From the Chicago Trib :

But the 67-year-old grandmother said she also knew that as a juror in Rod Blagojevich’s corruption trial, she had a responsibility to follow her conscience and the law. She said she did not believe he or his brother committed a crime with their actions to fill Barack Obama’s Senate seat, so she would not find them guilty despite what other jurors, prosecutors and, perhaps, the general public wanted.

If it was going to be 11-1, so be it.

That’s what JoAnn Chiakulas had to say about it.

“I thought he was narcissistic,” she said. “I thought he was all over the place. I thought he was just rambling.”

It also concerned Chiakulas that some key witnesses who testified against Blagojevich had cut deals with prosecutors before testifying, she said.

“Some people in (the jury room) only saw black and white,” Chiakulas said. “I think I saw, in the transcripts and in the testimony, shades of gray. To me, that means reasonable doubt.”

No highly sophisticated ambivalence based upon mixed messages from the Supreme Court.  Just plain, old vanilla reasonable doubt.  And it’s not easy to hold a contrary position from the majority.

But standing her ground in the jury room was not easy. Other jurors have acknowledged pressuring Chiakulas to change her vote on the Senate seat, with one man going so far as to switch chairs so he could “look her in the eyes” during deliberations. She was yelled at and told she wasn’t being logical, jurors said.

One person asked the judge for a copy of the juror’s oath, implying that Chiakulas wasn’t fulfilling her obligation. Chiakulas and at least two other female jurors said they felt belittled and questioned whether their gender had something to do with their treatment.

Some of the other jurors were not pleased with her, suggesting that she was not deliberating in good faith because she didn’t bend to the will of the majority.  And still she held firm.  But it wasn’t because of Blago.

While Chiakulas shunned the media spotlight in the days after the verdict, the loquacious Blagojevich appeared on national television to thank her for her resolve and proclaim that she has reaffirmed his faith in God.

When asked about his comments, Chiakulas frowned and slightly shook her head.

“I didn’t do it for him,” she said.

In my post on the hung jury/ mistrial, I suggested that the holdout might try to create a rationale that justified her decision in light of post hoc criticism and analysis.   It doesn’t appear to have happened, as JoAnn Chiakulas offers neither apology nor excuse for her decision.  That’s just what she believed.  Amen.

Conformity is undervalued, at least in the Godley Independent School District (Home of the Wildcats!).  Via Popehat, 12-year-old Chris McGregor learned this lesson when he was banned from the classroom for being, well, different.

But on the first day of class, school officials confronted him. The dress code requires boys’ hair to be above the shoulders.

“We try to be fair,” said Godley ISD Superintendent Paul Smithson. “However, there are standards in life, and Godley ISD’s chosen these standards for the dress.”

Chris has long hair, like the Brazilian soccer players he hopes to join someday.  It’s not that the Superintendent Paul Smithson suffers from hair envy, but that he’s concerned for Chris’ welfare. 

“We try to be fair,” said Godley ISD Superintendent Paul Smithson. “However, there are standards in life, and Godley ISD’s chosen these standards for the dress.”

No word on boxers versus briefs as yet, always a controversial issue in the gym locker room and on prom night.  But the hair question isn’t a matter of arbitrary rules, but one of school safety.  And as Superintendent Smithson is well aware, it’s his responsibility to make sure that no student is harmed under his watch.

But Smithson said the hair rule protects students and reflects community standards. “There’s a reason in Texas they’re called ‘independent’ school districts,” he explained. “Bullying’s a big thing, and we want to make sure everyone’s dressed appropriately, someone doesn’t bring attention to themselves so that someone says something to them, and all of a sudden we have a problem.”

Demonstrating why he was chosen to be the Big Guy at Godley, Smithson’s got his finger on the pulse of pre-teen bullying: It’s the victims asking for it.  Bringing attention to oneself is like begging for a good whupping, Texas style.  Smithson isn’t about to allow one of those trouble-making victims to cause a bullying problem in his district.

What’s particularly curious is that someone who has reached the academic pinnacle of school district superintendent can publicly express a rationale based on the statement, “there’s a reason in Texas they’re called ‘independent school districts.”  Is there a reason in Texas they’re called “bullies”?  Is there a connection, any connection, between the celebration of independence and the elevation of conformity?  I could go on, but since it’s unlikely that Smithson will stop by to answer, it seems rather pointless.

As long as we’re on the subject of effectively addressing bullying, there’s one point that remains to be addressed.  Chris McGregor, being a mere 12 years of age, is required to attend school, though I note that it’s a good idea as well.  That said, he may well be subject to the Godley Independent School District version of “asking for it.” but it’s not like he’s got a lot of options.  Since the district has chosen to place the onus on the non-conformist, that long hair hippie freak, rather than on the bully, the only choice is for Chris to cut his hair, grow twelve inches and be capable of beating the living crap out of any potential bully or suffer the indignity of in-school suspension.

Contrast these circumstances with the workplace bullying hand-wringers, who are adults, capable of choosing their place of employment and, provided they don’t have overly “refined” sensibilities, purportedly mature enough to withstand the withering scrutiny of their non-conformist choices.  Does it not give rise to some wonderment that there is a group dedicated to criminalizing people who hurt one’s feelings in the workplace while children are subject to official punishment by school administrators?  Will these emotionally overwrought crusaders stand up for Chris McGregor?

Update:  I just got off the phone with Chris’ father, who is looking for a lawyer to vindicate Chris’ right to a free appropriate public education and the right to express himself by his hairstyle without being left to pick between a haircut and in-school suspension, which means that he won’t be given an adequate education or allowed to participate as a normal middle schooler.  If there are any educational or civil rights lawyers in the Forth Worth area interested in taking on this case, please let me know and I’ll put you in touch with the McGregors.

Time Magazine is a huge player amongst news periodicals.  So what does it want with me, or other blawgers for that matter?  Well, the best I can figure is that the blawgosphere is where the buzz begins, and no matter how huge and credible a magazine may be, anything requiring dead trees in the virtual age requires internet buzz to survive.

For a while now, I’ve been receiving weekly emails from Jen Nedeau, a publicist at Time, trying to get me to write about its column by Adam Cohen, described as “a lawyer, is a  former TIME writer and a former member of the New York Times editorial  board.”  He’s also a “Research Scholar in Law, Kauffman Fellow, Information Society Project, and Lecturer in Law” at Yale Law School.  Not too shabby. 

Nonetheless, the publicist is pumping out emails, with advance copies of his column, to wet a mere blawger’s whistle.  No doubt the publicist has been trying to catch the interest of plenty of other blawgers as well, since buzz isn’t built in a single blawg.  I’ve read his columns, and they’re fine.  Dumbed down a bit for the benefit of the public, but well-written, well analyzed and on target. 

The major problem with the columns, from my blawger’s perspective, is that they cover territory that has already been thoroughly covered within the blawgosphere, well after that fact and in far less depth.  What would I write about them, that they are similar to something I wrote a week earlier but more superficial and less pointed? 

More striking to me was that Cohen’s columns had never, but never, quoted or cited to a blawg.  We’re good enough to be used to promote him, but not good enough to be worthy of a mention?  Where’s the love, Adam?  You want something from the blawgosphere but give nothing in return?

So when I received the email from the publicist with his latest column, I replied:

What’s interesting, Jen, is that you send out these releases in the hope that we’ll promote Cohen’s article, which are invariably way behind what we’ve written on the subject, yet Cohen never cites to or quotes from our work.  So we should help promote your client, who has never written a word to show any recognition of the work of those who he would have provide him with free publicity.

You live on a very interesting one-way street.

Just as it’s not my job to help other lawyers promote their carefully crafted internet marketing schemes, I’m not here to create buzz for Time Magazine.  Jen responded by saying that she totally understood where I’m coming from, and that she would pull me from her list of email recipients.  Obviously, the alternative response, that she would let Adam Cohen know that if he wants a little attention from the blawgosphere, he should consider giving a little in return, was not an option.

Had I written this post yesterday, it would likely be close to completion here, with a closing discussion of how the blawgosphere is about give and take, and that Time Magazine’s (and Adam Cohen’s) effort to use blawgers for its own purposes reflects its selfishness and lack of understanding of the blawgosphere.  But not today.

In the interim, Marco Randazza posted about an extraordinary and inflammatory issue that arose via one of my favorite fodder blawgs, Feminist Law Profs.  That’s right, Ann Bartow’s ugly baby that not only finds a misogynist under every rock, but is in the forefront of diminishing free speech by decrying online anonymity, which it defines as a sexist conspiracy to attack women.

It seems that one of Cohen’s columns, criticizing Judge Judith Eiler for behaving poorly (yes, just like this post of mine, except 12 days later), failed to appease someone’s feminist mystique.  Whose mystique, you ask?  Well, that’s hard to say, since the lawprof attacking Cohen chose to remain anonymous.  Anonymous?  An anonymous attack by the very same people who demand that no one be allowed to say anything negative on the internet ever again?  Yup.  Them would be the folks.

And not just an ordinary attack.  Oh no, not just an ordinary attack at all, but a particularly vicious, even outrageous attack, under the title “Memo to Yale Law School Professor Adam Cohen: “What Price Waterhouse did is like saying ‘nigger.’” 

It is time for Professor Cohen to be educated, and I am happy to do it: In the subtle sexism case of Hopkins v. Price Waterhouse, Ann Hopkins was denied partnership at Price Waterhouse because she was not “feminine” enough. She was direct, she was unapologetic, and she had a personality that was more masculine than feminine.

When D.C. Circuit Court of Appeals Judge Harry Edwards was trying to explain to the Price Waterhouse lawyers why their client’s sexist discrimination against a woman simply because she was not “feminine” was unlawful, Judge Edwards finally said in frustration:

If someone said “I hate Blacks,” it might be clearer to you, but you seem to suggest that sexual stereotyping is different from race stereotyping. [It is not.] What Price Waterhouse did is like saying “nigger.”

Randazza couldn’t help but note the irony.

Yes, Professor Useless Twat [the name ascribed by Randazza to the anonymous attacker] played the “nigger card.” Mind you, its not that she used the word, as I said last week, but what a card to play in this round of poker! Professor Useless Twat’s point was to accuse Cohen of criticizing Judge Eiler for not being “feminine” enough — as if civility in the courtroom is a “feminine” characteristic. (And somehow the “nigger card” made sense to play there).

Having been a former adjunct and long-time (and outspoken) critic of lawprof orthodoxy, doublespeak, euphemistic attack culture and political correctness, not to mention First Amendment freedom fighter, Marc explains his defense.

And in academia, if he dared to defend himself, Cohen would run the risk of just pushing the barb in deeper. I don’t know Cohen. I might actually hate him if I met him (or I might think he’s the greatest guy ever). I don’t care. I feel compelled to defend him, because it is obvious what Professor Useless Twat is trying to do. I don’t know what her real issue is with Cohen, but there isn’t a shred of honesty in her accusations that his work is gender biased.

Ken at Popehat calls it an “ideology-addled polemic,” which only “academicians and theoreticians can see,” thus using up his weekly quota of polysyllabic words in one shot.

Had you asked me yesterday morning whether I would end a post about Adam Cohen with a defense, I would have laughed.  Ha!  And yet, there’s absolutely no question but that this screed by an anonymous lawprof is absurd¹⁵ (meaning, absurd to the 15th power, not a footnote.  I’m trying to incorporate scientific notation into my writing with greater frequency these days.).  It’s further proof of the Greater Internet Fuckwad Theory, as well as evidence that lawprofs are not immune from the lure of ridiculous anonymous attacks.  It is, without question, nuts.

But none of this alters the fact that Time Magazine, home of Person of the Year, major news source, and Adam Cohen, lawyer, Yale law-something and not a misogynist (at least from what I can see), need to learn a bit about giving as well as receiving. 

Being a regular reader of Doug Berman’s Sentencing Law & Policy, I’ve become acutely aware of the issue of alternative sentencing, ideas that not only serve legitimate sentencing purposes but prevent the needless incarceration of defendants for whom it’s a burden on society and serves no useful purpose.  Doug is a huge supporter of imaginative alternatives to incarceration.

But this story via Jonathan Turley has kept me thinking for days.

Nevada Judge Dave Gamble has issued a curious sentence to a drug defendant. Matthew Palazzolo, 25, was ordered to write a report on the “nonsensical character” of medical marijuana laws and how pot is a gateway drug. In my view it is an improper sentence that should result in not just a reversal but a review of Gamble’s conduct.

Let’s address and dispose of the obvious right away.  The theme of the report is both idiotic and clearly inappropriate.  It’s a judge abusing his authority to promote his personal political viewpoint. 

The idea of requiring a defendant to engage in the creation of a report on the subject matter of his offense, however, is otherwise a great idea.  This could be far more useful than to put the defendant in jail for a couple of days by requiring him to do actively think about what he’s done and its ramifications. 

The problem that kept me thinking, however, is the coercive nature of offering a defendant an alternative to incarceration.  Let’s assume, for the sake of argument, that Matthew Palazzolo disagrees with Judge Gamble’s view of the evils of killer marijuana, as do most Americans.  With the offered options of writing a stupid report and spending some nights in the Hoosegow Hilton, what’s a rational person to do?

Since these alternative sentences are off the books, so to speak, they are left to the sound discretion of the judge to both impose and fashion.  The problem is that while the imposition seems like a wonderful idea, the fashioning is often problematic.  Whether it’s holding signs designed to shame a defendant, or writing a report that gravity is heresy, it beats the alternative of going to jail, thus coercing a defendant to accept the alternative.

Much like the option of copping a plea that gets a detained innocent defendant out of jail immediately versus holding out for trial while unable to make bail, it’s a perversion of the system.  The deal is too sweet to pass up, but the price is the integrity of the process. To the defendant, it’s a price they are willing to pay.  For the system, the price is too high.

There needs to be some controls on the imposition of alternatives, whether in sentencing or in pre-trial release that includes a condition such as attendance at Alcoholics Anonymous, which requires a defendant to accept a religious viewpoint.  I’m not suggesting that judges are employing these concepts for the purpose of proselytizing or brainwashing defendants (particularly since I doubt anyone is going to end up changing their mind on such basic matters merely because a judge says so), but that a judge’s sincere belief that he’s instilling good values in a defendant reflects an unrecognized bias.  A judge is there to do a job, no matter what Judge Judy says as she reams out a litigant on TV.  Judges are not government sanctioned arbiters of morality or philosophy, and are not authorized to help defendants find religion or political affiliation.

How to simultaneously encourage the imposition of alternatives to incarceration without giving judges the opportunity to impose their will on people is a difficult question.  Legislatures could place limits on sentencing term papers, but that seems like it’s just shifting the problem from judges to politicians, and would likely make things worse.

There’s no doubt that we could come up with some wonderful ideas for sentencing reports, such as why the social compact is critical to an ordered society, or why  Reefer Madness is a particularly amusing movie, but we lack the ability to compel judges to get on board.  What to do?

The Hancock County, Mississippi, attorney has a problem.  Via WLOX,

A Hancock County attorney is taking legal action to force the county to fix the acoustics at the renovated courthouse. Jimmy McGuire filed a motion after a judge declared a mistrial last week in a case because jurors simply could not hear the attorneys or witnesses.

“This is the only courthouse in the State of Mississippi where you can’t hear yourself talk, hear the witnesses speak or hear the judge’s commands,” McGuire said.

That a judge was compelled to declare a mistrial is a pretty message that the courtroom isn’t working properly.  Whether the Hancock County courthouse, 102 years old but extensively repaired following Hurricane Katrina, is the only one in the state with problems may be subject to dispute. 

“The sound in there was such a bad echo you couldn’t hear the lawyers, you couldn’t hear the judge, you couldn’t hear the witnesses,” Caston said. “You found yourself trying to infer what everybody was saying, especially the witnesses.”

It’s a good thing, a wonderful thing, that the sound was so bad that it compelled the judge to declare a mistrial.  Consider what it means for the rest of the spectrum. those courtrooms where jurors can hear most of the testimony, except when a juror speaks quickly or softly, or when a chair scrapes the floor, or a court officer coughs, or a judge whispers to his law secretary, or about a thousand other sound distractions in the room. 

Jurors are allowed to raise their hand to let the judge know that they can’t hear.  Some judges will tell them so.  Others won’t.  But rarely will a juror interrupt testimony, and it’s not until things get really bad before a hand goes up.  Then the rest of the panel nods in agreement, as none of them were able to hear.  And the obvious question is, what did they miss before they reached the point where it was so bad that they had to take the chance of looking like a pain by raising their hand? 

Courtrooms have long been designed to accommodate a relatively large number of people in the audience, even though there usually are no more than a handful present for a trial.  They are designed to be grand, to reflect the majesty of the law and the authority of the courts.  Rarely is the setting what one might call intimate.

Some rooms have the most amazing acoustics, where you can hear a pin drop in one corner from the other side of the room.  I’ve got no clue how they do that, but I’m here to tell you that it can be done.  In other rooms, it’s like being in a cavern, and it’s essentially impossible to clearly hear testimony from ten feet away. 

Courtrooms, at least where I’ve been, are largely set up the same way, with the jury box on one side of the room, dictating that the witness stand be on that side of the bench.  The prosecution table will be on the side of the room with the jury, and the defense on the side distant from the witness stand and jury box.  They won’t let the defendant to close to anybody.  Just in case.

Consequently, the defendant tends to be the furthest away from the witness of everybody in the room.  Defense counsel is often constrained to move around, sometimes over to the prosecution table, to hear the witness’ testimony.  When this happens, by definition the defendant can’t hear the testimony against him.  At least not clearly and completely.  But nobody, outside of the defendant and occasionally his lawyer, cares much about that.  The primary concern is the jury.

The core problem here is that we need and expect every word spoken by a lawyer and witness, question and answer or argument, to be clearly heard by every juror.  There’s no assurance that this is the case.  In the Hancock County courthouse, the problem was bad enough that the judge was forced to declare a mistrial.  What of all the other courthouse, courtrooms, where it’s not quite as bad?  How many words are missed?  How many words need to be missed before judges see a problem?

Across the country, we’re dealing with courtrooms build years, often decades ago, when the concern for acoustics may not have been a primary architectural focus.  Since construction, many courtrooms have been diced and sliced to keep pace with the volume of cases, where numbers of rooms trumped concern for sound.  Building new courthouses is a very expensive and time consuming proposition, and frequently not on the top of every legislator’s money list.  You don’t get many votes for funding the construction of a new courthouse.

Yet it’s not much of a trial when the jury can’t hear the testimony.  All of it.

H/T Bruce Carton at Legal Blog Watch

An article by Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010), immediately stirred up some controversy, as one would expect from such a provocative title.  No surprise.  It’s conclusion, that public defenders are often as effective as private criminal defense lawyers, is simultaneously right and wrong to any lawyer involved in the system.

The problem isn’t the conclusion, per se, but the absurdity of the effort and the damage such an effort can produce.  Lawyers are not now, and never have been, fungible.  One isn’t the same as the next.  There are brilliant public defenders and incompetent, lazy buffoons.  Same with the private criminal defense bar.  The question is never whether the lawyer is a PD or private, but whether the lawyer is any good.  Not as easily quantified.

More interesting than a silly study, by someone whose perspective is that “workgroups” of defense lawyers, prosecutors and judges whose purpose is to assure that no innocent defendant ever goes unconvicted epitomizes the system at its best is how this silly study has been deal with in its report.

Mark Bennett spent a significant part of the day parsing the study.  Here are his posts, dissecting the content, analyzing it and raising the issues that need to be raised.

• Of PDs and Private Counsel
• PDs and Private Lawyers: More Likely Than or As Likely As
• PDs and Private Lawyers: What the Numbers Mean
• PDs and Private Lawyers: The Missing Data
• PDs and Private Lawyers: More Interplay
• PDs and Private Lawyers: Last Thoughts

Bennett does the legwork necessary to take a provocative conclusion by an academic whose grasp of the subject matter, one that he’s chosen to make the focus of his scholarship, and sift it through the experience of the trenches. 

On the other hand, the same study is presented to lawyers via the American Bar Association Journal, the house organ of that most august of legal institutions.  The headline reads, Public Defenders Often are Just as Effective as Private Counsel, Study Says.  The accompanying story, just a blurb really, offers some spurious disconnected results.  Oh heck, it’s short, so I’ll just copy it here for you, and if Ed or Molly demands that I take it down, I’ll be happy to do so.

A study of Chicago-area courts found that public defenders often are just as effective as private lawyers in persuading judges to grant bail, accept plea bargains and sentence defendants appropriately.

But for some defendants, the study found, retaining a private lawyer may be money well-spent, according to Miller-McCune. The bimonthly magazine, which focuses on public policy and academic researched, is published by the Miller-McCune Center, a nonprofit in Santa Barbara, Calif.

For white defendants, having a private lawyer makes it 2.7 times more likely that they will get bail. And black defendants with a private lawyer are twice as likely to get the original charge reduced, the article reports.

The study, led by Richard Hartley of the University of Texas at San Antonio, is discussed in the Journal of Criminal Justice and abstracted on Science Direct.

It was based on a random sample of 2,850 offenders convicted of felonies in Cook County, Illinois.

Do you feel more knowledgeable for having read this?  It’s not likely that ABA Journal readers will pay the $20 to get their hands on the actual study, or risk the loss of their eyes and sanity by reading it.  In fact, most will read the headline and move on.  The problem is that anyone reading this blurb will be dumber for having done so.  The shame is that lawyers who are inclined to read the ABA Journal may not be aware that there is a knowledgeable analysis of this study available from Mark Bennett, and instead are left with this tripe.

The internet is a veritable cornucopia of information.  Some of it is just horrendously bad, and often dangerously so.  Bennett’s discussion of this study added value, incisive analysis of a study that was doomed ab inito to serve any viable purpose by its inability to take into account the myriad factors that exist in the real world, as well as the author’s ignorance of the system.

Juxtapose the ABA Journal’s treatment, which serves to make its reader more ignorant by having fed them snippets of the study without any critical thought whatsoever.  Their readers walk away with misinformation from which to guide their decisions, courtesy of the ABA Journal.  This subtracts value from the internet by feeding people something that can only cause harm by promoting ill-founded notions. 

In the back of my head, I can hear the mantra, “we report, you decide,” to justify the publication of anything “newsworthy” in the field of law.  This too falls flat.  The ABA Journal, in “reporting” of this study, could just as easily have reported that Bennett challenged the study, raising significant failings.  Martha Neil didn’t post until 7:24 p.m., long after Bennett took the study to task.  It was there for her to see, read, include in her post.  There’s no way to say if she knew about it before posting, but Martha certainly could have been aware had she done about 0.4 seconds of research on google.

Instead, a silly study with some very dangerous conclusions made headlines at the ABA Journal, and lawyers and defendants who read it will be worse for it.  After all, if the ABA Journal, the house organ of the august American Bar Association, says so, it must be true.

It never occurred to me before, but Venkat Balasubramani is absolutely right.  It’s like there’s some koolaid you have to drink first that makes you all, uh, nice.  What’s with that?

Twitter is a big place, and I can’t speak for much of Twitter, but my impression is that the mainstream Twitter user is overwhelmingly positive.  Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people.  The virtual high five or pat on the back is currency on Twitter.  Indeed, research is passed around which shows that “negative remarks lead to fewer followers.”  In my (admittedly anecdotal experience), while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism.  And this extends to points of view taken, articles passed around, etc.  It’s almost as if it’s socially unacceptable to say that something sucks. 

The net effect is that you can’t trust much of what people twit.  As Venkat notes:

But I will say one thing.  I do note the negative effects of overwhelming positivity:  bad content gets passed around freely and praised.  Bad ideas too.  Bad conferences.  Bad people.  Bad media. Blogs are a much much better filter of stuff for me (granted you can say more when you are not limited to 140 characters).  On Twitter, I’m routinely disappointed with what someone (or many people) often describe as a “great article!” 

I don’t follow too many people on twitter, largely because I find the new twit sound annoying and don’t really want to know what people are eating for lunch or plan to do with every moment of their day.  But I do follow a select few, some of whom are inclined to retwit other people’s posts (OPPs).  It seems to me that if someone retwits a post, in the absence of some qualifying additional language to the effect of “you can’t believe how stupid this is,” it reflects a vote of approval and a recommendation that others should spend a very scarce resource, free time, reading it.

The Social Media Maven pronounces (2010)
Oil on Canvas
Charon

In the Collection of @ScottGreenfield

What are they thinking?  Some are just totally insipid.  Others are worse.  Some people retwit anything written within a genre or topic in which they have a significant interest, but do so without editorial comment.  I don’t know what that means to anyone else, but it says to me that you endorse it. 

So I read the post that someone I respect retwitted and think to myself, “How can I ever get that three minutes of my life back?”  “Why am I following this person?”  “How could I have been so incredibly wrong to respect this twit’s opinion?”  This may be the newest, bestest, quickest way to make me lose respect for someone.

But Venkat is right, I don’t twit back that the post sucked and the person who retwitted it is nuts.  At least not too often.  While I’m not on twitter to collect followers, and frequently lose followers because I won’t follow back, I’m also not there to pointlessly piss people off either.  If my writing is critical, it’s for a reason, with some point to be made in the process.  It’s not just to be mean, no matter what others may think.

The problem is that twitter just isn’t a viable medium for expressing critical thought.  It allows for the snide remark, but not the reason behind it.  It would be great to make enemies, but poor to challenge ideas (or the lack thereof).  Which means that it’s a fine medium for a pat on the back, a cute statement, some fun chit chat.

But all of this is what’s led twitter down the positivity path to pointlessness.  Does it not get boring, really quickly, to engage in some half-witty repartee with people you don’t know about things that don’t matter?  Why do we engage in pleasantries with a disembodied name and avatar when we could be speaking to actual people whom we know to have some value to our lives?  It’s not to call these unknown twitteratti worthless, but rather to say that their relevance is (a) as yet undetermined, or (b) too superficial to be worth the time.

My sense is that the whole positivity thing on twitter reflects some odd need for validation, even if from people you don’t know and with whom you will never actually engage in real human interaction.  It’s cheap affirmation to bolster some gaping hole of self-esteem amongst people who either don’t get out enough or, if they do, aren’t getting the sort of reaction from others in real life that sates their fragile self-esteem.

If you’re a really big twitter fan, then you likely will disagree with me and think that I just don’t appreciate the “networking”, tribe-thing and community that has developed within twitter.  To which I shrug and say, “if that’s the best you can do for companionship, then you’ve got a problem.” 

Get a dog.  Even if he doesn’t twit.  At least his affection is real.

Update:  From CharonQC, shamlessly stolen from him wholesale, secure in the knowledge that he’s out at the post office shipping a painting to me and won’t find out about my theft until it’s too late:

In a ghoulish and deeply disturbing decision, the 6th Circuit Court of Appeals, in Albrecht v. Treon, held that parent’s had no right to get back the brain of their dead son following his autopsy.  Via Jonathan Adler at Volokh Conspiracy :

The Albrechts brought a Section 1983 suit against the county coroner, among others, alleging that they were deprived of a protected property interest without due process of law when the coroner removed and retained their dead son’s brain without notice.  According to the state, the brain was needed for additional study to aid in a criminal investigation. The question was certified to the Ohio Supreme Court, which held that under Ohio law the parents have no constitutionally protected interest in their child’s human remains that are retained for criminal investigation purposes, prompting a judgment for the state in district court.  Today, the Sixth Circuit affirmed, distinguishing Circuit precedent that recognized constitutionally protected property interests in a family member’s body parts retained for donation purposes.

Critical to this decision is that the brain was being retained for “criminal investigation purposes,” though this holding seems to ignore the real issue in the case of what becomes of the brain once such investigation purposes are over,

The autopsy required examination of their son’s brain. In order to examine and dissect a human brain more effectively, the jelly-like organ must be soaked in a formol saline solution for ten to fourteen days, a process referred to as “fixing” the brain, which firms the brain tissue for dissection. Due to the lengthy process of fixing the brain, it is the usual practice of the coroner to return the remains to next of kin for disposition without the brain. The coroner did not inform the Albrechts that he retained their son’s brain upon return of the body to them. When the examination of the brain was completed, it was destroyed in accordance with the coroner’s usual practice. The coroner did not notify the Albrechts that the brain was going to be destroyed.

The line that should strike fear in the heart of any person whose heart still beats is that “it was destroyed in accordance with the coroner’s usual practice.”  Usual practice?  Did the 6th Circuit blindly accept that concept?  What if the coroner’s usual practice was to sell it for dog food? 

This is not merely one weird case, but one that truly challenges the limits of propriety.  We’re talking here about the brain of a child being denied his parents.  Put aside the religious aspect, where prompt burial may be imperative, it’s just wrong. 

The issue is further fleshed out by two significant comments to Adler’s post, the first from a forensic pathologist.

This is a big deal for those of us who investigate these deaths. We have seen the creeping criminalization of our profession, to the point that it interferes with death investigation. For instance, in Florida, the so-called “Dale Earnhardt” law makes it a felony to use images from autopsies for teaching, research, or consultation without a court order. It’s saddening to go to professional conferences and have people from Florida go “I wish I could show you what I’m talking about, but I cannot.” 

There are many cases in which it is necessary to retain organs. The brain is particularly common because of its consistency. The brain is very soft, with the consistency of gelatin. That makes it very difficult to dissect fresh. In cases where there is the question of significant pathology in the brain that requires careful analysis, it is necessary to fix the it in formalin for a number of weeks prior to dissection. 

I find it particularly ironic that the legal community pillories the forensic community for not performing adequate research to provide better scientific basis for the conclusions we make, and at the same time wants to criminalize performing that research. In my jurisdiction, the use of material for forensic autopsies for research purposes is illegal unless what I do is directly part of the investigation. Thus, I can do studies about what I’m already doing but cannot do anything innovative.

What’s particularly fascinating is the “scientific” attitude that views human remains as fodder, whether for investigation or research.  Certainly, there are many who donate their organs for transplant or their bodies to science.  Not enough, perhaps, but many.  To the pathologist, it’s all just gooey stuff, to be used as needed to further science.  We’ve undermined their ability to play “show and tell” with other people’s bodies that happened to come into their clutches by particularly bad luck.

Another comment, by a lawyer (who I’m told by Bad Lawyer in the comments below is Patrick Perotti) from Dworken & Bernstein, who represented the parents, clarifies some of the details of the case:

This position by the government was not only inconsistent with our client’s desire, from a personal and religious standpoint, to respectfully dispose of all of her son. Equally important, the coroner’s position clearly suggested that if the government decided, after completion of the autopsy, to keep any number of body parts, or even the complete corpse, they had a right to do so. To burn it as medical waste. To sell it for research. To use it for scientific experimentation. 

As legitimate as some of those goals might seem, our society has not allowed the government to ignore the rights of citizens, simply because the outcome of the government’s desire would be beneficial.

Even in death, the government wants the right to control you, or at least those parts of you that serve its needs.

There is no question, and we conceded, that the government’s right to take possession of the body and to conduct a full autopsy on it was not challenged. That right in the government supercedes and subordinates the right of sepulcher. 

However, when the government right of autopsy (and retention of any parts needed as evidence) is finished, the right of sepulcher remains. The government cannot “keep” the body, the eyes, the brain, etc., whether they subsequently destroy it, sell it, or any other thing. They must return it to the next of kin.

There is no other way to describe the outcome of this case other than shocking.  It appears that the mere assertion of need combined with the incantation of “investigation” is sufficient to defeat something so fundamentally human as the desire of a parent to put her son, all of her son, to rest.  This is not a challenge to the right to autopsy a body, which itself raises questions for some people of particularly strong religious belief, but the right to get it back afterward.

The handling of the issue, if not the brain, is too cold and antiseptic, as if the concept of the death of a loved one was utterly foreign to the court.  I may not be the most sentimental guy in town, but even I’m repulsed by the inhumanity of this decision.  It’s just disgusting.

There was no kid on my block who had the guts to challenge the official red, white and blue signs that stood guard around the perimeter of the lawn in front of the post office.  They said, U.S. Property, No Trespassing.  It didn’t seem right to me, as that was my government, and maybe the signs were meant for someone else, like the Russians.  But I wasn’t going to test it.  No way.

Did they not have these signs in Missouri? 

Via Harry Styron in the Ozarks comes a Missouri Supreme Court decision that should strike everyone as brutally obvious, but for the fact that it relates back to Dwight Laughlin’s conviction in 1993. 

Laughlin broke into the Neosho Post Office and tried to get into the safe.  He was tried and convicted for burglary and damaging the safe, for which he was sentenced to 40 years.  They take their safes very seriously in Neosho.

The only problem is that he was tried in the Newton County Circuit Court for violating Missouri law.  Apparently, it never occurred to anyone in Newton County that Post Offices are federal land.

In a post conviction motion, Laughlin’s lawyer, for the first time, questioned jurisdiction and was firmly rebuffed by the court, which held that “[n]o evidence was adduced showing the offense was not a state offense or that the federal government had pre-empted jurisdiction.”  Practice tip: You might want to take a quick look at the United States Constitution, Article I, section 8, clause 17, every once in a while. They’ve got some good stuff in there.  The lawyer appealed, but not on the jurisdictional issue.

Cut to 2009, when Laughlin, pro se, raised the issue by writ.  Curiously, the court found the issue sufficiently meritorious that it appointed Springfield lawyer Ginger Gooch to represent Laughlin.  Even more curiously, as set forth in footnote 1 of the decision, where the court expressed its appreciation to Ms. Gooch, it’s “appointment” was for her to represent Laughlin pro bono.  Gee, that was awfully kind of the court to provide Laughlin with a lawyer on the lawyer’s dime. 

In any event, the Missouri Supreme Court discovered, a mere 15 (their number, not mine) too late that Laughlin was convicted, sentenced and imprisoned by a court that had no jurisdiction.  Oops. Sorry. Have a nice day.

Some things are so fundamental, so basic, that nobody gives it much thought.  Jurisdiction, unfortunately, is one such thing.  After all, what prosecutor would be such an idiot, a fool, to prosecute a case where he has no jurisdiction?  And what judge wouldn’t notice that he lack jurisdiction in a case?  But the real screw-up here is Laughlin’s lawyer.  No matter how big a mistake everybody else in the courtroom made, it’s his job to figure it out, present it properly and prevent a court lacking jurisdiction from locking his client away.

The point is to never forget the basics.  Sure, it’s rare that there is a jurisdictional issue, but it does happen and it’s inexcusable to miss it.  There are no magic walls on the ground that stop a cop from one jurisdiction seeing into, and going onto, another.  Some laws provide for a certain amount of territorial interplay to avoid the unclear line becoming too much of a problem, but where, as here, the jurisdiction was clearly the United States and not the State of Missouri, it’s mind-boggling that no one realized it, that the defense lawyer in the post conviction motion couldn’t effectively make the point and that the court ruled to the contrary.

And as long as we’re talking about remembering the basics, it’s not a terrible idea to read the Constitution every once in a while.  You know. Just in case.

There is an aura about the courtroom artist.  A throwback to olden days, before cameras were allowed inside to show warts and scowls, sloppy benches and the wayward hands of bailiffs.  They are romantic and artistic, a hands-on depiction of the majesty of the law.  And, more importantly, the lawyer.

Adam Liptak, in his Sidebar column, writes about Todd Crespi, an artist who carved out a niche at the United States Supreme Court.

Lawyers who argue cases in the Supreme Court often want a memento of the experience, and Todd Crespi, a courtroom artist, is eager to help.

Mr. Crespi markets his work with flair and flattery. In March, for instance, he wrote to Florida’s solicitor general, Scott D. Makar, after an argument in a death penalty case.

“It was very interesting today, hearing your argument in Holland v. Florida,” Mr. Crespi wrote. “Once more, I started an impressive painting of the historic occasion.”

The only problem, it seems, is that Crespi isn’t there.  Other artists are present, and do their pen and ink drawings, or pastels, for the evening news, but they can’t remember the last time they saw Crespi in the room.

No doubt anyone who has watched the news has seen the work of a courtroom artist, capturing the drama of the law in a quickly drawn image.  For those unaware, after the image appears on television, the artists try to sell it to the lawyers in the room.  Courtroom art looks great on a law office wall, and it’s a huge ego thing for the lawyers involved.  Liptak calls it a memento, and as mementos go, it doesn’t get any better. 

I remember well the first time a courtroom artist drew me.  It was Joe Papin of The Daily News, and I bought it for $300.  When he offered it to me, I was thrilled.  How cool was that, I thought.  He could have gotten a whole lot more out of me for his drawing, I was so eager to buy it.  It really didn’t look much like me, to be honest, but there was no way I was going to pass it up.

Since then, I’ve declined offers from better artists, including the “enhanced” versions, meaning that they’ll redraw/paint them afterward to improve upon the image and make it more “special”.  Let’s face it, putting courtroom art on the office wall has a great impact on clients and is a wonderful marketing tool.  But there’s only so much wall, and all the various papers with fancy writing, a colorful seal and your name can take up a lot of space.  Even egos have size limits.

Liptak’s column smells of some hard feelings about his having become involved with Crespi.

I first met Mr. Crespi two years ago, when he called me with a curious request. He wanted to come take my picture. He said it would help in his work as an artist specializing in the Supreme Court.

I had just started covering the court, replacing Linda Greenhouse, who had appeared in many of Mr. Crespi’s earlier works. I sat for Mr. Crespi and gave it no more thought.

But I see now that the back of my sad bald head appears in a 2009 image on Mr. Crespi’s Web site, in the same spot where Linda used to be. The perspective suggests that Mr. Crespi was sitting behind me in the artists’ alcove.

Liptak doesn’t mention whether he bought one of Crespi’s images, or just contributed to his bona fides as a legitimate courtroom artist, but his point seems clear.  There’s something wrong with creating and marketing an image under the impression that it’s contemporaneous with an actual appearance before the Supreme Court, when it’s little more than a stock background with a lawyer’s likeness thrust in the middle, prepared in some studio. 

It would be acceptable if the lawyers who purchased the courtroom art understood that it was, well, just an image of them in the courtroom, done elsewhere by someone who wasn’t present.  After all, our nation is rich with images of things that the artist never saw, many of which never actually happened.  But, as Liptak points out, Crespi clearly suggests that he’s there and the image is real.  He denies, on the other hand, that there is any stock background, though I fail to see the relevance unless the Supreme Court decides to redecorate the courtroom.

The point is one of honesty and integrity, that if a courtroom artist sells you the image of so momentous an occasion as your argument before the Supreme Court, that it should be what he says it is.  That there should be any question about this is a stark reminder that honesty and integrity are becoming increasingly scarce commodities, but that the mere understanding of what these words mean in our facile, virtual, redefinition of ideas to accommodate the overarching imperative to market, is at risk.

When I argue before the Supreme Court of the United States (I’m a perpetual optimist), you can bet I’ll want a memento of the occasion.  My preference would be a big, unanimous “W” in United States Reports, with some kind words from Justice Scalia about how my argument brought all factions of the court to the same conclusion.  Of course, a picture would be nice too.