Somebody at the University of California, Hastings Law School, thought it would be a really good idea to have a Center for WorkLife Law.  As is the wont of such novel approaches, it invented its very own wrong.

Family Responsibilities Discrimination (FRD) is employment discrimination against workers based on their family caregiving responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD. They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated — despite good performance — simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.

The thrust of its director, Joan Williams, is set forth in her new book, Reshaping the Work-Family Debate: Why Men and Class Matter.  Williams, as discussed in an interview at the Careerist, seeks to lead the charge for work/life balance for the beta male.

But are men really complaining about the all-or-nothing workplace? How do you know they care about this issue?  
Men come up to me to talk about it all the time

But aren’t those men a self-selected bunch?
There’s a groundswell of men who are interested in the issue. And a growing number of younger men who are insistent on more work/life balance, who want more involvement in their children’s lives.

Let me see if I follow: There are men who would rather spend time with their children than work.  Not entirely shocking.  I know men who would rather play golf than work too, but Work/Golf balance isn’t nearly as catchy. 

Speaking of expectations, you make an interesting point in your book that white- collar men prove their masculinity by working long hours at the office, rather than getting dirty and sweaty like their blue-collar brothers. So is asking men to slow down and share the housework threatening the male ego?
Newsweek recently had an article that was a response to “The End of Men” [an article about the rise of women in the workplace] in The Atlantic. [Newsweek] used the term “re-imagining masculinity,” which I wouldn’t use. Our idea of a successful man is not someone who’s wearing a Snugly. So long as we define success as constant devotion to work, change will be difficult.

So us manly lawyer men do it to prove our masculinity because people will laugh at us if we wear a snugly?  Oddly enough, it’s not my idea that a successful man doesn’t wear a Snugly, though a man with reasonably sound judgment will only wear it inside the home or when attending classes at Hastings.

Do you ever get pushback from lawyers about your ideas to change the workplace?
The more traditional ones will sometimes say, “This is la-la land.” But the younger ones have a different view; there’s already a generation war in the law firms.

There’s a pretty good reason for that, Joan.  You see, nowhere in your interview do you mention, no less consider, what lawyers do.  We represent clients.  Clients put their lives and livelihoods in our hands and trust that we will care for them.  They walk out of our offices confident that there is a lawyer who will be responsible for doing everything possible to protect their interests.

There’s little new about the desire of the young set for work/life balance.  We would all love to have plenty of time available to do the things that make us happy, whether that means watching junior’s little league game or swilling that last beer.  Ironically, most of the young lawyers who “have a different view” don’t have children in need of their masculine devotion, so they can fill that spare work/life balance time with happy hour and maybe a quickie with a coed.  But if they don’t start young, the next thing you know is they get used to hard work and never come home for the excellent dinner Suzie prepared for his pleasure.

But what are you gonna do about the clients, Joan?  Who takes care of them when lawyers leave the office at 5 to make it home for dinner?

What’s striking is that this misconceived approach to professional responsibility has an actual home at Hastings Law School.  It’s like a shelter for beta males, a place where they can be surrounded by empathetic and understanding women who empower them to don their Snuglies.  “Oh yes, you are just as masculine as the lawyer who works all hours.  You are every bit as successful, and look dashing in the leopard skin print.”

This makes one point abundantly, and unfortunately, clear.  Hastings Law School is teaching its students that their career in the law exists for their own convenience and pleasure.  No need to work too hard, little boys, to prove your a man?  The trick is the tie-in to masculinity.  This has nothing whatsoever to do with masculinity or proof of success.  It has to do with the responsibility that comes with being a lawyer.

Think I’m being harsh?  Put this on your website:

I’m an experienced, aggressive lawyer, and I will be there for you.*

* Unless it interferes with a little league game, house cleaning, shopping, happy hour, a TV show I really like, the release of a cool new video game, or is after 5:00 p.m. or before 10:00 a.m.  And don’t even think of me working on weekends or holidays, whether secular or celebrated by any religion of more than ten people.

Let me know how it works out for you, you manly man, you.  And yes, that Snugly does make your butt look fat.

There’s a great solution available to all men who reject the idea that work comes first.  Don’t become a lawyer. 

Judge Royce Lamberth’s decision is brief, at only 8 pages total.  But there’s really no particular reason for it to be longer, since there was only one side to the argument, the government, and he couldn’t discuss the facts since they’re still under wraps.  You see, the issue was whether the government was required to provide notification, albeit belated, of the seizure of emails in a Foreign Corrupt Practices Act investigation.

It’s not surprising that the government won the point, particularly since they were arguing against an empty table.  The decision wasn’t a novel one.  But the decision reflects, again, a major failing of the Electronic Communications Privacy Act.  From Mike Scarcella at BLT :

What little is known about the dispute is contained in Lamberth’s eight-page opinion. The name of the e-mail account holder is redacted. There’s no indication about what the government is looking for and why it wants it.

Lamberth was asked to weigh in on whether a particular provision of the federal rules of criminal procedure applies to the Electronic Communications Privacy Act. Rule 41 requires an officer to give a copy of the warrant and a property receipt to the person from whom the property was taken. In the alternative, an officer is permitted to leave a copy of the warrant and receipt at the place where the officer took the property.

The government, Lamberth said, is not required under the act to give notice to the subscriber of an e-mail account that the government searched. Prosecutors satisfy their obligation when they leave a copy of the warrant with a third-party Internet service provider—in this case, Google.

As if Google cares.  For all one can tell from the decision, the email in question could be yours.  It could be mine.  We won’t know.  We may never know.  But as long as Google knows, then all is well with the world.

The decision falls into line with the mistaken approach of treating the digital world as if it was just like bootleggers of the nearly 100 years ago.  Emails, those dashed-off missives that are so quick, easy and expeditious, which we think are between us and our recipients, end up existing in multiple copies on multiple servers at multiple locations viewable by multiple people.  That’s just the way email rolls, even though it has no particular meaning to the sender or receiver.  Why bother our pretty heads with the technical details of electronic communications when all we want to do is send a stinking email?

But the many copies of our silly little email reside in the hands of others for as long as they choose to hold on to them.  The government doesn’t seek to take a peak at our copy of the email.  If they did, then they would have to let us know about it.  But they don’t, and wouldn’t, because there is no reason for the government to do so.  Why bother with us when they can go straight to Google and get Google’s copy?  What, you didn’t BCC Google when you hit send?  No matter, they get it anyway.

There’s a well-worn path from the US Attorney to Google, where the government just trots over and hands a piece of paper to the Google guy in charge of giving up their copy of your email.  The Google guy says thanks and gives your email up.  The law has been met.  You know nothing about nothing, and everybody is happy.

There may well be sound law enforcement reasons for the government to keep its email grab on the QT at the time it seeks its warrant.  But with other warrants seeking real world physical things, we learn of it when the warrant is executed.   Not here.  When the warrant is handed over to the Google guy, the government has completed all notification required.  Neither then, nor later, nor ever, is the government required to let the emailer know that his communications were seized.

These warrants have a box, which was mistakenly checked off by the Magistrate Judge in this case, and which gave rise to the need for Judge Lamberth’s intervention, that would require the government to provide notice, eventually, to the email subscriber.  Delayed notice is better than no notice at all, though not much.

The bottom line is that there is no requirement that the government notify the true party in interest that a warrant was ever issued or a seizure conducted, as notification is fully satisfied by providing it to the third party, wholly disinterested in what the government is doing. 

Google knows that your email was seized?  Close enough.  Good enough. Notification has been achieved.

Not quite as much fun as naked lawprof mud-wrestling, a grudge match appeared at Brian Tannebaum’s My Law License over the ABA (not the journal, but the actual American Bar Association) initiative to clean up the internet,   The ABA has formed a commission (oh dear!) called Ethics 20/20 to study “lawyer developmental tools,” which is the benign way of saying “marketing.”  Marketers are “alarmed.”

“There is no agenda,” said commission co-chair and Wilmer Cutler Pickering Hale and Dorr partner Jamie Gorelick. ” The paper is designed to reflect some of the questions that have been posed to us.”

But legal marketing consultant Larry Bodine said the paper is the first step down the wrong path for the ABA, which should be concentrating its ethics effort on lawyers who steal from their clients, not lawyers who use Twitter.

Now Bodine is a curious leader for this bunch of misfits, defrocked lawyers and snake oil salesmen.  He’s broken ranks from the crowd from time to time, demonstrating the rarest of marketing qualities, actual thought.  Yet this time, he’s decided to take the lead and rally the troops, and the troops are happy to follow.

The ABA is quietly gathering support to choke off lawyer marketing on the Internet by having the ABA Commission on Ethics 2020 Working Group distribute an “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools.” 

Please join me in marshalling lawyers to stop this effort by the ABA to burden lawyer marketing on the internet with unneeded ethics obstacles.  Lawyer marketing needs less regulation, not more stifling ethics rules.

Free market lawyering. Yippee!  The comments that follow, from marketers and their sycophants, show the support.

“State bar regulations are hurting both the public and the legal profession. Anyone at the MyLegal conference heard the visceral reaction to the Virginia regulations. Anyone in Florida who has a website that requires multiple disclaimers before seeing anything beyond the homepage. I could go on,” said Conrad Saam, Senior Marketing Manager for Avvo in Seattle, WA.

“My personal opinion is that the rules insult the intelligence of every human being whom the ABA assumes can’t think for him/herself.  The realistic side of me knows it will take centuries for governing bodies like the ABA and state bar associations to see the light and remove or revise the barriers we’ve been fighting for quite a while,” said marketing consultant Nancy Myrland of Indianapolis, IN.   

“I get nervous when the ABA starts sticking its nose too deeply into an issue. How many times has the ABA started out saying it just wants to offer “guidance,” only for it to then decide to take on the role of Big Brother. The ABA just can’t get over being a bureaucracy. It loves to regulate and to lay down hard-and-fast rules. It may start down this road with the best of intentions, but who knows where it will end up. Plus, as Staff Counsel, ABA Division for Legal Services, Will Hornsby advises, these new tools don’t need new rules. When lawyers ask me what they need to know about ethics and social media, I give a two-word answer: ‘Common sense,’” said Massachusetts lawyer Bob Ambrogi.

We all get nervous when the ABA sticks its nose into anything, Bob.  We also feel compelled to upchuck when we see the product of legal marketing spewed across the internet.

Brian takes on the well-oiled marketing machine, where they show discipline that would shame the Spartan 300, arms locked together, voices chanting we shall oversell in unison.

Oh boy. The ABA wants to clean up the sewer that is online legal marketing. What has the world come to when the American Bar Association, the former pillar of the legal community that is now to social media and social media marketers like a screaming teenager is to a Taylor Swift concert, wants to take a look at the online swill?

I oppose further ABA involvement under one condition: lawyers and marketers stop lying. Lawyers and marketers stop creating images of lawyers that are hurting the public by creating impressions of the lawyer that are deceptive, false, and misleading. The ABA isn’t concerned that lawyers are advertising online – they are concerned that lawyers are lying online.

This is where things get dicey.  In the world of legal marketing, there’s no such thing as a lie.  They will tell you to their dying breath that their clients are the most wonderful, most caring, most experienced lawyer ever in the whole wide world.  No really, they are.  Every lawyer who engages the services of a marketer is the bestest lawyer ever.  You can tell because their website, blawg, twitter account, LinkedIn, Facebook, whatever, says so.  And they would never lie.  That would be wrong.

The marketers argue, and correctly, that ethics rules already prohibit lawyers from engaging in deception.  What they don’t mention is the problem with addressing the rules, that there are far too many websites and blogs for anyone to inspect for ethical violations, changing constantly, and that even if it was possible for regulators to do so, the claims are soft, subjective and difficult to prove false.  Of course, we all know they’re total crap, but knowing and proving are entirely different animals.

This is how marketers make their money, teaching lawyers how to say whatever will bring in the next lead.  Been a lawyer for six months?  Sure, that’s “highly experienced.”  Won a case once?  Sure, that’s “one of the most successful lawyers in the state.”  Returned a call within two days? Of course that says “deeply concerned and caring.”    Oh, come on.  What do you expect them to say about their client when there isn’t a single decent claim to be made?  Incompetent, greedy, nasty, sleazebags have to make their Mercedes payments too, you know.

Bodine didn’t care much for Brian’s post, and let him have it in a comment.

When you say “Anything that alarms marketers must mean that something having to do with honesty and integrity is getting too close for comfort,” are you referring to the marketers or the lawyers instructing them what to do?

You’ll be sorry when your blog is strapped with ethics rules that govern what you can and can’t say.

“Man up” and stand in favor of lawyer’s free speech on the internet.

~Larry bodine

Free speech, is it?  Excellent rallying cry, Larry.  We LOVE free speech.  We’re all for free speech.  But if there’s anybody killing lawyers’ right to free speech, pal, it’s the marketers. Tannebaum replies:

Welcome Larry.

“Man up?” Surely you jest. Perhaps you should take a break from your love affair with some of the worst violators of lawyer ethics on the internet, some of the biggest liars spreading their marketing snake oil and read some of my posts. Or do you not look in to the backgrounds of some of the people you promote?

And let’s not try to convince people that lawyers tell marketers what to do. It’s the other way around. Marketers make money off desperate lawyers who can’t make a buck by helping them “tailor” their biographies to stretch the truth.

And I won’t be sorry when my blog is “strapped” with ethics rules. I’ll look forward to the scrambling marketers and talentless lawyers who will be forced to leave the blogosphere because behind their marketing scheme, is nothing.

It’s a shame that it’s come to this, and worse still that it will fall into the hands of as irrelevant and disconnected an entity as the ABA, which will likely come up with inane rules demonstrating why a camel is a horse designed by committee.  But when you create a cesspool of lies and deceit on the internet and then argue that the odor is “success” rather than sewage. this is what happens.

Like Brian says, Larry, marketers started this race to the bottom, and we’re all going to have to deal with it.  As for me, I can live without trotting around the boulevard in hot pants (I don’t have the legs for it anyway).  Of course, that won’t do your clients any good.

Via Doug Berman, the Los Angeles Times offers an editorial on the nagging issue of President Obama’s failure to commute a single sentence, issue a single pardon, in his first two years in office.

Just as a president is entitled to pardon anyone convicted or accused of a crime, he is free to dismiss any petitions for clemency without offering an explanation. Indeed, he can choose never to issue any pardons or commutations of sentences at all. Still, it’s disappointing that President Obama so far hasn’t approved even one request for a pardon or other form of clemency.

It’s not that there is a shortage of claimants. Earlier this month, Obama formally denied 605 petitions for commutation of sentences and 71 pardon requests. It’s hard to believe that none of those was deserving of approval.

It’s not hard to believe.  It’s impossible to believe.  This doesn’t mean that McCain should have been elected, but that Obama has a different definition of audacity than I do.  It leaves one with the sad feeling that our only options are bad and worse.

The LA Times editorial goes on to suggest that Obama’s failure to exercise this presidential prerogative isn’t a reflection of his belief that not a single person in prison, not a single applicant, is worthy of his attention, but that the president fears being perceived as “soft on crime.”

Ideally, presidents would give great deference to the pardon attorney’s recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards. Their reluctance to do so likely reflects not the merits or demerits of particular petitions but the political liability of appearing soft on crime. That reality has led some advocates of more pardons to hope that Obama is waiting to announce grants of clemency until after next week’s election. If so, we hope his first exercise of his clemency power won’t be his last.

This may be correct, and if so, explains why his detractors aren’t nearly as crazy as some think.  If there’s any truth to the view that the man who won the presidency is so afraid of using his position to do what those who voted for him hoped he would do, then what purpose is served in electing him at all?  If the leader cowers in fear, then what?

No one voted for Barak Obama because they believed that he would be tough on crime.  No one voted for Barak Obama because he would out-Republican the Republicans when it came to righting the wrongs of the criminal justice system.  But even that doesn’t begin to satisfactorily explain his failure here, leaving him as the president who waited fourth longest (at the moment; this could change) to exercise this power.  Notably, two of the three who waited longer, though Obama is quickly catching up to them, are Clinton and the second Bush.

The LA Times hopes, as do those of us who believe that not everybody serving life plus cancer deserves it, that President Obama will have his epiphany after the midterm elections and pull out his pardon pen and start signing furiously.  But we do so for different reasons.  The Times appears to forgive Obama for putting politics above principle.  I just want him to do the right thing, even if those whose sentences should be commuted, or whose convictions should be pardoned, have had to sit in prison cells waiting quietly for him to put on his presidential man-pants. 

It’s not hard to understand the political point, nor its efficacy from a purely political position.  Sure, the President was busy waging a half-hearted health-care war and facing a congressional rebellion.  The last thing he needed, politically, was to offer more controversy to his “enemies” on a silver platter.

That, unfortunately, is the price of principled governance.  And principled governance takes audacity.

Or maybe President Obama thinks that everybody who has been convicted and sentenced belongs exactly where they are, and he hasn’t exercised his powers because he hasn’t found anyone worthy.  Maybe he doesn’t really care about the wrongfully convicted.  Up to now, there’s no evidence to the contrary.

When the Supremes created a bunch of warnings to be given suspects in advance of custodial interrogation, they assumed that would be the end of anyone spilling their guts to the cops.  After all, how much clearer could they be, starting with “you have the right to remain silent.”  Did they really need to include, “use it, you moron”?

Experience says they did, as defendants talk anyway.  In fact, it’s almost impossible to shut them up.  Lawyers tell them constantly to say nothing and invoke their rights, and still they talk.  Yes, Miranda was not clear enough.

But in the County of Queens, New York, former politician, appellate judge and now District Attorney Richard Brown doesn’t want to take any chances.  While the Supreme require the administration of the warning, nowhere do they say that Brown can’t start off with a warning of his own.  From the New York Times :

But in Queens, prosecutors take an additional measure, which is not used in other boroughs. Before an interview is conducted, a prosecutor reads defendants a prepared script, notifying them, among other things, that they will have an opportunity to give as much information about their alibis as possible and that the office will investigate anything about the case they request. The script also instructs defendants that this is their only chance to speak with the prosecutor before arraignment.

After these remarks are read, the defendants are read their Miranda rights, as required before any suspect is questioned.

According to Brown, it’s not that they’re subtly persuading defendants to try to talk their way out of the arrest and prosecution (as if defendants would ever try to do that), and in the process creating statements that “can and will be used against” the defendant.  No, no, no.  Brown cares deeply for justice.

“The purpose of the program is to determine the truth at the earliest possible moment,” Mr. Brown wrote, adding that it did not matter if the suspect’s statement hurt the prosecution’s case.

“It was out of these concerns and with the goal of doing justice that the interview program was born, to join the other things that my office does to make certain that we get it right,” he wrote.

Is this an empathetic guy or what?  Unfortunately, some judges don’t think the use of this script to massage a statement out of the quiet defendant is as thoughtful and fair as Brown does.

The issue received renewed attention after a judge questioned the ethics of the process in Queens, and the district attorney’s office responded by filing a lawsuit against the judge, Joel L. Blumenfeld, of State Supreme Court in Queens.

Justice Blumenfeld said he was concerned that part of the script could be a misrepresentation that persuades the suspect to talk, a sentiment shared by some defense lawyers in Queens.

And the last thing Brown needs is a judge who isn’t on board with the program, leading to the action against Justice Blumenfeld.

The Queens district attorney’s lawsuit against Justice Blumenfeld is an Article 78 petition, a device used to challenge the actions of an administrative agency or court. It asks that Justice Blumenfeld be prevented from discussing, as part of a decision on whether to suppress a statement, whether the interview program violates ethics rules. Queens prosecutors say a suppression decision is not the right forum for that discussion.

In short, Brown is trying to obtain a decision from the Appellate Division dictating what a Supreme Court Justice may state in his own decision.  If this works out, I plan to argue against judges using the word “denied” ever again.  It hurts people’s feelings.

The problem is fourfold, in that it not only serves to pressure a defendant to speak rather than exercise his right to remain silent (“this will be your only chance”), but it misleads a defendant into believing that any exculpatory statement will be in his best interest, when in fact a false exculpatory will most assuredly be used against him, it happens when a defendant (especially an indigent defendant) is unrepresented and the time used to interview the defendant delays the assignment of counsel and his appearance before the court for arraignment. 

And why is Brown so adamant?  Because it works.

Since the program officially began in 2007, of the more than 6,000 people whom Queens prosecutors have attempted to interview, three-quarters gave statements. About a quarter of those made confessions.

Notice that this program has been going on since 2007?  Since that time, not a single statement has been suppressed on the basis of the script.

A judge has never thrown out a statement given in such an interview on the basis that the program was improper, the Queens district attorney’s office said. Several judges, however, have been critical of the procedures used in Queens, especially the prepared remarks.

Of course, judges can be as critical of the program as they want, provided they don’t actually act upon it.  One judge tried, adopting the position of former prosecutor, judge and current judicial hearing officer, Thomas Demakos. Inexplicably, after suppressing a statement, he withdrew his decision and allowed the statement. Go figure.

As for the “organized” defense bar, nary a word of criticism (forget about action) has been heard until this Times’ article:

“What differentiates Queens is the script and the trickery,” said George R. Goltzer, the president of the New York State Association of Criminal Defense Lawyers. “They’re tricking these folks into giving up their rights, and they’re delaying their access to the attorney.”

No doubt that’s got Brown shaking in his boots.  Trickery! Take that, you prosecutorial fiend.

What’s quite amazing is that this procedure, clearly designed to elicit statements from unrepresented defendants during custodial interrogations by carefully influencing their exercise of their constitutional rights and suggesting, ever so artfully, that they have a chance to talk their way out of prosecution (or into prison) has never been properly challenged, approved or rejected. 

And yet the only person doing much of anything about it is Queens District Attorney Richard Brown, who knows how to protect his turf, to stop Joel Blumenfeld from being a judge.

Update:  And a paragraph from a brief by our hinterlands correspondent, Kathleen Casey:

Voluntarily or not, people subject to interrogation talk.  Investigators are trained to bear down on and intimidate suspects with psychological pressure to talk from the first moment of an encounter. See generally Miranda v. Arizona, 384 US 436, 445-458 (1966), in which the Supreme Court recognized, astutely, that “[i]nterrogation still takes place in privacy.  Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.” 384 US at 449.  Police interrogation manuals freely explain that the “‘principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under interrogation'” Id. quoting Inbau & Reid, Criminal Interrogation and Confessions 1 (1962).  The Court documented “representative samples of interrogation techniques” and concluded from them that “the setting prescribed by the manuals and observed in practice becomes clear.  In essence, it is this:  To be alone with the subject is essential to prevent distraction and to deprive him of any outside support.  The aura of confidence in his guilt undermines his will to resist.” Id.

It’s not like this crazy notion is anything new, kids.  We try to shut them up.  They try to make them talk.  Inertia is on their side.

When I first heard that Warren Redlich, a DUI lawyer up in Albany who blogged for business, was running as the Libertarian candidate for governor of the State of New York, I chuckled.  Talk about an endeavor without a payoff.  Of course, I had no idea at the time that the alternatives would be a zombie and the only one of Mario’s offspring who got his good looks.  Suddenly, Warren doesn’t look nearly as silly.

Apparently, others are concerned about Warren as well.  In order to screw with him, this appeared:

There are places no one should go, and this is one of them.  Is there a word, lie, defamation, libel, that captures just how twisted this is?

The purported basis for this “attack” is a blog post of Warren’s that questions the prevalence and hypocrisy of Puritanism in America.

The story also hits on how Puritanism is still so prevalent in America. The greatest love interest in the history of romance is at least arguably Juliet from Romeo and Juliet. Juliet was 13 years old. For some reason females become fertile in their early teens and peak before the age of 18. You would think those who believe in the theory of evolution would see this as the design of the species. And in an interesting alliance with Darwin, shouldn’t religious people (and not just those in cults) believe teenage girls should be sexually active (in marriage of course), as that would appear to be the intent of the intelligent design? Instead both groups appear to be together on the opposite side.

Another take is the notion that men who find teenage girls attractive are perverts. If you look at literature like Shakespeare, and at some historical figures like Sir William Johnson (a prominent pre-revolutionary leader in New York), you get the impression that it used to be normal for men, even much older men, to be interested in teenage girls.

While this isn’t something I would have written, and I frankly find it distasteful and, well, wrong, the flier is just outrageous.  Rough politics is hardly unheard of in New York, but this goes beyond the pale and hits a new low.

Warren blames the Paladino campaign for the flier.

Redlich said Paladino was responsible for the ad, without backing up this claim. Paladino spokesman Michael Caputo rejected it on Sunday.

Redlich has said his goal is to get more votes than Paladino on Tuesday, which would give the Libertarian party the second highest spot on the ballot, a big advantage in voting, just below the Democratic Party.

The Paladino campaign denies responsibility.

“That would be like Bill Clinton jabbing Pat Paulson in the 1996 New Hampshire primary,” Caputo said, referring to the joke campaign of Paulson, a comedian. “Never wrestle the comic relief _ you just get clown white smeared all over your suit.”

However, one-time Nixon and Paladino campaign strategist Robert Stone, rather than disavow the flier, argued that it was fair:

Roger Stone, a former campaign consultant to President Richard Nixon who now advises the anti-Prohibition party candidate Kristin Davis and once worked for Paladino, but no longer does, said neither he nor the Davis campaign produced the mailer. But Stone defended its content.

Stone said Redlich has “exotic views on sex with teens,” citing postings on Redlich’s blog. Stone also said Redlich is “crying crocodile tears” after calling Davis a prostitute, when the former Manhattan Madam has repeatedly said that although she ran a prostitution enterprise, she was never a prostitute.

The minor party candidates in New York have been appreciated for bringing some fun moments into an otherwise moribund campaign.  Heck, anything is better than being forced to watch Paladino’s face of death on the telly, and no one will ever forget the Rent Is Too Damn High candidate, whose party name alone said all that needed to be said.  But this gutter politics, outright defamation, goes way too far.  Way, way too far.

Given the views of many in the criminal defense community toward sex offender registries, the gross over-reach of sex offender laws and designations, and the unreasonable prohibitions heaped on those given our modern day demonization, there aren’t many criminal defense blawgers who wouldn’t be staring down a flier just like this should they run for office against someone sleazy enough to smear a candidate in this way.

What cannot be tolerated is the inability to express oneself in the blawgosphere on these controversial issues without exposing oneself to such a wholly unjustified and flagrantly false smear campaign.  To say that whoever did this is a disgrace is insufficient.  The line has been crossed by a mile.

From Grits for Breakfast, the Lubbock Avalanche Journal provides insight on the experience of the Lubbock County, Texas, Special Needs Defender. 

Since November 2009, the office has received 367 qualifying referrals out of 1,777 total referrals.

Of those 367, 208 were accepted, according to data from the defender’s office.

The office represents defendants who are charged with felonies or Class A or B misdemeanors, are indigent and have a qualifying mental health illness or condition like schizophrenia, bipolar disorder or major depressive disorder.

An underlying assumption of the criminal justice system is that people are relatively sane.  We assume that people perceive the world around them in a somewhat realistic way, and that the incentives upon which the system is based will influence their decisions.  This doesn’t work at all when a person suffers from mental illness.  The only aspect of the system that applies in any way is their loss of freedom, protecting others from their actions but doing nothing to prevent it from happening again.

The idea behind the Special Needs Defender is both the appropriate defense of those with mental illness, something that many lawyers are incapable of both identifying and delivering, even if they are sensitive to the need, and providing the ancillary psychological/psychiatric care needed. 

Special needs defendants need more services and attention while in jail than anyone else, said David Slayton, director of court administration for Lubbock County. They need attorneys who are trained in handling those needs because the legal process gets bottled up even more when attorneys don’t know how to handle their clients.

The Special Needs Defender’s Office was able to provide that legal representation without having to expand the county payroll by utilizing private attorneys trained to handle special needs cases, Slayton said.

The office works as a central hub, coordinating with private attorneys and the Lubbock Regional Mental Health Mental Retardation Center.

Both the need for, and efficacy of, this combined delivery of legal and mental health services seems to be so clear and obvious that it’s disgraceful that this hasn’t become an integral part of the criminal justice system decades ago and across every jurisdiction.    In addition, it points to the need to train judges in the impact of mental health, as my experience is that some judges “get it” while others couldn’t care less and see the mentally ill or the intellectually challenged as mere annoyances to be dealt with swiftly and harshly.

One might assume that the mentally ill are “found” during the screening process in jails and prisons, and then provided with appropriate treatment.  Neither is necessarily happening, even where the screening process is done with good intentions.

Slayton said the old mental health screening process wasn’t good enough. Jailers were responsible for asking a few screening questions and didn’t have access to inmates’ state mental health records. “Twenty percent of the people (screened) have mental health issues,” Slayton said. “That would be 20 percent we were missing.”

The screening process in the past was so rudimentary it didn’t catch a lot of the people it was intended to, with questions like “what season is it?” Gerlach said. “If you had an IQ of 50, it was probably going to point that out. It might point out somebody who was in an acute psychotic crisis,” Gerlach said. “Somebody can be pretty psychotic and hold it together long enough to get through something like that.”

The need for programs like this seems manifestly obvious, both from the perspective of helping those with mental illness and preventing harm to society and recidivism.  There doesnt appear to be much call for extensive discussion as to the reasons why, except to wonder whether any competent jurisdiction wouldn’t initiate a similar program. 

This is, without a doubt, a win-win for all involved, and every jurisdiction should have a program to address the special needs of the mentally ill and intellectually challenged who find themselves in the criminal justice system.  To ignore or deny it is inexcusable.  Society is no better off by treating the mentally ill as criminals.

At Real Lawyers Have Blogs, Kevin O’Keefe (whose Lexblog beer for bloggers meetups, by the way, are run in true Irish fashion: everybody drinks, everybody pays) posts about how public relations “professionals” (Kevin’s choice of words) should approach bloggers.

I just got off the phone with a good friend in Manhattan. She was talking with a large consulting firm that had begun to work with large law firms.

As a means of marketing to this new vertical (for them) the consulting firm’s PR professional advised outreach to influential legal blogs. Outreach by commenting on the blogs, emailing/calling the blog publishers introducing their firm, and perhaps offering to write guest posts. She asked for my counsel.

Wrong approach I advised. The consulting firm would be looked at like a wolf in sheep’s clothing. If you’re going to engage bloggers, you need to blog. It’s as simple as that.

It’s never clear what’s meant when someone writes about “influential legal blogs.”  Other than those whose fortunes are inextricably tied to blogging and social media, many of whom working their butts off trying to convince us that these media matter when experience suggests nothing of the sort, no legitimate blawger I know touts his “influence.”  I’ve been doing this for a while, and don’t have any clue whether anything I’ve written has persuaded any more than a handful of die-hards to buy a book, see a movie, change a thought. 

Yet PR folks, whom I refuse to call professionals given that it’s a job without licensure, educational requirement, “hard” code of ethics (meaning that a violation of which results in their being banned from every annoying anyone again), seem to think that bloggers can be of value to them.  For this reason, we’re deluged with their propositions.

It’s unclear to me why PR folks think that we might have any interest whatsoever in being their freebie promotional vehicles.  I’m sure there are many bloggers who do so because their own marketing gurus tell them they must to tap into the vast riches of the internet, but who have so little to write about that they are happy to post smarmy crap pre-written for them by PR folks.  These are the bloggers who have absolutely nothing to offer, but that doesn’t stop them from pretending they have a blog.  Kevin might dispute my description.

Kevin’s solution to the PR people is to “engage” bloggers; to blog themselves.  I have a difficult time seeing exactly how that helps, as there isn’t a chance in the world that I would care one way or the other whether the PR people blog.  I wouldn’t read it.  I wouldn’t care.  And if I did read it, judging from what I read by the marketing people and social media gurus, it would strike me as embarrassingly devoid of thought or value.  Stringing buzz words together in random order, or empty phrases that these people so love to use, mostly provides an opportunity for ridicule rather than engagement.

Rather than urge the PR people to blog, I have a different solution.  It begins with a basic premise.  You have something that you’re being paid to promote.  Maybe it’s something of interest.  Maybe it’s not.  But to the extent there’s any chance in the world that I would be inclined to even consider writing about whatever it is you’re selling, I would first have to like it.

This must be a novel concept, as maybe 1% of the emails I receive from PR folks offer to provide me with the opportunity to read, see or use whatever it is they want me to promote.  I’m perpetually amazed at this.  You want me to promote your movie (which would likely be of interest given the sort of stuff I write about), yet expect me to do so without seeing it?  Would I write book reviews without reading the book?  Would I urge people to eat at a restaurant I’ve never tried?  It’s absurd.

If I’m to take seriously Kevin O’Keefe’s understanding, that PR people sincerely want to “engage” with “influential bloggers,” then the first thing I would urge them to do is stop being pathological idiots.  Under no circumstances would I ever consider promoting something I haven’t used.  None.  Never.  Ain’t happening.  And any blogger who would do so is worthless and incredible.  If you expect me to consider writing about whatever it is you’re selling, the first step is to provide me with it, whether physically if it’s a gizmo or by access if it’s a movie or program or whatever. 

But here’s the rub.  Anybody with any credibility whatsoever will, after using, seeing, whatever, your product, write an honest review.  This means that there’s a chance that your efforts would not only result in giving a blogger a free ride on the use of your widget, but that the blogger hates it and posts about what a useless, worthless piece of crap it is.

You see, legitimate bloggers aren’t going to color their appraisal of whatever it is you’re selling because they got a free ride.  Legitimate bloggers will take your freebie and rip it to shreds if it’s a piece of crap.  That’s what makes them legit.  Their reviews are credible because they are not influenced by anything other than the quality of your product.  No matter how many empty adjectives you use in your press release, the product has to stand or fall on its own merit.

Based on my experience in fielding the dozens of PR pitches I get every week, very few have any interest in seeing whether their product can pass muster.  Most are just bulk emails to as many bloggers as then can find in the hope that some will be so desperately in need of fodder that they will post the crap blind.  Are these the “influential bloggers” that Kevin is talking about and that his “friend” in New York is trying to harness?

As for me, if you don’t think it’s worth your effort to show me what you’ve got, don’t waste your time (or mine) trying to pitch me.  There’s no way I’m promoting anything I haven’t both used and think is worthy of promotion.  Kevin says his idea is “simple.”  I think mine is too.  The only difference is that my way requires a bit more effort and a lot more substance.  If your PR desire isn’t strong enough to produce your goods, then drop me from your list and spend your time on Kevin’s “influential bloggers.”

“I’ve got this case . . .”

Occasionally, I receive a telephone call or email from a new lawyer with a question or in need of someone to bounce some ideas off.  I’m happy to help if I’m not otherwise preoccupied, and much prefer this call to the one from the Avvo reader who wants to know if I can represent them for free because, well, that’s what they want.

What makes these calls interesting is that they come from people who spend a decent amount of time reading blawgs, staying abreast of caselaw and often thinking very hard about way in which to help their clients.  In many respects, this is about as inspirational as it gets, knowing that there are young lawyers who really want to serve their clients, win their cases, beat the system, and are willing to put in the effort to give some serious thought to doing so.  

These aren’t the lazy schmucks, looking for someone else to do their legwork or spoon-feed them the obvious, easily found if they put in an iota of effort.  These are lawyers looking at tough situations, maybe even impossible ones, and hoping that another set of eyes can help.  These are the lawyers who we really want to help, who we admire and see as the future of the fight.

A problem that comes up all too often, however, is the desire to find the brilliant solution, the killer defense that will revolutionize the law and take the loser case and turn it into the huge win.  It’s understandable, both from a personal perspective as they have grand visions of their success, as well as their immersion in outlier cases and decisions.  We spend an inordinate amount of time talking about the unusual, whether good or bad, in the law.  The norm, as Amy Bach wrote, is ordinary injustice.  Nothing fancy.  Nothing unusual.  Just pedestrian, everyday, ordinary injustice.

I recently received a question about a situation involving a failure to turn over exculpatory information, a victim who identified someone other than the defendant as the shooter, until it was too late to lock it in and make it stick.  The explanation was that the cop who took the statement would testify that the victim was incompetent at the time the ID was made, and was clearly incompetent now.  Had the defense known, it would have put the victim and statement before the grand jury and preserved it for use at trial when the victim was no longer capable of testifying.  But the defense didn’t know and the victim’s statement was now left to the interpretation of the cop who took it.

Note: This is just an example, not the point of the post.  I have not provided enough of the background for anyone to pose any meaningful ideas on the case.  Please do not offer your thoughts on how you would handle the situation or I will ridicule you unmercifully, alter your comment to make you look ridiculous and then call you mean names.

The question posed was about remedy and preclusion as the sanction for the Brady failure.  First, the defense needed to get the statement before the jury.  Second, the defense needed to prevent the cop who took the statement from testifying the statement was worthless as the victim was incompetent when it was made.  Either way, the ID of another as the shooter would be rendered worthless. 

The argument, that this dilemma was created by the prosecution’s failure to alert the defense to the exculpatory ID was sound.  The prosecution’s response was that it wasn’t Brady since it was made by an incompetent victim, the old circular argument that it isn’t Brady if the prosecution doesn’t believe it.  While this doesn’t quite wash, it’s more than enough to remove the taint of a deliberate withholding of Brady for malevolent purposes, a finding that only the rarest of judges would reach under only the worst of circumstances.  That’s just how it goes.

I was asked whether and how this remedy and sanction could be achieved, whether the theory was correct.

There’s a tendency to become myopic when striving to find an answer to a troubling question.  You start down a path and then continue to push, hoping to break through brick walls and overcome insurmountable obstacles.  Unfortunately, the zeal of making a theory work sometimes blinds you to easier paths.  This happens all the time.

My reaction to the question was that the judge would be hard-pressed to refuse to allow the exculpatory identification in, he would similarly be hard-pressed to refuse the prosecution’s rebuttal witness, the cop who would testify that the victim was incompetent.  Since Brady remains one of the great jokes of the law, whether it exists and when it must be disclosed, the imposition of such a severe sanction as preclusion of testimony would only be available if the defense could show the failure to disclose as deliberate and designed to conceal and deny this evidence to the defendant.  Given the availability of a somewhat rational explanation, even though wrong, the likelihood of a judge imposing it was slim.  Very slim.

On the other hand, a shooting victim would receive medical treatment, meaning there would be medical records, doctors, and nurses who would be in a position to testify that the victim was alert and competent to make a statement, and that the identification of the shooter as someone other than the defendant was accurate and credible.  Of course, trying to find these witnesses wouldn’t be easy, and it was certainly possible that after all the effort to locate them, the defense may learn that the victim was indeed incompetent, if the witnesses had any recollection of the victim at all. 

The point is to consider whether to lock the defense into the low percentage play, the one in a million shot of winning the outlier ruling, or to spend the time and effort on the higher percentage play.  Should there be no witnesses, the long shot would still be available, but to go straight for the low percentage play would be to deny the defendant his best opportunity. 

It’s the legal version of heroic efforts, the killer win.  We see if often in the media and blawgosphere, because it’s the rare and bizarre that makes news and generates interest.  And every once in a while, sometimes once in a generation, we come up with a spectacular win, a Gideon or a Miranda.  Even a Brady.  A game changer.  We all want to be responsible for a game changer.  Who wouldn’t?

But for every win that makes history, there are thousands of spectacular defeats.  Often, it’s the same argument, as cogent and correct as they may ultimately turn out to be when a court embraces it for the first time, but crashing and burning the first time made.  Maybe even the first 100 times made.  And each time the argument crashes and burns, there’s a defendant and his family that goes down in flames with it. 

What tends to distinguish the spectacular win is that the defendant whose name becomes a household word was left with no other choice.  Every avenue was closed, and going for broke was all that was left.  You know, “freedom is just another word for nothing left to lose.”  We can afford to get a little crazy when that’s all we have left, and it’s often the crazy argument, the out of the box defense, that gives rise to these spectacular wins.  The problem is that the vast majority of these efforts produce stunning defeats.  Fascinating cases for lawyers, but horrific losses for defendants.

I hate throwing cold water on an interesting theory, an audacious approach, especially when it’s one that could have a monumental positive impact if it prevails.  Like everyone else, there’s a voice in the back of my head that spurs me on toward changing the unfairness, the injustice, the ugliness, pettiness and nastiness of the criminal justice system, when I see that special case that offers an opportunity to make a grand statement.

But I’ve got a client to represent.  As much as it would be beyond cool to come up with a complex, sophisticated, game-changing theory that would make my client’s name a household word, the interests of the defendant have to come first.  Always use the most viable defense, the one with the greatest chance of success, over the spectacular.  Better to be a hero to one, even if it means passing up the one in a million chance of being a hero to all.

When Professor Jeffrey Fagan concluded that the sun shines during the day, people like the taste of chocolate and New York City cops stop and frisk blacks and Hispanics for no particular reason, there was a collective yawn.  It’s not like everybody didn’t already know this.  Bob Herbert takes up arms over the obvious in his column in the New York Times.

The police in New York City are not just permitted, they are encouraged to trample on the rights of black and Hispanic New Yorkers by relentlessly enforcing the city’s degrading, unlawful and outright racist stop-and-frisk policy. Hundreds of thousands of wholly innocent individuals, most of them young, are routinely humiliated by the police, day in and day out, year after shameful year.

The rate of gun seizures is near zero — 0.15 guns seized for every 100 stops. “The N.Y.P.D. stop-and-frisk tactics,” wrote Professor Fagan, “produce rates of seizures of guns or other contraband that are no greater than would be produced simply by chance.”

More important, after studying six years’ worth of data, the professor concluded that many of the millions of stops are violations of the Constitution. One of a number of constitutional problems, according to Professor Fagan, is that the police frequently use race or national origin rather than reasonable suspicion as the basis for the stops.

Got it.  Check.  We’re all shocked.  So what?

The Center for Constitutional Rights, which filed the class-action suit, wants the Police Department barred from engaging in what the center describes as race-based and “suspicionless stops and frisks.”

Now I like the Center for Constitutional Rights as much as the next guy.  No, I really do.  But what exactly is the relief they seek from this class-action?  An order telling the cops not to do what they are already prohibited from doing?  Wow, then they’ll really feel bad.  “You should be ashamed of yourselves, you coppers.  Don’t do anything unlawful again!”

Yeah, that’ll fix ’em good.

This is a problem of massive proportions.  We’re talking about millions, MILLIONS, of stop and frisks over a period of six years of completely, totally, 110% innocent people.

From 2004 through 2009, city police officers stopped people on the street and checked them out nearly three million times. Many were patted down, frisked, made to sprawl face down on the ground, or spread-eagle themselves against a wall or over the hood of a car. Nearly 90 percent of the people stopped were completely innocent of any wrongdoing.

While the remedy for an unconstitutional stop and frisk that results in an arrest may (or may not) be suppression, the 90% ordered to kiss pavement and get some boot-love while wandering hands touch private parts get nothing.  Zero, zippo, nada.  There’s no incentive for the police not to stop and frisk at will because there’s no price to be paid for it.  Find something and get an arrest.  Find nothing and move on to the next black man (and by that, I do not mean white men in black robes, in which case the problem would be fixed lickety-split).

The well-intended, angry but naive reader at this point wants to scream, they should sue those nasty cops for every penny they’ve got.  Well that’s not going to happen, for  laundry list of reason, so let’s just get past it as it’s been explained ad nauseam why it’s not feasible.

Struggling with this question, however, I’ve come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you’re talking about a day without donuts.

Okay, it’s not a foolproof plan.  It’s got some flaws, like the cop who refuses to pay over the $10 and leaves the friskee without recourse.  Or the addicts begging for a frisk so they can get their next fix.

But no class-action decision is going to change anything on the streets, any more than another column by Bob Herbert about a policy that everyone knows stinks, and yet continues unabated, is going to make the police feel really badly about humiliating blacks and Hispanics.

We need recourse.  We need redress.  We need a way to stop this rampant refusal to honor a person’s constitutional right to walk the streets of New York City without being subject to one’s constitutional rights being violated at will.  The courts won’t do it.  The cops won’t do it.  The politicians won’t do it.  Heck, they all encourage it, though they would never exactly say so.

So anybody have a viable answer?  We could certainly use one.