We all know someone who has died.  Some of us know a young person who died.  We know it’s different.

George Washington Law Professor  Jonathan Turley writes of the passing of a 1L in his evening class, Eric Fatla.  The first time I heard the name was on Christmas day, when Turley  passed along information of a terrible accident, his student falling four stories at the Union Club in Chicago and suffering traumatic brain injury.  He reflects on this young man.

When I first learned of Eric’s fall on Christmas Eve, I was heading to Midnight Mass with my kids. I sat at St. Mary’s of the Lake trying to comprehend the incomprehensible loss of a person so young and so full of life. Eric had already accomplished more than most people accomplish in a lifetime. He had gone to China on a research project, gone to Honduras as an election monitor, and worked in Congress as a staffer. He was currently with a lobbying and law firm while attending class in the evenings.

He told his Dad about his “five-year-plan,” which included finding a wife and having children. Ever since Eric almost died of a brain hemorrhage in high school, he led a purposeful and active life. He was constantly in motion — planning new adventures and organizing his life with precision and passion. He was a unique and extraordinary person.

For every door that technology opens, there seems to be a corresponding opportunity for a prosecutor somewhere to find a new crime.  In Rochester Hills, Michigan, Leon Walker will find out whether reading his wife’s email is enough of a reason to spend five years as a guest of the state.

From The Detroit Free Press :

Oakland County prosecutors, relying on a Michigan statute typically used to prosecute crimes such as identity theft or stealing trade secrets, have charged Leon Walker, 33, with a felony after he logged onto a laptop in the home he shared with his wife, Clara Walker.

Using her password, he accessed her Gmail account and learned she was having an affair. He now is facing a Feb. 7 trial. She filed for divorce, which was finalized earlier this month.

That there is a law prohibiting the access, without authorization or in excess of authorization, the emails of another isn’t particularly controversial.  Hackers would do so, and no one would complain that they shouldn’t be prohibited upon pain of criminal sanction.  But this was a husband on a shared computer.

Oakland County Prosecutor Jessica Cooper defended her decision to charge Leon Walker.

“The guy is a hacker,” Cooper said in a voice mail response to the Free Press last week. “It was password protected, he had wonderful skills, and was highly trained. Then he downloaded them and used them in a very contentious way.”

Walker used the emails, about his wife having an affair with her second husband, who was abusive, by providing them to her first husband who was the father of their child who, according to Walker, might be at risk.  Leon Walker said he did what he had to do.  The story is a bit too convoluted to get any sense of whether he was really protecting a child or angry about being cuckolded.  It provides little basis to suggest that the son of the wife and first husband was at actual risk.

Naturally, Walker’s lawyer thinks the prosecution is out of its mind.

Walker’s defense attorney, Leon Weiss, said Cooper is “dead wrong” on the law.

“I’ve been a defense attorney for 34 years and I’ve never seen anything like this,” he said. “This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It’s to protect against identity fraud, to keep somebody from taking somebody’s intellectual property or trade secrets.

“I have to ask: ‘Don’t the prosecutors have more important things to do with their time?’ “

An interesting but irrelevant question.  The prosecution doesn’t require defense counsel’s approval to bring charges.  The problem isn’t that the broader rationale for the law is stop outside hackers, but whether a spouse can be a “hacker.”  Aren’t wives allowed to keep secrets from husbands?  Even third husbands?

The fact pattern suggests that this isn’t likely to be the best test case for such an extension of law, criminalizing access between spouses.  This was a shared computer, and the wife kept her passwords in a small book next to the computer.  This hardly seems to suggest that she demonstrated an intent to keep her email private, given that access was readily available.

On the other hand, what exactly does a person have to do to maintain privacy from a spouse?  Separate computers?  Double secret passwords?

This is a far bigger issue than would appear to many, given that electronic communications play a significant role in divorces.

About 45% of divorce cases involve some snooping — and gathering — of e-mail, Facebook and other online material, Lane said.

If you want to find out if your spouse is doing you wrong, chances are awfully good that the proof is on the computer.

On the other hand, many of us allow our spouses unfettered access to our personal email.  It’s less that we have nothing to hide, than that our email is so boring that we can only hope someone else will read it and save us the trauma.  But then, there always remains the potential that something will appear in our inbox that we prefer to keep to ourselves, for whatever reason.

As electronic communications are not going away soon, it should be anticipated that there will be both new laws criminalizing related conduct (usually after some high profile tragedy that wouldn’t be affected by the new law), and extensions of existing law to cover unanticipated scenarios. 

While I would expect that Leon Walker’s defense is on solid footing, I can’t help but wonder why this statute shouldn’t apply to protect the confidence of one spouse against another.  Whether it should be criminal, or how criminal, is another matter, but if it isn’t criminal, what’s the solution to maintaining personal privacy, even from a spouse, in the digital age?

According to the heads on the television news, twenty inches of snow fell since the blizzard of ’10 began. Not having gone outside to check, I can neither confirm nor deny.  It makes no difference.  Whatever fell, fell.  And it’s falling still, as the wind continues to blow.

One of the things that distinguishes people is whether they’re proactive or reactive.  It’s always been my view that we take charge of our lives and circumstances, rather than let circumstances dictate how our lives will be.  This isn’t meant as a commentary on free will, but rather a reason to wake up in the morning and get out of bed.  Maybe we are destined to get up and out, and maybe we make the choice for ourselves. 

But there’s nothing like a snow storm to remind us that that there are forces great than us, greater than governments, greater than our politics or philosophies.  We tend to get very puffy about our beliefs, as if they matter more than anything else.  They don’t matter a whit to snow.

After the disastrous Giants loss to Green Bay yesterday, Dr. SJ informed me that it would be a wise idea to do some snow shoveling.  It was certainly piling up, and her thought was that I should jump on top of it and make a dent before it grew to such large proportions that we would have to wait for spring to get out of the house.  My initial reaction was that she just wanted to pay me back for giving her a snow shovel for Christmas.

I told her that it was a fruitless gesture.  Given the high winds and ongoing snow, whatever I removed would be swiftly replaced by nature, as the wind blew snow into the void. Nature abhors a vacuum, I explained.  My knowledge of physics seems to improve whenever it works to my advantage.

She put on her coat, gloves and hat and went outside to shovel.  She did a fine job of it.  I felt awfully badly watching her working so hard, as I drank my hot chocolate with those tiny marshmallows covering the top surface of the mug.  She came in, glistening from the snow that caught on her cute little hat, satisfied that she had made a significant dent in the snow.  I handed her a mug of hot chocolate.

Of course, this morning the path she shoveled last evening doesn’t exist.  It was filled, probably within minutes, and then completely covered by the new snow whipped by the wind.  She took charge of her world by braving the cold, the wind, the snow, and making a difference.  But she made no difference at all, as the morning revealed.

There are a number of lessons to be learned.  To let go of things we can’t change or control, despite our desire to seize control of our world and make a difference.  To come to grips with the fact that we will face frustrations, and despite our best efforts, will find ourselves unable to fix things or make them better.  Over time, even the most proactive of us will realize that we can’t change everything.  Some things, like a blizzard, will happen regardless of what we do, and some things, like the snow filling in the shoveled path, will render our efforts to change things futile.

Rick Horowitz hasn’t been doing much writing lately, but he posted yesterday when few others did.  He explains that it’s not because he had nothing to say, but because of his cognitive dissonance.

You see, what I might want to say is that it’s about time for blood to run in the streets. What I might want to say is that it’s time for a revolution. What I might want to say is that if you work for the government, you are someone the rest of us should consider putting down.

But that’s not really right.

And I haven’t figured out yet how to deal with the fact that I do, actually, think it’s true that we need a revolution, with the fact that people really do get hurt in revolutions, and with the fact that I also don’t think this line of thinking is really right.

The inability to make things better, whether for yourself or others, breeds frustration.  To the proactive person, living in a state of frustration is unacceptable.  Something must be done.  As lesser efforts fail to produce improvement, more extreme measures seem necessary.  It eventually reaches the point where a person might think that it’s time for “blood to run in the streets.”

But as Rick realizes, “that’s not really right.”  He knows that it’s just frustration talking, and sense of hopelessness and futility.  If blood ran in the streets, it would likely be his.  That’s not going to help anyone.

One of the things that contributes to this sense of hopelessness is the constant bombardment of bad things we endure at the hand of what’s supposed to be a benign government.  Some become hyper-radicalized by knowing too much about the bad, where we begin to get the sense that the blizzard will never end. 

In almost 30 years, I’ve seen more than my share of bad things happen in our system.  There has also been plenty of good.  While we occasionally applaud the good, it seems rather unnecessary.  Isn’t the whole point of this exercise to serve society, to provide good for all, all the time?  All of our favorite platitudes remind us how great we are, yet the reality we read about daily tells a different story. 

One such platitude is “ignorance is bliss.”  Sadly, proactive people aren’t satisfied with being ignorant.  There is a blissful state out there waiting for us, and we run from it as fast as we can.  We can hide our heads, squint, and make the world seem acceptable, maybe even pretty good.  And guess what?  It actually is pretty good. 

Almost every person reading this has a wonderful life.  There are people whose suffering, whose frustration, whose problems dwarf ours. As many problems as our country, our system, has, we can’t begin to compare the horrors of scope and grope with watching our children die of starvation or cholera.  As the wind blows and snow comes down, I’m sitting in my library where it’s warm.  Not everyone can say that.

Coming to grips with the fact that no one, no matter how proactive you are, can control everything is difficult.  There are some new blogs around demanding extreme measures of lawyers, because the system is so awful that we can no longer take it. 

While we all feel frustration from time to time, we similarly realize that we are no more likely to foment revolution today than we are to stop the snow from falling.  Indeed, I’m as fearful of those who proclaim the time for revolution is at hand, as they have the arrogance to believe their vision of “justice” is somehow true, and should be summarily imposed on us.

The time will come to start shoveling snow in earnest, when it will be worthwhile and the path won’t be filled by new drifts.  As much as proactive people want to have an impact, it can’t happen until the snow gives way.  That’s just how it is.  We can’t change some things.  Knowing what we can change, knowing what is worth the effort and then making the effort despite the frustration, is a difficult thing for proactive people to accept. 

But we don’t have a choice.  We can’t stop the snow that’s still falling.  And when it does stop, we can’t sit by and do nothing to improve our situation.

This has been on my sidebar for your enjoyment for the past few years during the holidays, but for those who have missed it, here’s another shot.

You’d better watch out,
You’d better not cry,
You’d better not pout;
I’m telling you why.
Santa Claus is tapping
Your phone.

He’s bugging your room,
He’s reading your mail,
He’s keeping a file
And running a tail.
Santa Claus is tapping
Your phone.

He hears you in the bedroom,
Surveills you out of doors,
And if that doesn’t get the goods,
Then he’ll use provocateurs.

So–you mustn’t assume
That you are secure.
On Christmas Eve
He’ll kick in your door.
Santa Claus is tapping
Your phone.

It requires no explanation that this holiday tends to bring out pardons and commutations.  Peace on earth, goodwill toward men.  So those in positions of authority think about the exercise of mercy, some to grant it on Christian holidays to show their hearts are pure and others because they don’t think about mercy any other time of the year.

Governor David Paterson, New York’s blind squirrel, offered a gesture of Christian mercy to John White.  White, you may recall, was convicted of the killing of 17-year-old Daniel Cicciaro, who came to White’s home with a mob to beat up his son because of a prank gone awry. 

White  came out with a gun rather than call the cops. Cicciaro died.  White was sentenced to 2-4 years. 

After serving five months, his sentence was commuted.  Merry Christmas.  The Cicciaros were not amused.

Reached at his auto body shop in Port Jefferson Station, the teenager’s father, Daniel Cicciaro, reacted with annoyance when a reporter identified himself.

“Yeah, what do you need? An oil change?” he said. “We got nothing to say about it.”

Apparently, nobody from the governor’s office gave the Cicciaros an opportunity to be heard.

Thomas Spota, the Suffolk County district attorney, said in a statement, “I strongly believe the governor should have had the decency and the compassion to at least contact the victim’s family to allow them to be heard before commuting the defendant’s sentence.”

It would be fair to believe that the hole caused by the death of their 17-year-old son had yet to heal.

Mr. Cicciaro’s mother, Joanne, declined to comment on the case on Friday. Dano’s Auto Clinic in Port Jefferson Station, which is run by the victim’s father, was closed on Friday, but a decoration, the face of an African-American Santa Claus, was taped to the outside of the front door. It was unclear who had put it there.

No lengthy explanation is needed to clarify why John White and his family are happy this Christmas.  White would likely have served about 20 months before being released, and now his sentence is over.  He has returned to the bosom of his family, his church, his God. 

But this gift to White was at the expense of the Cicciaros.  The latter aren’t a very sympathetic family, despite having lost their child.  They don’t understand why others outside their socioeconomic and ethnic niche are so harsh, but they reflect the stereotype.  Anger, arrogance and racial hatred.  At least that’s how they’ve been painted, and how some of their friends  tainted them in support.  Frankly, that’s how I see them as well.

But there are people who believe that John White could have made better choices, called the police, stayed inside his house, behaved in a way that wouldn’t have left a 17-year-old boy dead.  They see the sentence he received as an invitation to kill, a Texas-style approach to the Castle Doctrine rather than making the decision to de-escalate a heated situation.  

White’s sentence has been commuted after a mere five months.  This reopens the wounds of that night of bad choices.  One family was given a Christmas present.  One family was not.  No matter how one feels about the Cicciaro family, they still lost a child.  Goodwill toward men extends to them as well.

For eight months, Verdugo Hills High School student Jeremy Marks has been in a tough adult jail, facing years in prison for felony crimes he allegedly committed while videotaping a Los Angeles Unified School District police officer grappling with another student.

Jeremy Marks was an onlooker who touched nobody. But prosecutors piled felony charges on him, including making a “criminal threat,” and claimed that he called out the gang name of the Piru Bloods. The unnamed 15-year-old, who actually did fight with the campus officer — who struck the minor with her baton and sprayed him with mace — was quickly released. But Marks has been held for eight months in the tough adult Pitchess Detention Center.

Los Angeles County District Attorney Steve Cooley’s prosecution team says that Marks’ alleged calling out “Kick her ass!” amounted to an “attempted lynching” — defined under the law as trying to “incite a riot during an attempt to free a suspect from police custody.”

But videos shot and posted to YouTube by other students with cell phone cameras show that Marks was one of the quieter kids watching the incident. (Click here to view videos.) Marks can be seen in the YouTube videos using his cell phone camera to tape Robles as she repeatedly pushed the uncooperative 15-year-old smoker against an MTA bus.

Fraser wrote: “I am in a position to post bail for Jeremy so that he may spend Christmas with his family.”

Fraser explains, “When I was growing up, I spent several years in Germany — a country still traumatized by the Holocaust. One of the things I learned was that bad things can only happen if good people do nothing. I consider myself to be a good person, so I had no choice but to act when I saw something like this happening.”

Fraser also sent the family $1,500 for Marks’ defense attorney costs, which was matched by Google.

Neil Fraser put up $50,000, making a deal with the bondsman that it will all be returned if Marks appears as required.  Despite a hiccup, a juvie hold that had been erroneously left in place, Marks’ should have been released by now.  As of this writing, there’s no information that he hasn’t.  Or that he has.  But he will, and a high school student imprisoned for videotaping a cop beating a 15-year-old will be home for Christmas.

In the meantime, Fraser has gone shopping to make sure there are presents under the Christmas tree for Marks’ homecoming. His mother says two gifts have already arrived.

There’s no Santa Claus.  Neil Fraser is a very real person, who gave a Christmas present to another very real person, Jeremy Marks.

H/T Radley Balko

Nick Adenhart’s parents didn’t attend the sentence.  They sent a note instead, telling the judge, “There is no justice as long as Mr. Gallo is drawing a breath.”  They are partially right.  There is no such thing as justice.

The  LA Times article recaps the story that ended yesterday when Orange County Superior Court Judge Richard Toohey imposed a sentence of 51 years in prison on 23-year-old Andrew Thomas Gallo.  He is eligible for release after 49 years.

Toohey gave prosecutors what they sought: consecutive sentences on three second-degree murder charges and other felonies stemming from the April 2009 crash that killed Adenhart, 22, and friends Courtney Stewart, 20, and Henry Pearson, 25. Jon Wilhite, 24, survived the crash but sustained major injuries.

On the night Adenhart pitched six scoreless innings, Gallo was out drinking with his stepbrother. Just past midnight, he barreled through a red light in Fullerton at 65 mph and rammed his minivan into a vehicle carrying the four friends.

Gallo fled on foot and was captured two miles from the scene. His blood-alcohol content was more than twice the legal limit more than two hours after the crash.

“Not only was he driving under the influence, he was obliterated,” the judge said, noting that Gallo was on probation at the time for an earlier drunk driving conviction. “Mr. Gallo, you have devastated four families — really five families with your own.”

Ironically, Gallo’s brother was the designated driver.  Except he got drunk too.  Gallo made the horrible choice to drive home.  Drunks make bad choices.  He understood how bad a decision it was.

“You’re right — I am a horrible person, a drunk driver who took your beautiful kids away.”Gallo told Orange County Superior Court Judge Richard Toohey before sentencing. “They had big, bright futures ahead of them. And because of me, they’re gone.”

Treating a death caused by drunk driving the same as an intentional murder is all the rage.  Pun intended.  The family of the poor, wonderful young people who died were grief stricken, and think they will be comforted by Gallo’s imprisonment forever, if not the forfeiture of his life.  They will come to realize that it doesn’t help some day, but that realization will bring them no comfort.  Nothing will return the life of a lost child, no matter what caused the death.  There is no comfort to be found.  There is no justice.

In the face of a room filled with nothing but agony, Gallo’s lawyer, Jacqueline Goodman stood firm.

Everyone is pretending. Pretending that Andrew isn’t a good person, not an ordinary young man. Pretending that three sets of parents who held their babies in their arms and dreamed about their futures are any different from parents who, at that same time 23 years ago, on those very same days, held their first baby boy, Andrew, bounced him on their knee, and dreamed of his future, full of love and promise.
Pretending those innocent parents are not victims themselves. Pretending their pain is less relevant here.

Pretending that the victims were not themselves human– beautiful and yes, flawed. Pretending that Courtney Stewart’s mistakes did not exist, and that Andrew Gallo’s mistakes were intent to kill. We’re pretending that Andrew is on par with those depraved killers who look into the eyes of their victims and determine wilfully to take their lives. We’re pretending that 51 years to life will have any impact on whether a different young man or woman drinks, and then foolishly gets behind the wheel, believing, as they do, in their omnipotence, their immortality. We’re pretending that here, today, that we are somehow not taking another life with cold intention, in response to the loss of lives in a tragic accident.

Well I will not pretend.

Andrew Gallo is a good and gentle soul who never set out to harm another person, and who does not deserve to lose his life.

He comes from a good family– a military family, his own brother a marine. A family who, in deference to the pain of the parents of the victims, and without thought of their own sorrow, every day gave up the front seats in their son’s own trial to the parents of the decedents here. They quietly sat in the back, entered and exited last, even as their son’s taking was on display in slow motion.

And it is absurd to think that we can summarize in a few sentences the infinite value of any of these lives or the depths of sorrow at these losses. But the only way we might spare a life or several lives from a similar fate is to allow Andrew the opportunity to share the lessons he’s learned at such great a cost.

That would be a far greater and more fitting legacy to Henry Pearson, Courtney Stewart, Nick Adenhart, and Jonathan Wilhite. That in their names was dealt mercy and temperance and understanding instead of vengeance and blame. That in their names, others were spared their own lives. This would be the most fitting tribute to these extraordinary people. They would stand for forgiveness over blame.

My own father is dying. He saw me in court one time, and that was here, in closing arguments. My father is a recovering alcoholic. He had about 30 years of life-affirming sobriety. But it took him about 40 years to reach it. Fate denied Andrew as much of a chance.

Today Andrew and I know that we come into this battle to lose. The victory, sometimes, is in showing up. The victory is speaking truth to power. It is in speaking love to hate.

At this moment, my father is dying. Because I am in this hearing today, I may not be by his side when he passes out of this life and into the next. But know this: That I am profoundly privileged to stand next to Andrew Gallo. And in my father’s name, I proudly stand on the side of honesty.  Of hope and redemption over blame.

As she spoke these words, another man, Jeremie Cancel,  was sentenced on the other side of the country for the strangulation murder of a Pace University student, Kevin Pravia.  Cancel giggled as he was sentenced. He is eligible for release in 25 years.

The emotional desire to make the object of one’s pain feel it as well is understandable.  But Andrew Gallo was stupid, not venal.  Jeremie Cancel was venal, but an ordinary intentional murder isn’t the latest focus of society’s outrage, even when it’s so personal as by strangulation.  And Cancel’s victim didn’t throw a baseball with great velocity.

There is no justice.

Over at Above The Law, there have been a series of posts on the subject of  end of year bonuses for Biglaw.  This is a matter of huge interest and concern for young lawyers who are deeply dedicated to excellence and client service.

Since ATL tends not to concern itself with our little niche of the profession, I’ve decided to pick up the slack and post all the critical news about criminal defense law end of year bonuses.  An exhaustive listing follows:

Gizmodo reports that somebody (bodies?) decided to create a Facebook page to the effect that 23-year-old Triz Jefferies was the Kensington Strangler.  Was this for lulz, or because somebody had a beef with Jefferies?  Who knows.  It didn’t really matter why.  Facebook said so.

As a result of that Facebook post, “a group of people began sending text messages, posting flyers” and reposting the claim that Jefferies was linked to at least three murders and several sexual assaults. The man finally called the police and sought to clear his name after an angry mob gathered around his home:

Afraid of the crowds surrounding his house, the man submitted to a DNA test and was cleared in the case. He told police that he thought somebody was “trying to mess with me.”

Police are investigating who was behind the false information.

Police Commissioner Charles Ramsey reiterated the man’s innocence at a press conference today.

“He is not a suspect, he is not connected with this,” Ramsey said.

An angry mob gathered around his Philadelphia home, pitchforks and torches at the ready.  This could have been inches away from a lynching. 

Are you people completely nuts?

It’s one thing to accept Wikipedia as the font of all legitimate knowledge.  That only makes you stupider and conclusively proves your laziness.  But to be moved to the point of putting on a a coat, leaving your home and joining an angry mob in front of a house because Facebook said so?

“Everybody has to be very leery of photos of a wanted person on Facebook,” Lt. Ray Evers said. “Because of social networking and how big this fan page is growing … if somebody shared it with their friends, the multiplier effect … it’s pretty damning.”

Not damning, but damn dangerous.  This reflects nothing about Jeffries, who had absolutely nothing to do with any of this.  As for whoever put his name, address and image on Facebook, the question is whether they are pathologically stupid or deeply malevolent. 

But the biggest question is what’s happened to the brains of otherwise sensible people who see something on Facebook and, in a rush of heroism, join a mob.  Social media can be plenty of fun.  Less so if you happen to be the person about to be lynched by a stupid mob.

I’ve been trying to moderate my views on social media of late, as I know how much the Slackoisie love it to provide them with a pale facsimile of friendship to compensate for their lack of any actual human interaction, and how lawyers with practices that can’t feed their families use it to lie about themselves to pretend they are worthy of retention.  I’m not trying to make your lives even more pathetic than they already are.

But when people put stock in social media sufficiently to put some kid’s life at risk, whether it’s because Facebook said so, or some wiseacre on Twitter went on a rampage, then it’s time to spell it out for you.

People lie online.  People make jokes online.  Sometimes incredibly stupid jokes.  Sometimes incredibly harmful lies.  There is no one in the backroom fact checking. 

Over time, I’ve come to see a lot of nonsense online.  I’ve called some out.  I’ve let most of it be, mostly because it’s too pervasive and I’ve grown tired of trying to stop the waves from rolling in.  The best I can do is warn, though my warnings mean nothing to the social media sycophants who tout it as the new reality or the lawyers who have abandoned all dignity to feign sweetness and self-importance, to suck whatever pocket change they can find out of potential clients.

It’s bad enough that social media is the mechanism of choice for liars and scum.  Do not act upon your impulses.  Do not harm another human being because Facebook told you to.

The question has been asked whether the internet makes people stupider.  And then a story like this happens.  For God’s sake, grow up and get real.  The day will soon come when the internet generation is in charge.  When will you figure out that the place is rotten with lies and deception, and that nothing can be taken for granted?

For all your talk about how wonderful you are, how brilliant you are, how nice you are, you are the easiest generation to manipulate.  You believe every bit of nonsense someone puts out in social media.  How many people will get lynched before you wise up?