Over the past two weeks, I’ve been the target of another massive spamming campaign, brought about by my blawg being “sold” by some SEO spammer to those who believe that the way to your pocketbook is through the introduction of paid comment spamming. 

Who is doing this?  It’s websites from chiropractors to used care lots, pepper mills to puppy mills, incest rape videos to law firms.  These are businesses that pay some marketing scoundrel to build their search engine optimization juice by placing worthless, link-infected comments, dozens at a time, hundreds a day, all with one goal in mind.  Get on page one of Google.

The sad reality is that we all behave the same, looking for something we need on a search engine and clicking on the links on the first page.  It’s convenient, and the products are staring us in the face, and there’s a lingering belief that the reason they appear on the first page is that they are the most popular, and hence best, website for the product we want to purchase.

What’s dawned on me is that there is an awfully good chance that the reason these products and services are found on the first page is that they’ve been busy paying SEO spammers serious money to get them there.  Instead of reflecting quality of service, or fairness of price, or popularity of product, it reflects that they are the worst, lowest scum around.  By clicking on those websites that come up on page one, we fuel an industry of lies, deception and abuse.

We are the incentive system for spam.  We may hate it, but we cause it to exist and thrive.

As I was deleting the spam comments that have clogged SJ over the past two weeks, and caused the many problems with comments that some of you have written to me about, I briefly stopped cursing the absurd fawning comments in broken English tempting me to leave them there to flatter my fragile ego and considered what could be done to stop these animals.  It was then that the Fifth Page idea came to me.

While it would take a fraction of a second longer, an eternity in iPad time, rather than start clicking on those websites appearing on the first page of Google, if we went to the fifth page and started there, it would undermine the incentive to engage in SEO spamming to raise the profile of some misbegotten website whose appearance on page one is only due to its paying former Russian collective farmers to sit at computers all day long and spam the living crap out of others. 

Start on page 5.  Ignore page 1.

We are all aware that our Google searches bring up hundreds of thousands, if not millions, of websites spread across more pages than can be shown at the bottom of the screen.  What makes anyone think the businesses on page 17 aren’t just as good, if not better, than the businesses on page 1?  Sure, there will be some websites, some businesses, who appear on the first page because of true organic merit, that their service or product excels, but we already know these big names by virtue of their inherent worth. 

On the other hand, if you search for doggy toe clippers, or some similarly unusual items, chances are that the website you come up with on page one is there because they’ve invested a tidy sum in spamming.  Is that the sort of website you want to do business with?  Is that the sort of person you can trust, the one whose placement is due to lies, deceit and abuse?  Is that the sort of conduct you want to encourage by doing business with those whose business plan is to spam?

We need to address the problem of massive SEO spamming, and for those of you who have never had the pleasure of a thousand new spam comments greeting you in the morning, let me tell you it’s unpleasant.  This isn’t one or two, or even ten, but literally hundreds of worthless comments whose sole purpose is to scam consumers by jettisoning websites to the top of Google. 

Sure, this is the longest of shots, changing behaviors that encourage such spamming, even if it involves a mere fraction of a second and one additional mouse click.  But if it defeats the incentive system for SEO spamming, maybe it would be worth it.

If nothing else, it would free up my mornings to write posts about drug collars rather than delete spam comments about flea collars.

Update:  In an early comment to this post, “Palatandnob” wrote:

You certainly have some agreeable opinions and views. Your blog provides a fresh look at the subject.

I’ve never been to Tulia.  There’s no particular reason why I would go there, and yet after reading Alan Bean’s book, Taking Out The Trash in Tulia, Texas,* published by Advanced Concept Design Books, I feel as if I know the place well. 

The story is now well known to those who are concerned about criminal justice, when one early morning in July, 1999, saw a round up of 46 people, 39 of whom were black and comprised 15% of the towns black population, all based on the “undercover” activities, and integrity, of a mutt cop named Tom Coleman.  Based on Coleman’s uncorroborated, and facially false, testimony, the Tulia defendants dropped like flies. 

The story of Coleman’s exploits produced a local newspaper headline, “Tulia’s streets cleared of garbage,” giving rise to Bean’s title.  The men and women, marched off in their underwear to holding cells, and from there to pre-ordained convictions that would rid Tulia of “their kind,” was embraced by the good folks of Tulia, disinclined to quibble over the niceties of law and proof.  The one-time high school sports heroes and regulars in town were no longer desired in Tulia, and ridding the town of them was a sufficiently necessary goal that otherwise God-fearing and kind residents wouldn’t lose any sleep.

Alan Bean, a minister and author who came to Tulia because of his wife, Nancy’s, parents, Charles and Patricia Kiker.  Bean recounts the story of people with such colorful names as Kizzie White and Bootie Wootie (because Joe Moore sounded too, well, normal?) in a narrative that captures the flavor of Tulia’s underbelly, the poverty, the desperation, the way life goes on as if this was how it was supposed to be.

His story used the colorful language of colorful characters, and characters is the only way to describe them.  From Gary Gardner, a redneck farmer with a nasty mouth and a penchant for keeping a loaded rifle by every window, just in case, to Randy Credico, a carpet-bagger for justice from New York’s Kuntsler Fund for Racial Justice, who seems about as far out of his element as an ersatz comic impressionist turned racial freedom fighter could be. 

Most extraordinary is the manner in which Bean recounts the story of Tulia, providing what seems to be just raw description without the sense that it’s been colored to persuade.  Granted, Alan Bean and his wife formed the group Friends of Justice, integral to bringing the monumental, yet mundane, injustice of the Tulia drug stings to the attention of the nation.  And yet, there is no sense while reading this book that Bean’s description is anything short of factual, just a recitation of what happened, warts and all.

It would have been all too easy to turn Taking Out The Trash into a philippic, particularly since its author just happens to be a preacher.  Yet Bean resists sanitizing his friends or vilifying his opponents.  At it’s core, the story is one of entrenched racism and ordinary people comfortable in sacrificing the details of due process and integrity in the criminal justice system to rid their town of what they perceive to be a plague of drugs.  At the same time, Bean doesn’t devolve into blind hyperbole, conceding that the Tulia defendants are necessarily angels, but still deserving of humanity and fairness.

While not a theme of the book, it’s impossible to ignore the banal failings of the assigned criminal defense lawyers who failed to make that extra effort necessary to care for their clients.  Some happily assumed their client’s guilt, as part of the routine of selling defendants out before the check was cashed, while others tried but lacked the experience, and maybe the guts, to face down a hostile and callous system. 

Certainly the subject matter of the Tulia drug stings, the prosecution and conviction of these defendants and the fight to clean up the courtroom after a lying Tom Coleman “cleaned” up the streets, lends itself to a rant or two. Or thirty nine.  That Alan Bean chose to keep his narrative close to the vest, to let the facts do the talking for him rather than ram the moral of this sordid story down the reader’s throat, makes this book a fascinating and consuming read.  Be prepared, as once you start reading Taking Out The Trash, chances are you won’t put the book down until you’ve finished.

Much along the lines of Amy Bach’s Ordinary Injustice, the story of Tulia, Texas is disturbing in its depth and ordinariness at the same time.  Bean struggles to make the point that the “good people” of Tulia don’t perceive anything racist in their willingness to sacrifice 15% of their town’s black population to clean up the streets.  That testimony might not be entirely accurate, or crimes not exactly committed, doesn’t change their heartfelt belief that this is all for the best, something that just had to be done. 

The tendency to concern ourselves with instance of particular moral outrage, discrete and horrendous instances of what we perceive to be injustice, makes for higher profile and flashier stories.  While the scope of Tulia’s abdication of law in favor of order makes this story stand out, that Alan Bean, Carl Gardner and The Kikers, the Friends of Justice, were able to capture the interest and imagination of the outside world in the ugliness of some dusty backwater in Texas where a bunch of poor blacks were railroaded is a story of courage, personal risk and dedication to a cause that would otherwise have never made a ripple in the world of criminal justice.

Alan Bean tells an important story, and tells it in a way that draws a reader into a seat at Jazzie’s Cafe and forces them to feel the dirtiness and stench of the holding cell at the Swisher County Jail.  What distinguishes Taking Out The Trash is one’s sense that Bean has been an honest broker in the retelling of this sordid tale, and that despite the locale and feeling of dusty streets around you, it’s the story of how most people in this country feel about those tagged as criminals.  So what if the fine details of law are missed here and there, as long as our police take out the garbage, most good people are just fine with it. 

Thankfully, Alan Bean wasn’t fine with it, and wrote a fantastic book so that the rest of us wouldn’t be fine with it either.

* While the book is available at Amazon, you can also get a copy by  making a donation of $25 or more to Friends of Justice, the organization created by Alan Bean to fight for the rights of defendants and the integrity of the legal system.  It’s a worthy cause, plus you can get a great book as part of the deal.

When  Orin Kerr noted the unusual opinion out of Fourth District Court of Appeals in Florida in Ruiz v. State, it reflected the sort of exasperation with the system that those of us in the trenches have long endured.

Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the voluntariness of the consent scrutinized “with special care?” Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.

Constrained by deference, the court had to accept the hearing court’s credibility determination, despite it’s belief, strong enough to compel the court to write this benchslap, and affirm the denial.  For every criminal defense lawyer who has presented a facial challenge at a suppression hearing of a defendant’s testimony against a cops, we know the frustration.  Absent extrinsic evidence, courts always back cops in a swearing contest.

My reaction to this decision was Reagan-ish, there they go again, another judge who took the easy path and avoided finding the word of a defendant was more credible than that of the police, and another appellate court that hid behind deference to affirm a ruling they believed to be wrong.  What else is new? 

It came back on my radar when I read a post about the Ruiz decision at Turley’s blog, There have been some changes over there, with former regular commenters now writing the blog posts so that Turley can keep the blog going without actually having to do the heavy lifting.  It’s unclear who these posters are, or where they come from, making their “take” on the subjects under discussion curious. 

David Drumm posted about the Ruiz case at Turley’s blog, and offers this reaction:

The testimony of the officers does not have the ring of truth. The prosecutors surely recognized this, yet they allowed to testimony anyway. That’s how the game is played. The trial judge played his part. It’s judicial theater and it mocks the Constitution.

Whether Ruiz granted consent or not is a finding of fact and that determination should have been left to a jury.

This sadly simplistic assessment does a disservice to the problem.  Aside from the lack of procedural understanding, that juries don’t determine the facts belying suppression, and thankfully so given that it would require defendants to testify at trial to vindicate constitutional violations, plus, given our chances with a jury believing a defendant over a cop, no evidence would ever be suppressed, his blame is misplaced.

The adoption of the “ring of truth” paradigm isn’t a reason to blame prosecutors, or even judges.  Trial lawyers understand that there is no magic red light that goes off over the witness stand when someone is lying.  The nonsensical belief that people can tell a lie from the truth befuddles the system, as if judges are imbued with mystical powers to discern truth from falsity.  They don’t know. We don’t know. Nobody knows.  We hear lies with such frequency, whether wholesale or merely colored truths, that we start believing that everyone is totally full of it.  Our clients lie. Our witnesses lie.  Our co-counsel lies and maybe we lie to ourselves. 

What do the judges know?  Some know that it all smells, but they don’t have the good to hang a lie on a cop.  When we give them that hook, and we happen to be before a judge with some gumption, we can get the right ruling.  But when the best we can offer is he said/she said, almost no judge will ever side with the defense.

Why?  “Ring of truth?”  Has he ever heard the preposterous stories our clients tell, the aberrational tales that strain even the most ardent supporters of the accused?  And yet they may well be absolutely true.  In fact, the more outrageous the tale, the more likely it is that it’s true.  After all, if someone was to make up a story, they would craft one that was more believable than the bizarre tale our clients tell.

Truth isn’t always clean, neat or normal.  Truth can be the one in a million shot, the ridiculous oddity that we would never expect.  They say “you can’t make this stuff up,” and we find that to be the case over and over.  It never bears the “ring of truth.”  It bears the ring of absurd.  Yet it’s true.

Life in the trenches bears no resemblance to life in the choirloft.  We conduct suppression hearings because we must, even knowing that offering two competing versions of the truth will do little to win over the judge.  It’s not enough that they know that cops lie, or that a defendant’s testimony has more “ring of truth” than the cop’s. 

Before a judge will find that a police officer lied on the witness stand, committed the crime of perjury by knowingly and materially testifying falsely, we need to give the judge something hard to hang his decision on.  Offering truthier testimony than the other side isn’t a good enough reason to condemn the cop.  Those of us charged with defending the accused know this.  We realize what we’re facing.

I recall a suppression hearing I had before a federal district court judge who went on to become the Attorney General of the United States of America.  The agents testified about their pristine and lawful conduct, ultimately procuring the defendant’s consent to enter his home and find evidence of a crime that he knew to be present.

The defendant, who was educated, smart and accomplished, notably in asserting his rights with federal agents based on his numerous prior experiences in dealing with arrests, searches and seizures, testified that he knew precisely what to do, asserted his right to remain silent and right to counsel immediately upon arrest, and in response to the agent’s request to enter his home, reasserted his right to counsel in clear and unequivocal words.

The judge, after hearing the testimony, asked me what I would have him do given the swearing contest based on this irreconcilable testimony.  I argued that we, the judge, defendant and I, were painfully well aware that this hearing would be a swearing contest between defendant and agent, but what would he have me do?  He knew the defendant was well-versed in the invocation of rights.  He knew that the defendant had long ago memorized the mantra that precluded any possibility that the agent’s testimony was truthful.  He knew that I would never have put the defendant on the stand to testify had there been any extrinsic proof.

But it was just the agent and the defendant in a car, by themselves, without camera or disinterested witness, and aside from the testimony of the defendant, there was nothing to offer.  It was ether sit quietly and let the court rubber stamp the agent’s version or fight.  There were no other options.

The judge looked at me as if I had just told him he was a fool.  Sure, the defendant’s testimony was more credible than the agent’s, whose version was so obviously tailored, so clearly sanitized, that it could have come out of a textbook.  And yet I gave the judge nothing with which to call the agent a perjurer.  Other than the truth.  The motion to suppress was denied, as the defendant and I fully anticipated it would be.

There’s neither magic nor evil involved.  This is the system that keeps us warm at night and allows us to sleep peacefully in our beds, knowing that there are good guys and bad guys, and that we need not think too hard about which is which because we will never really know.  This is the fight in which criminal defense lawyers engage every day.

Most of us remember our first kiss.  Not because it’s better, or even materially different, than our second or twenty-second kiss,  but because it’s our first.  Nobody remembers their twenty-second, however.  It fades into an amorphous mass. 

Radley Balko at  The Agitator has done yeoman’s work at noting and cataloging abuse by police, whether against those with the audacity to record police, raid the wrong house,  shoot a guy named Jose Colon in the process, Taser death or kill a puppy because, well, they can.  The “joke” about it, though it’s hardly a funny sort of joke, is that the response to each glaring mistake by police is that it’s an “isolated incident.” 

I similarly take note of these incidents from time to time, having done so more frequently in the past than I have lately.  Lately, these “isolated incidents” haven’t made it to the front page of SJ.  It’s not because they aren’t worthy, or important, but that it plays into one of my greatest fears about police misconduct and abuse.  My fear is that it happens with such regularity that we quickly become inured to it.

Too many brutal videos of police needlessly beating people and lying about it turn an outrage into the new normal.  The impact of seeing in living color, maybe even hi-def, police officers beat a human being whose “crime” is not jumping as high or as quickly as some pimple-faced cop demands can have a huge impact on those who have muddled through life believing that such things could never happen.  Like judges.

The hope is that by posting about such things, providing the opportunity for people to see the very things that they have spent a career denying to themselves ever happen, will be a first kiss opportunity for those in the system who need to know what we know.  The fear is that the impact will fade when it’s the twenty-second isolated incident, and they can go back to hiding from the ugliness to go about their business as they always have.

There isn’t much to write about another search warrant executed on the wrong house, burned to the ground by the flash bang grenade.  It goes from an outrage of carelessness, meant in the sense that the police simply don’t care enough about the potential for destroying the lives of innocents to get it right, to just another sad, unfortunate incident.  Sure, it’s bad.  It’s terrible.  But it happens, apparently all the time.  Just another collateral casualty in the same old war that’s been waged forever and ever.  Ho hum.

I admire Balko for his dedication to the cause of keeping these isolated incidents front and center.  He’s right to do so, and not let the harm done in the name of Order escape unnoticed.  Yet it plays into my greatest fears, that it immediately gets filed away as another isolated incident.  It’s impact is lost, and it dissipated the impact of the stories of harm and wrong that came before it.  It becomes part of the great amorphous mass of police misconduct.

Balko remembers the names of those he writes about, and even as the  New York Times reported yesterday that a New York City cop shot an old man named Jose Colon, apparently because there was no puppy available, his mind flashed back to another Jose Colon. 

Strangely, when someone first sent me this story last night, I actually thought it was an old story. I vaguely remembered writing about another New York raid involving someone by the name of “Jose Colon”. Sure enough. In 2002, a graphic arts student named Jose Colon  was accidentally shot and killed during a drug raid in the Long Island town of Bellport. According to police, that Colon was killed when an officer tripped over a tree root as the raid team approached the house. Police say he then fell into the officer in front of him, causing that officer’s gun to fire three times, striking Colon in the head as he emerged from the targeted house. Colon was not a suspect, and had no criminal record. The police found eight ounces of marijuana in the house.

It’s bad enough that the incidents begin to blur, but when the names get repeated such that one can’t distinguish today’s isolated incidents from those happening years ago, we can appreciate just how pervasive incompetents with guns and shields have become.

How do we get back the feeling of that first kiss?  How do we note these “isolated incidents” without their becoming stale and tiresome, a repetitive bore.  Each human being whose life is beaten out of him is worthy of our attention, our concern, but we’re subject to human nature and people tire of hearing the same story over and over.  How do we return to the sense of outrage that this happens, and continues to happen, in our midst and yet the people with the power to stop it don’t give a damn?

At the pace we’re going, it won’t be long before nothing on the internet, no story, no video, will shock us and move us to be outraged.  Then what’s left?

Update:   Jeff Gamso’s post today includes these words, which are particularly apropos here:

Too many and they blur.  Stalin knew.

A single death is a tragedy. A million deaths is just a statistic.

So it’s important to focus.  On the single death.

Via our hinterlands correspondent, Kathleen Casey, the  Buffalo News has no kind words to say about Muzzammil S. Hassan, known locally as Mo, who really wants to go pro se at trial.  He’s on trial for murder.

Hassan, 46, a former banker and cable television entrepreneur has been jailed since he turned himself in to Orchard Park police an hour after he allegedly beheaded his third wife, Aasiya Zubair Hassan, 37, in their Orchard Park cable station office on Feb. 12, 2009.

Local trial and criminal defense lawyers have many adjectives to describe the attempt by Muzzammil S. Hassan to represent himself in his own murder trial: arrogant, ignorant, disastrous, stupid. …

Well, you get the picture.

Legal experts following one of the most riveting murder trials in Buffalo history express uniform disapproval of Hassan’s attempt to serve as his own lawyer and showing contempt for his trial by stalking out of court.

Stalking out of court?  What’s that about?  Lawyers don’t get to vote with their feet over a pro se defense.  But some good lawyers are willing to say some bad things to the newspaper.

“I think everything he’s done is going to play into the hands of the prosecution,” said defense lawyer Paul J. Cambria Jr.

Joseph J. Terranova, a criminal defense lawyer who has probably tried more murder cases than any other lawyer in the region, was even more blunt.

“It’s pathetic, and it’s so absolutely counterproductive,” he said. “Why not just slit your throat in front of the jury?”

Abatement by reason of death?  Well, it would work, but it’s not exactly the advice I would give.  The real problem here, apparently, is that Mo thinks he knows better than the lawyers how to beat the case.

Defense attorneys say working with an uncooperative client always is a miserable experience, particularly when those clients think they know better than their lawyer about how to mount a strong defense.

When Hassan was hunting for a high-profile defense lawyer, Terranova said, many turned him down because they anticipated he would be too difficult to manage as a client. And that has proven to be the case.

One of the most common aspects of defending a high profile case with a defendant who has achieved a measure of success in life is that they misattribute their success to brilliance in all things.  Mo may have made some money in cable, and from their believes he’s smarter than the lawyers.

“I think everyone in their career has encountered, or will encounter, a client that tries to run the defense because it’s their case and they are intimately involved in the case,” trial lawyer Terrence M. Connors said. “The client can know the facts and what occurred, but how to properly convey that to a jury is solely, and should solely be, in a lawyer’s domain.”

Terry, of course, knows whereof he speaks.  Whether it’s the defendant charged with a robbery, who insists that the lack of video evidence means he can’t be convicted, despite the eyewitness testimony of three nuns who watched the whole thing, two of whom taught the defendant in third grade, or the defendant with the doctoral degree who believes that the nullification article he read on a political website guarantees his acquittal, defendants come up with bizarre ideas.  And they demand that the lawyers do their bidding.  After all, it’s their life, right?

Mo plans to defend his beheading using the “battered spouse” defense, his being in such grave fear of his wife after suffering years of abuse at her hand.

So far, [District Attorney Frank A.] Sedita said, prosecutors have received notice only that Hassan plans to pursue a “battered spouse” justification defense, essentially stating that as a long-abused husband, he feared for his life and the only way he believed he could save himself was to kill his wife.

The consensus amongst the experienced criminal defense lawyers is that Mo would do better to pursue an “extreme emotional disturbance” defense.  This didn’t sit well with Mo, as it wouldn’t produce an acquittal, but only a conviction on a reduced charge.  Mo isn’t interested in a lesser conviction.

Hassan, however, has said he believes he can walk out of court a free man if he can tell the jury about the “torture” and “humiliation” he says he endured at the hands of his wife.

Every once in a while, a pro se defendant who eschews all legal advice and decides to go it alone manages to pull off an unbelievable coup, a victory where none should be possible.  They refuse to heed the “experts,” preferring instead to go for broke, to put it all on the line, to take their life into their own hands and shoot their wad.  Every once in a while.  Most of the time, indeed that vast majority of the time, this is the quickest route to a slam-dunk conviction without even the slightest chance at winning.

But it makes for a great spectacle.  Imagine if Mo pulls this off?  Just don’t bet on it.

Update:  Breaking news from Buffalo,  Judge Thomas P. Franczyk has ruled  that Mo is the captain of his own ship:

10:36 a.m.: Franczyk: “Bottom line is [Hassan] does have the right to steer his own ship even if unwittingly he steers it into an iceberg.” Judge is going to grant Hassan’s request to represent himself but wants to make sure Hassan knows some of the rules. Schwartz is going to stay on as an advisor.

10:41 a.m.: Judge is getting assurances from Hassan that Hassan will follow the rules of counsel.

Would this not make for a great sitcom or what?

At Six Pixels of Separation, Mitch Joel, who modestly enjoys the description “rock star of digital marketing” though I had never heard of him before, offers his wisdom on the path to virtual success.

His advice was summed up in words he heard from Aerosmith front man cum American Idol judge, Steven Tyler, in response to a question by nappy-brained radio interviewer Howard Stern:

Fake it till you make it.

You have to believe in yourself and what you’re doing… even when others don’t.

Some might find encouragement in these words, the push they need to keep on going, keep on trying, and never give up your dream.  Joel, in the typical manner of pointless people, equivocates:

It’s both a slippery slope and a fine line (if you can’t carry a tune, you’re not going to be a great singer no matter how much you try to fake it). And yes, there are also many people who are delusional (to a degree). That line, “fake it till you make it,” still stuck with me. To a certain degree, I’ve been doing that for most of my life. Our lives are a self-fulfilling prophecy. If you don’t believe that you have the skills sets and haven’t set yourself up for success (educating yourself, working to build a portfolio, establishing yourself as a credible authority, etc…), you will be bound for failure. But, if you have done those things and you are getting some initial positive feedback, faking it till you make it is an extremely important (and powerful) attitude to have.

The notable lines comes in the last sentence, where he writes “you are getting some initial positive feedback,” and thus tries to separate the idiocy from the merely stupid.

Having watched a few episodes of American Idol, I’ve seen people stand up before the judges who have absolute faith in their ability to sing, only to be told “no” three times over.  They walk out expressing a sentiment similar to Joel’s, that they know they can sing, that singing is their life and they will persist until they reach their dream.  But the viewer knows better, having heard them sing.  It’s not that we don’t feel badly for them, their having no chance of ever achieving their dream, but that they must either adjust their sights or prepare for misery.  There is no way they can fake it till they make it.  They will never make it.

Like any good internet marketing, Joel then moves his point to his money maker: 

Social Media helps you fake it better than anything else. 

Finally, a truism, something we can all agree upon.  While straining the analogy some, no one can hear you sing on twitter.  You can hold yourself out as a singer, twit about your songs or appearances or awards or fans.  You can write love-twits to others showing how much you care about them, offering words of encouragement in the hope of receiving the same in return, and create an entire tribe of authentically engaging people connecting to one another. 

And none of them need ever know if you can sing.  Yet they will put you on their great singers list, or implore others to follow you as a wonderful singer, or engage in heartfelt discussions about your singing theory into the middle of the night. 

Buried in Joel’s vagaries is the proposition that if you lack the ability, that you’re faking it but never making it, social media will let you know that as well.

But the other side of that equation is that there are many smart and well-informed people out there as well who can tell the difference between someone who is using the channel to “fake it till they make” versus someone who is just “faking it.”

While he earlier used the phrase “self-fulfilling prophecy,” though in a manner that makes little sense but suggests he recalls something from Psych 101, it’s unfortunate that he missed the class where they taught about confirmation bias, as he might otherwise comprehend that people listen to those who say what they want to hear.  Voices that confirm one’s belief are the voices one tends to believe.

Social media is a big, perhaps ever-expanding, place, with room enough for the wise and foolish to co-exist.  With a little effort, everyone will find someone who agrees with them, whether it’s actual agreement or feigned agreement to create the circle jerk of validation that most digital desire.  Positivity is rewarded with more Facebook friends, twitter followers and readers. 

It doesn’t mean that you will ever make it, but that a society of people faking it, and encouraging others to fake it so they will return the favor, can be easily found or created.  A thousand twitter followers encouraging you to sing doesn’t mean you can sing.  Even if you couple your twitter world with daily singing practice, singing coaches, whatever else one can do to help one’s singing, it doesn’t mean you can sing.  Maybe you can. Maybe you can’t.  Social media has nothing to do with it.   You will neither sing better nor worse because of social media.

There are fears that social media encourages many to hold on to dreams that would best be let go in favor of a heavy dose of reality.  The applause and support offered from people who have never heard you sing messes with your head, makes you think there’s a future where there’s none.  Smart people realize that self-assessment is difficult, if not impossible, and that there’s no gain in embracing those whose words of support are empty.  Ten people fooling each other are no better than one person fooling himself.

This is social media, an opportunity to find others to share in your self-delusion. 

Steven Tyler actually became a rock star.  Mitch Joel tries to pretend he’s one.  Steven Tyler is that one in a million long-haired kid who made it.  That leaves an awful lot of other long-haired kids faking it.  Mitch Joel’s business is convincing others to pursue their dreams with the help of his marketing services, to fake it until they make it.  Do you believe that you’re the one in a million who will make it, or part of the 999,999 who are just faking it?

In the digital age, at least at this early stage when so many still believe that faking it online will offer everyone the chance to fulfill his wild dreams of success, social media appears to be the means to accomplish what reality could never provide.  If you can’t sing in the real world, you can’t sing on social media. 

Before you end up sitting on Mommy’s couch in the basement, eating Cheetos and dreaming of future greatness, figure out whether you can sing for real.  The last voices you can rely on are those enabling you on social media.  Or marketers like Mitch Joel.

For those of us who don’t believe the death penalty is a wonderfully utilitarian method of ridding society of those we despise, any port in a storm will do.  So the  announcement by Hospira that it’s out of the sodium thiopental business brings some transitory comfort.

The sole American manufacturer of an anesthetic widely used in lethal injections said Friday that it would no longer produce the drug, a move likely to delay more executions and force states to adopt new drug combinations.

The manufacturer, Hospira Inc., of Lake Forest, Ill., had originally planned to resume production of the drug, sodium thiopental, this winter at a plant in Italy, giving state corrections departments hope that the scarcity that began last fall would ease.

But the Italian authorities said they would not permit export of the drug if it might be used for capital punishment. Hospira said in a statement Friday that its aim was to serve medical customers, but that “we could not prevent the drug from being diverted to departments of corrections” and the company did not want to expose itself to liability in Italy.

It’s fascinating that the issue du jour isn’t the propriety of putting human beings to death, or the failings of a system that’s shown itself incapable of distinguishing guilt from innocence, but whether those charged with pushing the plunger can get their mitts on enough drugs to make it happen. 

Jeff Gamso, whose connection the death penalty defense is far deeper and more personal than mine,  refuses to call the concoction with which people are executed a “cocktail,” as if it’s the precursor to a party where all but one have a grand old time.  Jeff recognizes this for what it is.

There’s nothing particularly noble in Hospira’s decision.  It’s a business call.  But when killing is bad for business, maybe that’s something to consider.  (Governor Quinn?  Are you reading this?)

Meanwhile, Ohio says it has enough thiopental to kill Frank Spisak next month.  It’s been coy about whether it’ll be able to kill Johnny Baston in March.  But our economy sucks.  Kasich needs to figure out a way to balance the budget.  Getting out of the killing business would be a good start.  For Ohio, like for Hospira, it would be good business. 

Making drugs is nothing more than a business decision for a drug maker.  While Hospira may not be thrilled that its drugs are used to kill rather than heal, it’s still running a shop that focuses on the bottom line.  Maybe the problem is we just don’t kill enough around here to make sodium thiopental a money maker.  If only someone figured out that it was good for restless legs syndrome, that could change everything.

The three drug regimen for execution is argued as necessary to avoid the Eighth Amendment’s prohibition on cruel and unusual punishment.  While we put them to death, they should feel pain.  Of course, given the nature of death, who knows what they feel, or where they go, or what we are really doing.  We view it from the living side of the River Styx.  For all we know, we could be dead wrong about the whole thing.

As much as I am against the death penalty, my belief is that we’re doing it wrong.  Not for the sake of those we kill, but for the sake of this who remain, the ones who walk away feeling that justice has been done.

By sanitizing the execution, we assuage the conscience of those who only view the death penalty through squinted eyes.  They take comfort in knowing that we are not cruel when we execute people.  We are humane as we kill people.  Even to killers who deserve to die like dogs, we are humane.  Aren’t we special? 

Few of us have seen the life ebb out of a human being.  Few will ever sit there, knowing that the smell of death will soon fill our nostrils.  For every person who believes that this is justice, they should be compelled to face their decision, watch it, smell it, feel it.  It’s just too easy, far too easy, to chat about how a person needs killing from the comfort of a kitchen table with the aroma of home cooking filling the air.

So the nation is short on sodium thiopental.  Italy won’t allow it to be exported here for use in killing people.  Great Britain isn’t keen on it either.  Clearly, those old-line Europeans don’t understand what seems clear as day in Ohio, Texas, Oklahoma and even California, that our brand of justice demands death.

But we’ve still got plenty of bullets.  And there’s rope galore.  Even if we ran out, there are always the hands of the righteous that could tighten around the neck, and squeeze, and squeeze, until no life remained.  We will never run out of ways to kill people. 

More importantly, we need to focus the cameras on the execution so that all of the righteous can appreciate their decision, the choice of putting another human being to death so that, what?, they can feel that retribution has been served? 

It strikes me as best that we save the cocktails for parties, and go for something quick, effective and extremely messy.  A nice beheading, perhaps, shown in hi-def and technicolor.  Available for wifi and iPads just in case someone is stuck at Starbucks and unable to tune in for a primetime execution.  If we’re going to kill them, then everyone, man, woman and especially child, should have to appreciate the glory of our system of justice.

Let those wussie Europeans keep their sodium thiopental.  Let Hospira get out of the killing business, where they never should have been in the first place.  Let Americans face the reality of their choice, without the benefit of their own anesthesia, their own cocktail, that allows them to kill others and feel nothing.

Like you, no doubt, I’ve closely followed the trending technology of the iPhone since so many  highly   knowledgeable lawyer social media gurus have expressed their heartfelt belief that it’s the piece of technology that will change everything (game changer, in SM parlance).  I had my doubts until I read this post by Henry Blodget.

I got an app for my iPhone the other day.

And I hadn’t gotten an app in a while. And that meant that the same thing happened that happens every time I get an app, which is that Apple interrupts me in the middle of the process to tell me that the iTunes Terms & Conditions have changed and that I have to read and agree to the new Terms & Conditions before I can have my app.

Then Apple tells me that the Terms & Conditions are 56 pages long and asks if I have read them and agree to them.

As everyone knows, click through terms and conditions aren’t meant to be read, but merely clicked.  Nobody reads them.  Nobody.  If  Richard Posner can’t be bothered to read boilerplate, who are we to differ?

And indeed, buried deep within these 56 pages of terms and conditions, there’s this gem that proves the worth of our choice:

CHANGES

Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Service will be deemed acceptance thereof.

Thus, no matter what we’ve read or not read, there’s no reasonable expectation that it will remain the same five minutes later, even if they sneak in a bit about owning your immortal soul.

Never, in my wildest imagination, would I have appreciated just how important the iPhone, together with its seven billion (and growing) apps, would be for lawyers.  Clearly, the social media gurus were right, more so than even they could have possibly imagined.  You see, every 56 page click-through “terms & conditions” has to be written by a lawyer, and modified hourly to keep abreast of technological developments, thus providing a constant stream of opportunity for lawyers.  And you wondered whether lawyers were still relevant in the digital age.  Hah.

“But what about us criminal defense lawyers,” you ask?  “We’re not the sort to dash off 56 page terms & conditions, or even hourly updates.  What good is it to us?”  Fair question, but fortunately, there’s a great answer.

Take a look at 18 U.S.C. 1030(e)(6), criminalizing “exceeding authorized access” to a computer, program, website, you name it.  You can even  exceed authorized access to your very own computer, though that’s unlikely to do anyone much good as it would be pointless to charge oneself for your defense. 

The point is that if we all craft very long terms and conditions and include a few sneaky ones, like no user is allowed to wear blue clothing during use, then press our good buddies down at the precinct or prosecutors office to fight computer crime, we, like our scrivener brothers and sisters, can make a killing off this.  This could be the biggest crime wave ever, with essentially every man, woman and child a felon with an iPhone.

Do it, and do it now.  This is opportunity staring us in the face, and we can either hop on board the iPhone train or watch it pass us by.  And do it quickly before some court somewhere goes and blows our deal by recognizing that these terms and conditions are utterly meaningless, universally unread and no agreement whatsoever.

And to all those technophiles about whom I’ve said or written less than positive things, my apologies.  When you said the iPhone was a game changer, I never realized how right you were.

The  Controlled Substance Act of 1970 created schedules of drugs and other substances along the lines of their medical utility and potential for abuse, the gist of which was to initiate a war on drugs that would eradicate the plague of drug abuse that was sapping the strength and vitality of America’s youth and put an end to drug trafficking.

The worst “offenders” were listed under Schedule I, meeting these criteria:

Schedule I

(a) The drug or other substance has a high potential for abuse.
(b) The drug or other substance has no currently accepted medical use in treatment in the United States.
(c) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

This schedule included such nightmarish substances as marijuana, which, as the criteria state, has “no currently accepted medical use.”  Anyone thus using it for medical purposes, even pursuant to state laws permitting such use and with the prescription of a physician, ignores its heinousness. 

The other schedules don’t really matter, as all the good stuff is contained in Schedule I, which is really just a list of the drugs the government wants to eradicate.  The whole criteria aspect is, undeniably, nonsense, having gotten long past the idea that marijuana has no medical use, and recognizing (albeit slowly) that it has significant medical benefits.  It’s only drawback, of course, is that it’s always been hated by the government and placed on the truly evil drug schedule not because it fits the criteria, but because that’s where truly evil drugs belong.

Since the government has chosen to manufacture a silly schedule to combat the manufacture of truly evil drugs, and for as long as some judge somewhere continues to accept this classification scheme as having any rational basis whatsoever, we’re constrained to accept a proposition designed to vilify “controlled” substances.  Sure, we know better.  Sure, we’ve learned a thing or two since 1970, and come to realize that making stuff up to scare people away from drugs doesn’t work.  But what they hey?  This is war.  All’s fair in love and war.

However, the time will come when we revisit the classification schedules and attempt to bring rationality back to the law.  With this in mind, Thoreau (who I believe to be Jim Henley, though I could be wrong) at Unqualified Offerings has crafted a new schedule for substances that provides meaningful criteria upon which to distinguish truly evil drugs.

Class Ia:  The drugs that you used when you were young and wild.  Not as potent as today’s drugs, and nothing to get judgmental about.  Sometimes worth getting a bit nostalgic about, though.

Class Ib:  The drugs that you used before  joining a 12 step program and/or a new religion.  Dangerous, evil things that even a fine person like you could not handle, and definitely too strong for anybody else.  Well worth getting self-righteous about, but not worth losing your rights over.

Class II:  The drugs that your young children might use some day unless the government Does Something About It.  Dangerous, evil things that must be stopped at any cost, as long as that cost is mostly paid by somebody else.

Class III:  The drugs that your teenage children just used.  These drugs are a private family matter that nobody else needs to get involved in.

Class IV:  The drugs that you heard are being used by people with less money than you and/or more melanin than you.  These drugs are not only incredibly potent and dangerous substances, they are also a sign of a deep moral defect that warrants a stiff prison sentence, substantially reduced employment prospects, and permanent suspension of voting rights.

Notably, Class IV drugs target those used by poor, minority, and most importantly, people with dark skin, thus revealing their “deep moral defect” leading them to drug abuse that bears no relation to what you, your kids or anybody you like might ingest.  And really, isn’t that what drug classification is all about?

It’s a very funny, and cutting, bit of satire, except for the fact that Henley’s classification scheme is better than the government’s and makes more sense.  After 40 years of shutting our eyes and ears, and applying a schedule that’s managed to put a stupendous number of Americans behind bars while keeping the supply of controlled substances at constantly available levels, isn’t it time for a list that’s a lot more fun and just lays out the battle plan the way it’s always been fought?

It’s not that I’m an advocate for legalization, as much as an advocate for a rational approach to issues created by the use of mind altering substances.  Hey, I like a good war as much as the next guy, and I’ve watched Reefer Madness a few times and enjoy campy propaganda as much as anyone else.  But anything can get old after 40 years. 

Isn’t it time to admit that our drug policy hasn’t worked nearly as well as the Controlled Substances Act of 1970 anticipated, and that we, the children of the 60s and 70s, are a bunch of ridiculous hypocrites who should be mature enough to admit the failure of our father’s scheme and do better? 

The world won’t come to an end if we rethink the schedules, just like it didn’t come to an end when our parents caught us doing bad stuff behind the woodshed.  Of course, when we did it, it was just “a private family matter that nobody else needs to get involved in.”

H/T Radley Balko

It’s been about three and a half years since Dave Hoffman at  Concurring Opinions asked whether the blawgosphere has become stagnant.  I was a babe in the blawgosphere at the time, but felt compelled to respond nonetheless, questioning why the “old guard” of blawging demonstrated no interest in anything new. 

Mark Bennett, the Texas Tornado, then coined the term “practical blawgosphere” in making a distinction I missed.

Scott Greenfield commented on the new wave of blawgs bringing vitality back to the blawgosphere. I think he’s right — but Scott and David are talking about entirely different places on the web. Just as law professors and criminal-defense lawyers inhabit different places in the real world, Scott’s Blawgosphere is not David’s.

Thanks to the following bloggers, and especially to our out-of-state colleagues, for weighing in on the State Bar of Texas’s attempts to amend the Disciplinary Rules and efforts to do away with flat fees:

Max Kennerly, Sound And Fury Over Flat Fees, Signifying Nothing
Gideon, Blawg Review #294: MLK, Jr. Day edition
Brian Tannebaum, Shame On The Texas Bar, And Us
Scott Greenfield, Flat Fees and the Last Texas Criminal Defense Lawyer
Colin Samuels, A Round Tuit (53)
Jeff Gamso, If I Only Had a Vote

Paul Smith, It’s Big Vs. Little,, Money Vs. Underdog,, Corporate Vs. Individual
Paul Kennedy, Just follow the money
Paul Kennedy, Let our voices be heard
Paul Kennedy, The State Bar strikes back
Paul Kennedy, State Bar says those opposed to rules changes are liars
Murray Newman, Please Vote No on the Texas State Bar Referendum
(If I’ve left you out, it was inadvertent. Please email me. Paul is kicking butt. Where are the rest of the Texas criminal-defense blawgers? Guest? Matlock? Floyd? Martinez? Breston? Flood? Spencer? Skinner? Barnett? Maselli? That’s right, boys (and girl), I’m callin’ you out. It’s just about time to rework the blogroll, and I’m looking for an excuse.)

Meanwhile, there have been blog posts in favor of the amendments:
State Bar of Texas: Referendum 2011: Q&A with Tom Watkins : State Bar of Texas Blog
State Bar of Texas: Referendum 2011: Clarifying the Issues : State Bar of Texas Blog
(I detect a pattern here.)

Mark properly questions why other Texas criminal defense blawgers haven’t bothered to raise their voices on this critical issue.  Now it’s my turn to return the favor Bennett did for me three and a half years ago:

Why is there not a single law professor who has bothered to write on this issue?  Not one has acknowledged it exists, it’s happening.  Too busy doing heavy scholarly lifting on the subject of Harry Potter and Due Process at the Ministry of Magic?  Of course, the issue of  princess succession for the former colonies is both critical and timely, and so much more important than the practice of law.  You cry that you want to be relevant, respected?  So get your head out of your ivy-covered butts and be heard on things that matter in the real world.

Are such mundane issues below your intellectual merit?  Don’t forget that the problems faced by real lawyers in Texas are the outgrowth of such notable scholars as  Lester Brickman, whose theoretical approach coupled with his disdain for practicing lawyers gave rise to this absurdly misguided approach.  So is it scholarly enough for Brickman but beneath your dignity?

It would be remarkably nice, not to mention occasionally fun and even potentially interesting, if the lawprofs ever gave a damn about the issues that practicing lawyers faced in the trenches.  It’s not like we expect you to ever go into the trenches, where you might get some muck on your tweed jackets, or even that you would be allowed in the trenches since so many of you aren’t even licensed to practice law in the jurisdictions where you pontificate.  But that doesn’t prevent you from giving a few minutes of your brilliance and blawgospheric effort to overarching issues of importance to real lawyers.

I continue to keep the lawprof blawgs on my RSS feed.  I continue to read your posts.  Can you say the same about practicing lawyers? 

Three and a half years ago, Dave Hoffman asked whether the blawgosphere is stagnant.  It wasn’t then.  It’s not now.  But Dave asked the wrong question.  The question is whether the academic blawgosphere is relevant. 

Not a single lawprof opined about the changes in Texas.  Not one of you.  That’s a disgrace.