wonder why this space isn’t filled with something law related, it’s because my morning has been spent trying to find out what’s become of my emails to the exclusion of performing my morning computer constitutional.

A pop up appeared on my screen.  It informed me that my email was unavailable (as if I was unaware of this) and that the popup was sorry for the inconvenience. I clicked “ok” because there was no button that said “bite me.”

After trying a host of methods to circumvent the problem, and getting nowhere, I inquired of a lovely young lady whose name I couldn’t understand.  I told her that my email wasn’t working.  She told me, “I’m sorry for your inconvenience.”  I lost it.  It’s foolish and inappropriate for me to do so, since it wasn’t her fault that I was having this problem, but I can’t bear to hear that phrase again.

First, you aren’t sorry.  You couldn’t care less. You say the words because they’re on the script of what to say to the person who has a problem, because somebody told you that it’s what to do.

Second, it’s not an “inconvenience.”  Whoever came up with that word choice is a moron.  An inconvenience is when I have to wait 10 seconds for the screen to load.  Not having access to email, a basic function in a computer driven society, is like losing electricity in the middle of winter.

Third, I don’t care whether a young lady with an incomprehensible name (Peggy?) is sorry.  Not about my inconvenience.  Not about my serious problem.  Not about the critical problem a client was seeking to alert me to, with a time sensitive need and dire consequences.

Fourth, you provide a discrete service.  I ask only for the provision of that service. If you can’t provide that service, you have no reason to exist as far as I’m concerned.  I seek neither your love, friendship nor empathy. Just the service.  I don’t care if you’re sorry. I care that you failed to provide the service. That’s the beginning and end of it for me.

It’s time to put an end to the use of the phrase, “I’m sorry for your inconvenience.”  As much fun as it was when businesses first pulled it out of their book entitled “how to make irate customers less irate after you’ve failed,” it no longer works.  It’s time is over.  The phrase is played.

To tell the truth, the phrase only worked for me for about a day or two after it came into use.  It was a pleasant change of pace from the typical, customers are such a pain for expecting us to give them something in exchange for their money.  But its emptiness was quickly evident.  After the glow of emotional validation receded, whatever was the problem remained.  Unfixed.

You’re sorry for my inconvenience?  I don’t care. Fix the problem.

And while we’re at it, the techn-lovers who comprise the choir singing hosannas to the computer overlords never mention the fact that sometimes, every once in a while, the cloud goes down. Poof, it’s not there. Then what?  Explain to your client why you can’t do the work.  Explain to the judge why can’t produce. Blame the cloud and see who cares.

To a greater or lesser extent, we’ve become dependent on technology, though we have no control over it and are at the mercy of people in places like Seattle to make sure it works. If it doesn’t, we’re screwed. They, so they say, are sorry for the inconvenience. How’s that working for you?

To anyone who sent me an email last night or this morning, I haven’t been able to access it.  I don’t know what it says. I can’t respond. I can’t act upon it. I am not sorry for the inconvenience. I’m angry at the failure and the fact that I have no idea when, or if, it will ever be available to me.

For the first time ever, I pray that everything in my inbox is spam and garbage, so that nothing important, no less critical, is missed.

It’s become a bit of a fixation for me, to tune into Good Morning America at around 7:25 a.m. for my daily dose of the commentary on the Casey Anthony trial.  Not because it’s informative.  It’s not.  Not because I learn about the case.  I don’t.

I watch the tube because it’s like a car crash from which I can’t turn away.  Robin Roberts seems to take the helm for this segment, though George Stephanoupolis gets to sit at the desk from time to time, as they offer the insight of their Casey Anthony trial pundits.

First, there’s Dan Abrams, Floyd’s boy.  I first met Danny when he was the baby lawyer in residence in the wilds of Secaucus, New Jersey, also known as MSNBC.  That was when lawyers were brought in to do six hour stints on the case of the day, with news readers like Ashley Banfield, when she was a cute blond and didn’t wear her “I’m an intellectual so take me seriously” glasses, and Rick Sanchez in his peculiar pastel colored shirts.

Dan was a nice kid, well spoken and bright.  He had a law degree and a bright future as a TV lawyer personality.  He was curious and perky; Now he comes off as overly serious and emo, which is too bad.  What Danny was not was a practicing lawyer.  Ever.  Not criminal. Not civil. Not trial. Not transactional. 

Dan’s commentary on the case, notwithstanding his lack of any basis to offer it, has been pretty decent, with some astute observations, though a bit heavy handed on the “most important thing” of the day.  Of course, since he’s a TV pundit rather than lawyer, he appreciates the need to be emphatic to generate some melodrama and interest, or he won’t have a gig.

Second, there’s everybody’s favorite oversprayed Perpetual Prosecutor, Nancy Grace.  Why GMA would give her airtime is beyond me, but watching her is at the heart of my morbid fascination.  The noise that emits from her mouth range from the blitheringly stupid to the insanely wrong.  There is no other person that I can think of who has done as much to make the public ignorant about the law than Nancy Grace.  And I don’t think she’s really blond.

What is particularly troubling about Grace’s spewing a constant stream of stupidity is that it goes unchallenged.  Today, she opined about smell evidence, which she asserts must be good because anybody who’s ever smelled a dead body knows that it smells like.  This was one of her more sophisticated arguments, beating the crap out of her typical “where there’s smoke, there’s fire,” type stuff and insistence on calling Casey Anthony “totmom,” which is just pointlessly dumb.

Danny, sitting there in his pundit chair, could call Nancy out on the more ridiculous things she says, but he doesn’t.  I’m sure that he sees no benefit to getting into a tiff with her, but I wonder whether he disagrees with the absurd things she says or even realizes how outrageously uninformed she is.  I get angry with Dan for this failure every time, even as I watch Nancy Grace in horror.

Third, what is Good Morning America doing?  Sure, it’s entertainment rather than news, and has been for a long time, since Diane Sawyer did her dead baby interviews, asking the mother of the child murdered the day before, “how does it feel that little Joey was found murdered, sexually assaulted and mutilated?”  It was Sawyer and GMA that turned it into classic television.

But is there no desire to maintain any credibility?  Sure, dignity was lost long ago, but at least you can make a half-hearted stab at providing the public with information that won’t leave it dumber than when it made the mistake to tune in?

Being a big proponent of the First Amendment, prepared to safeguard and fight for the freedom of the press at a moment’s notice, I note that there’s a giveback to this enormous power.  Don’t spread crap.  Don’t use the power for evil instead of good.  Try to educate and illuminate.  Try to get the facts right.  Don’t give air to morons to spread bad information, specious or facially ridiculous arguments.

Try not to leave the public dumber for having watched.  Is that too much to ask?

Many years ago, my client  was alleged to have possessed a “sharpened screw driver.”  It was repeated in nearly every press account, and became part of the myth of the case.  It was nonsense, but it was more real than reality itself because the media said so.  This experience taught me an important lesson about the media, about the power of oft-repeated myth.

In an  Eyewitness News report this morning on the arraignment on the indictment of Dominique Strauss-Kahn, a generally inconsequential event in a case where the defendant will plead not guilty and the case will be adjourned for discovery and motions, reporter Jamie Roth said:

His lawyers say evidence suggests his sexual act was consensual.

“This is a case that’s going to trial,” a former prosecutor said, speaking on the condition of anonymity so as not to be seen as taking a side in the case. “You’re not going to offer him a plea that’s a nonjail disposition — Vance would look foolish if he did that. And the defendant, he’s got a perception of himself that doesn’t permit him to stand up and say, ‘I raped that woman.’ ”

“You really have to attack the witness’s credibility” in sexual assault cases, a Manhattan defense lawyer, Jeffrey Lichtman, said. “While it may seem morally unseemly to the public, it’s legally appropriate and we have to do the best we can for our clients.”

He added: “You have to make this into a money thing at the end. Has she defaulted on loans or bounced checks?”

A plea bargain was struck, and both prosecution and defendant were prepared to put the matter to rest.  The charge was the felonious reckless operation of a vehicle, plus some misdemeanor failure to obeys. From the Laconia Daily Sun :

Officer (now Sergeant) Michael Finogle was in the parking lot at Endicott Beach when he said Jonathan E. Lord, 25, drove a car “at a rate of speed and manner as to narrowly miss” him as he was trying to get the car to stop.

Lord would have been sentenced to one year in jail for each charge — all but 60 days suspended — and would have had the suspended jail time hanging over his head for three years.

My son ran in the door from school to tell me a funny joke.  “Why is it, Dad, that we drive on a parkway and park on a driveway?”  He guffawed, falling on the floor in spasms of laughter.  Kids.  I never expected that to be the moment when he proved his mettle for a seat on the New York Court of Appeals.

In Groninger v. Mamaroneck, New York’s highest court made its own version of that joke, holding that a parking lot was a highway, thus precluding Margaret Groninger from suing the Village of Mamaroneck for injuries sustained from a slip and fall on ice in the village parking lot because it hadn’t receive prior notice of the ice. 

New York requires that defects, even the transitory ones that exist for a few hours before disappearing in the midday sun, be noticed in writing if they’re on “any sidewalk, crosswalk, street, highway, bridge or culvert.”  Notice that there’s no mention of parking lot?  No problem.

As the  Washington Post explains:

Four judges say this parking lot serves the “functional purpose” of a highway, “open to the use of the public for purposes of vehicular travel.”

Three dissenting judges say that’s so obviously untrue “as hardly to merit serious discussion.”

It is so obvious as hardly to merit serious discussion that a parking lot does not fulfill the same function as a “highway.” As everyone knows, the dominant purpose of a parking lot is to accommodate stationary, i.e., parked, vehicles. By contrast, the precisely opposite dominant purpose of a highway is to enable vehicles to move with a degree of expedition. While a parking lot may be entered and exited by public roads the two types of facilities are notable for their essentially discontinuous purposes.