A sentence of 15 years to a 22 year old defendant is, in point of fact, a lifetime.  Had Andrew Guadioso found himself in a different courtroom, especially one with a headline seeking District Attorney like Nassau County, Long Island’s Kathleen Rice, he might have been staring at a murder charge, and 15 years would look like a sweet deal. 

Guadioso, you see, drove under the influence of drugs, causing the accident that killed Army Sgt. Thomas E. Towers Jr., a two-tour veteran of the war in Iraq.  From the Orlando Sentinel :

He could have been sentenced to 15 years in prison for the fatal wreck March 14, 2008. Investigators alleged he was traveling on County Road 452 north of Eustis at more than 80 mph in the rain with traces of street drugs in his blood when he veered left of center and smashed almost head-on into the soldier’s car.

For causing the accident . . . Andrew Gaudioso was ordered to send the Eustis soldier’s family a postcard every week for 15 years.

“He said he thinks of my son every day but, excuse me, I don’t really believe that,” said Towers’ father, Thomas E. Towers Sr. “At first I thought I wanted prison [for Gaudioso]. Then I thought it would be better to force him some way to remember — at least once a week — what he did. I think this does that.”

The unusual sentence, imposed this month by Circuit Judge G. Richard Singeltary, does not specify what Gaudioso should write on the postcard, which must be presented to his Lake County probation officer with the 28 cents postage paid. If he fails to send the weekly postcards, Gaudioso could be sent to prison for 15 years.

Creative sentences like Gaudioso’s are a growing trend in American courtrooms, said Jonathan Turley, a constitutional-law expert at George Washington University and a critic of the practice, which often uses shame as punishment.

Turley said so-called creative punishments threaten to reverse centuries of progress in U.S. courtrooms, where justice has evolved from pre-colonial practices of public pillories, scarlet letters and tar-and-feathering to a system of thoughtful, consistent sentences designed to punish offenders and protect the public.

“There is ample embarrassment in any criminal conviction. But there is a sharp difference between shame from a punishment and shame as the punishment,” Turley said. “These sentences have a corrosive effect on the legal system.”

And wondered: What would the killer write?

Every day, he dragged himself down the dusty path to get the mail. He flipped through fliers and bills, searching for that small slice of justice.

But three weeks had passed since the sentencing, and Towers still hadn’t received a postcard.

Writer’s block?  Finally, a card arrived/

Towers cradled the card in both hands, ran his thumbs across the slick conchs. “Andrew Gaudioso,” said block letters across the back. “Mr. and Mrs. Towers,” the shaky print said. “I’m very sorry.”

He read the words over and over. Closed his eyes. Then read them again.

“Is that it?” he finally asked, flinging down the card. “You’ve got to be kidding me. That’s all there is?”

He sank back into the sofa. Dina watched his shoulders slump, his head drop. “Wait, Dad,” she said, “Here’s another one.”

The second postcard was labeled “The Legend of the Sand Dollar.” Towers studied it, took in the symbolic cross, the hidden doves of peace. Then he turned it over.

The card was blank.

As much as I realize that blawg readers much prefer posts about salacious crimes, violent cops and twitter, sometimes you just have to suck it up and read a post about law.  So suck it up and read Nathan Burney’s review of the Foreign Corrupt Practices Act.  To corporations attempting to do business in a flat world, it’s one of the most poorly conceived and arbitrarily enforced laws around.  No matter how much you may hate corporations, it’s good to keep them financially viable so they can manufacture and sell the shiny stuff you like and hire and pay people so we aren’t reduced to a nation on welfare.

The putative idea behind FCPA is that it’s wrong for American corporations to go around bribing petty officials elsewhere to get or keep business.  Since bribe-givers have no interest group, there are few willing to stand up and disagree.  But as Nathan notes, it’s not quite that simple.

The Foreign Corrupt Practices Act, among other things, says it’s against the law for any U.S. citizen or business to pay a bribe to a foreign official.  The penalties can be staggering, with fines calculated as the amount of income the briber hoped to receive down the road as a result of paying the bribe.  “Any” U.S. citizen means just that: anybody, not just a corporate executive.  A “foreign official” means anyone with a government job — including people working in industries that are government-owned or government-controlled.

“Bribery” includes giving anything of value in the hopes of getting something in return.  It’s really a broad standard.  A bribe doesn’t have to be an explicit tit-for-tat, and it doesn’t have to be just for the purpose of landing a choice contract.  A bribe can be just a nice dinner at a fancy restaurant that might make get you looked on with more favor next time contracts are being awarded.  A bribe can be a “facilitation payment” to a petty bureaucrat, some grease to ensure that you are allowed to do what you are already entitled to do.

In other words, it covers pretty much anything and everything that goes on in the ordinary course of business, from buying dinner when  meeting with the local petty bureaucrat who was given a small Ferrari by your Chinese competition the week before, to sending flowers to paying the vig demanded by the regional Feudal Lord of telephones, with whom you already have a contract but who desires a new Ferrari to keep up with the petty bureaucrat.  Keeping up appearances costs money, you know.

The issue doesn’t only arise from the various disincentives created by the law and its arbitrary dynamics, but by at the hand of a coterie of former justice department lawyers who left the office, went legit, and are now making small fortunes advising and representing corporations in FCPA actions.

Nice work if you can get it–and to the tune of billions of dollars, lawyers, accountants and consultants, many with past ties to the Justice Department, are getting it. In the last few years, as the feds cranked up enforcement of the 33-year-old Foreign Corrupt Practices Act, a thriving and lucrative anti-bribery complex has emerged. Whether it’s having any impact on reducing bribery is another matter. Instead, companies can find themselves getting extorted in foreign lands, only to get extorted again by Washington. It works generally like this: A company that suspects bribery overseas hires a battery of lawyers, accountants and investigators who may then report any findings to Justice in hopes of some undefined leniency. More likely, the company pays out huge fines and then hires more lawyers as government-mandated compliance monitors, a job that can stretch into years of legal billing.

Notice that nothing in there suggests any attempt, even consideration, of defending against allegations?   The reaction of these DOJ-cum-defense lawyers is a simple formula:  Investigate (pay), Report (pay), Concede (pay), Negotiate (pay), Comply (pay), Monitor (Pay).  Notice any theme in there?

It’s not really as Machiavellian as it seems (Bruce Carton doesn’t think so), as not every lawyer schemes to suck up millions upon millions of dollars to no end other than confess to wrongoing, flop on your belly and beg for forgiveness and then pay it all over again (once, if not twice if one includes the fines to be levied) to make sure it never happened again.  Some fight.  Some mean well.  Some have passing thoughts of defending rather than laying spread eagle on the ground.  Some.  But not too many.

This has the effect of empowering the government to engage in baseless rectal exams by young turks of righteousness whose business experience and acumen is, at best, limited to a lemonade stand.  Had these big, wealthy, macho corporations put on their man pants and, if they were not engaged in bribery, duked it out, perhaps they wouldn’t be viewed as ATMs for the government.  But that would have required them to act against advice of counsel.  Very expensive counsel, I might add.

And if you don’t think the FCPA matters to you, who do you think it paying the many millions of dollars forked over to lawyers and government, not to mention the opportunity costs of doing business overseas where only American corporations are subject to a constraint that flies against local culture and custom. 

Nobody is suggesting that actual bribery is a good thing and should be tolerated.  It would be nice if this was pervasive attitude, but regardless, we can hold our corporations to a higher standard.  However, the FCPA has put everyday business practices, with no quid pro quo to even the most fertile of young government lawyer minds, at risk.  It’s going to be awfully hard for the United States to regain its position as an economic engine in the world with two hands and a foot tied behind its back.

But if you’re okay with taking an economic backseat to India, well, then there’s no reason to be concerned and certainly no point in your reading such a boring, law-related post.

Speedy trial is a guarantee, both to defendants as well as society.  It says so in the Constitution.  It says so in some state laws.  Under most circumstances, the failure to provide a speedy trial rests with the prosecution, whether for failure to get their act together or the loss of a necessary witness at a critical moment.  Courts do their best to avoid it, as it means a potential criminal walks.

In California, however, time ran out.  From the Los Angeles Times :

In a unanimous ruling, the California Supreme Court on Monday upheld the dismissal of 18 criminal cases, two of them felonies, in Riverside County because there were not enough judges to hear them.

“The lack of available courtrooms and judges was attributable to the Legislature’s failure to provide a number of judges and courtrooms sufficient to meet the rapidly growing population in Riverside County,” wrote [Chief Justice Ronald M.] George, who has been lobbying legislators for years for more judges.

The article was later updated to note the extended implications of the decision.

The ruling also was a victory for defendants in an additional 300 Riverside County criminal cases that had been dismissed for lack of judges and were on appeal, said County Deputy Public Defender Wiliam A. Meronek. 

On the one hand, if the government wants to put people away, it has to provide the resources necessary to fulfill the legal duties that are required of it.  Defendants can’t be held for extended periods of time, whether in jail or with the threat of conviction hanging over their heads, because the state wants to prosecute on the cheap. 

At the same time, this failure may well result in people who have committed crimes being allowed to walk away, taking the message that they are now free to commit another crime with impunity.  All they need do is hold out for trial.  Roll the dice and they not only have the chace to win before a jury, but win because they will never get to a jury.  There is a reason we have criminal laws, and that’s to prevent people from committing crimes, and then committing them again.

California’s failure to fulfill one of its basic missions, however, is exacerbated by the tough on crime attitude held so dear by some prosecutors.  As Meronek notes:

“The courts are just overwhelmed by both the exponential growth in population and by some extent to the district attorney’s charging policy,” Meronek said. “They tend to pursue everything, and they are reluctant to plea bargain or negotiate any settlement.”]

The mindless, simplistic approach toward criminal justice that’s been applauded and rewarded for decades is finally coming home.  Ironically, the idea that if the defense held firm, stopped begging for pleas or cooperation deals and let the system run its course, the courts would collapse under the weight of the never-ending stream of criminal laws and over-enforcement.  But this didn’t happen. 

Whether because defense lawyers advise their clients to take pleas because it was the right thing to do, or because it meant less work for their fee, can only be discerned on a case by case basis.  But the path they beat to the prosecutors’ door emboldened ever more draconian plea offers under harsher laws, until there was nothing left to give.  There’s no reason to plea to the charge and take a chance on sentence, or even give away more than the minimum, under almost any circumstance. 

So defendants demand a trial, as is their right, not because they are brave or tough, savvy or shifty, but because prosecutors left them no viable alternative.  They outsmarted themselves.  They out-toughed themselves.

The system has long been out of balance, ranging from the monies expended on indigent defense to the cost of incarceration versus education, to the laws that seek to micromanage every aspect of human existence by manufacturing crimes of every stripe based on fortuitous outcomes with no necessary nexus.  It’s not going back any time soon, as society has come to expect a new law every time a dead child turns up, as if we can eliminate tragedy by criminalizing breathing.

The California Supreme Court’s decision took a strong stand, holding that the absence of a sufficient number of judges and courtrooms is not a burden on the defendants’ shoulders, but a failure of the government to fulfill its duty.  It wouldn’t have been terribly difficult for the court to have gone the other way, calling it a mere administrative glitch and holding it unfair to burden the prosecution, or society, by freeing criminals to rape and pillage. 

Is building courtrooms and buying rayon robes more important than educating children and feeding the hungry?  Different people will answer this question differently, but the court sent a message to prosecutors that they must work within existing resources to prosecute those most worthy, and stop the hardball tactics that win elections and make them the darling of the tough on crime crowd. 

If only the next big state court ruling will hold that the failure to provide adequate representation to indigent defendants, by overburdening public defenders, we might well be on the road to returning a bit of balance to the system.  We’ll work on some of the other stuff, like testilying cops and junk science, next.  As a variation on the punchline to the old lawyer joke goes, 318 dismissals is a good start,

Bruce Carton very kindly offered to pay my entrance to the Global Happiness Summit.  I declined his thoughtful offer.

I am happy.  Very happy.  Anyone who needs to go to a conference to figure out how to be happy is pathetic.  That anyone would even consider holding such a conference is bizarre.  If you need a Global Happiness Summit to figure out how to be happy, then you should consider drugs or masturbation.  Maybe both.

Doug Berman points to a fascinating op-ed in the Roanoke Times, dealing with the rarely mentioned ugly little detail of probation officers in federal cases providing the sentencing judge with secret sentencing recommendations that appear nowhere in the pre-sentence investigation reports.

After federal defendants are convicted, probation officers prepare a report to help judges decide punishment. The pre-sentence report discusses the convict’s history, family, employment, ability to repay costs of the offense, and how the crime affected victims. The report includes a calculation of possible sentences under federal guidelines, based on scores for the offense and the defendant’s criminal history.

This part of the pre-sentence report, while sealed from public view, is shared with the prosecution and the defense and often is vigorously debated in front of a judge in open court.  Another part of the report rarely sees the light of day in most of the nation’s 94 judicial districts.  This is where the probation officer advises the judge what sentence to impose.  “By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence,” says the Federal Rules of Criminal Procedure, which governs the operation of U.S. courts.

The underlying notion is that the probation officer, in the course of his investigation, has gained some deeper insight into the defendant to be sentenced, going beyond the routine criteria.   This allows the PO to tell the judge, sotto voce, about the “real person,” eliminating the static of the lawyers’ rhetoric and spin.

The problem, of course, is that the probation officer has no greater magical powers than anyone else to divine the deeper nature of another person, and few are quite as worthy to judge another as they think.  Yet they are not only expected to do so, but do so without the defendant (or his noisy lawyer) knowing about it, such that absurdly wrong information and conclusions become absolute in the judge’s mind and are immune from challenge.  No one but the PO and judge, and perhaps the prosecutor, knows what’s being whispered in the judge’s ear.

Most lawyers doing federal defense are well aware of this happening, and we recognize the importance of giving the probation officer as much to work with favorable to the defendant during the PSR process.  As wrong as I may believe it to be, there is no benefit in ignoring that the PO has the judge’s ear, and it would be insane to needlessly antagonize the probation officer.  We prepare for the PSR interview so that the defendant is cooperative, thorough, on point and honest.  We provide documentation that makes the PO’s life easier, and offer the information that will, hopefully, help the PO to see the defendant as a real, multi-dimensional, human being. 

It astounded, me therefore, to read this comment to Berman’s post by someone who purports to be a USPS:

There are, sadly, too many POs who harbor a prosecutorial bent. In some cases, they come to the job that way. Many of them, however, are created by the hostile and uncooperative attitude of some defense attorneys. A new presentence officer (at least in my district, a very large one), will experience that the Government is friendly and helpful, often even respectful, while the defense attorney is rude, evasive and even aggressive in thwarting the investigation. The initial reaction is that credibility is given to the Government. This will persist unless the PO either experiences an unethical prosecutor, or is somehow able to see past the unpleasant experience with defense counsel to the underlying validity of counsel’s arguments.

Now sometimes what defense counsel criticizes as a mischaracterization is really just a characterization. Without knowing more about the case that inspired this posting, it is tough to know if Mr. Cargill’s stated concerns are objectively valid or not. Other times, their has clearly been a failure to bring balance to the sentencing assessment. Chicken v. Egg. Are POs sometime prosecutorial because some defense attorneys are hostile, or are some defense attorneys hostile because some POs are prosecutorial?

That defense counsel is “rude, evasive and even aggressive in thwarting the investigation” seems unreal.  What possible benefit would a defense lawyer think can be gained by pissing off the person preparing the PSR and advising the judge?  It’s just plain nuts.

Yet the message is that those of us who do everything in our power to cooperate with the probation officer and help the PO to see the defendant as a human being are stymied, without our knowledge, by their prejudice against the defendant cause by other defense counsel. 

We thus have to add to the calculus that no matter how well we prepare, how cooperative we try to be, how much effort we put into humanizing the defendant and providing context to the offense, we start from a place of incredibility due to the offensive conduct of others that we know nothing about, and end in a place where the PO’s opinion is given to the judge in secret.  This is a problem.

Let’s face reality: we really have little clue who the PO is, what’s going on in their heads, their experiences, their prejudices.  We know more about jurors than about the “little birdie” whispering our client’s fate in the judge’s ear.  They may smile kindly, listen warmly, and burn the defendant six ways to Sunday in the recommendation to the judge.  We don’t know.  We should, but we don’t.

But the absolute last thing we need is having some other criminal defense lawyer think that a probation officer is some low-life court functionary who they can, and should, dump on.  The POs are critical players in this process.  They have a job to do, and they do it.  Their opinion is sought and matters. 

The idea that my client might suffer because some other criminal defense lawyer has soured a probation officer on defendants is unacceptable.  Don’t do it.  And if you think you’re such an important big-shot lawyer that you are entitled to piss off probation officers and treat them poorly, then you need to get out of Dodge.  Whether it’s right or wrong that POs offer their secret recommendations to the court, it’s absolutely wrong for some fool lawyer to screw it up for the rest of us.

Maybe I’m wrong  about the substantive nature of social media?

Maybe not.

H/T Peter Black at Freedom to Differ via Ed at Blawg Review

The phrase that comes to mind is that there is no second chance to make a first impression.  Yet defendants persist in trying to see if they can get away on the cheap before getting serious.  It’s not a new phenomenon, and it hasn’t changed over the course of my time in the trenches.  Lawyers are dead money.

A new animated video has appeared at the hand of D.A. Confidential, who I’m informed is a Travis County, Texas prosecutor.  The Travis County thing is apparently of some local significance, as in they dress funny in Travis County.  The video shows a criminal defense lawyer attempting to negotiate with a prosecutor, and getting nailed with his own lies at every turn.  Both oblivious and shameless at every turn, it’s pretty funny, far more so than the “want to go to law school” video that made the rounds lately.

Mark Bennett, who has an obvious affection for animation, posted the D.A. Confidential video with this introduction :

Why does it cost more to hire me as the second lawyer on your case? Because the first lawyer was probably this guy:

I laughed.  The video was funny.  The irony was funny.  The situation was true.  But it’s really not funny at all, because this video, though obviously exaggerated for comedic effect, is indeed what we walk into when we substitute on a case.  Our first job is janitor, cleaning up the mess the first lawyer left behind.

The assumption on the part of many defendants is that lawyers are fungible.  We all went to law school.  We all passed the bar exam.  We all go to court and do our court voodoo.  We must all basically be the same, with the variations being highly nuanced at best.  Or maybe it has to do with trials, and any lawyer can plead out a case as well as any other lawyer.  After all, doesn’t every defendant end up in the same place anyway, regardless of who defends him?

No.  Sadly, no, for no defendant should end up copping out to a term of imprisonment that’s longer than it should be for lack of caring or competent representation.  The touchstone for many lawyers is whether the defendant is satisfied with the plea.  If the defendant will take it, the job is done, the fee is earned.  Everybody goes home happy.

It wasn’t until I was on the NYSACDL listserv that I gained a fuller appreciation of what was happening with others.  There were the lawyers with whom I worked as co-counsel in multi-defendant cases, but even there it was obscured by the fact that someone invariably took the lead and others often rode their coattails, never actually doing much of anything to show their chops.

On the listserv, lawyers who were generally well regarded would ask questions, offer advice, crow about their successes or bemoan their failures.  It was a revelation.  Some revealed their cluelessness about the law.  Some showed that they were pathetically lazy.  Some were clueless, and often went on for a thousand words to prove it.  And some were incisive, knowledgeable and prepared to do anything it took to make sure their clients were well served.

In my pond, there are a lot of lawyers.  There’s no way to have a case with every one of them, and get to know them as lawyers in the trenches.  Many were friendly and funny hanging around the hallways or sitting in the front row waiting for the judge to take the bench.  They seemed like good people.  They seemed like good lawyers.  Who knew?

Trying to explain the problem to potential clients who seek representation after their first shot didn’t pan out as well as they hoped, I often use the analogy of the lawyer as gunslinger, a Paladin, who brandishes a six-shooter.  I explain that their choice of going cheap cost me a few of my bullets, and they are leaving me with only a few chances to do my work.  It’s an imperfect analogy in many ways, but it usually gets the point across. 

Once defense counsel goes off half-cocked to the prosecutor, the die is cast.  Indeed, to the extent there was any doubt of the defendant’s guilt before, the prosecutor is now certain that he’s got the right person because the defense lawyer’s act of desperation confirmed it.  But you’re not guilty?  Try undoing that certainty in the prosecutor’s head.

It can be done, sometimes.  The rush of the cheap lawyer to cobble together a quick plea is how he makes his living.  Do you wonder why the fee is so low?  It’s actually quite expensive, when you factor in that he only plans to make three appearances and a phone call before wishing you good luck.  It takes a lot more time and effort to do it right, and even more when you add into the mix that your first job is to clean up the mess your cheap lawyer left behind. 

It’s exasperating for all of us, and no, the fact that you wasted your money on the first lawyer doesn’t mean that you get a discount for the additional work.  You chose poorly. It’s not funny when you look back at it.

Kenny and I went to the same small college at Cornell together, though neither of us remember the other at all.  We “met” about twenty years ago when we were both on a “blue ribbon”committee investigating government corruption.  We became fast friends when, at the first meeting, we sat next to each other and listened to the committee’s lawyer speak, explaining the committee’s purpose in a way predestined to assure our outcome.  I leaned toward Kenny and said, “I can name that tune in three notes.” He whispered back, “I can name it in two.”  That was all it took.

Kenny is a lawyer.  He’s one of those larger than life personalities, who seizes a room the moment he walks in.  He’s funny, crude and brilliant.  He’s got a memory like a steel trap.  When we play golf together, people think we’re brothers, which I like since they think I’m the younger, better looking sibling.  He’s a year older than I, and it isn’t often that people use the word “younger” around me these days.

Kenny has two sons, both nice kids, good kids, and quite brilliant.  Against his advice, both are in law school.  The good news is that neither plans to practice law or become social media marketers. Both intend to lead productive lives.

We hadn’t seen Kenny and his lovely wife for a while, as they are constantly on the go.  Last night, we finally had a chance to get together for dinner.  What’s great about a friend of almost twenty years is that, when you haven’t seen them for a while, it’s as if you saw them the day before.  You just pick right up where you left off, the bit of time in between disappearing immediately.  The women did all the requisite catching up on children and parents, and the men just talked about the inconsequential nonsense that men talk about and made jokes at each other’s expense.

The restaurant was a French bistro, fairly reasonably priced for the area with food that sounded as if you would find it across the Pont Neuf, but tasted like it was meant for someone who never stepped foot on Ile St. Louis.  I had the steak au poivre, assuming that it’s fairly hard to screw up steak.  Kenny had carré d’agneau under the same theory.  I drank two glasses of a horrible Shiraz from inappropriate stemware, while he drank vodka from a water glass.  We all had desserts, Kenny profiteroles and I bananas Foster.

We had a wonderful time, hugged and kissed and went home at a respectable hour.

I went to sleep quickly and was up by midnight.  It felt like the house was on fire, the thermostat at 100 degrees.  It was set to 58, though the temperature was ten degrees higher.  I was dying.  Got up to drink some water.  I wandered around the house for a bit, then turned on the television and watched a show I can’t recall.  I dozed and awoke.  It was one o’clock.  Rinse and repeat.

One of the things that happens to the body over time, at least to some of us, is that we can no longer eat large quantities of food, or rich foods.  Similarly, we fall out of practice with alcoholic beverages, especially red wine.  The tanins are killers.  Put them all together and it wreaks havoc on one’s systems.  It’s great going in, but the price you pay goes far beyond the check.

I’m exhausted this morning and can barely stand up, no less think.  There were a few things I planned to write about, but I won’t.  I can’t.  Not today.  I have a very busy day ahead of me and no clue how I’m going to muddle through.  I feel miserable.

I wonder how Kenny feels this morning? 

A couple days ago, I (along with a couple of other folks) stopped twitting.  At the moment, I have about 1100 twitter followers, and not the slightest clue why.  The content of my twits are largely worthless.  As far as I can tell, not a single thing I’ve twitted is worth more than a glance or, on occasion, a chuckle.  Your twits are no better.

This hiatus has allowed me to do some looking and some thinking.  I’ve spent some time reading the twits of others, following twitter “conversations” to which I wasn’t a party.  I put the word “conversation” in quotes because it’s used in the loosest of ways.  These aren’t conversations at all, as they are inherently limited, whereas a real conversation can range from the sublime to the ridiculous.  This is only the ridiculous.

It’s not that there isn’t fun to be had.  Some people can be quite witty in 140 characters.  Not always, but sometimes.  Most of us, however, are not that witty.  We may try to be, but we’re not.

There are also some troubling trends.  The indiscriminate collection of followers, the initial badge of twitter honor, was never taken seriously by serious people.  But I’ve watched serious people do something that strikes me as worse.  Twitter “friendships” develop that involve what the social media gurus like to call “authentic engagement,” where a surprising level of intimacy is achieved between people who know nothing more about each other than their twitter bio and twits reveal.  On the one hand, it shows a sweet level of empathy for others.  On the other, it seems as if it reflects the absence of any real life friendships.

People twit at each other all the time.  Some will twit all night long, until they finally sign off from exhaustion.  They inquire of each other about the intimate details of their life, and the others tell them the details.  This is all open to public inspection, though the details generally aren’t any more interesting than anyone else’s mundane life.  It’s all reminiscent of old friends superficially chatting, but without the old friends part and without the underlying basis for connection. 

It’s all the superficiality with none of the substance of real friendship.  And yet people spend their evenings, every evening, doing this.  These friendships crossed borders that would rarely be crossed in real life, with law students giving life lessons to old-time lawyers, and secretaries demanding the rapt attention of senior partners.  Do they not have spouses, children, friends, family with whom to interact?  Have we come to seeking, and finding, companionship in disembodied twits to fill the hole?

Another group that I’ve come to observe are the social media gurus.  Before, I would learn only of snippets, usually via Brian Tannebaum, who was paying far more attention than I ever considered worthwhile.  Instead, I set up a column in tweetdeck with the name of a young man whose recreated himself as a twitter expert when his law career fizzled.  I found his rise, and acceptance, as a social media guru rather astounding, and quite impressive, given his dearth of qualifications and the general silliness of his endeavor.  Still, if people want to buy pet rocks, who am I to stop them?

Following this column opened my eyes.  Not merely the volume of people on twitter who paid close attention to the most banal and, dare I say it, idiotic nonsense, but the identities of the twitterers.  From my remove, it seems as if this opportunistic crowd twits for no other reason than to announce approval and be embraced by the others.  No one, ever, twits anything but absolute approval.  Twit that you woke up this morning and got out of bed without falling, and a dozen will retwit it, adding their congratulations for the successful launch.  Someone will push the envelope by adding “you’re awesome!!!” 

Twits listing a passel of twitter names are the most common, as there is nothing better appreciated than having the twitter name spread far and wide.  Whether it’s the #FF, or something new to me, the ReadMeDaily that appears to be all the rage, reinforcing the-mutual-admiration-at-all-costs as the price of admission to this group.  Never have I seen such a meaningless circle jerk.  Never has anything so utterly inane been embraced by so many for no reason other than to be embraced.

There is no aspect of human existence so banal or trivial that it’s not worthy of a twit, and won’t give rise to someone twitting their congratulations in response.  It’s been explained to me that the reason for this is that some lawyers want to be loved by all others in the hope that they might refer them a case.  The social media gurus teach that people hire lawyers they like rather than lawyers who are competent.  Being liked merely requires liking others on twitter.  Any idiot can do it.

But any lawyer who refers a case to another lawyer based upon their twitter relationship should be disbarred.  Then beaten, tarred and feathered.  If this requires further explanation, please let me know so I can block you on twitter.

Granted, my observations are limited to lawyers and those whose occupations are related to the law, whether by their efforts or their desire to sell themselves to lawyers.  They maintain an obsession with numbers and superficial engagement, but what amazes is that they are well received, maybe even loved, for allowing anyone and everyone into their sphere who merely chooses to twit something nice at them.  Whether this is peculiar to lawyers I can’t say.  My experience is too limited to extrapolate, and my interest too limited to delve deeper.

I’m not sure what message to take from all of this, but I am disturbed by it.  It’s clear that some, more likely many, are so hungry for interaction that they will take it from anyone.  We don’t become BFFs with every person we meet in real life, so why would we do so with every person with a twitter account?  Yet most do exactly that.  If your bio says lawyer, then every other lawyer on twitter is expected to welcome you with open arms, follow you back, chat with you whenever you decide to throw a twit their way, and do so in a manner that pleases the happy twitterer.  It’s like another planet. 

Before some simpleton responds, “so if you hate twitter so much, just get out,” I add that I don’t hate twitter at all.  Twitter isn’t at fault here.  It’s just another technological marvel that allows people to communicate with others.  This is about what twitter tells us about ourselves, in the way we use this tool to compensate for the isolation technology has formed around us, the elimination of barriers between us and anyone who decides to touch us, the desperate need for intimacy, even if it means being intimate with disembodied names of unknown persons of dubious origins.

Most people don’t have a problem with any of this.  “It is what it is,” goes the uncontemplative twitterer.  My reason for sitting back and removing myself from the clatter is that I, along with some other blawgers to whom I owe a debt of appreciation for making me think, were twitting the other night about how the vitality of the blawgosphere has changed significantly since twitter became popular. 

We used to have rousing discussions on the blawgs.  They rarely happen anymore.  Synergies were created by blawging our nuanced disagreements about some complex detail in a case or trial practice.  No longer.  As one long-time blawger said, it’s gotten boring.  It seems like everything has been said and we’re just repeating ourselves for the benefit of the newcomers.  It’s not worth the effort.

We all agreed, however, that one of the problems was the dispersion of effort along the many formats available today.  Writing a cogent blawg comment is very hard work compared with a twit.  Engaging in thoughtful discussion requires thinking. Twitting requires nothing.  Twit “hi everybody” and people will twit back, “hi.”  The need for acceptance and approval is sated, and the community has embraced you to prove you are not alone and worthless.  The twitterer is happy.

It’s not as though I expect anyone to give much thought to the nature of what they twit, or how it may divert their energies from more difficult, maybe even thought-provoking pursuits,  No one would heed a curmudgeon when it comes to an appreciation of technology.  But my interest lies in things that make me think, wonder, question and challenge ideas. 

Twitter can be a fun toy from time to time, but it will never satisfy intellectual curiosity.  It’s just not built to do so, and there is no indication that those people enjoying twitter’s munificence day after day, night after night, really care.  

The ubiquitous video cameras, whether on lamp posts, concrete walls or cellphones of all “G”s, is beginning to make a dent, or so says Jim Pasco, head of the Fraternal Order of Police.  When Radley Balko first interviewed him, Pasco was on the offensive:

“Letting people record police officers is an extreme and intrusive response to a problem that’s so rare it might as well not exist. It would be like saying we should do away with DNA evidence because there’s a one in a billion chance that it could be wrong. At some point, we have to put some faith and trust in our authority figures.”

Needless to say, Pasco’s argument didn’t nip it in the bud.  The claim that videotaping cops violated their rights was the source of some amusement and much ridicule.  The public disagreed.  Demonstrating his ability to shift direction as the wind blows, Pasco moved on  to Plan B :

“The proliferation of cheap video equipment is presenting a whole new dynamic for law enforcement,” says Jim Pasco, executive director of the Fraternal Order of Police, the nation’s largest police union. “It has had a chilling effect on some officers who are now afraid to act for fear of retribution by video. This has become a serious safety issue. I’m afraid something terrible will happen.”

Tried and true, the appeal to fear is an implicit threat that has long served our boys in blue well.  Along with its corollaries (If you don’t appreciate cops, the next time you’re in trouble call a criminal.), this puts the screws to the good citizens by leaving the impression that when they need a police officer to save them with an immediate response, the officer may hesitate for fear of being videoed and the good citizen may, well, you get the picture.

This is an old chestnut that has proven useful time and again in the battle for respect and compliance.  As much as we may have lingering doubts about the police, we still realize that we need them and they serve a vital function in society.  And indeed, they do.  We need the police to do their job to protect and serve.  We need to support the police in doing their job.  We similarly need to keep them honest in the performance of their duties.

As the first comment to Radley’s post states, fear of “retribution by video” isn’t a bug, but a feature.  Pasco’s suggestion that the cops can’t handle the idea that their actions will be observed and judged is nonsense.  His suggestion that they won’t do their duty for fear of being second-guessed is their desperation play.  This isn’t an all-or-nothing choice, where we are constrained to accept police abuse and misconduct, or suffer no protection at all.

It’s telling that Jim Pasco has gone from the offensive to the defensive on this issue.  The rhetoric of rights has been rejected by the public, that police officers should be entitled to indulge their impulses without fear of scrutiny.  The notion that they have a right to be free of public oversight and, when appropriate, approbation, has been seen as nonsense.  They act on behalf of the government, and their authority belongs not to them personally, but to all of us.  If they exercise it poorly, they have no right to be shielded from consequences.

The implicit threat that they won’t be there for us when we need them is also nonsense, though one that has worked many times before.  The police are well-trained and well-equipped to perform a sworn duty.  They know the difference between shooting at an armed suspect and beating a hand-cuffed kid who mouthed off to them.  Indeed, as Radley points out,

We want cops second-guessing decisions that are second-guessable. If an abundance of video cameras helps that to happen, all the better.

If the police can’t distinguish the proper performance of their duties from abuse and misconduct, then they have no business being handed a gun and shield.  There will be close calls, and they will be subject to exacting scrutiny after the fact, but contrary to Pasco’s claim, no police officer will ever hesitate to act when it comes to protecting himself.  The first rule of policing remains unchanged, make it home for dinner.

The pervasiveness of video, combined with the seed of doubt in the minds of police officers when there is good reason to hesitate, gives rise to a corollary to the first rule of policing.  Maybe now, the citizen will have a decent chance of making it home for dinner as well.  That’s not a bug, but a feature.