After big trials, the media races to interview jurors to get a behind the closed door of the jury room.  These interviews rarely reveal much of use or truth, with jurors more inclined to use the opportunity to explain themselves rather than provide meaningful insight.  Still, we listen, as we want desperately to understand what the heck jurors are really thinking.

Keith Lee at an  Associates Mind sent me a link yesterday to a great post at a blog called Tux Life, where a woman who served as jury foreperson in the trial of a “17-year-old black man — rather, a boy who was 16 when he committed the crime and barely looked 13 even a year later — ” charged with robbery.  It’s not clear who the author is, but her account is unassuming, well-written and fascinating.

As they tell you, you’re not allowed to talk about it with anyone, not even your fellow jurors, during the trial. As they also tell you, once the trial is over you can talk about anything you want. So, here goes.

I am one of those civics nerds who does not look for every excuse not to serve on a jury. I was a political science/journalism double-major and, though I’m far away from those in my professional life at this point, I still have a passion for the processes that bring us together as communities, societies and civilizations. I won’t say I wanted to be put on a jury for a criminal case, but when the opportunity arose I certainly welcomed it.

Before delving into the process, it’s notable that she was neither a reluctant juror nor a rabid one, seeking to vindicate some underlying sense of community vengeance or libertarian rage.  While there may be no truly neutral person alive, she appears to be as close to open minded as one might hope.

The defendant was one of three alleged assailants in a gunpoint robbery,  The only witness was the victim.  She describes her impression of the defendant:

[T]his young man, this boy who was nearly in tears as the jury was being picked, this child who dropped out of school in the ninth grade but through a job grew a fondness for cooking and was now working on his GED so he could gain early entry to a community college studying culinary arts, this poor kid who, if guilty, was likely put up to the crime by stronger boys who seemingly didn’t even give him a cut of the stolen merchandise, was facing a minimum sentence of 10 years in prison. Adult prison. At 17 years old. He couldn’t have weighed more than 140 pounds.

It’s unclear how she came to know about the minimum prison sentence, or that this slight boy would be sent to adult prison.  It’s also fascinating that she assumed that he didn’t get his cut, though clearly she doesn’t know that to be the case. 

The prosecution’s case, which our juror recites with some detail, is built on the purported victim’s eyewitness testimony, with some holes, most notably relating to the defendant’s hair, which the victim claims was in “twists” while the defendant’s witness, his mother, says his hair was never in twists.  The defense is mistaken identification, which is particularly curious given the juror’s apparent acceptance of the fact that the defendant did, in fact, commit the crime, as evidenced by her assumption that he was denied his cut of the proceeds. 

She took her responsibility seriously:

We were admonished to consider all of the facts but nothing outside of them. Don’t consider the sentence, or the age, or the race, or anything unrelated to what we heard while sitting in the juror box. Just focus on the facts that are presented. Yet, we were also told, time and again, that our Constitution is absolutely unwavering in its mission to protect the innocent, that no matter how clear-cut the evidence may seem, the burden of proof in criminal cases always, always, always falls on the prosecution. The boy sitting in that chair next to a pair of public defenders, possibly wearing borrowed clothes to look presentable in court, is innocent until he is proven guilty beyond a reasonable doubt.

Yet there’s no aspect of her description that ignores her sense of empathy, wonderful it you have a sympathetic defendant.

Then comes the deliberations.

So we deliberated on these facts. In the jury room and finally free to talk about the case, I repeated the keys to our responsibility as best and as evenly as I could. We must be sure one way or the other, I said. We must remember that the burden lies with the state, not the defense. We must review all testimony and make a determination of whose story is the truth, or at least closest to the truth. I told them that while I wanted to get out of there as soon as possible just as they did, that we owed it to the defendant, the victim, and ourselves to take it seriously.

It’s always been my experience that jurors take the responsibility seriously, though that doesn’t necessarily mean that they grasp the task, determining whether the prosecution has met its burden.  Even in this description, where she expressly notes that the burden is with the state, she sees the duty as determining “whose story is the truth,” which places a shared burden on both sides.

So we voted. Five guilty, seven not guilty. Those who voted guilty said the phone records and positive ID were damning, that you couldn’t not consider that as enough to prove the defendant was there and, therefore, guilty. Those who voted not guilty, of which I was one, were just not convinced “beyond a reasonable doubt.”

So, after more reviewing and arguing, some of it heated, we voted again. Nine not guilty, three guilty. While we seemed to be getting closer to that ever-elusive unanimous decision, we were actually further from it. Of the three who voted guilty, one seemed to be slightly on the fence if only because he was willing to discuss the case further — and in fact, he later said he would change his vote. The two others were digging in and shutting themselves off. They refused to talk about it and, finally, one told me to go tell the judge we were hung because there was no way she was changing her mind.

As often happens, barely two hours into deliberations, positions were entrenched.  

 I asked her to share her reasons for thinking he’s guilty,.. She refused, said that she didn’t have to share her reasons, that she just knew he was guilty. In retrospect, it was unfair of me to ask her. Not everyone reaches conclusions in the same way and not everyone can articulate why they feel a certain way about something. She had made up her mind. She hadn’t done it unreasonably. She’d just done it.

While ironic, in that it’s usually the “not guilty” side who is placed in the position of providing a reason, this is a fascinating recognition, in that a “reasonable doubt” doesn’t require that a juror be capable of articulating the reason.  While it was hardly unfair to ask, it was entirely within the juror’s right to refuse to respond.

And so the note went to the judge, informing that the jury was hung.  This, sadly, is where the experience goes awry:

It turns out we wouldn’t get a chance to see any changes of heart. Just as I was finishing up the reading of the rules and we were getting ready to call it quits for the day, the judge stepped in to the deliberation room and informed us that a plea bargain had been reached.

The prosecution blinked and offered the defendant a juvenile disposition, which he took.

So there you have it. Unbeknownst to the 12 of us, we were playing out a script to the letter. Our inability to reach an accord…was not a failure per se but actually set in motion a chain of events that allowed all parties to get the something if not good then at least reasonable for all involved from an otherwise terrible situation.

Having heard the evidence and experienced deliberations, our juror saw the process as having worked, despite the fact that it appears, from her own description, that a young man who should have been acquitted ended up taking a plea to avoid the risk.

All I could think as I walked to my car after being excused was this: from chaos comes order…What you truly have is a proverbial sausage factory: it’s incredibly messy, nothing seems to make sense, nothing looks good or reasonable or even real, but at the end of the line there is something like justice. It doesn’t always look right. It doesn’t always feel right. It doesn’t even always taste right. But it’s at least palatable.

For all the empathy, and eventual doubt in the prosecution’s proof, she doesn’t have any qualms about the possibility that a boy will be saddled with a criminal conviction for the rest of his life, a boy who she believed was not proven guilty. 

On the one hand, our jury foreperson has all the qualities one might hope for in a juror, from real empathy to a firm grasp of the seriousness of her responsibility.  And yet, she readily accepted the outcome of a process that may well have convicted an innocent boy, it never having occurred to her that the defendant’s acceptance of the plea, as well as her acceptance of his guilt despite her doubt in the proof, had no inherent relation to truth or guilt, but only sausage making.  That was good enough.  Fascinating.

The name Lance Goddard came up in conversation about a week ago, when  Dan Hull told me that he thought Lance was a smart guy, well-traveled, and wasting his time with trivial pursuits, like 22 Tweets, his twitter “interview” of lawyers desperately seeking attention. 

I hadn’t given any thought to 22 Tweets since Lance used it to do Blawg Review, Before that, I was disgusted by the odor of desperation and deceit that permeated prior interviews, it being a platform for lawyers to engage in complete self-aggrandizement, feigning self-importance tinged with unadulterated fabrication.  Who can ever forget this line, by a criminal defense lawyer who is a perpetual Avvo paid advertiser (because we all know that all the really good cases come via Avvo):

Tell us about your law practice.

I take the cases other lawyers throw their hands up at. We want the cases no one else can handle. The“Bet the Farm”work.

Translation:  I desperately need work. I’ll take anything. If you’ve got a twenty in your pocket, I’m your lawyer. 

Did Lance think there was any credibility in this claim, that there are cases that criminal defense lawyers “throw their hands up at”?  It kinda sounded good, but, upon the slightest reflection, it’s one of the goofiest elevator pitches ever heard.  It makes no sense at all.  22 Tweets was the back of the milk carton for lost lawyers.

This changed yesterday.  Why I stumbled on it isn’t clear, but there was  Mirriam Seddiq being interviewed on 22 Tweets.  She blew me away, being the same unassuming, foul-mouthed, funny Mirriam that she always is.  Finally, someone who was standing on the top of the garbage can with the chance to make up lies about herself, and she took a pass.  She was just Mirriam.

Wow. That’s powerful. Why do your clients hire you?

not bc of my website! Maybe bc I’m honest? I’m trying to figure that out so I can add it to my website. : )

How do you want to be remembered?

as someone who doesn’t suck, who did good work and who gave a shit. That’s not a lot to ask, right?

As Lance later noted, that was likely the first time anyone ever cursed during an interview.  Lord knows cursing in the midst of self-promotion is unacceptable.  You have to stand upright, speak in somber and serious tones and say the things that will impress the dickens out of potential clients. If nothing else, you have to sound official.

Mirriam had the chance to play shameless, hungry lawyer.  At the very least, she could have been Official Woman.  Instead, she was Mirriam, the same criminal defense lawyer as she’s been on her blog, in her emails, on twitter and, from what I’m told, in person.  How can you not be incredibly impressed with someone whose goal is to be remembered as someone who “doesn’t suck” and “gave a shit”?  

Maybe there’s some broken bone in my head that makes me want to send a case to Mirriam when I would never refer a client to some self-promoting scoundrel.  After all, the scoundrels are busy telling us how wonderful, miraculous, “bet the farm-y” they are.  Mirriam is just solid and honest.  What could I be thinking?

Whether or not Hull is right about Lance Goddard being as sharp as he says, I can’t say.  As for 22 Tweets, however, it’s an interesting test.  It gives the scoundrel lawyer the chance to out himself.  And it gives the honest lawyer, like Mirriam Seddiq, the chance to be herself.  She’s a piece of work, Mirriam, and I, for one, think she used 22 Tweets to prove she’s the real thing.

It’s not likely a record of any sort, but it’s also not the most common thing to have three airport pickups in three days.  Yesterday, my son and I flew in from beautiful Milwaukee. Today, my daughter flies in from college.  Tomorrow, my parents fly in from God’s Waiting Room.

I called my mother yesterday, to check in and make sure all was well. She asked me a question she’s never asked me before: How was the airport?  I told her it was adequate; in need of new carpet and a more thoughtful color scheme, but otherwise fine.  “No, I mean with the TSA.”

When news that the United States led the world in incarceration of its own was released, she didn’t ask me how the prisons were.  Videos are popping up everywhere showing ordinary people in humiliating, offensive situations.  There hasn’t been a news broadcast in days that hasn’t included a piece about the TSA.  When the elderly start worrying about it, the issue has become organic. 

People care because people fear it touches their lives.  That’s the only time people care.

My lost post of yesterday was supposed to be about law and order advocate Kurt Scheidegger’s  Crime & Consequences post, conceding that this is all theatrics (and hence a sham, by definition) that could be easily ended if we only gave in to the need to profile.  Is this really a wedge being driven between the public and the Constitution to compel us to loosen what little grip remains?  It worked with the USA Patriot Act, and could work again.

The LA Times, apologist for Hope, tell us to  suck it up as the price for peace of mind.  They stand behind our President,  who understands our “frustration” but does what he must.  Obama’s advisors are frustrated as well.

Firm pat-downs and new X-ray machines are part of President Obama’s effort to redouble airline security after last Christmas’s attempted bombing aboard an airplane landing in Detroit. That incident exposed Obama to scathing criticism from Republicans who said he did not grasp the terrorist threat facing the nation.

Now, the administration is under attack from the opposite direction, as some travelers complain that the latest measures go too far. That – and polls showing broad public support for the X-ray machines – has left some White House advisers feeling “frustrated,” as one put it, by media coverage focused heavily on the treatment of passengers, rather than the dangers the measures are designed to prevent.

I apologize for the post below being cut off.  The balance of the post (and it was a great one, if I may say so) of about 1000 words was lost because of a failure of my blogging program.  GoDaddy has been “improving” it lately, with many glitches and changes that have made the program less functional and more problematic.

I’m told they’re “working on it.”  My post is lost.  My apologies.  I’m sure GoDaddy will send me an apology for the “inconvenience.”  It’s always an inconvenience.

Update:  I received my obligatory email appreciating my frustration and apologizing for the inconvenience.  They apparently had server problems.  The server ate my post.  It sucks when that happens.

As always, there’s the other side.  In this instance, Kurt Scheidegger, with whom I find myself in general disagreement, offers the government the support that only true believers can provide. From Crime & Consequences :

On the subject of excessively intrusive airport screenings, I agree with Charles Krauthammer. We need to get rid of security theater, get over our problem with “profiling,” and direct more scrutiny to those likely to be security risks and less to those who are not.

Curious.  So even Kurt agrees that

Sitting in the Harley Davidson Museum listening to The Who’s Tommy, I listened to Wicked Uncle Ernie sing of “fiddling about.”  My son said that was sick.  Indeed it was.  And is.  Back then, we knew it.

When the Underpants bomber gave it his best shot, it was obvious that we were only a few steps away from body cavity searches.  While we play out the pretense of nudie images and Uncle TSA Agent Ernie touching, we know that security theater has yet to reach its fullest potential.  It’s a given that someone will put a stick of something up his butt, not because they believe it will take down a plane but because of the havoc it will cause on traveling Americans.

There’s no shortage of discussion around, so I won’t add unnecessarily to the clutter.  One interesting perspective was offered by marketing guru Seth Godin.

The heart of the matter comes from the fact that the TSA often doesn’t understand that it is in show business, not security business. A rational look at the threats facing travelers would indicate that intense scrutiny of a four ounce jar of mouthwash or aggressive frisking of a child is a misplaced use of resources. If the goal is to find dangerous items in cargo or track down Stinger missiles, this isn’t going to help.

He offers them an alternative.

Smart marketers know how to pivot. I think it’s time to do that. Start marketing the idea that flying is safe, like driving, but it’s not perfect, like driving. If someone is crazy enough to hurt themselves or spend their life in jail, we’re not going to stop them, and even if we did, they’d just cause havoc somewhere else. So instead of spending billions of dollars a year in time and money pretending, let’s just get back to work.

The current model doesn’t scale.

Given the options of cavity searches or relative risk, the latter always seemed the better choice.  Until then, we’re left to enjoy the show.

I never liked Chuck Berry’s  My Ding-A-Ling song. It reflected childish titillation at the time, because it was so risque.  I like it even less now, and it’s still childish.  Bad music.  Bad policy.  If they’re going to put on a show, they really ought to consider The Who.

On this side of the fence, we’re not overly enamored of plea bargains because of the sense that innocent defendants, or at least defendants not as guilty as charged, are coerced into pleading guilty rather than fighting as a “business decision.”  In other words, the offer is too sweet to risk rolling the dice on a monstrously long prison sentence.

There’s another view as well.  Via Berman, the  Hartford Courant writes about a letter from Michelle Cruz, a crime victim advocate.

Although some sentences arise from plea deals for valid reasons, Cruz wrote, “the plea bargain process has been exploited.”  Defendant often agree to plead guilty to a lesser charges in order to avoid a trial.  There are times when plea bargains are legitimate, Cruz said — such as if the state lacks evidence or wants to avoid having a child testify against someone who has sexually abused him or her.  But there are too many “administrative” plea bargains, she said.

“After three years of being in Connecticut looking at cases, what I see is a pattern of defendants who are allowed to plea to a more lenient charge that often doesn’t resemble the conduct,” said Cruz, who was a prosecutor in Massachusetts.  The lesser, substituted charge “doesn’t reflect the seriousness of the offense,” she said.

Before coming to Connecticut, Cruz was a prosecutor in Massachusetts.  And now she’s complaining about the sweet deals given defendants and the lack of trials, forcing defendants to pay the full tab for their crimes. 

Lest you get the misimpression that trials in Connecticut are going on all the time, or that those wielding authority in the criminal justice system wouldn’t fall for superficial, silly arguments, bolstered by a handful of anecdotes of recidivism that would naturally happen regardless of anything else, Cruz is being taken seriously.

State Rep. Michael Lawlor, chairman of the legislature’s judiciary committee, said he agrees that there are not enough trials and that it is a problem.  He said that he has spoken with Chief State’s Attorney Kevin Kane about the lack of trials — which he said is mostly a problem in lower courts where less serious cases are handled — and that Kane agrees there has to be more of an effort to bring cases to trial.

Lawlor, a criminal justice professor who also is a former state’s attorney, said prosecutors who don’t often take cases to trial get “rusty” and become more and more reluctant to try cases.  Good defense attorneys can sense this and will push for a better deal for their clients in exchange for a guilty plea, he said.  “I do think the end result is plea bargains are more lenient than you want them to be,” Lawlor said.

Is that what good defense attorneys do, push weeny prosecutors for lenient deals when their spidey sense kicks in?  Who knew? 

Too often, we hear only from our own “team,” voices that agree with our perspective on how the system works and runs and succeeds, or more often fails, to accomplish what we believe it should.  This tends to seriously skew our grasp of how the criminal justice system is perceived by those who are not intimately involved or personally concerned.  We do not reflect the prevailing view.  They are the majority.

More importantly, we come to realize that those with a finger in the functioning of the system are far less savvy about it then we might believe or hope.  They may know exactly who to put the touch on for a decent campaign donation, but they think a 95% conviction rate on pleas is a sign of a unduly lenient system.  They’re just giving it all away to the criminals.  That’s why we need to get tougher on crime, you know.

One might suppose that the media coverage of exonerations of men on death row, the joys of DNA revealing the terror of false identifications, might turn a few heads and make people wonder about whether the system is over-arresting, over-prosecuting, over-convicting and over-sentencing.  Apparently not in Connecticut, and it’s pretty doubtful elsewhere as well.  The conviction of an innocent remains an anomaly from the public’s perspective, while everyone not otherwise exonerated is guilty as sin. 

When we forget that there are other perspectives, or dismiss them as laughably simplistic and pandering to the fear and ignorance of others, we beg for the next smackdown.  It doesn’t matter how obvious all of this is to us, and how we, brilliant clear-thinkers that we are, know that the system is unduly harsh and grossly unfair. 

Hear all those townspeople marching our way with torches and pitchforks?  They’re not coming to join us, but coming for us. 

Some folks think small town city Americana is hokey and a waste of money.  Not me.  I love a parade, and was thrilled to have the Milwaukee “holiday” parade right in front of my hotel yesterday morning.  Marching bands trying their best to stay in tune. Adults wearing funny costumes.  Local celebrities in convertibles on a cold day.  America.

I watched for a while, enjoying both the parade and the crowd watching the parade.  Parents holding hot coffee and kids wrapped up like little butterball turkeys.  Sure, it seemed a little early to have Santa Claus coming to town, as this was really a Christmas parade, but even in Milwaukee they won’t admit to it lest anyone be offended by the idea that Christmas is coming.

The bands were interspersed with the celebrity cars, mostly local radio and TV personalities, for former demonstrating why they are more appealing when unseen, and the latter just smiling.  Then came the Mayor of Milwaukee, who was quite popular having just lost the governor’s race after an unfortunate bashing with a pipe at the State Fair.

Then came the shocker.  A celebrity of sort, John Chisolm sitting up on the trunk of the convertible waving at the crowd like crazy.  From what I could tell, he didn’t sing or dance. He couldn’t play rock music or announce the weather.  I don”t know if he’s any good at telling jokes.  Still, there he was.

Chisolm was the Milwaukee County District Attorney.  Chisolm was waving at the crowd like a star.

As an elected official, he has a need to keep his face in front of the people, to make himself appear popular and available.  That’s part of the gig.  But there’s a huge difference between shaking hands, kissing babies and telling the constituents that he’s going to lock up their children protect them from crime and waving to the crowd like the guy who plays accordion in a favorite polka band.

Would the top public defender follow in a convertible of his own?  Nope.  Just the DA. 

It’s a subtle message to the people of Milwaukee, who might well be thought of as potential jurors, that the guy who brings charges against people is a celebrity, someone they would want to see waving at crowds from a distance.  There a sense of credibility, even admiration, attributed to people who sit up high in the back of a convertible in a parade.  Would such a man lie to you?  Would such a man do wrong?  How could you not admire someone who is obviously so important that he gets his own convertible in the holiday parade?

I’m not suggesting that we load up parades with a bunch of extra people riding in the back seats of convertibles who can’t sing or dance.  Who wants to sit in the cold and look at them?  But why would anyone think that John Chisolm is worthy of interest to overly-bundled children? 

Moreover, what made Chisolm think that waving at the crowd as if he could play a mean accordion was adding to the dignity, the gravitas, of his function?  If he wants to be a celebrity, riding around in parades and waving at adoring fans, that’s fine.  But then, he ought to pull the accordion out of the closet and practice. 

District Attorneys should not be celebrities, and when they confuse their function to the point that they pretend to be worthy of interest in the holiday parade, it’s time to take a serious look at whether he has the discretion to handle the job.

Other than that, the parade was great.

The call came in a little after midnight.  Unsurprisingly, I was not there to answer it.  When I learned of the call this morning, I tried to see who it was.  Caller ID worked perfectly, but the caller’s identification was anonymous.  The caller made a choice to conceal her identity.  It worked.

The call was made after she, as the caller was clearly a woman, had received her midnight call, that her father, son, husband, baby daddy, was busted.  She was frantic.  To the extent I could understand what she was saying, the arrest was very serious and there were a number of charges.  What those charges might be, I couldn’t say.  The explanation, to the extent I could understand it, was offered in that obtuse fashion of someone trying to say something without actually saying anything. 

Was it a murder?  A drug deal?  A bribe of a foreign official?  Beats me.  All I know is that she was talking very fast and very scared.  She knew she wouldn’t reach me after midnight, and asked that I call her back first thing in the morning.  It was urgent.  Please call back.  We’re depending on you.

And I can’t.

True, I’m sitting in a hotel room in Milwaukee, Wisconsin at the moment, making it difficult to appear for an arraignment today, unless the arraignment is happening in Milwaukee, Wisonsin.  It could be, since she didn’t mention where in the world this arrest took place.  Phones are like magic, and can reach distant places.  I get calls from all over the country.  “Do you do DUIs in Phoenix?”  No, not really.

But the reason I can’t return her call is that I don’t know her name or number.  She was calling me on a cellphone.  She was fading in and out, in and out, the whole time.  I could barely make sense of the message to the extent I could understand it, but I can piece together some of the thoughts she tried to express.  What I can’t piece together is the name and telephone number.  You need all the digits to make a successful phone call.

I don’t know whether she was using 3G or 4G or no G.  I can’t tell if it was some glitch caused by traveling between cell sites or walking around a room with thick plaster walls.  I dunno.  I also don’t know how to reach her.

This morning, there is a woman who is waiting for me to call her back.  Her midnight call to me was made in desperation, and I hate the idea that I’m leaving her hanging, or that she will think that I don’t care enough to return her call.  I do.  Whether this is a case I would take, I can’t say, but at the very least I would call her back and, if not right for me, steer her to someone who could help her.

Instead, she will hear nothing from me this morning because I don’t know how to reach her.

If you call on a cellphone and leave a message, you must recognize that there is a very real chance that the message will be garbled and that the other person will not be able to understand or hear what you’re saying.  And if you elect to be anonymous on your cellphone, such that your number does not appear on caller ID, and I can completely understand why someone would make that choice as we don’t want people bothering us on cellphones, please realize that it means your number will not appear to your caller even when you really want them to call back.

Technology is a wonderful thing.  It’s not a perfect thing.  If something really important has happened and you really need to speak with somebody, be aware that a call from your cellphone may be not be sufficient.  Best of luck today, whoever the woman who called me is, and whoever the person she was calling about is.  I’m sorry I didn’t call you back.  I really am.

There are few things that we possess that no one can ever take from us. Foremost amongst them is integrity.  Only we can give up our integrity, and it seems as if people are doing so in droves. 

Perhaps giving it up is the wrong way to put it.  Selling it.  Cheap.  Doing whatever they have to do to get a case, gain popularity, make a buck, salvage a sinking practice.  The process of rationalization to justify doing what you have to do in difficult times is like a war, albeit an internal one, where we fight ourselves and our better judgment. 

We may know right from wrong, but we know what’s good for us at the moment.  We then struggle with ourselves to find a way to do what we want to do and make sense of it in a way that allows us to pretend we aren’t self-serving sluts.  We only fool ourselves, but we take comfort in those around us making similar choices and tell each other that we’re not bad people for making bad choices.

While doing something bad may not make us a bad person, selling our integrity does.  Once a person has done so, there’s no going back.  I had this discussion with Ken at Popehat the other day, in reaction to this post which linked to another post by a guy named Marshall, who, in my view, has no integrity. 

Ken’s use of his post wasn’t wrong based on content, but it was wrong, in my view, because I can’t abide anyone who has forsaken his integrity.  Ken wasn’t as concerned about it as I was, finding that a post floating in the ether that did the job of explaining something he wanted explained, was sufficient reason to use it.  I would have rejected that premise.  I will not bolster the failed reputation of anyone who has sold his integrity to cover up his failures in fact and in character.

The same occurred to me when I read Carolyn Elefant’s post about e-shaming as the alternative to bar regulation of lawyer’s online speech.  Nobody wants to be regulated, though anyone of even limited intelligence realizes that many have gone off the rails, lying through their teeth about themselves on websites and blogs, whether by use of stock content, scraping from others or just your basic, everyday, lies. 

There are also those who play upon the dull comprehension of others, coming as close to the line of deceit as they believe they can get away with, capturing the hearts and minds of those who aren’t swift enough to connect the dots or see through the marketing veil.  Though these are smarter people, they are more venal in the sense that they have sold their integrity just like the overt liars, but believe they have tricked us into believing that they haven’t.  It’s like a double loss of integrity, and the shame is that it works pretty well, provided you don’t think too hard or you or can be flattered into joining their choir.  Dumb people are easily flattered.

Carolyn notes that it’s unpleasant to deal with a “colleague” who has strayed.  No one wants to point fingers and call names. 

I simply don’t have it in me to publicize other lawyers’ ethical missteps, especially when they may not have known better. Sometimes I wish I did.

In any event, e-shaming isn’t the only antidote to deceptive practices in the blogosphere. For me, a preferable option to e-shaming is e-lucidation: bringing unprofessional or unethical use of social media to a colleague’s attention either through back channels or an informative blog post, explaining the problems and identifying corrective action or a better approach.