The Attorney General doesn’t have jurisdiction over the prosecution of violent crime.
Maybe she meant to run for some other office? You can bet that nobody in Nassau County is going to let her know. They’re already passing the hat to rent her a studio apartment in Albany. Bye, Kath.
Ah, science. The mere mention of the word by a lawyer conjures up the image of hugging a leper. No matter how hard we try to gain an expertise, or how well we put on a show, we are invariably trumped by the expert witness who is imbued with the aura of infallibility by his post-name letters and official title. We can nip at their heels a bit, but it’s almost impossible to draw blood.
Of the many aspects where the pronouncement of infallibility causes jurors’ brains to seize, DNA has become the most damning and difficult. DNA is a god in the courtroom. The mere mention of three letters brings inquiry to a dead stop. Oh, DNA? Well, that’s that. But of course, it’s only the beginning of the story rather than the end.
An article in New Scientist explains how DNA evidence, and the testimony that accompanies it, is simply a matter of chance. It shows how the statistical probability of a match, you know, that 1 in 79 billion number that witnesses toss about to show that the sample comes from the defendant, can vary wildly based upon the methodology employed. The same evidence can appear conclusive, or worthless,
In the Smith case, the sample containing another person’s DNA showed alleles at seven out of a possible 15 loci, but at four of these loci, the alleles matched those of both the victim and the defendant. “The 1 in 95,000 figure in effect treated these alleles as full-weight evidence that the DNA came from the victim, ignoring the alternative possibility that the allele we saw could have been from the defendant,” says Balding. If the opposite position is taken, and these alleles are ignored, you come up with a figure closer to 1 in 13. “It’s a question of which loci you consider,” he says.
Of course, who are we to question the methodology used in determining which “alleles” (whatever they may be) are used to confirm the match. The science-talking guy says his numbers are absolutely accurate, and we’re just lawyers.
These cases are not isolated incidents. A recent study by John Butler at the US National Institute of Standards and Technology (NIST) in Gaithersburg, Maryland, found widespread variation in the statistics reported by individual laboratories. When he gave the same DNA evidence to 69 different US labs and asked them to provide conclusions about whether or not the suspect was a match, some labs reported RMP, others reported RMNE, while others gave no statistic at all. “There was a difference of about 10 orders of magnitude in terms of the statistical results that were obtained on the same samples,” says Butler.
Even among the labs using the same statistic- the RMNE- there were differences in the figure they came up with, depending on which alleles they chose to include or discard. What it could mean is that a jury presented with evidence from one lab is told that the chance of a match is around 1 in 100,000, say, while a different lab might say it is 1 in a quadrillion (1015).
Perhaps you’re getting the sense that all is not as “scientific” as its’ made out to be? Well, this being a science article, the only logical step was to test the theory.
Our own survey of DNA laboratories backs up these conclusions
. We asked 19 labs around the world which statistics they report when dealing with complex DNA mixtures. Six said that they reported RMP, six reported RMNE, while two said they reported LR. Five labs said they either report no statistics or a CPI/E. The type of statistic reported even varied within the same US state.
Efforts are being made within the scientific community to standardize practices and arrive at a better means of expressing the statistics. The realization is that it’s too difficult to challenge the current regime before a jury, even though its scientific validity may be crap.
Earlier this year, the Scientific Working Group on DNA Analysis Methods (SWGDAM), which provides guidance to US forensic labs, issued its own recommendations regarding the use of statistics for DNA mixtures. It also proposes LR as a suitable statistic, as well as providing stronger guidance on how RMNE and RMP should be calculated. SWGDAM also insists that analysts must provide a statistic whenever they claim that someone’s DNA might be included in a mixture. “There are some labs that are just reporting that they think it’s a match- in their opinion,” says Butler. “That’s a problem, because the jury says: ‘Oh, it’s DNA? It matches? Guilty.'”
It’s that “guilty” thing that will get you, especially when you come to realize how meaningless the value of the match can be.
Lawyers have a tendency, when confronted with scientific evidence that’s presented as being beyond question, to shrug and walk away. The thought process works this way: With scarce resources, why waste them challenging evidence that appears irrefutable when they can be put to more productive use. When a lab returns DNA results that state with a degree of certainty to some ridiculous magnitude, despite the defendant’s seemingly insane claims that it wasn’t him, efforts are put to talking the defendant off the ledge rather than addressing the DNA.
Maybe, with a far better understanding of the variability of the statistics, and particularly in combination with the other problems with DNA evidence and the omnipresent potential that some lab tech just manufactured the evidence to make sure the guilty guy goes down. the defendant’s pleas won’t seem nearly as insane?
H/T Keith at Associates Mind.
The New York Times provides a glimpse into the antiseptic world of the Manhattan District Attorney’s complaint room, called ECAB for early case assessment bureau. This the place where arrests are put to paper and turned into complaints, the accusatory instrument that initiates formal prosecution.
Nearly every arrest in the borough is processed here, so a rowdy night in the city would be reflected by a surge in paperwork. It is the intersection of cases simple and complex, predictable and quirky, providing a perspective of the city unlike any other.
If there was a place where lives were either lost or saved, before being tossed into the burning pit of the criminal justice system, this would be it. Cops call in their arrests and tell their story. Prosecutors make snap decisions to toss it or write it up. Should they decide to write it up, as they do with the vast majority, the number and nature of charges is determined and the description of a defendant’s conduct is framed.
According to what the prosecutor puts on paper, the defendant may find himself a guest of the City or not. For many defendants, they may enjoy the City’s largesse for a long time, unable to make even nominal bail. Of course, it’s not completely dependent on what the complaint says, as the arraignment assistant and the defense lawyer also have an opportunity to put their thoughts in the mix, but the foundation will be the allegations of the complaint.
Notably, at this stage of the proceedings, the allegations are taken as true. There is little opportunity to seriously challenge the veracity of the allegations, only in the rarest of instances can a defendant (usually via a family member) demonstrate that an element is patently false by documentary proof. More problematic is that the allegations of a complaint, which is required by law to allege both legal and factual basis for the charges, are most often cursory and conclusory.
Inadequate allegations of fact shouldn’t be sufficient for a judge sitting in arraignments to subject a defendant to the rigors of prosecution, as part of the judge’s job is to stand guard at the gate to protect individuals from being needlessly subjected to prosecution. Sadly, many judges have very low expectations of the prosecution, and their expectations are usually met. There’s a huge volume of paper and smelly bodies walking through the arraignment courtrooms, and each gets a few seconds of the deepest attention of all the players in the system before being relegated to the system.
So who gets to make the critical decisions about who moves forward to the Inferno and who gets to walk out of the precinct?
Prosecutors on these shifts face a delicate calculus: churning out criminal court complaints with assembly line-like speed, yet lawyerly consideration.
“We have our staffing model down very well,” said Karen Friedman-Agnifilo, chief of the Manhattan district attorney’s trial division. “We can very much handle the volume that comes.”
Last year, about 109,000 arrests, mostly misdemeanors, came through ECAB, also called the complaint room, in Manhattan, according to the district attorney’s office. It can be an introduction to prosecution, often the first stop for new assistants.
Tucked at the end of a hallway in the Manhattan Criminal Court Building on Centre Street, the bureau is staffed in nine-hour shifts by about eight assistant district attorneys and a supervisor. There are also other assistants on call to handle specialty cases like sex crimes and child abuse, and paralegals to help with the legwork.
These are the folks, “often the first stop for new assistants,” whose finger is on the button of prosecution, making the initial decision on the fate of others. And they do so with “assembly line-like speed, yet lawyerly consideration.” Some more so than others. Whether new assistants are equipped to make life-and-death decisions is a difficult question, but more seasoned ADAs don’t want to spend their time in the bowels of 100 Centre Street when they could be standing up in a courtroom. Who can blame them?
What these new assistants do is take telephone calls from police officers, who give them the quick and dirty story of why they arrested someone.
“It starts with the police officer telling the D.A. what happened,” Ms. Crotty said. “So yeah, they can say there’s a miscommunication, but then there’s also lying.”
Most seem to acknowledge that phone calls are not an ideal form of communication between the police and prosecutors.
In the early days of ECAB, officers were required to go there to meet with prosecutors in person. But that was slow and led to exorbitant overtime costs. So some boroughs began using videoconferencing in the early 1990s. Today, in most cases, the officer and prosecutor speak only by telephone.
Ms. Friedman-Agnifilo said it was “very, very important” to avoid miscommunication between the ECAB staff and police.
As the ECAB assistant listens to the officer’s story, she’s supposed to take notes on her write-up of what the officer tells her. Some take fairly good notes. Others just write a word or two. Few take verbatim notes or come anywhere near a fully comprehensible story. And yet, this initial write-up is a critical moment in the life of a prosecution.
The initial call from a cop is the most unguarded expression of fact available. It comes before anybody tells the cop that his story makes no sense, fails to constitute a crime or offends the rules of physics. It comes before he knows that someone took a video that proves him a liar. It comes when he’s on his own. The only limitation is the competency and will of the assistant to write down the cop’s words as offered. To the assistant who is inclined to clean up the allegations, the opportunity for the unvarnished allegations of the police officer can be lost forever.
Most of the time, the content of the allegations is relatively clear and clean, the officer relaying reasonably accurate information about relatively trivial offenses. Sure, there’s that compulsion to add the occasional embellishment and flourish, just to milk the bust and make sure it sticks (especially if a defendant has done something to annoy the cop along the way), but the claims are true and the crime occurred.
In those instances where it’s a bad bust, however, this is closest thing to a confession one will get from a cop. His unguarded statement, if subsequently shown to be false, a fabrication, a lie, is forever memorialized in the write-up. It’s hardly the equivalent of a good brow-beating in a windowless interrogation room, but it’s the best we’ve got.
Now if only we could get these assembly line prosecutors to make the effort to put all the words on paper in the write-up, accurately and honestly, we might gain a fairly good idea of what’s really happening on the street and have some evidence to challenge the sanitized and corrected version of allegations that come later. Oh yeah, and “furtive gestures” is not an allegation of fact, kids.
Many of my dear readers hate it when I mention the Slackoisie. Some deny there’s any problem or issue with younguns. Some think I hate young lawyers because I refuse to coddle them. Yeah, I’m a mean, old man making up mean, old-man stuff about young lawyers because the older generation always says mean, old-man stuff about the younger generation. I’ve heard it all before.
Of course, the lead story in today’s New York Times Magazine asks “Why are so many people in their 20s taking so long to grow up?”
It’s happening all over, in all sorts of families, not just young people moving back home but also young people taking longer to reach adulthood overall. It’s a development that predates the current economic doldrums, and no one knows yet what the impact will be — on the prospects of the young men and women; on the parents on whom so many of them depend; on society, built on the expectation of an orderly progression in which kids finish school, grow up, start careers, make a family and eventually retire to live on pensions supported by the next crop of kids who finish school, grow up, start careers, make a family and on and on. The traditional cycle seems to have gone off course, as young people remain untethered to romantic partners or to permanent homes, going back to school for lack of better options, traveling, avoiding commitments, competing ferociously for unpaid internships or temporary (and often grueling) Teach for America jobs, forestalling the beginning of adult life.
Clark University psychprof, Jeffrey Arnet. contends that there is a new life-stage, “emerging adulthood,” that hasn’t previously existed. He argues that my Slackoisie are simply 20-somethings who no longer need to grow up and accept responsibility until later in life than prior generations. Things are different now, and so they’ve adapted.
You can agree with me or not as to whether, and the extent to which, this is a problem, but you cannot deny the existence of the issue as many of those who disagree with me do. The suggestion that hard discussion of this issue is a reflection of hatred of young people is ridiculous; it exists and compels discussion. Does Arnet hate young people? Does Jean Twenge hate young people? Of course not, and yet they recognize the existence of the issue and address it.
It’s on the front page of the New York Times Magazine, people. Grow up and face the fact that this is a real issue. It’s not something I invented in order to demonstrate how great old folks are and how awful young people are. And don’t rationalize away your denial by telling me (yet again) how it’s all the boomers fault (it partially is, but so what?), how boomers are all evil (we are, but so what?) or how it’s not the substance of the argument but the tone, since I don’t make you feel happy about yourself when I call you the Slackoisie.
As the article describes, there are “early bloomers,” which are those who haven’t fallen off the track of adulthood, and it questions whether those who prefer to live in their parents’ basement will be at a permanent disadvantage. This mirrors my point that not all Millennials are Slackoisie, and there are certainly those who reject the life of entitlement that others contend is their due. This is not a commentary on the young per se, a point completely missed by those with myopic comprehension, but about the young who refuse to grow up and accept the responsibility of adulthood.
Don’t blame me for this. I didn’t invent it. I’m just trying to help those late bloomers who think that it’s perfectly fine to sit on their parents’ couch in the basement, eat Cheetos, and whine about their lack of a BMW. It may, as Arnet suggests, be perfectly normal, but it’s not a good way to go through life.
Update: And it didn’t take long for the whining to begin:
I tweeted about it at the time, noting the answer to the question, “Why don’t people grow up faster?” is incredibly, stupidly simple—because they are no longer any jobs for people in their early 20s that provide the means to be a full adult. Full stop. I don’t mean that entry level jobs only pay enough for a small apartment or a simple lifestyle. Often, they don’t pay enough to cover the rent on that small apartment—if they can find those jobs in the first place—and that’s why people move back in with their parents.
Which is why I saw red when I read this smarmy, self-righteous screed from some Baby Boomer. It’s a classic example of being born on third and thinking you hit a triple. She assumes that her ability to pay rent with her first job out of college is strictly because she’s so much more fucking awesome than you spoiled kids these days, and her parents were so much more responsible than the softies of today. For a millisecond, she ponders the possibility that things have changed because of financial constraints, but then dismisses that possibility with a handwave. It’s so much more fun to be self-righteous! It’s way more fun to wag your finger at young people and tell them how you lived on Ramen and beans to afford your apartment, never pausing for a moment to wonder if those kids might not be able to afford that apartment even if they lived on dog food.
We didn’t have Ramen. We had cup o’ soup.
Most of us in the practical blawgosphere don’t tend to spend a great deal of time reading “inside baseball” posts by law professors. We should if we want to have a better understanding of what the nice men and women who are raising the next generation of lawyers are thinking about. It’s way too easy to spout baseless opinion about what’s happening with new lawyers while remaining clueless about what’s happening with new lawyers.
Meredith Harbach wrote a very interesting post at Co-Op about lawprof speech, No doubt she’s going to catch some grief at the faculty party for this one.
I have a thing about verbal tics. It started about the time I began teaching Lawyering at NYU Law. At the time, part of my job description was to help train students to become skilled oral advocates in multiple settings. It was also my first real exposure – eight years out of law school – to the legal academy, from the other side. So as I started my law teaching career by focusing, among other things, on effective communication skills, I simultaneously began my own process of acculturation to law teaching as a profession.
Part of that process included learning the ins and outs of how law professors talk – what I’ll call “Professor Speak.” Based on my entirely-unscientific observations, some of the primary features of Professor Speak include beginning many or most sentences with “So . . .” (others have mentioned this, and it’s by no means limited to law teaching, or even to the academic setting), peppering sentences with interjections of “sort of,” and ending sentences in “right?” (although folks seem to throw in “right?” all over the place these days). Now, I’ll confess that I was somewhat aware of my changes in speech pattern, but I considered my new affectations part of becoming a law professor, and part of speaking credibly like one. That is, until my husband, who’s a federal prosecutor and gifted (if I do say so) trial lawyer, asked me, “Why are you talking like that?”
Don’t let that last line throw you. Even federal prosecutors can fall in love and marry. There’s nothing wrong with that.
If Harbach thinks that academics speak weird, just wait until she takes a hard look at how they write. The peer pressure to speak kindly about those you abhor can be overwhelming, and it’s nearly impossible to comprehend the secret meaning of lawprof words like “interesting”, which means “idiotic”, or “curious” which means two steps below idiotic. But the speaking tics are a matter of particular concern since these are the folks molding mushy minds to become brilliant and persuasive oral advocates.
Harbach suggests that the use of “so” to preface every sentence is an affectation to make lawprofs appear smart. Why exactly that would make anyone appear smart is up for debate, but that’s how she sees it. It seems to me to be at best pedantic, and at worst, annoying. Then again, I’m not a huge fan of wasted words or placeholders.
What is clear is that the lawprofs aren’t leading by example, Indeed, the comments to Harbach’s post suggest just the opposite, though the rationale is a bit “curious”.
Two thoughts: First, people pick up the verbal tics and habits of those around them mostly subconsciously, so people need not be doing this to “sound smart”. They are often enough not “doing” it in an active sense at all.
Secondly, as to qualifiers like “sort of” and others, they seem to me to have a clear place in academic speech that they would not have in an oral argument. The two activities are just quite different. An academic or scholar doesn’t, or shouldn’t, want to claim any more than she can strongly support. An advocate will often, with good reason, do more than this. If I saw an academic making an argument or a presentation in the same way that a lawyer in court did I’d find it very off-putting and probably inappropriate. In academic or scholarly work the qualified and careful is, I think, more often the right choice.
So (see, I can use it but it doesn’t make me sound any smarter), if I read this comment correctly, academics are entitled to insert placeholders into their speech because they require more time to think as their words convey a greater degree of thoughtfulness and care. Advocates, meaning us law talking guys, can spew pretty much any darn fool nonsense that pops into our unpointy heads. We’re not expected to be too smart or accurate. Heck, we’re either hicks or whores, so we can pretty much get away with anything. Not so lawprofs, who are held to a higher standard.
I can’t speak for anybody else, but I’m personally appreciative of the fact that scholars have their fingers firmly on the pulse of the practicing lawyers. You guys know us too well, dontcha?
Harbach, it should be noted, is tasked with teaching inchoate lawyers to become excellent oral advocates. This is, without a doubt, an critical skill for anyone who plans to stand up in court and represent a client. Hummina, hummina is rarely effective. She provides some insight into what she conveys to her students:
Part of our job is to train our students to communicate directly, and forcefully, paring away unnecessary and ineffective words, and tailoring their speech strategically to audience. (As a Lawyering professor, I would cringe to hear my students dot their oral arguments with “like”!)
Amen, sister. But I have a question. If you’re teaching students to tailor their speech strategically to their audience, they aren’t listening. Are you passing them only because of the curve? I read and hear quite a bit of argument by new lawyers, and they almost invariably begin with the phrase “I think” or “I feel,” demonstrating a near obsessive level of self-absorption in their own opinion. What makes them believe that their opinion matters so much? What gives rise to the belief that their opinion is persuasive, or even interesting, to others?
I have mixed feelings about this. While I’m not going to defend saying “so” in order to sound smart, I do think there’s a function for verbal place holders and the various equivalents of “uhm.” First of all it gives you time to think. Secondly it lets others know that is what you’re doing. Both of those things seem okay to me for a law professor in a classroom.
Maybe the pedagogical model should focus more on teaching by example? “Do as I say, not as I do,” isn’t working nearly as well as some scholars think.
Jonathan Turley posts about a couple of bartenders who put on a great show, juggling bottles of booze and spitting streams of fire. Everybody loved it, and they are now saddled with three felony charges.
Two fire-breathing bartenders — Tegee Rogers, 33, and Justin Fedorchak, 39, — are the center of an interesting legal fight. The two men face up to 45 years in prison each for performing flaming bar tricks at Jimmy’s Old Town Tavern in Herndon, Virginia.
The bartenders are popular attractions as they juggle bottles of alcohol and spit streams of flames. The act has been going on for over a decade, but the police arrested the men and charged them with three felonies and some misdemeanors, including manufacturing an explosive device, setting a fire capable of spreading, and burning or destroying a meeting house.
What’s fascinating about this particular story is that it sounds both extremely cool, and potentially extremely dangerous, at the same time. This scenario may be the dividing line between safety and a fun, vibrant life. So often, the conduct is just incredibly foolish or egocentric as to be unworthy of defense. So often, the conduct just isn’t sufficiently threatening to safety as to make its regulation anything other than laughable.
For quite a while, I’ve been paying close attention to the issue of the dividing line between living and safety as discussed by The Advice Goddess, Amy Alkon, and her muse, Walter Olson. They’ve posted many stories of people doing the mundane stuff of a relatively normal life, only to have some official, whether governmentally authorized or by self-imposed title, put their offending conduct to rest. A story that makes the point particularly well:
I happened to arrive at snack time, when one of the ladies was asking for another cookie. “No,” the attendant told her patiently. “It’s not good for you! You can’t HAVE another cookie.”
Whereupon, big surprise, the woman asked for another cookie. And the cycle began again.
That incident came to mind when I read this fantastic article about the focus on safety, and sometimes ONLY safety, in caring for the elderly. It seemed to me, at the assisted living place, that if a woman has lost a lot of her mind and yet KNOWS she wants a cookie — give her a cookie! If it shortens her life a little, so be it!
I’ve got no clue why the second cookie was such a killer, but I’ll accept the premise that there was a good reason to refuse the request. So what? Having lived long enough to span the days when there were no such thing as seat belts to the day when 64 airbags were the norm, I’ve watched a trend toward safety take hold. And lose perspective.
Kids sometimes fall down and skin their knee. I did. Sometimes, they suffer tragedy and die. I didn’t. There are risks out there that no child, nor elder, need endure. The risk/reward ratio clearly favors safety. But safety, taken to its logical extreme, would put everyone in a bubble, untouched and untouchable by anything that might conceivably cause harm.
This just isn’t a life worth living. The arguments in favor of bubble-life are made by those who have suffered the harm, or their survivors. Whether it’s a child who choked on a hotdog or drowned in a pool, they have the moral justification to demand that no other person endure what they’ve gone through. Any parent who has lost a child gains a moral prerogative, as no one should have to bury their child.
While acknowledging this right to argue their position, and feeling the same sympathy that any normal person would feel toward someone who has suffered so greatly, we need to maintain a level head about what can be reasonably accomplished in the name of safety without making life so devoid of flavor, activity and excitement as to be bubble-like.
One of our blindest spots is cars, the cause of death for about 50,000 people a year and disability for many, many more. We spend huge sums dealing with Homeland Security, knowing that the death toll at the WTC was about 3,000, and pay no attention to cars. Teaching two teenagers to drive, I’m painfully aware of what it means to put a two thousand pound death machine into the hands of children.
Rationally, I would never teach my kids to drive. I would never allow them in a car. It’s like begging for trouble. But, of course, it would be impossible to live without cars, at least if we’re to enjoy a normal life. The risk is clear, but so is the reward. Cars are much safer today than when I was first tossed into the back seat of a ’57 Impala convertible with neither car seat nor seat belts, as well they should be.
A bartender spitting flames doesn’t quite carry the same level of necessity as transportation. He makes for a very cool show, but it doesn’t get you to work or school or the hospital. If anything, it’s more like cruising to the Stewart’s Root Beer stand for a float. Still, I can’t imagine a life where my children would be unable to see anything cool, fun and exciting. It’s part of what makes life worth living.
I don’t want my kids to fall down and skin their knee, but I assume it’s going to happen. I used to break bones all the time as a kid, and don’t have a straight finger in the bunch. But I had a great time and wouldn’t miss it for the world. My kids aren’t nearly as wild and inclined to take stupid risks as I was, for which I’m eternally thankful. But I bite my tongue when they tell me what they’re doing and where they’re going, and tell them to have fun.
We need to come to the mutual realization that we cannot have a world where no one is hurt, where everyone is safe from the things that can harm them. Risk, harm, is omnipresent in a real life, and the only way to eliminate it is to eliminate a life worth living.
I propose that the “bartender flambé” (Turley’s phrase) be used as a rule of thumb, as the dividing line between acceptable risk and unacceptable risk. As for prosecuting the bartenders, rather than just telling the bar that it can’t put on the show anymore because it crosses the line of safety, that’s just absurd.
United States District Court Judge Nancy Gertner wrote a book. No, it’s not out yet. It’s not on the bestseller list. But already, it’s controversial. The book is entitled “In Defense of Women: Memoirs of an Unrepentant Advocate.” Oh my God, she’s a woman. She was an advocate. She has . . . beliefs.
You’ve got to be kidding, right? Was there anyone (who cares) who was unaware of Judge Gertner’s legal career before being appointed to the bench? Did you think federal judges popped out of the womb with a robe on?
Nobody got all bent out shape when Justices Thomas and Scalia wrote books describing their former lives and philosophies. Nor should they have. People don’t find their way onto a federal bench for being mindless, unaccomplished drones. They came from somewhere and did something. All of them.
Nancy Gertner was a criminal defense and civil rights lawyer. While I never had the honor of working with her, friends have and tell me that she was a brilliant lawyer. Is this a problem? To some, apparently so.
“It disturbs me when judges who are supposed to be fair and impartial are expressing their own personal background and beliefs in matters that could be connected to future problems or cases that come before them in court,’’ said Robert A. Barton, a retired Massachusetts state judge.
Judge Gertner’s former partner, Harvey Silverglate, responds to the criticism:
“Judges, like other human beings, have predispositions,’’ he said. “Some are called liberals. Some are called conservatives. To hide these facts doesn’t make them untrue. And so by encouraging judges to talk more, when you have a case before a judge, you have a better idea of what that judge might be interested in and what you might have to say in order to overcome that judge’s predispositions.’’
Harvey nails it. Barton’s complaint isn’t that judges have biases, but that they admit to them. Obviously, a judge’s skull doesn’t turn into a big, empty hole when they slip into the robe. They have the accumulated mass of experience and knowledge gained over their life and legal career. This doesn’t preclude them from being fair and impartial, to the extent such concepts can actually exist. If anything, this is about transparency, admitting the influences that the judge brought to the job and acknowledging to the advocates who will appear before them that these are the hurdles they will need to surmount to prevail.
There has long been a certain fiction that we impose on judges. We want to see them as intellectually virginal, a clean slate, equally open to all ideas and arguments as if they’ve never had a thought in their head before we walked into the well. This isn’t real. This was never the case, and only the most naive lawyer would believe such an absurd notion.
Having thoughts doesn’t make one a bad judge. Indeed, it is by no means a basis to assume that a particular judge is inclined to rule a particular way. Take Judge John Gleeson in the Eastern District of New York, whose career path was through the United States Attorneys office in the Southern District and took him over the bridge. He’s been one of the boldest, open minded judges around, and any of the assumed bias one would have projected on him would be absolutely dead wrong.
The bottom line is that the more we know about a judge, the better we understand the thoughts and influences that go into the decision-maker’s reasoning and vision, the better we can tailor our arguments and express our positions. If anything, I want them all to write books. Tell me everything, Your Honor. Everything.
No, it’s not the path of social media, no matter what any of the gurus or marketers tell you. It’s the road that leads through the United States Attorneys Office for the Southern District of New York. Oh yeah. Via Volokh Conspiracy, David Zaring at The Conglomerate (appropriately referred to as the “Glom”):
It’s pretty interesting. The resumes are outstanding – ten years ago, there were four out of 150 odd of the prosecutors in the office who clerked for the Supreme Court, now about as many are judges, two are U.S. Attorneys, and the large majority of the rest are partners in white shoe firms in New York.
My guess is that a gig in the Southern District is the greatest path to wealth maximization in the federal government that there is — I say this impressionistically, of course, but the fact is that the financial regulators rarely get picked up by investment banks, and the SEC enforcer to partner rate is pretty low. And I think lobbyist salaries don’t match New York law firm salaries, while Pentagon procurement officials have far too difficult a tournament to win to get the payday of a job with Boeing. Which makes white collar the straightest path to law firm style riches.
Zaring attributes it in part to the rise in “White Collar” defense at Biglaw, which he notes held no allure for Biglaw until the last few years as FCPA and honest services fraud prosecutions burgeoned. If that was the case, it would be better attributed to Enron and the trebling of the sentencing guidelines for corporate and financial crime.
My experience is that Zaring is partially right, but mostly wrong. The SDNY is one of the surest paths to Biglaw wealth, but not for the reasons he thinks.
Think of a stint in the SDNY as finishing school for lawyers. They don’t take kids straight out of law school, but from judicial clerkships, Biglaw and, occasionally, other prosecutor’s offices. They are well trained, then sent out with powers that would shock and appal most people. They get the opportunity to appear in court, do hearings and try a few cases. They learn how the wheels of federal law enforcement work, the awesome power of the various federal policing agencies and the extent of information the government can obtain about others. Their confidence grew from their omnipotence and the deference shown them by judges.
Unlike the rough and tumble of district attorneys offices, or any other area of criminal law, SDNY taught its assistants how to blend with the sensibilities demanded of someone who would later find their home in Biglaw. They learned how to dress and behave, how to play well with others. They metaphorically learned which fork to use for what course at dinner. After their three year commitment, they are ready to put that education to use.
Once out of the office, they possess two things of enormous perceived value. They can lay claim to the title former federal prosecutor, which impresses most people, and they are part of the network of former SDNY AUSAs, an elite group. This all comprises a package that has long been seen as enormously valuable by Biglaw, which is why former SDNY prosecutors, unlike almost anyone else, find themselves partnership positions in Biglaw despite having no book of business to bring into the firm. While everyone else is expected to pay their own way, they get a free ride to a corner office.
While it’s understandable why Zaring would assume that these firms are interested in former prosecutors for White Collar defense, this was happening long before there was any interest in the practice by Biglaw. These were lawyers with trial experience, which is nearly impossible to obtain for Biglaw associates. No, being one of twelve lawyers in the back of the courtroom during a trial is not trial experience. AUSAs opened, closed, questioned and argued. This was trial experience.
Think of it as the West Point graduate who needs to gain some combat experience in order to reach the pinnacle of a general officer. Some will find themselves leading soldiers under fire, while some will be in charge of the motor pool at the combat zone base, but all will come out with a line on their resume showing that they were in combat. Once battle hardened, no one who never left the comfort of home can challenge your legitimacy. You’ve paid your dues.
Those who wanted to do criminal defense used to go to the handful of firms that were comprised of former prosecutors, such as Morvillo, Abramowitz. A few struck out on their own. The ones who went to Biglaw went into litigation, and would be pulled out when a corporation needed to go to trial as one of the firms “trial guys.” All that needed to be said was that he was a former federal prosecutor, and the general counsel would be suitably impressed and confident that the corporation was in good hands.
Ironically, as Biglaw took a sudden interest in “White Collar” crime, realizing how hugely profitable it could be to defend a corporation through years of investigations and prosecution, and now reclassified their former AUSA partners as criminal defense specialists, they put these former AUSA as far outside their zone of competency as possible, though they didn’t realize it. The Biglaw partners understood as little about criminal defense as did their former AUSAs. What they did understand was that the corporate mentality was far more attuned to official titles and simple indicia of perceived competence than winning. The myth of White Collar defense was born and thrived, but that’s a discussion for another day.
On the whole, former SDNY prosecutors are exceptionally well prepared to take their place in the ranks of Biglaw partners. Smart, experienced, battle-hardened, and groomed to thrive in that environment, it’s indeed the road to a wonderful future of wealth and prestige at Biglaw. If that’s what you’re looking for, and you’ve got the goods to get the gig, it’s definitely the road to take.
Another call from the relative of a woman in detention. “I need a lawyer.” As the story winds out, her sister has a lawyer, but “he’s not doing anything.” I ask where the case is at, and it appears that the relative hasn’t got the slightest clue what the lawyer is doing because the lawyer’s answer to her question, “what’s happening,” is incomprehensible to her. She replies with some meaningless mangled words that would make Yogi Berra blush.
I don’t want the case. It’s out of town, it’s not particularly interesting or consequential, and it would interfere with other work. But the caller was referred by one of my favorite clients, so I offer to try to help by calling the lawyer and finding out what’s going on. The relative is less than certain that my offer will help, certain that she needs a new lawyer now, but agrees that it would be smarter to find out first.
I call. We chat. I explain what was said to me and why I’m calling. He’s doing everything he can and should be doing. I understand. He complains that they want action, now. The client’s detained, which is always a troublesome situation, though the fact that she had already absconded and was extradited back in this case tends to explain why bond isn’t readily available to her. Her explanation for fleeing made perfect sense to her, but few explanations play well with judges. Judges are funny that way.
There is nothing unusual about this tension between lawyer and client, and that’s very unfortunate because there’s no good reason for this tension to exist. He was doing everything he should be doing as a lawyer. How well, I don’t know, but that’s a different question. The problem here was a failure to communicate.
Communication has two components, sending and receiving. The lawyer assured me that he was sending the right message, but the problem was that the relative just wasn’t receiving it. The lawyer was mistaken. He was sending the message he, as a lawyer, understood to be correct. He failed to send the message that his client’s relative could understand. She didn’t understand and, as a result, was sufficiently unhappy to call a new lawyer.
One of the most common complaints about lawyers is that they fail to return telephone calls. I know of many like that, and I can’t, for the life of me, understand why they don’t return calls. The failure to return a call is like begging for an angry, disappointed client. It invariably takes more time to deal with the angry client than the merely inquisitive one. Too many calls? That’s client management, another issue. Keep your clients abreast of the situation, let them know that you will call them immediately upon receiving news and that, if they don’t hear from you, it means that you (like the client) are waiting. While waiting, there will be nothing new. That’s how it works, in law as in everything else.
If the lawyer had taken the time to explain to his client’s relative, for transmittal to the client, what he was doing in language that she could understand and appreciate, I have no doubt that she wouldn’t have called me. Instead, he used common legal jargon, which may be very familiar to lawyers but meaningless gobbledygook to others. To what end? Communication was not achieved because the client received no meaningful information. I know, it’s hard to explain legal proceedings to clients. Suck it up. That’s our job, to make them understand one of the most important things that will ever happen in their lives. As useful as our beloved legal jargon may be when talking amongst ourselves, it’s worthless to someone who is unfamiliar with the words. The problem is exacerbated when the client speaks another language.
This is not about telling the client what she wants to hear, but about telling the client what she needs to hear. This is the client’s life, and they must understand what’s to become of it. Some clients will understand quickly, while others will take more time and care. It’s the lawyer’s responsibility to find a way to communicate that works for the client. Use an interpreter. Get another lawyer to help if you can’t seem to get past the communication wall. Use a different approach. Spend the time to make it happen.
There is no option of telling it your way and then throwing up your hands and walking away if the client doesn’t get it. Your job isn’t done until the client gets it. It doesn’t matter that you think you’ve done enough, or you’re satisfied that you’ve explained it in a way that you feel is sufficient. Does the client understand? That’s the only relevant question.
If I had wanted the case, it would have been mine. And the lawyer would have never understood why.
Having been completely assured that no sheriff under the supervision of Crazy Joe Arpaio would ever abuse their authority by rounding up nice folks simply because their skin is a little darker or they speak with the hint of an accent, news of the acquittal of Tempe Pastor Steven Anderson, via Bad Lawyer, restores my faith.
Steven Anderson, who is minister of Faithful Word Baptist Church in Tempe, was found not guilty Friday afternoon after a two-day trial on charges of obstructing a highway and failure to obey instructions of a law enforcement officer.
Anderson was driving east on Interstate 8 on April 14, 2009 when he drove into the Border Patrol checkpoint at milepost 78. While at the checkpoint, Anderson was stopped and questioned by a Border Patrol agent about his citizenship.
Anderson did not answer and instead replied that he was exercising his Constitutional rights and did not want to answer any questions. He kept asking if he was free to leave. A Border Patrol agent referred Anderson to the secondary inspection area after a canine allegedly alerted to his vehicle. However, Anderson refused to move to secondary and stayed in his vehicle even after multiple requests from both Border Patrol agents and officers with the Department of Public Safety.
Anderson said the DPS officer and Border Patrol agents eventually broke both windows of his vehicle, tasered him, dragged him out of his car and slammed him onto the ground. He received 11 stitches and had visible scabs on his forehead following the encounter.
Key to this encounter is that Anderson neither appears Hispanic nor speaks in tongues. He’s 110% American, and it couldn’t be more plain. Yet the police demonstrated a complete and total absence of prejudice be tasing him and slamming him to the ground, just like they would any wetback nabbed driving down the highway minding his own business. You want proof of impartiality? Here’s Steven Anderson, who’s got 11 stitches and one acquittal to prove it.
What’s that, you say? Greenfield, you don’t seem nearly as outraged by this malicious, unlawful conduct as you usually do? Well, I am. No really, I am. But I can’t help but smell a whiff of sweet Schadenfreude amidst the antiseptic. You see, Pastor Steven Anderson, according to the Phoenix New Times, has some nasty views of his own.
But Anderson’s no hero. He’s a hate-spewing advocate of violence against innocents, and he claims his viewpoint is Biblically based.
Anderson told a radio station last year he believes all homosexuals should be executed. Not only does the right-winger believe President Obama deserves to die — he prays for Obama’s death each night in his bedtime prayers.
By no stretch of the imagination do I believe that what happened to Anderson wasn’t terribly wrong, and fully representative of what we can expect out of our Arizona protectors, Crazy Joe’s assurances notwithstanding.
It’s just that, well, karma’s a bitch.