Yet another reason validating my decision never to jog. Duane Starkenburg, an avid jogger and admirer of womanhood in spandex, was been arrested as the suspect in the Lincoln Park jogging attacks. The official version:
Just before 4 p.m. Tuesday, a 27-year-old woman was jogging on the waterfront trail in Lincoln Park, in the 8000 block of Fauntleroy Way Southwest. According to police, an unknown man ran up behind her and attempted to tackle her, throwing his arms around her legs. The woman, who was not injured, was able to break free and get away.
And the unofficial version:
Starkenburg, who lives with his parents in West Seattle, told his mother the whole thing was an accident, according to his mother, Lois Starkenburg.
She said her son, an avid jogger, was jogging when he bumped into the woman and fell to the ground.
“He told me he looked up at her and said, ‘I’m awfully sorry,’ ” and went on with his jog, his mother said. “But two guys told her he’d tried to tackle her.”
As the media splashed Starkenburg’s face on the screen, two other women came forward to say that they too were victims, as police “urged anyone who might have been a victim of “unwanted touching” anywhere in West Seattle to come forward.” Who could pass up an offer like that?
Nonetheless, Starkenburg was released on $25,000 bond, and immediately ambushed outside the courthouse by reporters.
While one might suspect that his attorney would have escorted him from the building, or at least advised him not to be goaded into answering questions and to offer nothing more than a smile and the tepid words, “my lawyer has told me not to say anything about the case,” Starkenburg talked.
What’s particularly interesting about this interview is that he’s quite articulate, despite his being dirty, tired and hungry as would any just-released defendant. The footage is raw, and his responses are raw, revealing both the anger and frustration at the charges as well as some well-founded issues with the allegations against him. Rarely do we get such an untouched, unrehearsed, uncontrolled view.
Still, the spandex comment isn’t likely to help, even if he makes a valid point.
If the only point of the letter was to grab the judge’s attention, then Massachusetts law student Ray Wolfe was certainly successful. But if he hoped to persuade the judge, not so much.
The underlying problem was rather typical, a couple of traffic tickets in Missouri returnable while a student was out of state, creating appearance issues that happen with some regularity. The solution is to write the court a letter seeking an adjournment to a date when the student will be back in Missouri. No big deal, unless the student takes an overly aggressive tone.
To let you know I use the word “Judge” lightly in your case. Your asshole (traffic cop) wrote me that ticket, committing constructive treason, and perjury of his oath, as you are about to do. If I come down there you damn sure won’t want me in your courtroom. I know you have people in the courthouse guarding your sorry “Communist” ass. I told you I am currently “Out OF STATE” and I demand a continuance. This is no longer a request! … I left that State to get the education so I to be able to fight on there playing field. (In the courtroom) instead of where I have been trained to fight (On the Battlefield) which may be where this winds up if you keep your shit up.
The State of Missouri has failed to provide me with justice, with the securities provided in the Missouri, and United States Constitution, and I will not pay for any injustice in Missouri “Unless it is in BLOOD.” So the question is? Do you want to meet me on my turf “The battlefield” —JUDGE. You best leave me out of that State until I get ready to return.
A bit hyperbolic? It almost makes one reconsider the efficacy of starting a motion with a paragraph consisting solely of the word “oh”. Without explanation, this letter apparently failed to accomplish the goal of obtaining an adjournment, prompting Ray Wolfe to take a second shot.
I would refer to you as Judge but you already proved that you are not interested in justice by the warrant you issued. What do you want BLOOD, because that may be what you get.… Injustice breeds contempt, and with judges like you I am really surprised that people have not got together and started a revolution to hang communists like you, the prosecutor and of course your butt buddies that keep you busy. … I know you really do not want me in your courtroom now that you have violated my rights. You have better be glad that no officer stopped me while I was on vacation from college. As I am sure it would have made the headline news. As you might be able to ascertain by now that [sic] I am tired of your shit, and the city of Springfield’s shit! If I pay the city of Springfield anything – it will be in BLOOD. Your lying no-good officer started this shit, I will try to make him pay the ultimate price for his lies since you do not have the integrity to do what is just, fair and proper. … [Y]ou are doing nothing more than committing usurpation and tyranny. “Tyranny and usurpation are illegal, and they may be resisted by force, and governments founded thereon may be dissolved in the same manner that people may resist robbers or pirates” (Second treatise of a civil government, p. 170, 174, 177). There is nothing I would like to see more in this country than a good old-fashioned bloody revolution where the people can take the trash out of government and hold them accountable for the tyranny and treason that they have committed. We could once again install a people in government that is for the people and by the people, instead of the communist greedy bastards that are currently serving themselves and their masters.
With this being said and forwarded to various agencies, you can take that arrest warrant and shove it up your communist ass!
What could possibly go wrong? The judge did not find the second letter nearly as amusing as the first, and pressed charges against Wolfe for tampering with a judicial officer. He went to trial. He lost.
From the appellate decision affirming the conviction, we not only get a glimpse at Wolfe’s idea of how to write a letter designed to convince a judge to go along with him, but, based on the closing argument, Wolfe had in mind when carefully choosing his words.
In its closing argument, the defense openly conceded that Wolfe was trying to “shock” the judges into taking a judicial action that Wolfe wanted: The words of this letter is [sic] inspiring. These are words, that Jeffersonian style words which have been used to inspire people. However, this was not the purpose. This is for shock. It was for shock value to get the attention of a judge, get the attention of the Court and look at this and take a look and let this man have a continuance, getting past his days where he’s on vacation from law school, where he’s going to be home. Don’t make him travel 3,000 miles, you know, each time for multiple conferences, accommodate him. It’s not that hard, they do it every day.
…
It’s the same language that we’re using today to get the attention of an overloaded municipal judge to look at the case and do the right thing. [our emphasis]
Naturally, the snarky prosecutor responded,
I might have missed some days in history class in high school, but I don’t remember Thomas Jefferson ever telling you, “You can take that arrest warrant and shove it up your Communist ass.”
At Above the Law, Elie Mystal, himself a graduate of a Massachusetts law school (coincidence? Hmmm.) attributes Wolfe’s strategy to a personal failing, calling Wolfe “dangerous and unhinged.” But can this “deranged” behavior be so easily brushed aside? Was there no hint of Wolfe’s somewhat unorthodox approach in his law school discussion? Or perhaps this is what he was taught to do by his law professors.
Putting aside, for the moment, that the Massachusetts law school brand just took a major hit in my office, some might question whether Wolfe sought to threaten the judge with harm or, as his attorney argued, employ “Jeffersonian style words” to “inspire” an “overloaded municipal judge” to “do the right thing.”
Wolfe’s purpose. to obtain an adjournment to a date when he would be back from law school and physically in the court’s jurisdiction, was unremarkable. The opinion purposefully omits any discussion of why the judge set the case down for dates when Wolfe was unavailable, and it may well be that the judge was particularly cavalier in his lack of concern for the viability of a student in Massachusetts appearing in a court in Missouri to answer some tickets.
Judges can be rather demanding that way, you know. After all, some are more concerned with moving their calendar along than with the cost and burden it imposes on a defendant. While they could easily accommodate a reasonable request for an adjournment, some prefer to flex their judicial muscles by holding fast to their schedule, no matter how difficult they make it on others.
But even if the judge was less than reasonably accommodating, Wolfe’s approach, to grab him by the collar of his robe and shake him as hard as he could, was unavailing. There’s a lesson here in both picking battles and persuading others to do as we want. Don’t make threats against someone whose power far exceeds your own, and upon which you can’t deliver.
There has been a growing sense amongst law students, and even newer members of the bar, that we are all relative equals in the law. It’s given rise to the prominence of libertarian values on the internet, the expectations of the Slackoisie that they will be ushered into their very own corner office on the first day of their job, the arguments for compliance with their wishes (not requests, but demands). What’s optimistically seen as a war of words, heated rhetoric, a right too many ascribe to themselves no matter what the circumstances, comes out as a bizarre, indeed deranged, string of threats.
Maybe Ray Wolfe meant what he said, and was ready to spill blood on the courthouse steps if he was forced to return to Missouri to answer the bench warrant. One can never be sure. But if that wasn’t really his intention, and he sent those letters with the hope that he would influence the judge to see things his way and grant an adjournment, then he did a very poor job of it.
And this is who fills a seat at a Massachusetts law school? The most important questions unanswered are whether the school knew they were taking tuition money from a nutjob, or whether this is the mind they molded. Either way, it should be clear to all that this is not the way to influence a judge.
Via the Legal Profession Blog, a New Jersey appeals court explains why it’s a very different animal to sue your criminal defense lawyer for malpractice, as opposed to alleging ineffective assistance as a basis for reversal.
The plaintiff, Jeffrey Marrero, served 20 months of a five year robbery sentence, until he was released following reversal on appeal and a decision by prosecutors not to retry the case. While the conviction was reversed for judicial error, cellphone evidence was raised in anticipation of retrial that would support the defendant’s alibi claims and contradict an equivocal identification. And so the case was dropped.
Dissatisfied with the lawyer who tried, and lost, his case, and with merely being freed and his case dismissed, Marrero went the next step: malpractice. He sued Howard Feintuch, the lawyer who, Marrero claimed, was negligent in investigating his defense, amassing the evidence and presenting it to the jury, all resulting in Marrero’s conviction.
This is the point where a criminal defense lawyer shifts gears. While it’s long been my view that our ongoing duty to do no harm to former clients continues when they raise ineffective assistance of counsel claims, and indeed, if the defendant’s argument turns out to be truthful and accurate, we should support their position and fall on our sword, But then, a claim of IAC is the defendant’s pursuit for vindication, not an attack on his lawyer. Yes, I realize it feels like an attack, but the lawyer has nothing at risk except some possible hurt feelings. You’ll get over it.
Suing for malpractice, however, terminates the obligation to support a former client. Like grieving, it demands a response. Your lawyer may love you dearly, but not enough to let you dig into his pocket and see what you can find. Did you really think otherwise?
Feintuch subpoenaed a dear friend of Marrero’s for a deposition, a friend who was on the prosecutor’s witness list at his trial but who failed to show. Now that’s a real friend. Marrero moved to quash the subpena, and the trial court granted the motion. The trial judge held that the friend went to Marrero’s “actual innocence,” which she held was not at issue in the malpractice action, rejecting the widely held premise that a defendant cannot benefit from his “iniquity,” and must prove actual innocence to maintain a malpractice action against his lawyer.
Instead, we accepted as a founding premise that “both the innocent and the guilty are entitled to competent counsel.” Id. at 288. Noting malpractice cases focus on “whether the plaintiff was damaged by an attorney’s negligent performance in the underlying criminal action[,]” we favored allowance of a remedy when a criminal defendant was damaged by the negligent conduct of an attorney who was duty bound to protect the client’s interests.
The appellate court accepted, as it must, the rule that actual innocence was not a required element of an action for malpractice, but nonetheless held that evidence that his defense was as defensible as he made it appear was indeed relevant to the action.
We reject Marrero’s assertion to bar Stenzer’s testimony because the State’s decision not to retry him resulted solely from defense counsel’s failure to introduce the telephone records. The ultimate decision not to pursue retrial was also greatly impacted by the victim’s equivocal identification and the unavailability of the assistant prosecutor who had participated in the first trial but had been deployed for military service in Iraq. We are told the defense had uncertified telephone records at trial but did not use them and that the State had listed Stenzer on its witness list to blunt any effect once the telephone records were offered. Thus, the production of the certified records alone did not cause the State to decline prosecution. Believing Stenzer’s testimony would have been damaging to Marrero in his criminal trial, defendants may have withheld the records, so as not to trigger the State’s presentation of Stenzer. Therefore, Stenzer’s deposition may confirm defendants’ assertion that their decision not to present the telephone records was not negligent.
That the rule in Jersey that even guilty defendants are entitled to competent representation is a good one, indeed an important one given that the guilty defendant is more in need of competent counsel than anyone else. Beating weak cases isn’t nearly as difficult as beating the slam dunk guilty case. Yet, a defendant should never forget the little details that go along with subsequent exoneration when deciding whether to sue the lawyer for malpractice. Like the fact that you did it, and just skated, and there are witnesses who can turn you from hero to zero in no time flat.
There is an odd thing that happens in the heads of people who win their criminal cases, whether before, during or after trial. They tend to forget that they were guilty, committed the crime and got lucky. This may skew their perspective just a bit, causing them to have an inexplicable belief that the exoneration makes all the evidence of guilt disappear. They similarly tend to forget that their defense lawyer knew all about the evidence that would sink them.
In revisiting how a trial might have ended differently, the criminal defendant may not have the best viewpoint on how their trial strategy developed. For example, they may forget that the reason their lawyer decided not to open a particular door was because he knew about the huge, looming evidence monster hiding behind it. Raise an issue and the prosecution is alerted to even better, stronger evidence than what they already have. You didn’t want to do that in preparation for trial for a reason. It doesn’t disappear because you’ve forgotten the reason after the case was dismissed.
This isn’t to suggest that lawyers who defend the accused should be allowed to commit malpractice with impunity, whether the defendant is guilty as sin or pure as the drive snow. Both the innocent and guilty alike deserve competent counsel, and the fact that the rule is that only the defendant who was actually innocent suffers cognizable injury from malpractice doesn’t provide the proper incentives to those plead ’em and weep lawyers to do their jobs.
But the primary focus should be winning the case. Once done, regardless of the basis for dismissal or reversal, take a serious step back before suing your lawyer. Think long, hard, and realistically about what was more responsible for your conviction, your guilt or his. If you push the envelope, you may go from innocent in prison to guilty man walking.
Brian Tannebaum pisses off a lot of early adopters, harping as he does on such IRL concerns such as honesty, integrity and the fact that no hi-tech device makes you a better person. He wasn’t the only person who thought this, apparently, as he posts about someone named Loren Feldman.
Loren Feldman is a big thorn in the side of all the losers who see social media as a road to riches, as something that defines their existence, as a “real” world of “friends.” Social media evangelists hate Loren, because for one, he makes videos (all now deleted from the internet) that can be summed up with this message:
Are you people kidding me?
Loren attacks the phonys, the frauds, the ones whose image is nothing more than a twitter account and Facebook fan page. He goes after those in social media who have attempted to make money off telling people what they already know, while trying to convince them that the riches will follow if only their advice is heeded.
Now I’ll reveal a little something about Tannebaum that many of you don’t know. He doesn’t really hate the iPhone. He doesn’t really hate people who have and use the iPhone. What he does hate are people who twit and post and Facebook about the iPhone, as if the iPhone is what makes you a worthwhile human being rather than, say, being a worthwhile human being.
Feldman, who apparently works in the digital media arena, appreciates its limitations in ways that failed lawyers and mommies who are angry that they can’t jump in and out of practicing law at their convenience do not. It’s an intellectual void.
I’ve said before that there is no intelligent life on twitter. Feldman thinks so too. Those who adore twitter and feel compelled to justify the time wasted twitting disagree. Their wives and children, sitting there watching daddy tapping away to swap short, cutesy comments with teeny-boppers in distant lands, aren’t amused.
But Feldman captured a greater truthproblem issue when he wrote about something called the “Social Graph.” He says the Social Graph is Stupid. Not knowing what the social graph is, having missed last week’s memo on cool, new social media lingo, I felt compelled to learn.
I hear a lot of talk about the web social graph. Another made up meaningless word these web clowns thought up. It’s a fancy way of saying people you know online. Apparently these dopes think that this is important to you. It’s not. Here’s why your web social graph is meaningless to you and your life.
Firstly, you barely know the people in your social graph. These aren’t real friends, they are people whose avatar you recognize. Following someone and giving a shit, about them, or their opinion on what soap to use are two very different things. I’ve met some nice people on the web, but I do not know them well enough to care about their opinions. About anything. You care about the opinions of smart people you know and trust. Think for a second and be honest. How many smart people have you met online? Would you trust these people?
You already have your social graph. It’s your friends in real life. Your friends online? Sure they are nice and all, but do you really trust them? You haven’t even met them in real life, and you are going to trust their opinions? That’s just stupid. Real stupid. Trust me, after all I’m in your social graph.
I’m still not clear on what a social graph is, but it seems to be an infectious disease.
Loren Feldman’s views are from, and about, tech people. Here, it’s all about lawyers, a different breed altogether, right? After all, rather than merely concern ourselves with shiny gadgets, we deal in lives won and lost. Not nearly the same big stakes, but big enough.
Back in the good old days, I didn’t ask a listserv a question about how to defend my client. Why? Because I had no idea who would respond, what they knew, whether they were right. I did my own research, spoke with people whose knowledge, experience, opinion I respected, then did more research. It would have been much easier to ask a question of the crowd, but how could I possibly put my client’s life in the hands of the crowd? It’s just nuts.
Today, the listserv (which, ironically, is still going strong and still as awful as ever among the few dozen New York State criminal defense lawyers who post among themselves) is quaint compared with new tech. The cool kids ask on Facebook or Twitter rather than a listserv. After all, those are newer technological resources, and newer must be better.
Which brings me to the “friend” thing of which Feldman writes. I’ve been told I’m stand-off-ish, maybe even elitist. If you follow me on twitter, chances are not good at all that I will follow you back. If you friend me on Facebook, chances are even worse that I’ll engage you, as I don’t use Facebook at all even though I have an account. I only opened it to lock up my name, as trick that Niki Black taught me.
It’s not that I don’t like you, or don’t respect you, or don’t think you’re worth my time. It’s that I don’t know who the hell you are. You are one of millions of people online to me, just as I’m one of millions of people online to you. Are you a lawyer? We are equals in every respect, as far as avatars with letters following. What we are not is friends.
Should I follow your every word, your every twit? Why? I can’t tell if you’re someone who will enlighten me or a dog with a keyboard. You may be the most brilliant lawyer in the world, seriously, but how would I know? Law students, trusts & estates lawyers and nutjobs inform me that I’m wrong and a moron all the time. How would I distinguish a brilliant lawyer from a dog?
And so I offend people who are kind enough to retwit something I’ve twitted, or comment about something I’ve posted, by not showing appreciation, whether by way of a thank you or follow. Feelings are hurt, and instead of developing a coterie of followers who enjoy mutual validation, part of the cult of mindless “niceness,” I’m just a mean old man who won’t befriend the isolated baby lawyers searching for virtual self-esteem. Yup, that’s me.
Sadly, I would follow this guy, Loren Feldman, at least for a little while to see if he’s got more to say that crystalizes my thoughts about the dangers of social media being taken as a goal, a solution, rather than just another tool in the box of lawyers, and people, who live in the real world, where they have real friends and real accomplishments. These are people who don’t need to “authentically engage” with avatars as substitutes for the friends they don’t have in real life.
But I can’t follow Feldman as he’s deleted his twitter account. And he wouldn’t follow me back anyway.
It was a very effective advertising campaign for Verizon wireless, some geeky-looking guy walking around asking, “can you hear me now?” Sadly, the campaign ended when he was run down by Peterbilt semi. He never heard it coming.
From the New York Times, Brooklyn Senator Karl Kruger has introduced a bill prohibiting the use of cellphones, iPods and other electronic devices that give rise to “distracted walking,” after three pedestrians were killed and one critically injured on the streets of New York City since September. Similar laws are proposed elsewhere.
In New York, a bill is pending in the legislature’s transportation committee that would ban the use of mobile phones, iPods or other electronic devices while crossing streets — runners and other exercisers included. Legislation pending in Oregon would restrict bicyclists from using mobile phones and music players, and a Virginia bill would keep such riders from using a “hand-held communication device.”
Exercising in Central Park on Tuesday, Marie Wickham, 56, said she understood what all the fuss was about: “They’re zigging, they’re zagging, they don’t know what’s around them. It can definitely be dangerous.”
But Ms. Wickham added that she would be opposed to any ban of such devices. “I think it’s an infringement on personal rights,” she said. “At some point, we need to take responsibility for our own stupidity.”
We used to have a description of people who suffered such challenges, saying they were unable to walk and chew gum at the same time. It covered those who were too stupid, too uncoordinated, to manage to navigate life when engaging in two activities at once. Having spent many years walking the sidewalks of Manhattan during rush hour, I can attest to the extreme difficulties that many nice folks have with such mundane activities.
But are electronic devices different? The public-spirited libertarian approach is to diminish this proposal as more Nanny Statist pap, outlawing “distracted walking” because of a few dopes who got run down. Cynics amongst them see this as another excuse to collect fines at $100 a pop. They fail to appreciate the Luddite influence, an attack not on distracted walking (which is obviously just a marketing excuse) but electronic culture itself.
Like many others, I walk down the street unaided by ear buds, whether attached to iPhone or iPod. It’s not because I fear becoming so entranced by the buzzing in my ear that my life will be in jeopardy, but because I don’t need constant digital stimulation to make it through the day. I can walk, look around, think, and be remarkably happy without the sound of Justin Bieber (not Owen’s son, by the way) singing “baby” in my ears.
I have a cellphone. It sits peacefully in my pocket, turned off, until I need to make a telephone call. Having lived the bulk of my life without being available to the world at any moment, I’m quite happy to hear your voicemail when I’m damn good and ready. No, you cannot have access to me whenever you want. No, I am not available at the end of the cellphone 24/7. Not even 23/6 or less.
Yet this doesn’t stop the doofus in earbuds from walking into me, wholly oblivious that there are a million other people on the sidewalk, as he chatters like wacko about absolutely nothing. This is even more annoying than three obese women strolling two miles an hour, side by side, during their lunch hour blocking tens of thousands of people on 7th Avenue.
The problem with this proposed law, of course, isn’t that it’s more Nanny Statist pap, protecting us from ourselves because we’ve grown too damned stupid to pay attention to the obvious risks around us. The problem is that it fails to serve the greater good of distinguishing those who can chew gum and walk at the same time from those who can’t.
Where are the proper incentives? Why not make it lawful to pop some sucker in the chops who bumps into you while walking down the street talking on his iPhone? Why not make it, say, seven points instead of the normal 5 for running down a iPodder crossing against the light? Let them do what they want, and let others thin the herd as nature intended. Freedom is a two way street, and you better pay close attention when crossing it.
We’ve added to the arsenal of things that prevent the metacognitive challenged from paying adequate attention to the world around them. That they are incapable of behaving in a way that safeguards themselves doesn’t make them special. Or maybe it does, but not in the positive sense.
There are not enough laws, not enough dead children or iPhoners, not enough summons pads, to fix the problem of stupidity. That electronic devices offer yet another way to demonstrate obliviousness isn’t the fault of devices, but people who can’t take sufficient personal responsibility for themselves or demonstrate basic courtesy toward others. While they enable the oblivious to ignore the fact that they are not the center of the universe, with everyone else obliged to move cautiously out of their path so as not to disrupt their telephone conversation about critical issues of soap operas or lunch menus, they are not the cause of the problem.
Indeed, the better solution may be to let a few more pedestrians in earbuds get run down by large trucks because they neglected to notice that they walked or ran right in front of them. At some point, one of two things will happen. Either the oblivious will come to the realization that they need to take responsibility for not getting themselves killed, or the market for iPhone 16 will shrink significantly. Either way, problem solved.
Now, if there was only a law against obese people strolling side by side down the avenue at two miles an hour, they might be on to something.
Jordon Furlong posts at Law21 (eh?) about a particular pet peeve of mine, the rudderless direction of bar associations, As the wind blows, so goes the bar, whether the ABA in it’s “lets form a committee” approach to long-standing, well-known issues that have sailed past it, to local, specialized bar associations that become so embroiled in the fragile egos of its self-important “leaders” that it squanders what little authority it might have had on parochial projects of no consequence to its members.
Jordon, being a better natured fellow than me, allows these pointless institutions some leeway.
[A]ll of these activities have merit, to one degree or another, and lawyer associations legitimately can pursue any of them. The challenge is that, especially in a recessionary period and in the face of unprecedented private-sector competition, they can’t pursue all of them. Associations have to choose strategically — and more importantly, they have to decide what their foundation is.
What’s that one thing, that single unique and effective purpose, that associations primarily serve and upon which they are built? It’s not annual meetings, which have dwindled in attendance and importance as physical distances have become less of an obstacle to networking. It’s not improving the image of lawyers, investing thousands of dollars in fruitless efforts to make lawyers more appreciated and valued by a public that is quite happy to stereotype and scapegoat us. So what’s left?
This is Jordon’s kind way of saying that bar associations have grown pointless. The mission is long forgotten, or too far from any mission that might conceivably serve the needs of members, and all that remains is the trappings of an association. Award dinners and resume fodder aren’t enough to justify paying the tariff. Why exist?
Jordon offers an answer.
My own suggestion is this: lawyer associations should transform themselves into lawyers’ marketplace evangelists. They should adopt as their mission a sustained campaign to trumpet the unique advantages of choosing lawyers over the many other options spreading throughout the legal services market. Our de facto monopoly on legal services is already disappearing, and our regulatory advantages likely will follow shortly.
Lawyers need to differentiate themselves from the people, processes and programs that are coming into the marketplace and drawing clients away; but no lawyer or firm is going to launch an expensive and complex campaign that will benefit competitors as well as colleagues. Lawyer associations can. And they can do so by emphasizing lawyers’ training, professionalism, ethical standards and other outstanding characteristics with which lawyers are proud to be associated.
He’s absolutely right. Lawyers, when we conduct ourselves in the highest order of our profession, fulfill a need that no online legal form can serve. The public has lost faith in lawyers, and the law, to serve them in a professional manner, meaning putting our clients’ interests before our own and putting in our own efforts to provide excellent representation. The path of professional failure is strewn with our crass laundry-soap marketing efforts, and whining about work/life balance and the unfairness of every kid a year out of law school not being able to buy a BMW while leaving the office by happy hour.
But it’s not just the reinvention of the image of the profession, but a renaissance of the profession itself. Lawyers do not only possess a monopoly on the right to practice law, but a duty to practice is professionally as well. Without the latter, the former is just more garbage marketing. We clearly need to change the image, but we need to live up to the image we want other to see.
How many out there are prepared to take down the crap on your websites that proclaim your vast experience when you’ve only been a lawyer for 12 minutes?
This too can be part of the same mission, to strongly encourage lawyers to return to the fold of a learned profession. We can embrace those who strive for excellence, and we can shun and reject those who think they look better walking the street in short shorts. We can be proud of what we do and who we are, but only if and when we deserve to be proud.
As Jordon urges bar associations to change their external focus, he also offers this suggestion to change their internet focus:
Internally, I think they need to focus on collegiality and collaboration. As society becomes more virtual, face time becomes far more valuable. But lawyer gatherings of all kinds still over-emphasize the role of educational sessions and business meetings — events that lawyers can attend from their desks or on their smartphones — while relegating socializing and networking opportunities to short coffee breaks or abridged cocktail parties at the end of the day. Associations should reverse this: host gatherings to network and socialize first, and to learn or conduct business formally as a sidebar. Look for ways to encourage face time and personal interaction among lawyers — hold un-conferences, sponsor speed-roundtables, form micro-panel discussions for small, specialized groups, and so forth.
It’s unclear whether Jordon’s suggestion is similar to mine, as neither collegiality nor collaboration are goals in themselves, but merely means to an end. Initially, I’m not a fan of collaboration, the elevation of consensus and compromise over the far harder choices of right and wrong.* While I realize that collaboration is fashionable, it’s also the quickest route to mediocrity. I’m not a fan of mediocrity.
But the collegiality suggestion is more promising. Through the growth of norms of conduct, praise and admiration for those within the profession who strive for excellence, and bringing those whose concerns are limited to the quick buck back into the fold of personal pride and responsibility, we can do far more to elevate lawyers back into a profession, one worthy of the public’s trust and admiration, than can a hundred new ethics regulations. Through collegiality, we can create an atmosphere that rewards those who strive for excellence and shows disdain for those who would turn law offices into used car lots.
The bottom line is that we’ve watched the law slide down the slope of professionalism into the gutter of mercenary self-interest. If this is the best we can do for ourselves, then perhaps self-help forms and pro se trials are no worse than wasting money on a lawyer.
Bar associations have, for the past decade, played a critical role in encouraging our downward spiral. Their focus has been on appeasing the latest craze, enabling the quick buck and excusing the self-serving behaviors of lawyers who have disgraced a once-great profession. If only the pompous few who feel compelled to be important bar association leaders could put their self-aggrandizing energies to use in restoring a sense of professionalism among lawyers, and furthering our purpose as learned professionals to help our clients, they might have a point to their continued existence.
And so might we. If our only point is to make a buck, then we have come to the end of the road, just like our associations. Sure, lawyers need to earn a living that justifies the cost, in both money and opportunity, of entrance, but that comes as an adjunct to our deserving the respect and trust of the public for our dedication to excellence and our clients’ cause. It would be a damn worthy mission if bar associations would become a part of this fight.
* Addendum: Having thought about this a bit further, it occurs to me that I may have misunderstood Jordon’s point about collaboration. It may be that he’s suggesting that we help each other, to be better lawyers and better serve our clients, rather than become enablers of mediocrity within the profession. If so, then I’m with him all the way and apologize for having maligned his ideas due to a disagreeable choice of words.
Ahmed Khalfan Ghailani was sentenced by SDNY Judge Lewis Kaplan yesterday to life in prison upon his conviction for conspiracy in the 1998 East Africa embassy bombings. The government argued that he was a remorseless terrorist. Ghailani’s lawyer argued that he was a dupe who had been tortured by the United States along the way.
But the judge, Lewis A. Kaplan of Federal District Court in Manhattan, said that no matter how Mr. Ghailani was treated while in detention, “the impact on him pales in comparison to the suffering and the horror that he and his confederates caused.”
“It was a cold-blooded killing and maiming of innocent people on an enormous scale,” Judge Kaplan said. “The very purpose of the crime was to create terror by causing death and destruction.”
While this quote from the Times doesn’t seem to address anything substantive, dwelling instead on the melodramatic aspect of the sentence since actual findings can be so very boring, I’ll accept, arguendo, the proposition that Judge Kaplan did not agree that Ghailani was a mere dupe, but knew what he had gotten himself into and proceeded nonetheless.
In November, a jury convicted Ghailani of one count of conspiracy but acquitted him of more than 280 other counts in connection with two truck bombings outside U.S. embassies in Tanzania and Kenya that killed 224 people and injured thousands.
If memory serves, the acquitted counts numbered 284. Our mighty and powerful government indicted this man of 285 counts and managed to eke out a conviction on just one count? How strong and omnipotent we are. How righteous our use of our vast might.
How embarrassing that Preet Bharara and Eric Holder piled it on, higher and higher, The most power nation to ever exist on the face of the earth, with resources so vast and overwhelming put toward the conviction of this one little man, and the best they could do was convict on the one generic conspiracy out of 285 counts of heinous crimes.
Judge Kaplan imposed a sentence of life in prison without possibility of parole on the single count of conviction. I lack the knowledge to suggest that his sentence was inappropriate, and credit his sentence as fully justified. But what would he have done had Ghailani been convicted to two counts? Or 37? Or all 285 counts? Would Ghailani have been sentenced to life times 37? What about life plus cancer?
As it stands, there appears to be 284 counts that were tried that didn’t matter at all. Is this what our system is all about, pointless charges that are merely piled on in the hope that the jury will find one, for whatever reason, to hang their hat on? Would this life sentence be any different if it came upon a conviction for more than a single count? Certainly Ghailani doesn’t get extra lives so that he can be punished over and over.
Assuming, as I do, that his connection to the deaths of 224 people, not to mention those injured by the attacks, justifies a sentence of life in prison, even if for only a single count of conviction, how does that compare to the life sentence imposed on those whose heinous crime is the theft of money? It should give on pause, a long, long pause, when comparing the relative evils. If Bernie Madoff should die in prison, shouldn’t Ghailani die many times in prison? But it doesn’t work that way.
The one fact that cannot be ignored is that Ghailani was acquitted of 284 counts after trial. That’s a massive number of counts, so much so that it cannot do other than make one believe that our government is insufferably petty, and our legal system can be so easily loaded, manipulated, drowned under raw numbers of meaningless charges, as to reduce it to a farce.
Acquittal of 284 counts, with conviction on one, is farcical.
I’m well aware of how and why multiple counts can be charged, how the numerosity of laws, victims, the interplay between elements of offenses, could result in massive numbers of charges. But I also recognize that most of the time, when a discrete act of carnage occurs, there is a fundamental point at issue. Here, the point was whether Ahmed Khalfan Ghailani was part of the coordinated Al Qaeda conspiracy to blow up the United States embassies in East Africa. So charge him for that crime, and if the evidence is there, convict him and then sentence him.
Instead, the United States government embarrassed itself by losing 284 counts against Ghailani. And embarrassed us, the citizens for whose benefit this government exists, in the process. And embarrassed the legal system for which lawyers have dedicated their minds, efforts and beliefs, by making it appear farcical, fundamentally lacking in integrity, rather than the core of fairness and propriety that terrorists fight to undermine.
When the government decided to charge Ghailani with 285 counts, it put our system on trial. It lost on 284 of those counts. What sentence should be imposed on the government for being on the losing end of this farce?
There was a time when every well-dressed man wore a hat, often a fedora but sometimes as wacky as a bowler or even a boater. Hats fell out of fashion, and were rarely seen. They’ve come back, mostly resembling the caps worn by baseball players and drivers of John Deere tractors on farms, though sometimes worn slightly askew, sometimes backward, with or without price tags, and are frequently worn by young men.
This means the old rule that gentlemen removed their hats indoors was again in play. The difference is that hat wearers today don’t ascribe to the old rule, and indeed see little wrong with keeping their lid on at all times. Old-timers see this as a critical lapse of etiquette. New-timers see this as, well, nothing of any consequence at all.
Courts, however, had a fairly uniform rule when it came to hats. They were not permitted in courtrooms. Neither cowboys nor millionaires were allowed to wear hats in a courtroom. There was no hard reason for it other than maintaining a semblance of dignity and formality, the atmosphere that courts hoped to maintain. The rule existed back when fedoras were favored. It existed when hats were scarce It will exists today.
The only exception is for hats worn by police, largely because they are comrades in arms of court officers and comrades don’t tell comrades what to do, especially when police are armed and higher on the law enforcement pecking order. Issuing an order to a police officer to remove his hat, a hat that was part of his required uniform even when it wasn’t fashionable or a hat worn to keep his “high and dry” warm in cold weather, was bad form, even worse than hat-wearing indoors.
Lawyers largely accept and adhere to the rules of courtroom etiquette. Indeed, we rarely give a thought to why they exist or whether they make any sense. It’s just part of the job, dressing in the lawyer uniform and uttering the lawyerly words expected of us. Why call the black-robed guy “your honor,” for example. It’s less that we maintain a personal belief that the fellow is particularly honorable than we employ the usual honorarium honorific.
We are there to fight battles, but screwing with the rules of etiquette isn’t among the battles we care to fight. More to the point, we accept for the purpose of maintaining an orderly process that these rules exist, and play along. It helps our ability to do our job as well. Imagine if audience members were allowed to hoot and holler if they didn’t like what we said. We don’t want to be disrupted, so we enjoy the benefit of the atmosphere of formality. It’s not that it always helps us, but that the alternative would be worse.
But what happened to Pete Eyre in Keene, New Hampshire, via his friend Radley, forces me to think long and hard.
Eyre should have removed his hat when he was first told to do so. His response when told of the court policy, “I didn’t sign that policy,” was childish and wrong. As we wander through life, we are not entitled to have individual approval over the way others run things. When Pete walked into that courtroom, he understood (or at least should have) that he subjected himself to the rules of the court.
Granted, his political view may be that individuals should not be subject to the unilateral fiat of the government, and that this was an act of civil disobedience mandated by a pointless policy that government has no authority to impose. Perhaps, but if so, then what followed is what he asked for. If this is the sort of fight he wishes to make, so be it.
However, the issue doesn’t end here. In a split second, the court officer went from right, if not silly, to wrong by ordering him to leave and then following his words by “or you will be arrested.” This was immediately followed by the officer wrestling Eyre to the ground and cuffing him. Eyre continues to sound off about his hat being his property, an irrelevant point since the demand was to remove it the courtroom.
The gist of the “Free Pete” is that wearing a hat is not a crime. Of course it isn’t. Refusing to adhere to the rules of decorum in a courtroom can be a crime, however, as can failure to follow a lawful order. That some feel differently isn’t much of an argument; we don’t each get to decide what rules to follow and what rules we think are ridiculous, and therefore can be ignored.
The problem here is that the resort to force, to the assertion of physical control, to arrest, comes far too quickly and easily. The state has armed men to make us behave as they demand, but they should only be used as a last resort and only when necessary to protect a more substantial interest. Wearing a hat? Not worthy of force, and certainly not worthy of arrest. Tell him to remove the hat or leave. Tell him a few times. So what if Pete Eyre’s “argument” that he never agreed to the “no hats” policy is asinine. Behaving badly isn’t a crime either.
The near-immediate resort to force, to the ultimate power of arrest, for something so trivial and, frankly, a rule of etiquette and decorum rather than one that protects anyone from any actual harm, is what pushes people, like Eyre, to engage in silly resistance and refuse to acknowledge a middle ground of relative order so that bigger, more important battles can be fought. There are critical fights to be had in this world, and foolish ones do little by distract from them.
The bottom like of Eyre’s fight is that Pete Eyre doesn’t think he should have to take his hat off in court. He believes that he gets to make his own rules, to adhere to whatever code he personally finds acceptable. Anarchy or narcissism, I can’t say, but Eyre is wrong. Without some general order, nothing gets done, neither good nor bad. For people who have things to achieve beyond fighting for Eyre’s right to behave like a three year old, this is just a sideshow that makes the main event that much more difficult to accomplish.
Free Pete? Sure. His “offense” was ridiculous, as his conduct was beyond churlish. But if there was only one person to be freed today, Pete Eyre wouldn’t be my choice. There are far more worthy people, who have suffered far greater indignities with far less reason, that deserve our concern.
Free Pete? The officer who managed to take a dopey problem that could and should have been ably handled without anyone getting touched, cuffed and arrested was an incompetent buffoon whose conduct breeds the attitude in people like Pete Eyre to refuse to follow any rules but his own. Since the officer acted with the authority of the state behind him, he’s more wrong than Eyre. He too doesn’t get to behave poorly because he can’t think of any better way to perform his job.
If you don’t want to remove your hat in the courtroom, then stay out. If you’re told to remove your hat by the bailiff, then take it off. It’s a silly rule, perhaps, but real people suffer because of what happens in courtrooms. Get a grip and some perspective. There are plenty of silly rules in courtrooms, but they mean nothing compared to the harm done by serious rules. If you feel the need to take a stand, then focus on the serious harm and let the trivial go.
Is there a boy who hasn’t pointed his finger like a gun and pretended to shoot? From KOCO :
OKLAHOMA CITY — Mid-Del parent Lydia Fox said Tuesday her 7-year-old son was suspended Friday for fidgeting in class. Fox said her son, Patrick Riley, who is in first grade at Parkview Elementary, was asked to go home after he formed a gun with his hand and started to pretend he was shooting at a wall.
Naturally, school officials offer a more sinister version.
Parkview Elementary said in an official statement that “a student has repeatedly used his hands to simulate a gun and act as if is shooting fellow students.” However, Riley said he did not point his make-believe gun at anyone.
Mind you, this is a first-grader we’re talking about. Is it really critical whether he was “shooting” at fellow students or a wall? After all, there’s no evidence his finger was loaded.
My memories of those years are filled with drawing pictures of bloodshed and mayhem. The preference back then, at least among my crowd, was to color images of G.I.’s shooting their World War II enemies, and cowboys slaughtering indians. Tanks, bazookas and flamethrowers were huge. We grew adept at drawing explosions and dying bodies littering the ground. When we couldn’t draw, we played games on the playground that involved “killing” as many of our classmates as possible under any number of guises.
Were we terrorists? No. We were kids. We did what kids do. It was called imaginative play, and adults thought that it was good that we used our imagination to pretend things that weren’t.
In a bizarrely inexplicable and convoluted way, it’s understandable that school officials connect up tragedies like Columbine with first graders behaving like, well, first graders. The theme of guns is the common thread, and well-intended but misguided bureaucrats find it easier to apply overarching rules as a palliative to communities to show that they are effective public servants. Our old friend, zero tolerance, plays well with those who possess a ten second attention span. Sighs of relief are heard all around whenever a school invokes a policy that protects students from themselves.
But when, as here, the ramifications of knee-jerk policies come out, their absurdity cannot be denied. Rather than protect anyone from Patrick Riley’s finger, the school has turned a first-grader into a trouble maker at best, a future farmer terrorist at worst. Perhaps this young man would grow up to cure cancer or invent Mr. Fusion, but will now be directed toward vocational classes for those inclined toward finger violence and denied the opportunities he would otherwise enjoy.
“One of the things I’ve always been able to brag about Oklahoma is that common sense still rules here. Unfortunately, I don’t think I can say that anymore,” Fox said. Fox said she met with the school principal on Tuesday. She said they decided to “agree to disagree” on the matter.
Agree to disagree about what? Whether Patrick Riley is a danger to society? Whether Patrick’s finger should be registered as a deadly weapon? Whether the principal is a compliant fool who would happily sell out a child over nonsense to adhere to an official policy that defies reason?
In the meantime, Fox learned an important lesson about “common sense,” one that I’ve harped on insufferably here. There is no such thing. For all those nice people who believe that the implementation of simplistic and inflexible rules will somehow be moderated by the application of “common sense,” thus relieving them of the consequences of such ridiculous applications as this, welcome to Oklahoma. No, it’s not OK.
Most of us have the capacity to distinguish between things that have even the slightest potential to threaten the welfare of students. What troubles me is that the few who don’t manage to land themselves well-paying jobs as school administrators. It really sucks to be a kid these days.
Coming fresh on the heals of the discussion about swearing contests at Suppression Hearings, where the tailored or sanitized testimony of a police officer invariably trumps a defendant’s directly conflicting testimony, is this decision via Volokh Conspiracy from the Eighth Circuit in United State v. Prokupek.
In spectacular fashion, the circuit reversed the denial of suppression, holding the magistrate’s finding that the cop was credible to be “clearly erroneous.” The cops were busy pulling a cute little move:
Officers put up a sign indicating that there was a drug checkpoint ahead, and they then parked their cars by the nearest exit. Prokupek was driving on the highway, passed the sign, and then pulled over into the exit lane of the highway. At the end of the exit lane, he pulled over on to a country road and was stopped by the police. The police brought out the dogs, the dogs alerted to drugs in the car, and a search of the car yielded 151 grams of methamphetamine in the car.
While there’s nothing improper under existing law about pulling such a scam, the cops still needed an objective basis, even if pretextual, to make the stop. Here, the easiest was to claim a failure to signal, which could be proven testimonially and no one would be the wiser. After all, if the cop says you didn’t signal, how could a driver possibly dispute it?
Well these cops weren’t the best and brightest, and the dash cam caught the cop explaining that Prokupek failed to signal as he turned from the exit ramp onto a county road, specifically saying that he wasn’t pulled over for failure to signal when he changed lanes into the off ramp.
At the hearing, however, the cop testified opposite. On cross, the cop fudged his testimony, playing stupid and claiming he couldn’t understand the question. Pathetically, this didn’t trouble the magistrate, who found the cop credible. On de novo review, the district judge found the testimony “confusing,” but not so confusing that he wasn’t satisfied that Prokupek failed to signal somewhere, even if the cop’s testimony couldn’t manage to specify where the offense occurred that justified the stop.
Despite the finding that the officer was credible and the defendant failed to signal somewhere, the Eighth Circuit turned to the dash cam, the only bit of hard evidence of the stop, and called “foul.”
The district court’s factual finding that “Prokupek failed to signal his turn before turning from the exit ramp on to the county road” is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with the “firm and definite conviction that a mistake has been made,” United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous.
Of course, had there been no dash cam, or had the cop not shot off his mouth on camera about why he stopped Prokupek, thus establishing a baseline upon which his hearing testimony could be revealed as wholesale fiction, or better still, having adequately prepared for the hearing by making sure his two stories lined up, there outcome would have been the opposite.
As Orin Kerr notes in his discussion, there would have been no basis for reversal in the absence of this “objective evidence” that the cop was lying through his teeth. I add that there were numerous opportunities for the cop to have gotten his lies straight, conformed them to the content of the dash cam, and still gotten away with lying.
While we have video to thank, we also need to appreciate the fact that Trooper Estwick is a moron. A smarter liar would have easily gotten away with it.
Calls for videotaping, whether by police or civilians, these interactions is often held up as the cure for the disease of police testilying, whether tailoring testimony or fabricating excuses wholesale. In the instances where a camera shows the wrong or conflicts with testimony, we applaud, as well we should. Anything that shows when a police officer violates his oath and abuses his authority is a day that another life was saved.
Yet it would have been shockingly simple for this cop, had he not been such a blithering idiot, to conform his hearing testimony to what was recorded on his dash cam. Had he made the slightest effort to prepare, the dash cam video would have bolstered his fabricated testimony rather than contradicted it. Suppression denied, end of story.
That said, I would be remiss not to take further note of the little scam played by the troopers who put up the sign warning of a drug check point ahead, motivating drivers with drugs in the car to exit immediately and play right into the hands of the waiting troopers. Yes, Virginia, the police are lawfully allowed to lie to you.
Does such a ploy smell badly? Does it reflect poorly on the integrity of the police? Perhaps, but its a perfectly lawful means of goading a driver into revealing that he has no intention of going through a drug checkpoint. It may seem unfair, but it’s pretty darn effective. And really, isn’t that what law enforcement is all about?
But the fact that a driver pulls off the road after seeing this faux sign doesn’t give rise to a stop. After all, he may just as well be pulling off the highway because that’s his exit rather than an intent to avoid a drug checkpoint. So the cops need an objective basis, an offense committed in their presence, to justify the stop, after which they can lawfully walk the dog around the car for a quick sniff, and a hit constitutes probable cause to search under the automobile exception.
No turn signal? That’s all it takes to distinguish a lawful stop and the ensuing sniff, search, bust. Who’s to say that a driver actually did signal, in conflict with the police officer’s testimony that he observed a clear violation of traffic law in his presence? Only the driver. We all know how that testimony comes off.
From the