It was ugly and bizarre enough that Senior Judge Jack Camp of the Northern District of Georgia was caught with drugs and a stripper.  Considering his reputation for being harsh, the 30 day sentence for this old white guy who didn’t cotton much to blacks might be seen as a bit of professional courtesy.  Had the tables been turned, chances aren’t good that Judge Camp would have been so considerate to anyone else.

But in the process of trying to save his old judicial butt from the rigors of prison, a couple of details raised took a bizarre situation and made it worse.

In court filings, Camp’s lawyers told [Senior U.S. District Judge Thomas] Hogan that depression and a bipolar disorder as well as brain damage sustained in a 2000 bicycle accident — all exacerbated with improper prescriptions — help explain the ex-judge’s erratic and reckless conduct last year.

It’s unclear how long Camp suffered from depression and bipolar disorder, but he claims to have suffered brain damage in 2000.  For the next decade, he made judicial decisions, including the sentencing of human beings.  Well, this raises some thorny questions.

According to the Atlanta Journal-Constitution, Camp handled 3000 cases, though it’s unclear whether that refers to criminal or cases of all stripes.  Regardless, the question is raised whether the parties in those cases were entitled to the exercise of judicial discretion and decisions that were not the product of insanity.

“Every case he handled from the time he was misdiagnosed, or before, depending on when he was affected by these conditions, should be re-evaluated,” said Marcia Shein, a Decatur appellate lawyer. “The question is: Did these conditions affect his ability to be an objective judge making fair decisions?”

This is not the question, as I see it.  Not the question at all.  The infirmities suffered, by definition, affect his ability to be an objective judge making fair decisions.  But if his decisions were completely off the wall, it would be presumed that they would be reversed, because no appellate court would rubber stamp the ravings of a lunatic, right?  Consider, by the way, how the judges hearing appeals from Judge Camp’s rulings must feel now.

U.S. Attorney Sally Yates told The Atlanta Journal-Constitution that her office will consider requests from defendants concerning Camp’s judgment “to ensure that justice is served.”

Bill Morrison, one of Camp’s lawyers, said the sentencing memos about Camp’s mental health sought to explain his reckless conduct in that the brain damage compromised his impulse control.

But, he said, “Nothing impaired his ability to fairly and impartially act as a judge; I’m fully prepared to defend any judicial decision he made.”

Camp told the stripper that he struggled in deciding criminal cases involving African-American men because she had previously had a relationship with a black man, said Yates, citing interviews.

There is no rational basis to go back and divvy up his decisions into nuts and not-so-nuts.  They will fall within the broad parameters of what a judge is permitted to decide.  Most decisions are binary, granted or denied, sustained or overruled.  Sentences are broader, but remain for the most part within the judge’s individual discretion.  In other words, the product of an insane judge won’t look a whole lot different that a not-as-insane judge.

The real question comes down to whether individuals coming before a federal district court are entitled to a judge who is not mentally and psychologically impaired, not to mention doesn’t hate black men.  No one will ever know how, or to what extent, Camp’s problems affected his decisions.  In any case, a judge makes thousands of decisions.  Some are characterized as decisions, while others are nothing more than tone of voice or a squinty eye, telling a lawyer to let go of an argument because he’s about to get slam-dunked.

Let the record reflect that this insane judge just gave me the squinty eye, and for that reason, and that reason alone, I will stop pursuing what I believe to be a completely valid line of argument that, if I was allowed to pursue, would result in the witness breaking down and crying, admitting his lying ways and conceding that my client is innocent.

Of course, the same can be said of judges who are not insane, but merely bored, annoyed or disinclined to believe that defendants deserve half a chance.  Still, that won’t stop defendants from trying.

Defense attorney Steve Sadow said disclosures that Camp’s judgment may have been impaired could serve as a foundation to court challenges.

“If someone is sitting in prison with a long sentence imposed by Camp, they might as well give it a shot,” he said. “What have they got to lose?”

That’s for sure.  There’s absolutely nothing to lose.  Make your best pitch that Camp’s insanity produced unjust results. Sure, it will be a burden, but that’s why they pay judges the big bucks. But there’s nobody really anticipates such wholesale revisitation of Camp’s cases will produce much.  Impaired judges do just as well as the unimpaired, apparently, which doesn’t say much for the latter.

So Jack Camp’s avowed incompetence to perform any of the functions of a judge will be white-washed, rationalized, and swept away, except in the handful of cases where the government feels like giving someone a break.  Forget any civil cases, where people’s fortunes were lost and lives ruined.  There isn’t a chance that they will have their causes decided by a not-as-insane judge.  After all, somebody has to lose.

There is, however, another question that should be asked, but hasn’t.  How is it possible that all those fine people, brilliant jurists, dedicated marshals, astute staff, didn’t happen to notice during a decade of interaction that their robed colleague, a man with the authority to put human beings in prison, to make or ruin lives, to determine the fate of human being, Judge Jack Camp, was nuts?

It wasn’t long ago that Nicholas Bourff was just a regular sort of lawyer, working for a small firm.  It wasn’t much longer ago that he was just a law student at the University of Dayton.  But now he’s an important public official, which means some dopey kid lawyer, admitted in Indiana in 2007, has the moral authority to call for the elimination of jury trials.

From WKVI :

Starke County Prosecutor, Nicholas Bourff, is in his third month on the job and has already made a suggestion to help speed up C and D Felony proceedings.

“One of the proposals I’ve made is to try, even if it’s with the C and D Felonies, to see if a case is going ahead to trial, and we know it will, to see if we could get a bench trial set, which just involves the Judge, instead of a jury trial,” said Bourff.

So what gives rise to this county prosecutor’s epiphany that jury trials are a terrible waste of money?

“In my experience as a defense attorney, the majority of my clients would not have had a problem with going to a bench trial.”

Assuming this statement to be true, there are couple different reasons that could explain it.  Perhaps his clients figured that once a jury saw that their lawyer had difficulty combing his hair, their cause was already lost.  Or maybe his rush to become a prosecutor suggested that he was not entirely zealous in his defense. To figure this out, it seemed imperative to ascertain the depth of Bourff’s experience preceding his three months as Starke County Prosecutor and giving rise to this shocking assertion that felony criminal defendants don’t really care much about jury trials.

What can we learn about Bourff’s legal experience?

“The one major drawback there is that if a defendant wants a jury trial, he or she has that right. If the defendant agrees to a bench trial, then it would save thousands of dollars and it would shave off quite a bit of time as far as eliminating the need for jury selection.

One might think that the major drawback is that the new prosecutor advocates the evisceration of a constitutional right for the benefit of the taxpayers, not to mention those criminal defense lawyers who really hate wasting all that time picking a jury before their clients get convicted.

No doubt this initiative will play well with the voters and make young Bourff a bunch of new friends, appreciative of his sensitive concern for the welfare of hard working locals who really can’t see much point in having their tax dollars wasted on picking juries just so some criminals can try to avoid conviction.  And this is what he learned in his experience as a criminal defense lawyer.

Kinda makes me pine for the innocence of youth.

Radley Balko is one of my “must-reads” every morning as I skim the blogosphere for interesting stuff.  He sometimes reads SJ when he’s got nothing better to do and there’s no place left on his puppy to scratch.  Even though he’s a libertarian, we share many of the same concerns and he’s got a knack for finding strange and curious conduct by police that usually ends with somebody getting nailed by a SWAT team by mistake.  That’s the sort of news that captures my interest.

And now he’s gone mainstream.  The news was broken by a twit from Michael Moynihan, Reason’s senior editor,

Congrats (and sadness because he’s leaving Reason) to the great @radleybalko

In May, I’ll be leaving Reason to work as a crime reporter for the Huffington Post. As you may know, AOL bought Huffington Post several months ago, and they’re hiring a ton of great people to build out a serious journalism program. I’ll be working with some really talented folks, like (former Agitator guest blogger) Ryan Grim, and Peter Goodman and Tim O’Brien, who came over from the New York Times. I’ll be covering the same beat I do now, only with a much bigger platform, and with the resources to delve into bigger, more in-depth projects.

For some, this means that Balko can finally buy the beers, now that he’s on the payroll of such a big time provider as HuffPo.  For others, the pain of having to go to HuffPo to read Balko is akin to sticking a needle in one’s eye. 

For me, this will be a fascinating experiment in the maturity of the interwebz.  Radley assured me that he has complete editorial freedom in his new position, that the corporate overlords won’t tell him whose ox to gore.  I believe, both because I believe him and I believe it would be utterly foolish to steal him from Reason and then try to turn him into Pollyanna.  I can’t imagine the follicularly challenged Balko would look good in a dress anyway.

But how will his message go over?  At HuffPo, he will be writing for a much larger audience than Reason.  Those who read Reason tend to either love or hate his views, but mostly love.  Aside from Patterico and his Pontifications, most of Radley’s readers support his concerns. There won’t be any choir at HuffPo.

This is a bold move.  No longer will Radley be surrounded mostly by those of similar mind.  Will he end up as troll bait in the pseudo-mainstream (for the internet, at least) news and commentary website? 

My experience with HuffPo writers, noting that these were before the buyout, meaning that they were the ones who wrote for free in the desperate hope of validation, flashing neon “Look at me! Look at Meeeee!!!” sign over their work, left me decidedly unimpressed.  Neither much by way of deep thought, nor high expectations.  They didn’t mind leaving the readers stupider for having been there, or the commentariat nasty.  Angry, ignorant comments were better than none, and at least validated their existence if nothing else.

This isn’t the world that Radley knows.  I would expect him to have higher expectations, to expect his readers to have at least a reasonably open mind and the capacity to think beyond their knee-jerk politics.  He will be faced with the daunting task of writing for a broader audience.  As I responded when he told me, the problem with that is that he’s writing for a broader audience.  Some say the masses are asses.  We’ll find out.

This new gig will give Radley a chance to do far more investigation than before, which (for those of you who don’t realize it) is a gift. Having the time and resources to do some heavy lifting in the investigative arena is a true luxury, one that few bloggers enjoy. 

Some may fear that Balko will sell out, curry favor with HuffPo readers to become more popular, maybe get a gig on Dancing with the Stars or a Fox News Channel talk show.  I refuse to believe this, but just in case, I have a plan to hold him to his promise to stay the course.



It’s always helpful to know a guy’s weak spot.

Congratulations to Radley Balko.  Whether the mainstream internet is ready for him remains to be seen, but the issues and commentary he brings to the great unwashed at HuffPo cannot help but illuminate, even if they read him kicking and screaming. 

When Terry Haddock decided that he would much rather be the snitch against Shannon Williams than use the money he was paid to be his lawyer, one might suspect that a judge considering the propriety of the government’s evidence to be dubious.  After all,

Few things undermine the integrity of the legal system than the idea that one’s lawyer isn’t one’s lawyer, but a government agent.  How can a criminal defendant ever be secure in the knowledge of undivided loyalty if a government agent can be allowed to feign the role of criminal defense lawyer while serving another master? 

This isn’t merely a suppression issue, though suppression would be the appropriate mechanism to challenge the conduct, but rather a facial attack on the constitutional right to counsel.  If this were permissible, then no defendant could be assured that the person across the table, the person he paid, the person upon whom he relies, is really his lawyer.  It’s nuts.

So in a 49-page ruling Monday, a judge took dead aim at one party’s actions in the case — calling them cunning and manipulative.

That party? Williams himself.

You didn’t really think he would use such harsh language against the government, did you?  That would be intemperate.

Senior U.S. District Judge Lyle Strom refused to dismiss the indictments or condemn the U.S. government’s actions in its highly publicized, much-scrutinized investigation that led to the indictments of Williams and 10 others.

In the pivotal ruling in the case, the judge had no criticism of the U.S. government’s use of attorney Terry Haddock to record Williams over eight months last year in the jail. During that time, Haddock recorded Williams 63 times — and supplied him with the cell phone Williams needed to orchestrate his operation.

No criticism.  None.  Just doing their job, keeping us safe from terrorists, father-rapers and criminal defense lawyer manipulators.

“The government’s conduct in utilizing Haddock was not outrageous,” Strom ruled. “Williams (argues) that the attorney-client relationship will be unnecessarily damaged if the indictment against him is not dismissed.

“The court does not share Williams’ pessimism. It is already well established that communications between a client and an attorney are not privileged if the communication is regarding ongoing or future criminal activity.”

It’s true that criminal defense lawyers cannot become complicit in a client’s crime.  It’s true that communications of ongoing or future criminal activity are not confidential.  So Terry Haddock, if he believed that Williams told him, one of his lawyers, about non-privileged criminal conduct, could hike up his skirt and run down to the United States Attorneys office to spill his guts about his now former-client

But Judge Strom seems to have completely missed a major issue in this scenario.  While Haddock had reason to be relieved as counsel, and reason to spill that initial non-privileged communication, he cannot then continue to feign being Williams’ lawyer, continue to record his communications, continue to make Williams believe that he was talking to his lawyer and attempt to induce him to further incriminate himself.

Bizarrely, Judge Strom’s omission of this element of the suppression motion only applied to the government.

In preserving the government’s case, the judge issued a layered ruling that raised no qualms about the government’s use of Haddock but left open questions about whether the attorney would face disciplinary consequences.

Strom said Haddock’s actions “may be worthy of professional sanction.”

“But … the evidence he obtained was not collected in violation of the Constitution,” Strom wrote. “The merits of (an ethics) complaint will be reviewed in due course. The result of that matter, however, should have no effect on determining whether the government acted outrageously.”

If this is to be understood, the government is free to exploit Haddock’s impropriety without getting any of the goo on its face.  Of course, the government was integral to Haddock’s taping Williams and bugging the attorney visiting room.  The government “handled” Haddock as he used his position as attorney, wrapped up in the Sixth Amendment, to fake out Williams.  And yet the government’s hands were spotless.  Not just clean, but absolutely spotless.

Strom also dismissed Williams’ arguments that the government’s use of Haddock would crumble a legal bedrock: attorney-client privilege.

“The court’s decision today merely reaffirms the principle that an attorney’s presence cannot be used as a shield to (cover up) future criminal activity,” Strom wrote. “That was the rule before this case, and the rule remains intact hereafter.”

The problem and solution, according to Judge Strom, is that Williams, being a criminal and all, deserved to have his 6th Amendment right to counsel undermined by this pretense that the guy in the attorney visiting room with whom he spoke on at least 64 occasions.  The initial communication, in which Haddock claims Williams sought to use him in connection to ongoing crimes, wasn’t recorded, but the judge had no issue taking Haddock’s word for it that Williams, during that initial conversation, told Haddock of his plans to eliminate a witness (which never came up again in any of the 63 recorded conversations).  Certainly attorney Haddock would never lie, despite his drug issues, depression, impropriety and ethical lapses.

With a wave of the pen, Judge Strom has raised the specter that no defendant can be secure in the knowledge that the person he’s talking to across the desk in the attorney visiting room is really his lawyer and not a government snitch.  Yet again, the deception doesn’t bother him a bit.

And even if everything about Terry Haddock stinks, it’s not like the government did anything wrong.

It’s one of the dirtiest little secrets of criminal law.  We use the phrase constantly, as if it’s the most important phrase the law has to offer, yet we have  no idea what it means or how to explain it.

Beyond a reasonable doubt.

Over and over, California appellate opinions through the years reiterate that the term “best defines itself'”; that “all attempts at definition are likely to prove confusing and dangerous”; and that “every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary.” In short, as summed up by the court in People v. Johnson, 119 Cal. App.4th 976, 986 (2004), “[w]e trust that any trial judge who reads that history will heed the two English bards: . . . ‘Let it be.’ (Lennon & McCartney, Northern Songs 1970, ‘Let It Be.’)” 

There’s no question that the successful operation of a law practice requires some basic concept of how business functions which, to this day, elude some otherwise competent lawyers.  The lack of business smarts, like appreciating the Ben Franklin’s admonition that a penny saved is a penny earned, serves to increase the cost of legal services to clients as well as diminish the profit to lawyers.

But George Washington B-School professor James Bailey took it to the level of absurdity in a Washington Post op-ed contending that the future of law is to be managed by non-lawyer businessfolk, He begins by noting that law isn’t raking in the dough like it once was.

But an industry that once experienced extraordinary growth, with revenues and profits increasing at near double-digit rates, saw profitability plummet as the recession deepened. Demand for services and outside counsel spending dropped by 5 percent and 11 percent, respectively.

Curiously, the manner of stating his basis for the problem provides a preview of the dangerousness of his ideas.  It’s all about revenues and profits. this “industry” he calls law.  While these are components of a financially viable business, they are the “tail” of a profession.  Yet he sees these metrics as the “dog” of an industry.

For reasons of tradition and credibility, law firms are run by lawyers, despite the fact that lawyers are not trained in business and management. To be successful, law firms must create executive teams that include business-savvy non-lawyers. They have to think more strategically about the broader economic climate, industry trends, client needs and internal policies.

From the myopic eye of a business prof, Bailey offers only two reasons for law firms to be run by lawyers.  Tradition is a slur, obviously, to suggest that it’s done because that’s how it has always been done, the mere perpetuation of a bad practice.  Credibility, on the other hand, is sloughed off thoughtlessly.  Nor is it accurate.  Credibility, integrity and the elevation of ethics over profits are the components that distinguish what lawyers do from non-professionals.

They may well conflict with best business practices, which would suggest we burn the client and the case when they turn unprofitable or when the cost-benefit analysis of squeezing the last bit of win out of research and investigation no longer justifies our efforts from a revenue basis.  But we’re lawyers.  We do unprofitable things for our clients if it helps their cause.  We push harder even though there’s no revenue justification for it.

Bailey takes a blind, and illogical, leap, when he argues that, “[t]o be successful, law firms must create executive teams that include business-savvy non-lawyers.”  Business-savvy makes sense, but why non-lawyers?  Presumably, because lawyers aren’t trained in business.  But why not argue that lawyers should be better trained in business than that non-lawyers should be running law firms? 

How about the executive committee (which of course applies more to Biglaw than the law firm of One) should seek out the most business-savvy lawyers in the firm?  Lawyers in thousand person firms aren’t a monolithic group of business idiots.  Nor, frankly is business all that complex that the few smart people who happen to become lawyers can’t grasp the basics.

Law firms should introduce pricing models based on metrics other than billable hours. Examples include a flat-rate where a fixed sum is charged for defined services, or value added to client businesses. This is a big departure from the neat and tidy billable hour, but it’s necessary to satisfy budget conscious chief counsels.

Firms could create alliances or even initiate mergers to offer clients more comprehensive and coherent representation. While many law firm partners would recoil at the comparison, Target is successful because it’s one-stop shopping. For example, Martindale.com, a legal information and referral portal, lists no fewer than 65 separate practice areas. Consolidation will make satisfying consumer needs easier.

This is where Bailey offers proof that MBAs have no business running law firms, offering breathtakingly simplistic “must-do” changes that have been the subject of much debate, without the slightest recognition of the issues and problems.  Is he unaware that criminal lawyers have used flat fees forever?  Is he unaware that corporations love to be able to budget litigation costs, but hate not having itemized bills showing where their legal dollars are going?

Perhaps Bailey falls into that legal service consumer mentality that sees lawyers as fungible, with the knowledge and ability to do mergers and acquisitions indistinguishable from civil rights litigation?  The reason for 65 (is that all?) separate practice areas is to be capable of identifying a lawyer with the skills, knowledge and experience to best satisfy a client’s needs. 

A sophisticated client realizes that lawyers aren’t interchangeable, and Bailey’s consolidation cry, to turn law firms into Target stores, has proven to be the downfall of Biglaw.  Does he really think it’s more effective to be Jacks of all trades and masters of none?

The legal industry is a powerful local economic engine and is one of Washington’s great success stories. But, law firms have never thought of themselves as businesses.

Even moderately intelligent lawyers have realized that maintaining a viable practice requires a certain amount of business-savvy.  Bailey’s assertion, that law firms have never thought of themselves as business, is ridiculous.  But law firms have never, and should never, think of themselves as businesses first and law firms second.   It’s not that we practice law to assure that we have neither revenues nor profit, but that serving our clients, putting their interests ahead of revenues and profit, are the core of what makes law a profession.

If the business aspect of practice becomes more important than providing representation to clients, then you might as well open up shop selling used cars or women’s dresses.  This notion has become trendy with new lawyers, for whom making money and paying down loans trumps all concerns about the practice, and outsiders to the law like James Bailey who would put his MBA kids in charge and hold meetings with pie charts where case files used to be.

Times are tough for the legal profession.  They’re tough for everybody.  But give up what made law a learned profession and when times get better (and they will), we’ll be the proprietors of the only used car lots where salesmen dress in three piece suits.  Law is not just a business, and those who would make lawyers mere widgets, like James Bailey, are just plain wrong.

As chief deputy assistant in the Las Vegas district attorney’s office, 47 year old David Charles Schubert has prosecuted drug cases against some big names, Paris Hilton and Bruno Mars among them.  The irony (schadenfreude?) is thus undeniable.

From the ABAJournal (which comes from the Las Vegas Review-Journal, but since they don’t want anyone quoting from their stories, they get no link love);

The Las Vegas chief deputy district attorney who prosecuted Paris Hilton for cocaine possession has been arrested and accused of buying crack from a man riding in his BMW.

David Schubert was arrested Saturday evening after an officer saw what he thought was a drug transaction and stopped Schubert’s vehicle, the Las Vegas Review-Journal reports. The prosecutor was charged with possession of cocaine.

There are some intriguing holes to be filled in this story, such as what the officer saw occurring in Schubert’s BMW that made him think a drug deal was taking place as opposed to, say, the exchange of money over sports betting or prostitution, neither of which are frowned upon as severely in Vegas.  One would anticipate, and properly so, a motion to suppress for a violation of Schubert’s constitutional rights in the search and seizure.  That would be when they found the crack.

Crack?  That must be the ghetto drug cooked up for the purported enhanced powers of addiction and affect, to be distinguished between powder cocaine used by wealthy white people and rarely subject to scrutiny by police since it’s used in private parties and Studio 54.  That’s the sort of stuff enjoyed by celebrities, like, oh, Paris Hilton and Bruno Mars (whose real name is Peter Hernandez and apparently sings for a living).

To call a story like this bizarre is to demonstrate a mastery of the obvious.  Maybe this is what happens when you spend too much time around celebrities, and start to adopt their ways.  It’s unclear that there is any broad lesson to be found in this situation, except that we are all subject to human frailty, even high-powered prosecutors in charge of high-profile cases.

I can’t help but wonder what Oscar Goodman, Las Vegas Mayor and former criminal defense lawyer, is thinking about now.  David Roger, the Vegas District Attorney, says that Schubert’s future with his office is “bleak.”  But then, why would Schubert have any interest in returning to prosecution, when he can now forge ahead with his future as a celebrity.  After all, he’s got a similar skillset as Paris Hilton (absent the whole heiress thing).

Seriously, the stop and search sounds like a significant issue, and if Schubert’s constitutional rights were violated, then the crack should be suppressed and the case dismissed.  But I can’t shake off the wonderment.  I just can’t.  My bad.

All the hoopla that goes along with the freeing of the innocent, the righting of the wrong, must certainly make a guy in prison for 9 years, convicted of a capital murder he didn’t commit, feel pretty darn good.  But it’s not the same as compensation for the years lost.

So when Douglas Warney was finally freed with the help of the Innocence Project based upon DNA proving that he was innocent of the crime, it didn’t seem much of a stretch to expect the state to pay under the wrongful.  That was a mistake.  His claim was dismissed, and affirmed on appeal.  Peter Neufeld took it to the Court of Appeals, where the case was argued in February.

Via the Gotham Gazette, Emily Jane Goodman (who happens to be a Supreme Court Justice in her spare time) explained the state’s position:

Arguing for the state, attorney Alison Natnah told New York’s highest court that Warney had “no entitlement to compensation” for his years spent in prison since he should have been able to foresee that his own admission and self-incrimination, which she called “voluntary,” would lead to his conviction. In other words, it was Warney and not the government who was responsible for his conviction and the years of incarceration. That it is wrongful and unjust — not just a mistake — is insufficient to allow the claim to proceed argued Natnah, who has recently been recommended by Sen. Charles Schumer for a federal judgeship.

A curious argument indeed.  It was Warney’s fault for confessing, falsely, and the state should be off the hook.  Warney should have known better, as a brilliant rocket scientist.  Actually, Warney wasn’t quite so smart.

Douglas Warney, a man with a history of mental health issues, an eighth-grade education, and advanced AIDS, called the police stating that he had information about a homicide. He knew the victim: he had cleaned the victim’s house and shoveled snow from his driveway just two years before the murder. Warney was interrogated for 12 hours by police, he confessed and provided details that only the killer could know – that the victim was wearing a nightgown, that he had been cooking chicken, and that the killer cut himself with a knife and wiped it with a tissue in the bathroom.

The sophist’s circle makes one wonder how we can blame the police if Warney knew so much about the murder.  Wasn’t it the absolutely, totally, completely innocent defendant’s fault that he misled the cops?  Logic, however, flows in the opposite direction.

Given that he has been ruled out as the perpetrator, “How could Warney have known that the weapon was a 13-inch serrated knife, and that a victim was stabbed 15 times?” [Court of Appeals Judge Robert] Smith wanted to know. He prodded the prosecutor to tell the court how Warney could have had these facts — unless the police told him. Natnah was unable to provide an explanation that seemed to satisfy Smith. Meantime, Chief Judge Jonathan Lippman asked how Warney’s “confession” could be considered credible if “90 percent of what he knew was planted in his mind by the police,” especially when one week earlier the police had taken Warney to a psychiatric hospital.

While it all seems pretty obvious, bear in mind that Warney has lost up to this point, his claim being dismissed by Judge Renee Forgensi Minarik of the Court of Claims, who held that the fact of Warney confession overrides why he confessed. 

The New York Times editorial argues for the Court of Appeals to reverse:

New York State has primarily argued, and lower state courts have rashly agreed, that Mr. Warney’s false confession makes him ineligible for compensation because the Unjust Conviction and Imprisonment Act bars recovery for those whose own misconduct caused their conviction.

That limit was meant to weed out deliberate misconduct to gain some tactical advantage, say a confession intended to conceal a loved one’s guilt. Mr. Warney’s false confession was not the product of misconduct. It was the reaction of a particularly susceptible individual to common police interrogation techniques that sometimes cause innocent people to confess. That phenomenon was illuminated in a friend-of-the-court brief filed by the American Psychological Association.

It would seem definitional that a false confession, defined as one obtained via police manipulation, cannot constitute misconduct that would preclude an innocent defendant from obtaining compensation.  While a tactical confession would suffice, the courts ought be up to the task of distinguishing between the two.  The per se rule that a confession alone is sufficient to defeat the claim of an innocent and wrongly convicted defendant should be reversed, not only on the obvious humanitarian basis but because it’s irrational.  The innocent victim isn’t to blame for the police feeding him, manipulating him, coercing him to confess.

There remains, however, an issue beneath the surface of this claim for compensation, and at the heart of the underlying problem.  As long as the courts remain wedded to the notion that intentional, deliberate, methodical deception by police constitutes a perfectly lawful and appropriate law enforcement method, they encourage the police to say anything, do anything, to nail the bad guy. 

Except it’s not always the bad guy they nail.  The same methods, like their beloved Reid Technique, that are so effective in obtaining confessions from the guilty are equally effective in obtaining confessions from the innocent.  With the encouragement of decisions like Whren, the police use pretext to seize the innocent as well as the guilty, and we can’t even begin to know how much more often since their mistakes are concealed by their letting them go on their way.

If the police are not merely entitled to lie, cheat and steal to get their guy, but encouraged to do so, then there’s a perverse logic in the state’s argument against Warney’s claim.  Why blame the cops for manipulating a mentally challenged person into confessing when truth and honesty play no role in their job?  They got a man to confess.  That’s what we pay them to do.  That’s what the courts tell them to do.  Nobody made Warney confess, as the state now argues, provided there’s nothing wrong with manipulating the innocent into falsely confessing.

The courts can’t have it both ways.  It’s time to jump off that slippery slope of encouraging law enforcement deceit if they can’t embrace the natural outcome.

The  WSJ Law Blog wrote about a phenomenon that most think is all but extinct in the United States, debtor’s prison.  Guess what?

More than a third of all U.S. states allow borrowers who can’t or won’t pay to be jailed. Judges have signed off on more than 5,000 such warrants since the start of 2010 in nine counties with a total population of 13.6 million people, according to a tally by The Wall Street Journal of filings in those counties. Nationwide figures aren’t known because many courts don’t keep track of warrants by alleged offense. In interviews, 20 judges across the nation said the number of borrowers threatened with arrest in their courtrooms has surged since the financial crisis began.

This is somewhat misleading, as the warrants are issued for the failure of debtors to appear and being held in contempt, not simply because there is a debt.  Still, but for the debt, there would be no compulsion to appear.  No matter how one spins it, it’s all about the debt.

The unspoken problem is that debt collection has become a cesspool, with failed service, bad information generating flawed complaints and the wrong people being subject to unwarranted litigation.  The news about these problems is pervasive, but there has been little mentioned about the consequences, the jailing of those whose never knew they were in trouble to begin with.

In September 2009, Jeffrey Stearns, a concrete-company owner, answered a knock at the door from a Hancock County, Ind., deputy sheriff. The deputy was holding a warrant to arrest Stearns for not paying $4,024.88 owed to a unit of American International Group Inc. on a loan for his pickup truck.

After being handcuffed in front of his four children, Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. Court records show he was released after agreeing to pay $1,500 to the loan company. “I didn’t even know I was being sued,” he said, though he doesn’t dispute owing the money. “It’s the scariest thing that ever happened to me.”

This isn’t about being sympathetic to those who lived high on the hog on someone else’s money, then ran from their responsibility when the bill came due.  A debt is a debt, and repayment is part of the obligation that one undertakes when accepting the money.  If a loan was taken foolishly, without intention of repayment, then they deserve to face consequences.\

But those consequences don’t include arrest and incarceration. 

Most of the people unable to repay their debts aren’t intentional deadbeats, but people who have been swept up in the very same economic collapse that affected everyone.  The businesses to whom the debt is owed know it.  The judges ought to know it too.  That circumstances have precluded a person from repaying (you can’t get blood from a rock) doesn’t mean that the lender isn’t harmed or isn’t due repayment, but that the debtor isn’t malevolent, but without the power to comply.  We don’t jail people for misfortune.  Not even foolish misfortune.

In those instances where a debtor engaged in fraud, accepting money with no intention of ever repaying, the situation is different.  Fraud may well be a crime, and should that be the case, then the criminal law provides recourse.  Let the debtor seek the aid of prosecution, affording the debtor and alleged criminal the full panoply of rights and protections given anyone accused of a crime.  If fraud is proven, the impose the punishment appropriate for the crime.  Not because it’s a debt, but because it’s a crime to defraud.

The rationalization of lawyers representing lenders, assuming they aren’t the ones suing the wrong people without proper papers, minimal diligence and a modicum of regard for misapplied process, is severely misguided.  They explain that the debtor owes money and they are entitled to compel the miscreant to come to court and disclose the whereabouts of their assets, upon pain of incarceration.  This is an anachronism that, sadly, remains part of our common papers, the old fine or imprisonment language we use to make people do as we demand.

This is nothing more than a throwback to the debtor prison days, when cash was king and the poor deserved whatever they got.  It’s time we adjusted both the language and the reality to reflect the fact that we no longer jail people for debts.  Yet that doesn’t seem to be the level of concern.

But now a backlash is building against use of the debtor’s prison. It’s a reaction to sloppy, incomplete or even false documentation that can result in borrowers having no idea before being locked up that they were sued to collect an outstanding debt.

Certainly those who are jailed due to sloppy, incomplete or false documentation shouldn’t be.  That this is characterized as a mere “backlash” is outrageous.  The idea of jailing someone as a product of a wrong committed by the party seeking the jailing shouldn’t present any question at all.  Of course it’s wrong, and this should never happen or be allowed to happen.  This isn’t a backlash at all, but a gaping flaw in the legal system that demands the immediate attention of the courts and a complete fix.  Even this appears to be mired in controversy, though there should be nothing controversial about it.

In the meantime, what about instances where the problem isn’t sloppy, incomplete or false documentation?  This doesn’t appear to be of sufficient concern to the courts to put a stop to the jailing of debtors.  Few of us realized that this nation, with an incarceration rate that makes Banana Republic dictators chuckle, still has debtor prisons.  We do, and we have judges willing to sign the warrant to put the poor in jail for being poor. 

While we fight for those who are accused of crime to prevent them from going to jail, we don’t even notice those who are going to jail without being accused of any crime at all.  Anybody have a nice platitude to justify this?

An email came in this past week from a relatively new blawger.  His blawg is exceptionally good, funny, thoughtful, bold and pointed.  He showed no fear of taking a stand.  But up to that point, the comments he received were generally supportive, interesting or funny.  This time, a commenter attacked.

The transition from being read by a few friendly folks, who find a blawg and stick around because they share the perspective of the author, to gaining interest outside a small circle of friends can be jarring.  We all prefer to hear that others agree with us, think we’re not dead wrong if not awfully darned right.  It’s natural.

Many blawgers actively avoid anything that might make a reader not agree with them.  At most, they offer tepid opinions, then qualify them so that no one could ever be offended.  They sacrifice strength and clarity, even having a point, for fear that it will upset someone, turn them away, make them hostile.  They cannot bear the idea of someone not liking them.

The difference between law blogs, blawgs as I prefer to call them to distinguish blogs that are written by or about the law from marketing blogs, aggregating blogs and weblogs that catalogue the daily activities of people, is that they are written by men and women whose purpose is to express a point of view on a subject of overarching public interest, the law. 

While blawgs are hardly as in-depth as law review articles, they do offer substantive information and, to some greater or lesser extent, reflect a perspective on legal issues.  They stand for something.  Any time you take a chance, put an idea into the public marketplace and subject it to peer (and general, as you have no control over who reads what you write), review, there’s an excellent chance that someone is going to disagree with you.

If you can’t handle disapproval, then you should not have a blawg.

At Above the Law, David Lat pulled off a monstrous coup in getting Mark Herrmann, formerly of Drug and Device Law, who moved from Jones Day partner to in-house, to write a column.  The comments following Mark’s first column were generally directed toward his physical beauty, with the commentariat ignoring the fact that under no other circumstances would the riff-raff have access to so accomplished a lawyer.  Yet they preferred to discuss his appearance than express their appreciation for Mark’s taking the time to write for them.

Subsequent critics of Mark Herrmann’s columns argued that they wanted to hear other aspects of in-house life rather than what Mark chose to write about.  Lat responded, in the comments, that if there was another in-house lawyer who wanted to write a column about the subjects the commenters raised, he was open.  But he added some qualities that were required for the job.

As for the commenters (the delightful present company), (1) using a pseudonym doesn’t prevent the writer from getting his or her feelings hurt (just ask Roxana of “Notes from the Breadline”), and (2) if you can’t stand the heat, then get out of the kitchen. If you’re going to write on the web, you have to be ready to be insulted, attacked, and mocked. If you can’t handle a few nasty words, then you don’t belong on the internet.

If lawyers are judged by the caliber of enemies they make, you’ve done an exceptional job. Congratulations.

I can only dream of my puss gracing a dart board somewhere in the bowels of the Department of Justice.

Don’t fear the attack or disapproval.  Embrace it.  There’s no way you can stand for something without generating enemies online, as the universe of readers will naturally include those who will disagree and feel compelled to let you know that out there, in that vast digital wasteland, there is someone you don’t know who comes to your home to enlighten you with the fact that you are wrong, stupid, ugly and evil. 

For those who seek validation from the internet, you don’t find it in approval, as there will always be blithering idiots who agree with you as well as those who don’t.  You are validated by those who attack you, for you’ve said something that mattered enough to make them angry.

For the rest of us, just take it as proof that you’re alive.  Only dead lawyers have no enemies.  If no one says mean things about you, then you’re doing something very wrong.