In a move that’s as sweepingly cynical as it is desperate, Harris County District Attorney Pat Lykos has gotten the Texas Court of Criminal Appeals, on its second bite, to shut down the hearing in the capital case of John Green.  The hearing, before Judge Kevin Fine in Houston, was itself quite remarkable, airing out issues about the use of evidence long known to be dubious, yet consistently used to convict men and sentence them to death.

Mark Bennett in Houston has been following the hearing closely, even live-tweeting the hearing on its first day.  While I’m over-simplifying the situation, the defendant seeks to show that the evidence used to prove guilt in a death penalty case should be subject to heightened scrutiny, or the conviction would fail to satisfy the 8th Amendment.  In short, all the failings of the evidence, eyewitness identification, testimony by paid informants, and fingerprint comparison, which escape review during the ordinary course of trial based on relevance to the particular defendant, are being tested.

The prosecution has taken a curious position in the hearing before Judge Fine, prefacing and concluding its statements with “but we’re not participating,” while participating.  The objective appears to be to get in their licks without legitimizing the proceeding, so they can later argue that they didn’t participate despite their participation.  Judge Fine wasn’t buying.

As science, experience and DNA have developed to make clear that the sort of evidence being offered to put John Green to death for the murder of Tina Vo is too often wrong and unreliable to stake a man’s life on it, the reaction is often posed why the defense doesn’t put an expert on the stand to explain to the jury why the prosecution’s evidence, like eyewitness identification, isn’t anywhere as compelling as ordinary folks assume it to be.

The answer is relevance.  The science is generic, not particularized to the specific case.  By definition, it couldn’t be.  And eyewitness says, under oath and with the utmost sincerity, that the defendant is the man who done it, and that’s that.  Maybe such testimony is prone to error, but there’s no evidence it’s error in this particular case.  There’s the rub.

The flawed legal assumption is that jurors can decide for themselves the weight to be given such evidence, without need to resort to the soft science of its invalidity. The problem is that this flies in the face of decades, maybe millennia, of “common sense,” that bit of ignorance relied on by people to leap over issues they don’t comprehend and arrive at the simple, and wrong, conclusion.  The deeper problem is that it would make the prosecutions job of proving guilt substantially more difficult.  The law has a long tradition of relying on unreliable evidence because it’s the only evidence available.  Without it, how are they supposed to convict?

This hearing before Judge Fine wasn’t a symposium, a tent revival or laboratory.  It was a novel approach, a challenge to the court’s gatekeeper function of allowing unreliable evidence to serve as the mechanism of death. 

The prosecution argued to the Texas Court of Criminal Appeals that the defense was seeking to prove Green’s innocence via evidence of wrongful convictions of others.  The defense countered that this wasn’t the case at all, and the prosecution was mischaracterizing the nature of the proceedings.  The defense wasn’t seeking to prove Green’s innocence, but rather to challenge the reliability of the nature of the evidence against him, and by it, the validity of any result obtained based on such evidence.

This hearing was an airing long awaited, and long needed, and if the legal system is ever to cleanse itself of convictions based on evidence that, despite its having long been held sacrosanct, we have come to realize is deeply flawed,   Just because it’s the evidence available doesn’t make it reliable.  At some point, the law needed to catch up with reality.  This could be the time.

But the Texas Court of Criminal Appeals issued a stay.  Not today, it says, even though its stay come mid-hearing and after its earlier denial of a stay on the exact same basis.  They ordered the parties to brief the mandamus issue.  It was be parsed out in lawyerly fashion, though there really isn’t anything left to be discussed about the issue.

It was a bold move by Judge Kevin Fine to allow the defense the opportunity to pull the shroud off shoddy, unreliable evidence that has convicted countless men and women.  Bold moves are rarely appreciated by those whose interests are vested in the status quo.  We have relied on bad evidence for so long that the idea of testing it now, after all those years and all those bodies convicted, seems almost revolutionary.

Pat Lykos likely doesn’t want to be remembered forever as the prosecutor who blew the game, the one who lost the ability to execute people based on eyewitness identification, long lionized as the best evidence there is when it came to persuading a jury that “he’s the man.”  Maybe the Court of Criminal Appeals wants to put its stamp of approval on Judge Fine’s hearing, to make clear that its a determination whose time has come and to prevent any post-hoc claim that Lykos’ refusal to participate somehow undermines the legitimacy of a ruling.

Or maybe the Texas CCA, whose presiding judge will forever be known as Killer Keller for slamming shut the courthouse doors to make sure there would be a killing that day, wants to protect the good old ways of convicting the bad guys, knowing only too well how difficult it could be if unreliable evidence and tradition don’t prevail.

The outcome of this hearing is by no means assured, even with Lykos’ prosecutors playing the “no participation” game in an effort to derail its legitimacy.  Judge Fine is staring down evidence that has been the mainstay of convictions forever.  But Lykos, like every prosecutor who isn’t a complete braindead, is well aware with the problems with such evidence, and the potential that jurors will persist in their blind faith in its validity so long as it’s not confronted with a meaningful explanation of its inherent flaws. 

So what of the concern that prosecutors not convict the innocent merely because they can?  What of the concern that they not be the instrument of death, only to learn later that they were wrong?  What of the platitudes about seeking justice rather than convictions?  They are now in the hands of the Texas Court of Criminal Appeals.

As noted here, when Queens District Attorney Richard Brown decided that he didn’t want Supreme Court Justice Joel Blumenfeld ruling on his “routine” questioning of defendants immediately in advance of arraignment, just to give them a last chance to explain themselves (or confess, should that be their wont), he went for mandamus.  No way he was going to risk an adverse ruling and appeal.

DA Brown, you see, used to be Judge Brown at the Appellate Division, Second Department.  And that just happens to be the place where his Article 78 proceeding to silence Judge Blumenfeld goes.  But as Joel Cohen and Katherine Helm note in this Law.com post, that’s just where the confusion starts. 

What happens if you call out “judge” in a room and every person turns their head?  Welcome to the problem in Queens.

When Justice (the technical name given all statewide judges other than those on the Court of Appeals, New York’s highest court, as opposed to its trial court, called the Supreme Court) Blumenfeld had issues about “Judge” Brown’s defendant interviews mere moments before counsel was assigned, he called on Cardozo law prof Ellen Yaroshefsky for her opinion.

Justice Blumenfeld, in the context of a confession suppression hearing, decided to hold a hearing on the ethics of the DA’s practice. The judge asked a legal ethics professor, Ellen Yaroshefsky, to prepare an expert report exploring and analyzing the practice, as an aid to the court.

Yaroshefsky’s report was extremely critical of the prosecutors’ conduct. So disturbed was the Queens DA by the judge’s plan to hold a hearing and by the conclusory nature of the report, that his office instituted a rare mandamus proceeding to enjoin the hearing, arguing that the Supreme Court lacked authority to evaluate the prosecutors’ ethics. The DA’s moving papers castigated Yaroshefsky as an activist who favored criminal defendants and made several ad hominem references to a prior representation and her client in that matter, former attorney Lynn Stewart.

In support of the ethical propriety of his Queens Central Booking Program of unrepresented defendants, District Attorney Brown offered his own papers supporting his mandamus petition to his former court. In a one-two punch, he also retained, pro bono, a distinguished, retired judge of the Court of Appeals (New York’s highest court) and former law school dean, Joseph Bellacosa, to offer an additional affidavit. Bellacosa’s opinion focused on what he deemed the impropriety of Yaroshefsky’s report, finding it “puzzling, unfounded and ironically bordering on irresponsibly unprofessional conduct.”

Bellacosa’s significant credentials and accomplishments in New York’s appellate courts, including his Court of Appeals opinions on legal ethics, buttressed the force of his report to the court whose decisions he himself used to review. The district attorney’s office papers kept reminding their readers precisely who was on their side, i.e., that they had a noted “judge” in their corner. They basically trotted out the affidavits, dressed up in black robes.

Of course, Bellacosa doesn’t call himself “Judge” Bellacosa in his affidavit nor encourage the Appellate Division justices who will decide the mandamus petition to do so. He does, of course, makes very clear precisely who he is by virtue of his important works on the courts, and we don’t quarrel here with his conduct in submitting such an affidavit as he did. However, far more patently, the district attorney’s office time and time again in its papers makes clear precisely who their expert is — by name, “Judge” Bellacosa — lest the appellate court forget who was on the DA’s side.

There’s nothing prohibited, nor wrong, about a former judge who aged out or otherwise moved on in their legal career either using their judicial experience and good works in support of their credibility or letting others know that they once wore a robe.  And there’s nothing wrong, as is commonly done, for former judges to enjoy the honorific title of “Judge,” although it would be awkward, not to mention contrary to the ABA ethics opinion (ABA Formal Op. 95-391) to use it in the courtroom.  Best to let the folks actually being paid to be the judge that day enjoy the title all by their lonesome.

Still, nobody misses the implications, and Judge Blumenfeld wasn’t about to let Judge Brown’s use of Judge Bellacosa on his side go unnoticed.

Justice Blumenfeld and Professor Yaroshefsky met the DA’s expert with a counter-expert: Lawrence Fox, a law firm partner in a significant law firm, former chairman of ABA’s Standing Committee on Legal Ethics and Professional Responsibility and visiting lecturer on legal ethics at Yale Law. Pertinent here, and putting aside whether (Judge or Dean) Bellacosa or Fox is right on the merits, Fox’s amicus brief said the following about Bellacosa:

Finally, Yaroshefsky amici cannot permit the petitioner’s constant references to “Judge” Bellacosa, and the characterization of his views go unaddressed. The way the District Attorney describes it, one would think this court should rein in Justice Blumenfeld because a far higher authority, “Judge” Bellacosa, has spoken. But in fact this is improper advocacy based on the participation in this proceeding by a retired judge. At the point where “Judge” Bellacosa is providing his opinion, he is just another lawyer, laboring in the vineyard the same way amici are. And to continue to treat him as if he were a judge and his opinion entitled to some exalted status by virtue of that judgeship, is clearly contrary to the way former judges who practice law should be treated.

There is no question that there are some heavy hitters in this game, whether or not the title judge goes along with the advocate, and their credentials and significant past successes certainly play a legitimate role in weighing the merit of their opinions. 

But the question remains whether the Second Department will make its decision in this bizarre mandamus case, where the prosecution seeks to silence a sitting judge from ruling on the propriety of its hugely dubious practice of manipulating statements from defendants in the moments before they are represented by counsel, based on which side has the most judges.

Or will the court ignore the fact that almost everybody in the room can be called “judge” at cocktail parties and decide instead on the merits.  To that end, I note that Richard Willstatter, who sits in my old spot as amicus chair of the NYSACDL, has  submitted an excellent brief in the matter as well, even though nobody calls him judge.  Yet.

The extraordinary move by Brown to stop Justice Blumenfeld from rendering a decision on a case before him raises fundamental issues of judicial independence, aside from the underlying propriety of Brown’s deceptive and manipulative questioning of defendants at their most vulnerable.  Clearly, the implications of this case are broad for both the courts as well as sanctity of a defendant’s right to remain silent and the Supreme Court’s Miranda warnings, and the Queens DA has brought out the big guns.  Will it overwhelm the judges on the Second Department, or will they remain the only judges in the room that matter?

One might wonder, given all the judicial testosterone in the room, how Ellen Yaroshefsky feels about being a mere lawprof in the presence of so many black robers.  Knowing Ellen, my bet is that she’s never felt better.

From the lede of this  Kansas City Star story, one might suspect the crux of the issue is the volatility of stun grenades:

Kansas City police have started an internal investigation to determine if tactical officers acted properly when they broke into a home and threw a stun grenade that caught drapes on fire.

What’s unfortunate about this lede, aside from the lack of editing, is that it fails to note that the KC cops obtained a knock and announce warrant that never should have issued, executed it without knocking at a home they never should have come to, broke down the door despite the homeowner offering to open the door for them, and tossed in a stun grenade for no cognizable reason.

And then the drapes caught on fire.

JeTuan Jones said the use of force — breaking open her door and throwing a “flash bang” device past her niece’s head — was unnecessary, considering that the search warrant was for a cell phone used by her brother, who had moved out four months earlier and was in police custody.

After barging in, police realized her brother did not live there and left without searching, Jones said.

Naturally, the Kansas City police are “investigating,” the police equivalent of telling the angry popular that they aren’t ignoring their wrongdoing, but biding time until people move on to the next thing that attracts their attention so they can wrap this up without any muss or fuss.  Naturally, police officials can’t comment while the matter is under investigation.  They sure have plenty to say when they arrest a bad guy for breaking into a house and lighting the drapes on fire, but that’s different.  That’s you.  That’s not them.

Complaints are rare, he said. Police have served more than 430 search warrants this year, mostly for narcotics investigations. The Office of Community Complaints has forwarded three complaints, including Jones’, to the police Internal Affairs Unit.

Is it fair to call the engagement of conduct that would constitute a crime if done by anyone who wasn’t wearing a shield a “complaint?”  That’s a matter of who you talk to.  In this case, the “complaint” isn’t limited to the drapes on fire from the flash bang grenade, but the breaking into the home despite the warrant not authorizing such entry.  It’s a big thing to go “no-knock” when the warrant says “knock and announce.” 

And what of the warrant itself, duly signed by a Jackson County Circuit Court Judge? 

Jones’ brother attracted police interest after he began using a homicide victim’s cell phone. He told his sister he found the phone Oct. 29 while walking. He used it to call her house.

According to Jones, police began watching her house. They arrested her brother Nov. 3 as he walked to work.

That night, she saw police cars pull onto her street as she left home with her husband and one child. Minutes later, tactical officers charged her front door. Barking dogs prompted Jones’ niece to open the door. Police outside yelled for her to get down.

One might wonder what connection was drawn between the place called and the likelihood that a piece of evidence might be found there.  It was ultimately found in the apartment where the brother had been staying until he was arrested earlier that day,  Did the judge bother to read the affidavit in support of the warrant? 

There’s a nagging suspicion that the inclination to behave like storm troopers comes from the toys we give them.  Put on a SWAT uniform, black as the night so one can’t be seen.  Bring a battering ram to the door and carry stun grenades.  It’s heady times for law enforcement, emboldened by a warrant, even if its basis is garbage and it doesn’t quite allow them to break down the door and throw the grenade.  They’ve got all the fun, cool cop stuff. 

Then there’s the first rule of policing, make it home for dinner.  It’s certainly safer for law enforcement to shock and awe then ask politely.  Stun those old women and they present no threat.  Even an 84 year old bedridden woman can pull the trigger on a gun, assuming she has one.  There may be no reason to suspect she’s armed, but then you can’t bank on her being unarmed.  It could happen.

In the name of safety and effectiveness, we load up police with the toys of the trade and trust them to show sufficient discretion not to use them unless needed.  We ask way too much.

The downside of tossing the stun grenade is an investigation that will result, at absolute worst, in an admonition not to violate the terms of a warrant or use excessive force.  The police involved will bow their heads, shuffle their feet and promise never to do so again.  All is forgiven.  Except by Jones:

She wants police to pay for the damage to her house, which she estimated at thousands of dollars.

Police say they don’t usually pay for damage if it is considered “reasonable.”

In the course of protecting our safety, there will always be some “reasonable” damage.  That’s the price of giving cops stun grenade and the authority to storm into a home in the night.  They’re just doing using the toys we give them to do the job we ask of them.

Brian Tannebaum  posts about lawyers who take a part of their fee up front with the balance to be paid over time.

But cash flow is slow, you need the case, and you’re OK getting $1,500 down on a $5,000 fee, because you really need that $1,500 right now.

A month later that first of seven $500 payments doesn’t come. You hope the judge will give you enough continuances to get paid, and you’re looking for a way to convince the client to pay his fee. In the end, you’ve received $2,500, you hate your client, and most of the conversation with him is about “when” he’s going to pay.

No, not criminal defense lawyers, but this statement opens the  press release by the United States Attorney for the Northern District of Georgia, Sally Quillian Yates:

The United States Attorney’s Office has one responsibility – to seek justice. To fulfill that responsibility, we are today disclosing information that we have recently discovered to the public as well as to defendants who may be affected by this information.

What juicy revelation could she be about to disclose?  That fingerprints are baloney?  That the lab techs lied and never actually tested the 457 kilos of cocaine?  That they’ve actually read Brady and realized that they’ve withheld information that tended to exculpate the defendant?

Sorry.  Not today.  Nope,

On November 19, 2010, former Senior District Judge Jack T. Camp (“Camp”) pleaded guilty to aiding a felon in possessing illegal drugs, possessing illegal drugs, and converting government property to private use.

Sally, this was already in the news.  We know this.  And it means what to us?

While Camp’s use of these drugs was not limited to weekends, he denies that he used any of these drugs contemporaneously with any court business, and we are currently unaware of any demonstrable evidence to the contrary. We have not discovered evidence of illegal drug use prior to May 2010.

So he was a drug-crazed fiend on his own time?  Thanks for that revelation, Sally, that his “lapses of judgment” never impaired his judgment when it came to being a judge.  Really, he’s a poster boy for judicial discretion.  Come on, there’s got to be something.

According to Witness 1, Camp told her that when African-American men appeared before him, he had a difficult time adjudicating their cases and specifically determining their sentences because he could not differentiate them from Individual A in light of his feelings about Individual A.

When our office confronted Camp with the above allegations, he said that he did not make the statements attributed to him by either Witness 1 or Witness 2. He further denied ever taking any judicial action based on racial bias.

Or are you saying that he’s not a drug-crazed racist with penis issues because he denied it?

Our review of information provided by the Clerk of Court indicates that the only criminal trial over which Camp presided from May, 2010 forward resulted in a mistrial due to a deadlocked jury. Our only interest in any case that we have prosecuted before Camp is ensuring that justice is served. To that end, given these disturbing facts and allegations, this office will evaluate any criminal case adjudicated by Camp for impairment or bias that a defendant requests that we review.

Well, as long as your only interest is to ensure that justice is served.  After all, who isn’t for justice, right?

Furthermore, from May of 2010 forward, there is evidence that Camp’s judicial decision-making process may have been impacted by bias and/or impairment and it has been established that he was involved in criminal conduct during this period. Therefore, we will not object to a defendant’s request for a resentencing in any case in which the defendant was sentenced during this time.

That’s wonderfully magnanimous of you, given that Camp’s judgment was, how shall we say it, impaired.  Of course, there’s still one thing that remains a bit troubling, you see, because defendants don’t get to the point of sentencing without having gone through the process of prosecution, during which Judge Camp gets to do stuff, like make decisions and smack defendants and their lawyers around some, and detain people so that they are incapable of aiding in their defense, even assuming they are capable of obtaining the legal representation to which they would otherwise be entitled.

There are a whole panoply of rights and issues that arise during the course of prosecution, starting at the moment of arrest and continuing until the marshals walk the defendant out in shackles, and they are all inter-related, and often defy the government’s ability to see them quite as clearly as they might appear to a defendant or his lawyer. 

But hey, as long as your only interest is in seeking justice, we can certainly rely on your sound judgment and good intentions to ensure that every defendant who appeared before Judge Jack Camp got his fair shake.  After all, it’s all about justice, and if we can’t trust the government to seek justice, who can we trust?

And isn’t it fortunate that the miscreant who disrupted the government’s efforts to seek justice just happened to be some drug-abusing, sex-crazed old judge?  It’s not like anybody in the United States Attorneys office would ever do something to cause you to have to issue a press release about how you’re only responsibility is to seek justice.  Bad judge. Good government.  Glad we got that cleared up.

H/T Dissent at Pogo Was Right

Via Michael Cicchini at his new criminal law blawg,  The Legal Watchdog, provides an ugly view into the rationale of the Wisconsin Supreme Court when it comes to determining who, and why, someone is a sex offender.

For each violent rapist, a registry may contain dozens of teenagers who had consensual sex with younger teens, and dozens of other teens who were convicted of “sexting,” urinating in public, or similar behavior .  But, perhaps the biggest problem with sex offender registries is that they’re not just for sex-related crimes anymore.
         

An excellent example of this trend can be found in the Wisconsin case of State v. Smith, where Smith, a 17-year-old boy, made another 17-year-old boy go with him to collect a debt.  Smith was convicted of felony false imprisonment for this behavior and, because his “prisoner” was a minor, the state forced Smith to register as a sex offender. 

[R]equiring Smith to register as a sex offender is rationally related to the state’s legitimate interest in protecting the public, including children, and assisting law enforcement. Requiring Smith to register, even though his conviction for false imprisonment was not of a sexual nature, is rationally related to the government interest in protecting the public and assisting law enforcement because:

(1) false imprisonment has been linked to the commission of sexual assault and violent crimes against children;

(2) an offender’s sexual motive or intent may be difficult to prove or determine within the context of false imprisonment; and

(3) false imprisonment places the minor in a vulnerable position because the offender, rather than the minor, has control over the minor’s body and freedom of movement.

Two essential errors drive the majority’s analysis. First, the majority fails to carefully define the purpose of the statute. Its broad statement of the statutory purpose evinces an unwillingness to provide meaningful review. Second, the majority mischaracterizes Smith’s challenge. In so doing, the majority blurs the distinction between facial and as-applied challenges and ducks the constitutional challenge that is the subject of this appeal.

As a result of these errors, the majority abdicates its responsibility to determine whether there is a rational basis for requiring Smith to register as a sex offender. Contrary to the majority, when I examine the legislative purpose behind the sex offender registry, I conclude that there is no rational basis for making Smith register as a sex offender when everybody acknowledges that there was nothing sexual about his offense.

Shocking in its simplicity, Justice Bradley goes right to the heart of the matter.  There’s a reason it’s called the Sex Offender Registry.  The rationale that permits its existence is predicated upon its being related to sex offenses, even though that rationale suffers from some massive inherent flaws since not all offense that can be legitimately characterized as bearing any connection to sexual conduct suffer from the recidivism dilemma that was used to justify perpetual oversight and control. 

But when the explanation for putting a 17 year old kid on the registry requires a court to find justification in something so broad, so vague, so utterly unjustifiable, as “assisting law enforcement,” there can be no denying that these registries have been reduced to a farce.  Perhaps a better name than sex offender registries would be census, as the underlying rationale would, with only the most minor extension, apply with equal force to the heinous illegal parker.  Heck, it would apply to the most law-abiding guy in Kenosha County, since no one would expect him to go bad, and he could do a ton of harm without police scrutiny.  If that’s not a good reason to keep an eye on his whereabouts, I’ll eat my cheesehead.

As the dissent notes, an as-applied challenge provides an opportunity for the court to determine whether those attenuated “links” between non-sexual criminal conduct and any potential to commit an inchoate sex offense exists.  If not, under any meaningful logic, then the court has the power to conclude that the registration requirement as applied to this particular individual, is arbitrary, and therefore unconstitutional.

But that would take a lot of work, considering each defendant individually, and would undermine the legislative scheme of making sure that law enforcement is assisted at every turn.  As I learned in Milwaukee, in heaven there is no beer.  And in Brown County, Wisconsin, there’s a 17 year old kid on the sex offender registry because a majority of judges on the State Supreme Court couldn’t be bothered thinking too hard.

That’s the claim of Lane Wallace in The Atlantic, where she uses it in support of her argument that the death penalty is unconstitutional.

But if, in fact, murderers who commit grisly crimes do so because of warped minds–perhaps because of trauma and abuse endured as children, or perhaps because of organic, biological deficits–if, in fact, they are mentally ill in ways that make it impossible for them to see the world or appropriate boundaries and behaviors the way the rest of us do. Is it appropriate, ethical, or right to kill them for their acts? Or is it, as Sharp argues, a barbaric thing for a civilized society to do? 

Or, to put it in Constitutional terms, if someone’s acts are a result of an illness they can’t control, even if the acts are deliberate, conscious and cold-blooded, does it violate the 8th Amendment’s ban on cruel and unusual punishment to condemn them to death because of those acts?

Elaine Whitfield Sharp is a defense attorney who has worked on hundreds of murder cases over the past 20 years. And while she thinks Stevens’ points are valid, she believes the fundamental problem with capital punishment is more basic than that. 

“You see, I truly believe that murderers are mentally ill,” she explains. “Their brains don’t work like the rest of ours do. To deliberately kill someone requires crossing a profound boundary. Most of us couldn’t do it. We couldn’t even think about it. But they can. They do. Why? Because they’re mentally ill. And fundamentally, as a society, I believe it is barbaric to kill people who are ill.” 

So, in many ways, or until a crisis precipitates a dysfunctional episode, a mentally ill person can appear perfectly rational and “normal.” And yet, their internal world is very different. What is irrational or unreasonable to most of us can seem very reasonable to them. 

“Murderers seem to have no appreciation of boundaries,” Sharp explains. “And it shows up in all aspects of their lives. Most criminals I deal with are very narcissistic. They’re blame-shifters, manipulative, and can’t feel anyone else’s pain but their own. A consistent hallmark, in fact, particularly of killers, is this extreme narcissism.”

Most of us would view someone who’s constantly shifting blame to others and has an aggrandized view of themselves as annoying, at best, and perhaps reprehensible. But what Sharp, Peck and others are arguing is that, at least after a certain point on the spectrum, it’s actually a mental disorder, like schizophrenia or other personality disorders. As in, not something the person can control or change on their own.

Over at Spamnotes, Venkat Balasubramani riffed off  my post on the downside of undeserved self-esteem by providing bit of historical context, if there is such a thing as historical context when referring to an internet phenomenon that’s existed for slightly less time than a fruit fly.

What’s interesting about this is that this is a relatively recent phenomenon.  I don’t have any claim for being an early active participant on the internet, but my anecdotal observations are that in the “early days,” you could put yourself out there, but you were just as likely to be ripped to shreds as you were affirmed by the adoring masses (or by your “tribe”).

In fact, one of the big benefits touted of the internet is that it is a gigantic merit-based system where the crowd functions as an adequate screening mechanism to separate the good ideas, arguments, and positions from the bad.  You can put whatever you want out there, but chances are, someone else (somewhere) would cut it down to its appropriate size.  Somewhere along the way, between GeoCities and Facebook, all of this changed.

What’s changed?  You guessed it.  With interactions increasingly becoming social (i.e., attached to our “true” and “authentic” online personas), flattery and faux kudos are on the rise.  In fact they are the norm.  People compliment each other endlessly and mindlessly.  The internet has become a giant self esteem pyramid scheme of sorts.

As new people arrive daily, they want nothing more than to be welcomed and embraced.  Cynical old timers have seized upon the fragile and needy newbies by tossing them a stray kiss and receiving their uncritical devotion in return.  In the process, It’s home, home on the range.  You know, “where seldom is heard a discouraging word.”

Venkat asks whether we’re creating a self-esteem bubble, with people roaming the internet with an inflated sense of self-worth that will ultimately burst? It seems pretty likely, as all this unwarranted love and goodwill is undermined by the reality that rises to the surface that everybody online isn’t the most wonderfulest person ever, that you don’t really want to complement your latest twitter follower for getting out of bed without falling down and that you don’t truly care what trauma is endured by a second year law student. 

At some point, thoughtful people will start yearning for something more thoughtful.

Does this make the bursting bubble a bad thing?  I think not.  Venkat’s allusion to a pyramid scheme is particularly apt.  It seems inconceivable that people will find it perpetually worthwhile to engage in this delusion of self-congratulatory drivel.  We can only applaud others for burping so many times before we’ve had our fill and demand something a little more worthwhile to generate a compliment.

At this phase of the blawgosphere’s maturity, there are many who have captured an audience via this pyramid scheme of mutual undeserved applause, but whose substance is lacking.  When the bubble bursts, they will disappear.  When it’s no longer enough to spread the love, when there isn’t enough time in the day to offer another empty gesture in the hope that it will be requited, it will fade.  Then, I hope, we can return to a time when blawgers, and readers, will scrutinize carefully for merit.  Then, when someone applauds, it will mean something rather than just be an even exchange.

In the meantime, the self-promoters and scammers will have their day.  Those who thrive on the pyramid scheme will enjoy the attention they receive in return for their faux blown kisses.  But like all pyramid schemes, it will eventually collapse onto itself.  And we can go back to the meritocracy that the blawgosphere once promised.  For now, it’s all about blowing smoke up each other’s butts.  Eventually, the smoke will clear.

My only hope is that the bubble bursts before those who are putting in the effort to provide substantive work, solid thoughtful effort, get too disgusted and move on to more worthwhile pursuits. 

The quest to create a news portal that’s truly neutral has produced some great moments in journalism.  Think Fox News’ Fair and Balanced tagline. It even said that on a tie they gave me to wear back when I did their legal analysis.  It was a pretty nice tie, really.

An email came across the other day promoting another entry into the mix, called Newsy.

Newsy is a news site that uses multiple sources to get across the core of the story. Newsy doesn’t lean to one side over another. They are in the middle kind of like this issue. I think you should consider embedding this video and other videos from Newsy to use on your website because of it’s approach to the newsy

On Tuesday, the Supreme Court gave an answer to the $7 billion question: “How can California cap its numbers?”

NOOOO!  The Supremes heard argument.  They gave no answer.  A massive failure for a news story, to offer something so completely and fundamentally wrong. 

As a consumer of news, I welcome credible and intelligent sources of information, recognizing that its often hard to put together a story about something important in the few minutes given to issues of grave consequences between happy dog stories and dead baby interviews.  But when the story starts out with something so basically false, nothing that follows matters.  It has perpetrated a fraud.  It has illuminated nothing.

I’ve never been a fan of the concept of journalistic fairness.  I’ve argued the point with friends in the media, who believe the myth that there are two sides to every story and want to offer each an opportunity to be heard.  Often, there is no other side, and one side is correct while the other is full of malarkey.  To offer equal time, and thereby equal stature, to a nonsensical, false or deceptive position isn’t a point of journalistic integrity, but one of adding to the noise and confusion that renders people incapable of understanding and appreciating the events around them.

The downside to my view is that it requires someone to figure out which side of a story is valid, which invariably is colored by the belief system of the person making the call. 

Aside from the apparent absence of anyone working at Newsy capable of distinguishing between oral argument and a decision from the Supreme Court, its broadcasts tend to cut the money quotes out of news reports by others without the substance.  It reminds me of the fast paced but inherently vapid MTV news reports crafted for those with attention deficits and little concern for facts.  It’s the anti-Sgt. Friday: No facts, Ma’am, just conclusions.

That traditional media sources, like television news, are too far behind the curve and perceived, at least, as too partisan to provide reliable information has become the rule of thumb.  But the nouvelle approaches, such as Newsy, may save some time by putting together an amalgam of multiple sources, but does little to illuminate the issues it addresses.

For example, in a story about indicting Wikileaks’ Julian Assange, the Newsy piece gave time to Andrew Napolitano’s discussion of first amendment issues, but never raised the fact that it exists outside the United States’ jurisdiction, an obvious precursor to prosecution.  One problem is that the media sources from which it draws offer a lack of depth, thus depriving Newsy of any opportunity to offer content that doesn’t exist.  But then, given the model Newsy uses, this will be a perpetual issue, limiting its content to what others have created. If others do a crap job, then Newsy will only have crap to offer.

Ultimately, the promise of offering a more neutral airing of issues, or “middle kind” as it strangely thinks is a more attractive way to put it, still requires Newsy to both start with a sufficient understanding of its subject matter to avoid rebroadcasting flagrantly inaccurate statements, as well as including some substance upon which the viewer can weigh the value of its money quotes.

Will it be good enough that it moves quickly, saves the viewer the time of actually having to watch more in-depth reports and pretends to provide it all in a few minutes?  Not for me, but then I harbor no delusions that my view reflects that of others, for whom fast and easy conclusions without substance will let them rush back to their Gameboy (before all their lives are lost) with the satisfaction of believing that they are now on the cutting edge of information.

Between Thanksgiving, when the president performs the annual “pardoning” of the turkey, which is just as funny and poignant this year as the one before, and before that, and Christmas is one of the most important times of the year for the Chief Executive to exercise his power to pardon.  Real people, not just turkeys. 

President Obama was likely too busy the past two Decembers to flex his pardon muscle, and no one was saved.  In advance of this December, the lack of any pardons by the President of Hope gave many  a reason to question what he was thinking.  Maybe that little push was what he needed. 

From Pardon Power, President Barack Obama has, for the first time ever, finally, acted:

682 days into his presidency, Barack Obama, the slowest Democratic president in history to exercise the pardon power, has finally discovered the dark corners of Article II of the Constitution and has granted 9 pardons. Why, even William Henry Harrison, who only served 32 days before having the poor taste to die, found a way to grant 3 pardons!

The offenses addressed in the 9 most recent pardons are distributed across decades as follows:

    1960s (2)       1970s (1)       1980s (3)       1990s (3)      

As a result, the average distance between each sentence and the subsequent presidential pardon is a whopping 28.3 years! Even the smallest distance is over 11 years.

James Bernard Banks (1972) UT, illegal possession of government property (2 years probation)
Russell James Dixon (1960) GA, liquor violations (2 years probation)
Laurens Dorsey (1998) NY, false statements (5 years probation, restitution)
Ronald Lee Foster (1963) NC, coin mutilation (1 year probation. fine)
Timothy James Gallagher (1982) AZ, cocaine (3 years probation)
Roxanne Kay Hettinger (1986) IA, cocaine (30 days, 3 years probation)
Edgar Leopold Kranz, Jr. (1994) military (24 months)
Floretta Leavy (1984) IL, cocaine/marijuana (1 year and 1 day)
Scoey Lathaniel Morris (1999) TX, counterfeiting (3 years probation, fine)