Having never been to the United States District Court for the Northern District of Illinois, it’s hard to say whether it was a sound decision for the ACLU to make a stand there rather than a district where they might find a stronger sense of constitutional protection.  I suppose they felt they had no choice, since their action was to challenge a law proscribing the recording of police, Illinois Eavesdropping Act, 720 ILCS 5/14. 

So they did it, and  now we’ve got a decision by Judge Suzanne B. Conlon that isn’t going to make life any easier or people inclined to record police any safer.  Why, you ask?  Well, here’s what Judge Conlon had to say in ACLU v. Alvarez (N.D. Jan. 10, 2011) :

The ACLU has not alleged a cognizable First Amendment injury. The ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record. Cf. Potts v. City of Lafayette, Indiana, 121 F.3d 1106, 1111 (7th Cir.1997) (“there is nothing in the Constitution which guarantees the right to record a public event” ’).

The State’s Attorney argues that a “willing speaker” must exist to implicate the First Amendment’s right to free speech, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976)…. The ACLU intends to audio record police officers speaking with one another or police officers speaking with civilians. The ACLU’s program only implicates conversations with police officers. The ACLU does not intend to seek the consent of either police officers or civilians interacting with police officers. Police officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants. The ACLU has not met its burden of showing standing to assert a First Amendment right or injury….

In other words, there is no First Amendment right to record cops in public because no court has yet held such a right to exist.

The problem here, if you will, is the presumption upon which the decision is based is that we possess no rights unless and until a court somewhere says so. 

Notably, the decision was not grounded in the contention that police officers, or those with whom they publicly interact, possess a right of privacy that justifies protection from the peering eyes of the camera and ears of the microphone.  That would have made for a more interesting decision of competing rights and interests, but that’s not the basis for the decision.  The basis is that there is no decision granting the right to hear and see what cops are doing in public.

Caveat: Before anyone starts screaming Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”), it was a goof written after a night of drunken debauchery to make Ben Franklin feel better after they shaved the top of his head. What? You thought he chose that hairstyle?

The gathering of information about the conduct of public officials in the performance of their duties would appear clearly within the news gathering function of the First Amendment.  Whether it’s the “mainstream media,” the ACLU or some regular Joe doing the recording should in no way preclude the underlying purpose of gathering information.  After all, it’s news worthiness isn’t clear until the “performance” occurs. 

If it turns out to be worthy of reporting, or public dissemination for any reason under the sun, then the failure to record it renders it impossible to subsequently publish.  You can’t watch the action and, should it turn out to be the sort of thing that really should have been recorded, ask them to do it again so you can get it the second time. 

Even if there was a countervailing interest, such as the privacy rights of police or the state’s desire to keep misconduct from the public eye, there is no argument that they would trump the fundamental right of a free press, capable of publishing wrongdoing on the part of the government.  Yet no strict scrutiny analysis was needed here, since Judge Conlon found no right to record the cops in any of her law reporters.

Possibly the most significant technological development in criminal law is the pervasiveness of video and audio recording, capturing misconduct, lies, abuse that had before been merely a typical complaint of “criminals” against our brave boys in blue, summarily dismissed by judges as the rantings of an angry, and incredible, miscreant. 

Only because of these videos have the public, the mainstream media and even a couple of judges who are familiar with Youtube become aware of the reality that these things actually happen.  We see the baseless beatings, tasings, shooting.  We see that police sometimes lie, fabricate complete and total shams to both nail those who fail to respect their authoritah as well as excuse their horrendous wrongdoing.  We learn that these claims of abuse and misconduct are very much real, and can’t be “explained” as demanded why a hero cop would do such a thing.  They happen. We see it happen. We know if happens.

The reason we now know, with absolute certainty, that these things happen is that every person with a video camera has the ability to publish their content for the world to see.  We are all a free press.  The First Amendment to the Constitution protects us in doing so.  That no court has as yet put into precise language our right to exercise this right has no bearing on its existence. 

That one court in the Northern District of Illinois thinks we have no right unless and until some court says so is very wrong. 

While the legal writing mavens argue about whether it’s necessary to repeat every assertion three times in the belief that no one heeds the point the first two, almost everyone agrees that it’s crucial to come out of the box swinging.  Even us slavish adherents of the primacy/recency theory are on board.  Which makes this strategy particularly troubling :

In response to our [earlier] decision, Appellant, through his counsel, filed his MOTION FOR REHEARING OR CERTIFICATION TO THE SUPREME COURT. The
first two paragraphs in the motion state as follows:

1. Oh.

2. Please forgive in advance if, through the words of this Motion you can hear the author screaming, but I cannot overcome my indignation engendered by this Honorable Court’s per curiam affirmance of the lower court’s order. I understand that Motions for Rehearing are seldom granted by appellate courts, and for good reason. However, I must believe that if I correctly state the facts of this case, the court will retract its opinion and reconsider the issue. I assume that I failed in my obligation in the initial briefs.

Thereupon, counsel set forth what he labeled as facts. The statement of facts contained not a single record reference and many of the facts are unsupported by the record. For example, the opening sentence of the statement of “facts” says that Appellees are “both proven con artists …,” yet the record bears no such proof. Nor does a scandalous description such as this have any place in a pleading of this nature.

In short, it is naked re-argument at best and an emotional tirade at worst, neither of which have any place in this Court.

I can appreciate, as much as the next guy, that some blawgers feel the need for an emotional release, a catharsis, to vent their frustration with the system.  Every once in a while, we need to blow off some steam.  Let it out. Take a deep breath.  Then get back to work, thinking (and writing) like a lawyer.

It doesn’t matter how many hand-wringing, heart-wrenching supporters tell you how deeply you’ve moved them and how they share your pain.  Never, but never, forget that your feelings do not make for a compelling argument.

And never open a motion (or any other paper) with a paragraph consisting of the word “oh”.  Trust me on this.

Florida’s  anti-cyberbullying law is named after Cape Coral high school student Jeffrey Johnson, who committed suicide at age 15 after being bullied.  The law was passed in 2008.  Two teenage girls from Estero High School have the dubious distinction of being the  first to be prosecuted under it.

Two Estero High School teens were arrested Wednesday, charged with cyber bullying a classmate after officials learned of a fake Facebook account with sexually explicit photos.

The investigation began on April 29 when a parent told a school resource officer about a Facebook account, which contained inappropriate, sexually explicit pictures and statements about the victim, according to a Lee County Sheriff’s Office report. The account had 181 “friends.”

The items posted on the fake account included a photo of the victim’s head placed on top of a nude girl’s body, a photo of a man’s genitalia near her open mouth and comments about sex acts, according to the report.

(3)  For purposes of this section:
 (a)  “Bullying” means systematically and chronically inflicting physical hurt or psychological distress on one or more students and may involve:
 1.  Teasing;
 2.  Social exclusion;
 3.  Threat;
 4.  Intimidation;
 5.  Stalking;
 6.  Physical violence;
 7.  Theft;
 8.  Sexual or racial harassment;
 9.  Public humiliation; or
10.  Destruction of property.

I’m not. You’re not.  The judges aren’t either.  At Slate, Joseph Goldstein writes that the federal bench is old.  Extremely old.  Superannuated?

Judge Richard Owen of the U.S. District Court in Manhattan gathered a group of lawyers in his courtroom in 2007 to discuss the possible leak of sealed documents in a business case. As the hearing got under way, Owen, then 84, asked for someone to explain this newfangled mode of communication the lawyers kept mentioning—e-mail. “It pops up in a machine in some administrative office, and is somebody there with a duty to take it around and give it to whoever it’s named to?” he asked.

The problem was that Judge Owen had just tried investment banker Frank Quattrone, which revolved around an email.  A month later, he “stumbled” again sentencing a drug dealer to life.  Too old? Lost it? Alzheimers? Dementia?

Federal judges enjoy life tenure.  Is this a feature or a flaw?

Life tenure, intended to foster judicial independence, has been a unique feature of the federal bench since the Constitution was ratified in 1789. Back then, the average American lived to be about 40 and the framers didn’t express much worry about senile judges. “A superannuated bench,” Alexander Hamilton said, is an “imaginary danger.”

No longer. Today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age. About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago. (One judge, a Kansan appointed by President John F. Kennedy, is over 100. [Note: Judge Wesley Brown of Kansas, 103.]) The share of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years. The demographics of the federal bench have no analogue on the state courts, where judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages, often in their 60s or 70s.

While our ageist view might be that these old-timers, prone as they may be to frailty, are a problem, consider, for example,  Jack Weinstein, age 90, in the Eastern District of New York.  Let’s face it, Judge Weinstein is old.  He’s also got more sand than almost anyone else in the system when it comes to  feeling the freedom to do the right thing.

Indeed, many of our judges, including one-time conservatives on issues such as the death penalty, tend to grow more understanding, less harsh, as they age.  Like a fine wine, they mellow.  And others don’t.

At Above the Law, David Lat tells a story from his clerkship days for a Ninth Circuit judge.

When I clerked on the Ninth Circuit years ago, one of the judges on the court at the time was extremely old — and didn’t seem very “with it.” His law clerks seemed to take on a large amount of responsibility. One of his clerks that year, a law school classmate of mine I’ll call “Mary,” would negotiate over the phone with Ninth Circuit judges over how particular cases should come out — a responsibility well beyond the legal research and opinion drafting done by most clerks.

On one occasion, a vote on whether to rehear a case en banc emanated not from the judge’s chambers account, but from Mary’s personal email account. Even more embarrassingly, it was written not on behalf of the judge or the chambers, but in the first person: “I vote YES to rehearing en banc.” A law school classmate of mine who was also clerking for the Ninth that year remarked, “I thought only judges did that. When did Mary get her presidential commission?”

This is one of our worst nightmares, that the judge has been reduced to a puppet, and decisions are being made by children in chambers.  While no lawyer worth his salt treats court staff disrespectfully, because you never know whose voice is heard by the judge, we nonetheless direct our arguments to the guy in the robe, not the kid in knickers.

Ironically, one of my favorite bizarre judicial moments is with Judge Owen of whom Goldstein first writes.  During a hearing to suppress statements for a Chinese defendant who had been mirandized in Mandarin when he spoke with Fuchun dialect, our interpreter explained the significant differences between the two.  After testimony was complete, Judge Owen asked the interpreter to give the Miranda warning, first in Mandarin and then in Fuchun dialect.

The interpreter complied with the judge’s command.  Judge Owen then announced that it all sounded the same to him. Denied.  And that was more than twenty years ago.  Did it occur to anyone that Judge Owen’s current issues might have nothing to do with age or disability?  But when they get old, everyone says senile dementia.  It’s a lot harder to explain when they’re young.

While it’s certainly true that age will reduce our certain cognitive abilities, it also brings other attributes that elude youth.  It brings understanding, experience, a breadth of vision and a boldness that comes from having long since lost that concern for pleasing others or being part of the gang.  Ever wonder why old people can be brutally honest and painfully crotchety?  Because they no longer feel any need to make you like them.  For better or worse, age allows people to overcome the psychological frailty that guides younger folks and pushes them to lie to themselves and others about their motives.

This doesn’t mean that judges who show the signs of suffering from senile dementia or Alzheimers get a pass.

The judge who patrols that highway most aggressively is Frank Easterbrook, chief of the Chicago-based 7th Circuit U.S. Court of Appeals. In the last four years, Easterbrook says, he has arranged for two colleagues to see neurologists. One was diagnosed with Alzheimer’s and retired. The other insisted on returning to the bench after a stroke, but because he had difficulties “with executive function,” Easterbrook said, he removed all criminal cases from the judge’s docket. Easterbrook has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia—a rare move by the bench to enlist the public in monitoring judges.

There are people, whether fellow judges or court personnel, who are well positioned to note cognitive problems and raise them.  As Judge Easterbrook is open to hearing about them and dealing with them, staff will feel comfortable bringing issues to his attention.  Then again, it seems rather dubious to pull a judge from sentencing for loss of “executive function” but allow him to continue to sit in other matters.  Doesn’t everybody deserve a judge with full faculties?

Age alone is meaningless, except as a reason to pay careful attention for a decline.  So pay attention, just as one would hope that everyone is paying attention to any judge whose cognitive skills show a problem.  A young senile judge is no better than an old one.  We have the ability to ascertain whether a judge is losing it, young or old.  Whether we have the will to call them on it, and whether the system has the will to deal with it, is another matter.

And if you want to consider a real problem with age, consider the age of David Lat’s classmate “Mary,” who “sits” on the 9th Circuit in her Mary-Janes and plaid jumper.

While the interests that appear in Eugene Volokh’s post vary widely, sexual themes are rarely among them.  So it figures that the one time he decides to get wild and crazy, some nutjob would try to shut him down. 

Check out the Appellant’s Emergency Motion to Seal Portions of Court Filings Referencing Libelous Statements Made by Others in Wolk v. Olson (3d Cir.). To review the bidding, Arthur Wolk sued Overlawyered.com, alleging Overlawyered had libeled him. The case was dismissed on statute of limitations grounds, and Wolk appealled. Glenn Reynolds (Instapundit), Marc Randazza (Legal Satyricon), Ed Whelan (National Review Online), and I signed an amicus brief supporting Overlawyered’s position in the appeal. Wolk’s lawyers then filed a response in opposition to the motion for leave to file that amicus brief.

That response, filed on Wolk’s behalf by his lawyers, made a false assertion about a post of mine on incest law. And it also wrongly suggested — with no foundation whatsoever — that my incest law post gave Wolk “more than a reasonable basis to question whether at least one of the amicus bloggers seeking this Court’s audience, one of whom apparently has a penchant for discussing sexual misconduct, may be responsible for the horrible accusations of sexual misconduct against Wolk on Reason.com.”

No one asked me to sign on as amicus, which deeply hurt my feelings.  On the other hand, I try to avoid posting about incest, which may explain why I was left out of the club.  But I digress.

Eugene’s point is that his post, ripping Wolk for his absolutely irrational allegations and utter absence of logical reasoning, would be subject to being “unposted” by dint of Wolk’s attempt to have paper submitted in the open subsequently sealed, post hoc.  In other words, what is will no longer be, and a published post based on open allegations would then be subject to court order directing that it be unpublished.  There’s a concept.

This raises a few interesting notions on the internet.  Initially, the idea that publication of something that appears in open court papers would be subject to post hoc revision would put free speech in the toilet.  Wolk’s crazy allegations were a worthy, almost mandatory, subject of scrutiny.  He made the allegations, and they demanded Eugene’s attention.  He made them in paper filed in court, and that’s just about as open as it comes.  Wolk did what he had to do, and Eugene did what he had to do.  That’s how scrutiny works.

Now, Wolk is ashamed of being exposed as irrational, so he wants his papers sealed.  My bet is that he wishes that he never wrote the papers, never made such ridiculous allegations.  But he did, and he can’t unfile his papers.  Sealing them is the next best way to keep the craziness under wraps. 

So Wolk files in the open and then seeks to have his openly filed papers deemed sealed, nunc pro tunc.  Because we all know how well the legal fiction nunc pro tunc unrings the bell.  It would be one thing if that’s where it stopped, but Eugene’s point is that his motion to seal isn’t the ending point, but the beginning.  It’s the set up for obtaining an order to take down Eugene’s post, because it quotes the contents of papers that, in the world only a lawyer could love, can’t be seen because of the after-the-fact sealing. 

The question isn’t whether Eugene quotes Wolk faithfully, before ripping his head off, but whether his post, entirely proper at the time, can be rendered improper afterward.  Imagine the havoc that could wreak.  I wonder if the order would require me, having read Eugene’s post, to forget everything I saw?

But there’s a secondary aspect to this that makes it even more ridiculous.  Even if the court granted Wolk’s motion, sealed his papers nunc pro tunc,  and ordered Eugene to take down his post that quotes from sealed papers, what about the cache?  This is the internet, guys.  Nothing is every truly taken down.  Nothing online really disappears.  It’s out there somewhere. Always and forever.  There is no unringing the internet bell.

I can imagine the day after Eugene is ordered to remove his post about Wolk, and Wolk googles away to make sure that Eugene isn’t being contemptuous.  “Aha!”, Wolk exclaims.  “There it is, the offending post that faithfully quotes my improvident submission,” says Wolk.  “That Volokh was ordered to make it disappear and yet it’s still there for the world to see.”  What would the court have Eugene do?

The power of the Third Circuit Court of Appeals is awesome.  Truly awesome.  But not as awesome as the power of the internet.  It can order a man to be put to death, but it cannot order the internet to obey it’s legal fiction.  It can order Eugene Volokh to take down his blog post to protect Wolk from himself, but it cannot order the virtual universe to forget it existed.  It’s there, forever and ever.  There’s no going back.

Eugene asks that others who share his interest in maintaining the integrity of critical commentary on the internet stand with him and oppose Wolk’s attempt to retroactively censor the blawgosphere when it calls him out.  Even though I wasn’t asked to sign on as amicus, I stand alongside Eugene Volokh now.

And to the Third Circuit, my expectation is that the court will not only reject Wolk’s application with extreme prejudice (of the legal sort), but recognize that the publication of critical commentary in the blawgosphere is every bit as worthy of full and unfettered protection as any other publication. 

If Wolk doesn’t like being ridiculed, then he ought to think long and hard about what he puts into his court papers.  The solution to nuttiness isn’t to shut down the people who point it out, but to not behave nutty.

At Reason,  Radley Balko writes about the settlement in the case of Sal Culosi, a 38 year old optometrist in Fairfax County, Virginia, who was gunned down by Detective Deval Bullock as a SWAT team came down on him for the violent crime of sports betting. 

The SWAT team came to Culosi’s house because another Fairfax County detective, David Baucum, overheard him and some friends wagering on a college football game at a bar.

After overhearing the wagering, Baucum befriended Culosi. During the next several months he talked Culosi into raising the stakes of what Culosi thought were friendly wagers. Eventually Culosi and Baucum bet more than $2,000 in a single day, enough under Virginia law for police to charge Culosi with running a gambling operation. That’s when they brought in the SWAT team.

In a heartbreaking entry on a website she set up for her son, Anita Culosi addressed him directly last week:

I’ll beg your forgiveness Son…because I am not able…to go the distance. They call it…settlement. I call it something else…and because of that…my heart…is not settled…and my hope for justice…and my promise to you…have both been compromised…I believe in my heart that we would have won in court but I was told to consider the risk of that not happening…Our family has already been through almost 5 years of pain, frustration, disappointments, and stress…and there was the opinion that even if we won the county would appeal and that would mean a few more years and resources fighting what could still be a losing battle.

Two million dollars in hand, and yet they felt empty.  Sal’s mother apologized for her decision to settle the case, as if she had compromised his death. 

That the settlement included an explicit assertion that the settling party admitted no wrongdoing is par for the course.  It’s the nature of settlement, that “thing” that so many who adore consensus and compromise above all else prize above all else.  Descriptions and examples always involve settling parties being so much kinder, more mature, more empathetic and understanding than the churlish ideologues who insist on an outcome. 

Of course, those who stand firm also stake their win on the system working like a well-oiled machine, one that not only produces the right outcome but does so within the time from of a life in being plus some two-digit number of years.  Not a great bet.

Both Anita Culosi’s pain, and Radley Balko’s complaint, miss a crucial aspect of the law.  The law often fails to provide a remedy for all that people can do to each other.  In this case, people includes governments, and even police officers.  In fact, the law is a particularly worthless instrument when it comes to government and police officers, and this is deliberate. 

The reason is clear: Governments and police officers screw up all the time, and if they were held responsible every time they screwed up, they would (a) never do the job we require of them and (b) cost the citizenry a bloody fortune. 

Lawyers realize what a blunt instrument the law can be.  We live with the reality that it works poorly, if at all, to satisfy the purposes society expects of it while covering its failure in sweet platitudes.  That we can occasionally get in one solid blow to the head is a huge win.  Huge.  But only to us.  Not to the people we fight for. 

People expect too much of the law.  They expect it to meet all the silly platitudes etched over courthouse doorways, the sort of stuff that we teach grade school children to make them want to win the good citizenship award.  It’s not that we shouldn’t expect the law to be better, though what would constitute better depends largely on where one’s standing, but that the system as it exists is rough at best.  Perhaps it’s time for a new third grade civics lesson. Nah, that would just make people feel badly about the law, and as all officials know, we could never keep people in line if they don’t respect The Law.

Rather than feel the pain of having settled rather than demanded a declaration from a judge or jury that SWAT Detective Deval Bullock was wrong to kill Sal Culosi, his mother Anita needs to understand that she won on Sal’s behalf.  In fact, she won big.  She got her admission of guilt, two million admissions of guilt.  Guilt, guilt, guilt.  She has nothing to feel badly about.  She did right by her son.

Let’s not bemoan that the system didn’t scream out to the world that Bullock needless, stupidly, violently killed Sal Culosi.  It did.  It did exactly that, to the extent the system is capable of doing what people want it to do.  Not only was this a blow to the head, but she knocked the system clean on its butt. 

We need to recognize a win for what it is.  We need to stop having naive expectations of a system that isn’t yet capable of giving us what we were told as children it can do.  The system doesn’t work that way. It doesn’t work that well.  The system doesn’t vindicate rights and produce justice in clear, simple words that express all the pain in our hearts and minds. 

When the system gives us two million admissions of guilt, it’s a damn fine day for the system.  This is the best it works, and to let that pretense that the defendant admits no wrongdoing bother us is silly and childish.  Everyone knows they were wrong, and they put two million dollars on the table to prove it. 

Bullock was wrong to kill Sal Culosi, and rather than decry that lack of express admission, let’s scream out that it was wrong and this proves it as best a lousy system can.

Martin Luther King, Jr., advocated civil disobedience as means to achieve equality.  Not moral wrongs, but refusal to adhere to the rules that prescribed the orderly society that kept blacks subservient to whites.  If one accepts that notion that there are three competing political interests, order, equality and freedom, then Martin was prepared to sacrifice order for equality.

Order is the interest that most people are concerned with, as it protects the normality of life for the majority. And, after all, people are always guided by their self-interest, whether they want to admit it or not. 

Today, the battle still rages, but it’s between equality and freedom, with order long since acknowledged as nothing more than the convenient means of keeping the troublemakers in their place.  Advocates for equality today argue that freedoms must be curtailed in order to achieve equality.  The question remains, however, whether Martin would have taken that stance, or saw freedom as the roadblock to equality that needed to be overcome.

In his most famous speech, I have a dream, two themes emerged.  The first is summed up in this sentence:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

The second theme is seen in his repetition of the phrase, let freedom ring, culminating in his closing:

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!”

Rather than view equality and freedom as competing values, this suggests that they were both necessary aspects of each other, that one without the other necessarily failed to be realized.

I suspect that Martin saw equality as an artificial roadblock on the path to freedom, constructed by some foolish and troubled people who needed to come to grips with their own limitations and challenges before they could recognize the impropriety of accepting others as human beings and fully equal in all respects.  I suspect he believe that equality, though not easily achieved, would eventually be realized.  And then, I suspect, he believe that equality would put those who suffered discrimination on the road to achieving freedom. 

Equality, therefore, was not part of the three conflicting interests, but a subset of freedom that had to be achieved in order to ultimately attain freedom itself.  If that’s so, then Martin would never have traded off the long term goal, freedom, for the interim goal of equality.  To do so would have rendered equality less meaningful, less worthwhile, if it only led to order, to being equally subject to control and limitations.  It’s like saying everyone, regardless of race, is free to eat at the same table, but the cost of this equality is that the food will taste awful.

Martin would never bargain away freedom to achieve equality.  He knew that the latter without the former was a hollow victory, and that the true purpose of equality is to attain freedom.  Yet those who follow in Martin Luther King, Jr.’s intellectual footsteps today are fully prepared, if not chomping at the bit, to give up freedom for equality.  It’s become a flagrant battleground with freedom of speech, a great right provided no one’s feelings get hurt in the process, in which case it gets tossed out the window in a flash.

It’s much easier to argue for equality at the expense of freedom.  It’s a big, shiny bargaining chip, making every potential trade very attractive.  It may well offer the clearest, fastest path to equality.  But it’s a deal with the devil.  Give away freedom and your equality has lost some meaning.  Give away more freedom and equality is rendered worthless.  So what if we’re all equal, and all miserable, and all equally subservient to ordered?

Martin wouldn’t have bargained away freedom.  Who are you to advocate doing so?  Equality must be achieved, but never at the expense of freedom, as it’s freedom that makes equality so worthwhile a goal. 

Happy Martin Luther King Day, and honor his memory.  And see Gideon’s MLK Blawg Review #294.

Mark Bennett has written a  series of  posts  explaining why he exhorts his fellow Texas criminal defense lawyers to vote against a  state bar proposal to do away with flat fees.  The impetus of this proposal is somewhat obvious, the concern on the part of bar-types that lawyers are receiving fees for work they don’t do, which seems wrong.  It’s not.

The nature of criminal defense has always been different than others practice areas.  Our clients are different.   Their situation is different.  We, the lawyers who defend them, are different.  Rules that work fine for other niches don’t work at all. 

The basic notion is that in the normal course of affairs, we either get paid up front or don’t get paid at all.  The latter might be okay with some, who aren’t deeply concerned with lawyers getting paid, but they ignore the consequences.  If criminal defense lawyers don’t get paid, then no lawyer who like to eat will be able to sustain a practice as a criminal defense lawyer.  Whether we all run off to do real estate, or wills, or mergers and acquisitions (because their fees make complete sense) doesn’t matter.  We won’t do criminal defense, no matter how much we want to.  Our kids still need shoes on their feet.  That’s life.

Some will argue that our clients can pay in pieces like the clients in other litigation practices.  Not only is this untrue, but not even comparable.  Personal injury collects the fee from the proceeds of the case.  Corporations are an entirely different matter for obvious reasons.  In civil litigation, the lawyers can beg off anytime the bills aren’t paid, plus hold the file with their retaining lien as a bit of extortion to get the past due balances.

Criminal defense is different.  Once we’re in, we’re often stuck.  Even if we’re let out, we’ve just burned our client in the process, something few of us can, or want to, do.  As the judges tell us when we don’t get paid, that’s our problem, not hers.  “Proceed, counselor.”

There are some clients who can be billed for their fees, and have the wherewithal to pay and the desire to do so.  They are few and far between, as the vast majority of criminal defendants are poor, barely able to muster enough for their own subsistence.  Those in sufficiently better state that they can afford to retain private counsel are at the edge.  They have whatever they saved, put together from friends and relatives, and stuffed into their pocket.  But that’s it. 

Clients, in a spurt of irrational exuberance, make promises of future funds with the best of intentions.  They ask, “don’t you trust me?”  They mean well.  But they fail, almost invariably.  If I had a dime for every dime that was promised me, I would be rich.  Instead, I work for a living.

No decent criminal defense lawyer can live with himself if he’s not doing right by his client.  We fight because it’s a fight that needs to be made.  We compromise because it’s in the client’s best interest.  We can do this because money isn’t in issue; we are not in a conflict with our client.  This will change.

Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client.  They owe it and they don’t have it.  We are forced to choose whether to work for free or hurt a client.  This is an untenable situation.  This situation cannot happen without undermining our purpose for being lawyers.  Worse still, they don’t necessarily mean to stiff us on the fee, yet you can’t get blood from a rock.  The lawyer gets screwed and has to eat the loss.

With that as a future, who would want to practice criminal defense?  Who could afford to do so?  Without flat fees, there could be no viable private criminal defense bar, unless the lawyer happened to be heir to so vast a fortune that he never needed to make another dollar.  How many guys like that are around?

While the theoretical underpinnings of flat fees, such as the right to contract freely which would be available to everyone other than criminal defense lawyers, are worth arguing, there remains a fundamental point that can’t be ignored.  Without flat fees, there can be no private criminal defense bar.  Except for that one rich guy who does it for kicks.

That means that every criminal defendant except the wealthy (who can be billed because they’re, well, wealthy) will turn to “free” indigent defense. which means that we all pay for people who would otherwise pay for themselves, that our indigent defense services, already overwhelmed, would be even more overwhelmed, and that the future existence of a criminal defense bar would depend on the largesse of the government.  The day they cut off the fee spigot, there will be no more criminal defense lawyers.

Except for that one rich guy who doesn’t need the money.  He’ll be the last Texas criminal defense lawyer.  That’s it.

One of the questions asked by people who aren’t lawyers is why trial courts don’t deal with the big picture, like the introduction of scientifically flawed evidence, by allowing the defense to introduce testimony that the evidence routinely used to convict is crap. 

Lawyers are trained in materiality and relevance, and can explain the rationale. But the truth is, it’s because some judges lack the guts to take the lead, preferring instead to be part of the crowd, do as others have done before them and take no risk of being wrong.  Other judges refuse change because they’re pretty satisfied with the way things are now.  Many, perhaps the majority, sleep well at night knowing another defendant was convicted.  They don’t share your concern.

So when Texas Judge Kevin Fine decided to take on the big picture, whether the state could put a person to death based on flawed evidence, it was huge.  No judge had ever opened the doors so wide before.

Then bam.  The Texas Court of Criminal Appeals slammed the door shut.  Slamming doors shut is something of a favorite of Presiding Judge, Sharon “Killer” Keller.  But like a good court,  the opinion expressed the court’s ruling in lawyerly words.

The 6-2 decision agreed with the district attorney’s office that there is no basis under Texas law to conduct a pretrial hearing to determine the constitutionality of a law.

In addition to saying Green did not have standing to object, the court repeatedly said that the Legislature, not the trial court, is the proper venue for a debate on capital punishment.

“These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time,” according to the opinion.

Of course, the judges are well aware that the “weighty policy issues” have nothing to do with the issues being presented to Judge Fine.  Legislatures will argue whether people need killing, and whether their constituents will vote for them it they support killing or not.  How they get to the killing isn’t their concern.  That’s for the courts to decide.

Except when a court tried to decide, it was shut down.

In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had.  During the trial, issues may be raised about the quality and validity of the evidence being used to convict him.  Those issues will be constrained by the concepts of materiality and relevance.  That’s how evidence works. 

Should Green be convicted of murder, the death penalty will be the focus of punishment.  By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he’s already been convicted of the crime. 

The Texas Court of Criminal Appeals knows that Judge Kevin Fine was doing the unthinkable, putting it all together in one place, at one time, so he could make a decision based on the big picture.  They know that the law makes no provision to allow this to happen.  Under our scheme, we don’t admit that the process developed over centuries with the incremental approval of judge after judge is flawed.  Since we don’t admit it, there’s no reason to have a legal process to correct it.

While it’s true that the legislative branch of government could correct all of the problems and issues that were being presented to Judge Fine, that’s not its job.  The Legislature is a representative body, existing to satisfy the whims of the majority.  The judicial branch exists as a check on the whims of the majority.  To fulfill this purpose, the judicial branch would have to be allowed the opportunity to hear what problems might exist with these whims.  Judge Fine was bold enough to take it on.

The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at “the appropriate time.”  They say this knowing that there will never be an appropriate time.  Case closed.