It can’t be easy for the young lady who gains stardom at a tender age to realize her place in the universe.  This is especially true for Lindsay Lohan, who was an orphan with two living parents.  No rules that gauge the limits of conduct for the rest of us seem to apply quite right. 

But then, some rules do apply, and when that happens, the punch in the gut has to hurt.  There is no such thing as a punch in the gut in their rarified alternate universe.  Lohan violated probation in her 2007 drunk driving case and was sentenced  to 90 days in jail and 90 more in rehab.  Bang!  Boom! Whap! Gut punch.

Dealing with celebrities is always problematic.  We learn about their outcomes because they are, well, celebrities.  When Joe Schmoe gets violated, nobody knows because nobody cares about poor Joe, aside from Joe and a small circle of friends.  But Lindsay Lohan makes headlines. 

Too harsh?  Too lenient?  No matter what happens, there will be someone saying that it’s wrong, it sends the wrong message and it was all because of her celebrity.   The judge who must impose sentence can’t win.

This strikes me as a particularly thoughtful sentence.  She was given a chance and blew it.  The jail time falls far below what’s given to many in the same/similar situation, and yet it’s not insubstantial.  It sends a message, and the message seems quite right.  No, Lindsay, you don’t get a free pass because of tears and a charmed life.  No, Lindsay, you don’t get the death penalty to scare the crap out of every teenybopper who might someday drive drunk.

Plus, Lindsay did something worthy of every belligerent, foolish defendant we’ve ever represented.

Frankly, this is possibly the least attractive choice of nail polish I’ve ever seen.  And it really doesn’t suit her at all.  But as messages go, Lindsay Lohan seems to have done more than her part. 

Update: I have corrected the spelling of Lindsay Lohan’s name, per advice of Ed at Blawg Review.  Clearly, I don’t know my teen idols like Ed does.

Alexander Hamilton wrote in The Federalist that the judiciary would be the least dangerous branch of government.  He based this on the third branch lacking “the power of the executive branch and the political passions of the legislature.”  The judicial branch has no army to enforce its rulings and no bully pulpit to enrage the citizenry. 

The judiciary has only one weapon at its disposal.  Integrity.  And it’s given its only weapon away.

Via Mike at Crime & Federalism, the 9th Circuit has ruled in Lee v. Lampert that process trumps substance.  They know an innocent man to be convicted and imprisoned, but they just don’t care enough to do something about it. 

We decline to prolong the inevitable recognition that there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

The use of the phrase “actual innocence” has always been deeply troubling.  It suggests that the person who cannot prove his innocence cannot be, in fact, truly, actually, innocent.  The dilemma can just as well be the absence of a way to prove a negative fact rather than the fact of innocence.  And it flies in the face of the presumption of innocence in the face of an improper conviction, which has been turned upside down by failure to preserve and harmless error analysis.

But in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth.  They don’t care.  They just don’t care.

In contrast, the 11th Circuit boldly held that this was a step too unpalatable for them to accept in Gilbert v. U.S.  But not the 9th.  Time ran out and that’s that.  Like the grocery clerk with a checklist, the rules say one year and one year it is. 

That Congress, in its zeal to curtail defendants from destroying the fabric of society, decided to use a statutory trick to undermine the fundamental purpose of the Great Writ as the final safety valve for an imperfect system, gives rise to the problematic issues raised by Lee v. Lampert.  That Judge Diarmuid Fionntain O’Scannlain decided that a procedural rule was more important than the bottom line, innocence, is a curtsy to Congress, an abdication of the only role the least dangerous branch has in the scheme of government.

One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety.  The public’s trust, and the integrity of the judiciary, depend on it.  Without it, the courts are nothing, worthless.  When the public ceases to believe that they can obtain redress for wrongs in the courts, then they only option available is the use of weapons.  Our founding fathers were ingenius to provide the citizenry with an alternative to insurrection. 

The judiciary are the stewards of this public trust in their integrity.  They try to protect it fiercely, though mostly from assault by lawyers who call judges mean names.  They are less fierce when it comes to their own actions.

The public will view this decision, one that demonstrates that innocence comes in a distant second to some grocery clerk’s rule, as affirmative proof that the courts are just a part of an omnipotent machine designed to subjugate the public. It’s an overwrought characterization, but it’s about public perception.  Nuanced explanations don’t work well with citizens marching with torches and pitchforks.  They’ve usually got their mind made up already.

Whether the decision makes perfect legal sense or not isn’t important.  The decision gives up the basic integrity of the judicial system, that there are things that matter so much that no rule, no law, no bunch of old men, can ever give them away and still hold our trust.  This is such a decision.

There is a circuit split on the issue.  There is hope that it can be resolved in a way that puts innocent people ahead of the grocery clerk’s rules.  Will the Supreme Court take up such a dangerous cause?  And if it does, will the justices reveal themselves to be lovers of the People and the safeguard of the Great Writ, or lovers of grocery clerks?

I’ll be leaving in a few hours to go to Atlanta, Georgia.  No, it’s not a big case or a snazzy conference.  It’s the United States Fencing Association’s Summer Nationals Championship, where my son, an epee fencer, will be competing.  It offers not only the opportunity to participate in a great sport, but a number of critical life lessons that will stay with him as he moves on to adulthood.

I’ve thought many times about the lessons he’s gained from fencing, and how they will distinguish him from many of his peers.  This seems like a good time to share them with you.

1.  Some win.  Many lose.

Not everyone gets a trophy at the National Championship.  It’s quite an honor to make the top 32 in the nation, and it’s extraordinarily difficult.  In fact, it can be crushing to go down in defeat.  But that’s how life works.  One has to take defeat with the same grace as one takes victory.

2.  Sportsmanship.

Fencing remains one of the few “gentlemen’s” sports.  The fencers salute each other, the director and the audience before each bout.  Should they reach a tie with one touch to go, they will salute each other again to honor the effort of their opponent, as the next touch will end the bout.  Afterward, no matter who wins, they will shake hands.  They will fence each other with the utmost intensity during the bout, focused solely on winning.  There is no end-zone dance, no lashing out in anger, no hatred.  There are two people who honor each other’s effort.  After the handshake, there is often a hug between two people who have given their all.

3.  Handling pressure.

These are the national championships.  It doesn’t get any bigger, and for fencers who have fought just to be allowed the honor of qualifying for these games, the pressure to prevail is enormous.  It requires great maturity to overcome the pressure, to calm oneself and focus at the task at hand, no matter how important it is.  There will be plenty of time afterward to consider what was at stake, but when a fencer steps onto the strip, there is nothing to think about beyond the bout in front of him.

4.  Perseverance.

The competition begins with pool bouts, where a group of fencers are formed and each must fence the others.  Someone will lose the first pool bout.   Someone will lose the first two pool bouts.  It’s easy to give up, to believe that you’ve dug yourself into a hole from which you can’t escape.  Persevering despite adversity won’t guarantee a win.  Giving up will guarantee a loss. 

5.  Hard work.

None of the fencers who qualify for the national championships got there because of connections, good looks or whining.  Every one of them worked long and hard to earn the right to compete.  Many who worked hard did not make the cut, but everyone who does had to prove themselves on the piste.  There is no other way to get there.

6.  Sacrifice.

There are days when sitting in front of the television, playing video games, sleeping late, feel pretty darn good.  But it takes a commitment to excellence that compels a fencer to push forward, to get off the couch and onto the strip.  Not just when he feels like it, but when he knows he must maintain a practice and competition regimen if he wants to be capable of being competitive.  No one forces him to get off the couch.  It has to be his choice to sacrifice fun and comfort for something bigger. He knows that without it, he will not be worthy of fencing in the nationals.  He is willing to make that sacrifice for the opportunity to achieve.

7.  Personal pride.

In life, we can choose to try to be the best at something or blend into the crowd.  This isn’t to say that we will achieve supremacy, but that we strive to do so.  It’s invariably a matter of personal pride, an intrinsic decision that we will not be satisfied with ourselves for being one of the many.  The desire to be the best at something pushes us to try harder, work harder, care more, focus more, push beyond what we think are our limits and break through the brick wall that separates the best from the others.  No, it may not be achieved, but the personal pride needed to push a fencer to keep trying, to keep fighting, is what allows him to strive to become the best he can be.  Never settle for less.

_________________________
Over the next week, I will be waking up early and fixing or fine tuning weapons.  I will make sure uniforms are clean and safe.  I will talk about strategy, both good and bad, to the extent he wants to hear it from me.  I will do what I can to bring a fencer ready to win to the competition.  Whether there will be any time to post at SJ is unknown at the moment.  My son will be my priority and posting here will be a very distant second.  His job is to fence his best.  My job is to be the best father to him I can be. 

I hope he does well.  More than that, I hope he has fun and is proud of his effort.  I am proud beyond words of my son.

It was only a few days ago when Fresno criminal defense lawyer Rick Horowitz twitted in victory, that he had managed to do the near-impossible.  He got the call that a suspect was in the hands of the police and, despite them denying they had him in their clutches, he was able to get there in the nick of time, say the right words, and prevent the interrogation that would have sunk any chance of defending.  Rick was elated.

Alas, in this business, elation is short-lived.  But here, it wasn’t at the hand of some crafty, scheming prosecutor or callous, haughty judge.  The enemy turned out to be his own client and family. 

I got my investigative team started, but I myself was face-to-face with everyone for too long.  They were not happy that I did not see things their way.  I “needed” to look at this, and this, and this.  How could he be in danger of drowning, when such-and-such — a relatively minor fact that did not really assist his case at all — was true?

 When I told them the things they were focusing on would not save him, they thought I did not believe in his innocence.  This was important to him, even though I explained that it did not matter to me.  I even tried to explain that it was my job to deliberately develop doubts about the case — the same sorts of doubts that a jury might develop — so that I could recognize the problems that needed to be targeted, where more investigation was needed.  Part of my job is to question things as if I were a prosecutor, so that I can be prepared for those things which a prosecutor will ask a jury to question.

It’s not unusual to bask in the glow of success, enjoying the closeness of a battle fought and won.  But the detachment that allows a lawyer to defend is undermined when that distance between lawyer and client is breached.  Both client and family begin to feel flush with the small victory.  They feel empowered.  They feel brilliant.  They feel that they are as much a part of the solution as the lawyer. 

Rick had good reason to be proud of his effort.  He managed something that is rarely accomplished.  But as he realized just a bit too late, he let his guard down in the afterglow, allowing the client and his family to labor under the misimpression that their roles in this victory were conjoined, that their understanding of how to prevail was as worthy as his. 

The lesson here is that the lawyer, no matter how much he cares about his client and how proud he is of his effort, can never allow the distinction between lawyer and his client to be forgotten.  The lawyer is not a friend.  The lawyer is not a family member.  The lawyer is not “one of them.”  He is the lawyer.  He is the professional charged with representing a criminal defendant.  Both the client and his family can never be allowed to mistake their respective roles.

It’s hardly unusual for a client or his family to tell the lawyer their view of the evidence, the severity of the case or the potential for conviction.  It’s done all the time.  Listen to them.  Sometimes they offer an interesting idea.  Once in a blue moon, they come up with a really critical point.  Most of the time, they are completely off base.  It’s “justice” as viewed through the facile eyes of a defendant.  The talk is cathartic, and the attorney’s job is to explain why life doesn’t work the way they believe it should.  No big deal.

But familiarity breeds contempt.  Rick allowed his client to become too familiar, and they treated him contemptuously when he broke from the happy fold.  It was a mistake that Rick won’t likely make again. 

Hard feeling aside, however, Rick made one other mistake that can’t be chalked up to elation.

There is also the knowledge that, this time, there will be no pay-off.  Not only will they likely not keep their word — no small part of our disagreements this week came out of my attempts to convince them that lying to your attorney is not a good thing, because it sends him off in the wrong direction and potentially costs him credibility with courts, opponents and jurors — to pay what is due of my fee, or even the investigative costs that accrued this past week, but there will be no thanks.  There will be no good feeling that comes from saving a drowning person.  This one is lost (at least to me and my team).

While familiarity can mistakenly happen in the glow of success, this problem should never happen.  Rick trusted his client for his fee.  Rick trusted his client to pay the expenses of his investigation.  After all, happy clients are happy to pay.  Until they become unhappy clients, at which time you can kiss the fee good-bye.  Bye-bye, fee.

We are lawyers.  We are not bankers, financiers, money-lenders.  Retained counsel, by definition, perform a service for a fee.  The variables in criminal defense are too great to be so naive as to believe that trust will suffice, that everything will work out in the end.  Sometimes it does, but more often than not, it doesn’t.  Sometimes it’s because a client simply can’t keep a promise made during a time of stress.  Sometimes, a client’s devotion at the time of payment is less than at the time of promise. 

There is a reason why criminal defense lawyers get their fee up front.  There is a reason why expenses should always be advanced so that the lawyer isn’t left holding the bag at the end.  While the familiarity lesson in client management must have stung, the finance lesson can be brutal in a tight economy. 

The shame of it all is that Rick did such a great job for his client.  The primary lesson is that in criminal defense, appreciation for the lawyer’s efforts is fleeting.  Don’t count on love to cover all. 

It would have made a decent story for The Onion , but it’s real.  A plague has struck Kentucky.  A plague of vicious babies.  And local prosecutors weren’t going to let them destroy the fabric of Kentucky society.  From the Courier-Journal.

The boy was led into the courtroom for his arraignment by a Jefferson County Sheriff’s deputy.

Too young for kindergarten, he was too short to see over the podium.

Senior Judge Deborah Deweese asked how old he was.

“Five,” someone responded.

“Were you all aware we are talking to a 5-year-old?” Judge Deweese asked prosecutors as the May 28 arraignment began, according to a video of the hearing.

What sort of heinous crime, outrageous wrong, did a little boy do to compel caring, justice-loving prosecutors to drag his tiny butt before a criminal court judge?

He was charged — along with his brothers, who are 11 and 9 — with criminal mischief and criminal trespassing after being accused of walking on and scratching a neighbor’s vehicle with a stick, rock and lighter, causing more than $3,000 in damage.

The neighbor was angry about the damage to his car, as he was entitled to be.  But what prosecutor would think that criminally prosecuting a child of 5 was the solution?  The answer appears to be a Kentucky prosecutor, for this is nothing unusual there.

Just last week a 6-year-old and two 7-year-olds were charged and brought before judges in juvenile court, public defenders said.

The Jefferson County Attorney’s Office has insisted for years that all cases involving possible restitution, such as the one against the 5-year-old and his brothers, be brought to court. And Paul Richwalsky, chief prosecutor for the office’s juvenile division, has long had a practice that children accused of crimes at school come before a judge, regardless of their age or situation.

The article quotes the the Jefferson County prosecutor as conceding this was a mistake, that he shouldn’t have “overlooked” the perp’s age when he authorized prosecution.  But what of the others?

According to statistics from the Administrative Office of the Courts, all three other cases against 5-year-olds from 2005-2009 were dismissed, and 10 of 11 cases involving 6-year-olds were thrown out, with the other one ending in an informal judgment.

And there were three-dozen 7-year-olds charged over those five years, with the majority being dismissed. While the county attorney’s office said it has been the practice to bring all school-aged children to court in the past, that is changing as prosecutors look for better ways to deal with such cases, O’Connell said.

That judges refuse to play along with prosecutorial policies that put cuffs on little boys doesn’t absolve prosecutors of the lunacy of deciding that 36 children age 7 should be criminally prosecuted.  Can they cause damage?  Of course.  Do they need discipline?  Very likely.  Are their parents doing a fine job of raising these youngsters to grow up to be upstanding members of society?  Doesn’t seem that way. But this is not the answer.  And there’s no “mistake” to be made when a prosecutor makes the decision, an active, affirmative decision, to bring a child into criminal court.  No one is prosecuted by “mistake”.

The rational disconnect can be seen in a comment  to the story by the person whose car the 5-year-old and his brothers damaged.

I am the unfortunate man whose car was destroyed by these “children gone wild”.

Imagine having your vehicles paint job destroyed all the way around, and then having to deal with a parent who refuses to take responsibility for his childs action, and the father even going so far as to him almost get arrested when he wouldn’t calm down when the poice told him to shut up. The father was belligerent and apparently not a good role model. Then you get this horribly flawed system who don’t give a darn. AND THERE WERE EVEN WITNESSES!!!

1. I NEVER received a supeona to appear in court!!! So how can I appear when I’ve heard nothing!!! I intend to fight this till my vehicle is fixed by those childrens father! Anyone who can help me or is interested in this case, please contact me asap… Mr Burke 502-xxx-2080

Hardworking citizens should not have to put up with dealing with these “animals” destroying our property that we work so hard to acquire…Something must be done!!!

The “horribly flawed system” he writes about isn’t the one that would prosecute a 5-year-old, but the one that would let a 5-year-old “animal” go free.  Mr. Burke is certainly entitled to be angry at being the victim of such damage, and no one would fault him for directing his ire at his neighbor, the “belligerent” father.  Nor would anyone begrudge him restitution, although it’s unlikely that the 5-year-old has three grand in his piggy bank.

But his anger is misdirected.  The children who did this are “children gone wild,” and “animals”.  Anarchy has struck Jefferson County as if toddlers are on a rampage to rape and pillage.  All reason and proportion are gone in this flash of property damage angst.

It appears that these prosecutors, when pressed by the media and judges, concede that this is wrong.  And what part of making the decision to prosecute children prevented them from coming to this realization beforehand?  No part.  This is the product of a deliberate policy of dragging children into court

In an interview with The Courier-Journal in 2004, [Jefferson County Attorney’] Richwalsky told a reporter he believed that children accused of crime that took place at school need to come before a judge.

“I don’t see where we’ve got a choice except to bring it to court,” he said. Richwalsky said last week he now believes there is a choice.

Amazing how he suddenly comes to his senses when a little light is shown on his decision.  Of course, it doesn’t do much good for those little boys prosecuted before, or those who will be prosecuted when no one is watching.

H/T Injustice Everywhere

The 4th of July is a great day to re-read, or read if you’re of the sort who can’t otherwise be bothered, the Declaration of Independence.  There are a number of other blawgs that will off the words of anger and inspiration to you.  No need for me pile on.  My past posts on Independance Day have offered something of a running commentary on the state of the nation.  Here’s 2007, 2008 and 2009.  Today, the United States of America enters its 234th year. 

When I was a child, I often thought about my enormous fortune of being born in America.  Though I came from middle class stock, I lived a great life.  I know this because my parents told me regularly.  It’s likely that the constant harping during dinner about eating my vegetables because there were children starving in Africa (later changed to Biafra) also had an influence.

Yesterday, I asked my son whether he ever thought about what his life would be like if he was born in another country.  Neither my wife nor I ever told him to eat his vegetables because there were children starving in Africa (or anywhere else, for that matter).  He said he did, and that he thought was better off for having been born here.  But he also told me he didn’t think about it too much.  He watches Stephen Colbert, Jon Stewart and Tosh.0, and tends to be skeptical about politics.

There are so many things that we could do better here, and so many stumbling blocks that prevent us from accomplishing the goals of the Declaration of Independence.  Yet, Americans live a very good life.  Often misdirected, with far too much emphasis on the material and personal status.  A cynical view is that we’re herded that way so that we don’t spend too much time thinking about the more important things, the things that this nation isn’t as good at providing.  When the economy tanks and we lack the wherewithal to buy shiny things, our minds wander to more existential matters like freedom.  But then the economy improves and we go right back to worrying about the new car we desparately need to show our neighbors that we’re as good as they are.  Maybe better.  This is the good life we lead.

Mark Bennett wrote about a law student who announced her desire to become a prosecutor because she wants to seek justice.  Commenters argued about whether prosecutors seek justice, but it’s beside the point.  There have been a number of instances over the past year where young lawyers talk about justice being their prime motivation.  Bennett notes that prosecutors and criminal defense lawyers are primarily divided by the relative balance between safety and freedom.  Both can couch their positions in terms of justice.  Neither owns the word.

On the one hand, it’s far better that law students and young lawyers concern themselves with justice rather than, say, BMWs.  Of course, I’ve left the denizens of JD Underground out of the mix, and perhaps the calculus would be different if more weight was put on their concerns.  Then again, they may simply be at a lower point on Maslow’s Hierarchy of Needs, skewing their views.

I ought to be thrilled that so many young people are concerned with justice.  While I am to the extent that it matters more than material possessions, there is a dark, troubling aspect to it as well.  They all seem to have a firm, unshakeable belief that they know what justice is, and that they believe their purpose in life is to impose it on others. 

I don’t know what justice is.  I know what justice is to me, but there is no objective measure of justice.  It’s where each of us find the right balance.  Justice to the crime victim isn’t the same as justice to the criminal defendant.  Justice to the employee isn’t justice to the employer.  Justice to the liberal isn’t justice to the conservative.  And so it goes on.  The very first post on Simple Justice was about the meaning of justice.

America has provided me with a wonderful life.  My son has enjoyed a better life than I have, thus far at least.  But as much as I love him, and I adore the kid, I wouldn’t let him define justice for me.  I most assuredly wouldn’t want him to impose his version of justice on me.  Or on you.  Fortunately, he will get his learner’s permit in less than a month, and may have more pressing concerns than justice.

Despite the ongoing economic problems, the still-spewing oil in the Gulf of Mexico, the fighting without end in Afghanistan and Iraq, and a nation perpetually confused by the meaning of the Declaration of Independence, we still live a better life her than many other people do elsewhere.  That’s an accomplishment worth appreciating.

Whether we can overcome those who believe that they know what justice is, and plan to improve our nation by ramming it down our throats, is an open question.  We might be better off in the long run if they just enjoyed life in America and worried about getting a BMW. 

Enjoy the 4th of July. 

The caller was a young woman who, for reasons never quite explained, was tasked with saving the life of a friend who was being prosecuted for a low-level felony.  There didn’t seem to be much question of whether the crime had been committed. He did what we tell everyone never to do; he immediately explained.  It was not an act of malevolence, but ignorance.  He meant well, as if anyone cared.  But that’s not what made it interesting.

The woman had no idea how to perform her task.  She wasn’t friendly with anyone on the street who could give her a name.  She had never been in any trouble herself.  She was trying her best to figure out how to do it properly in the age of the internet, and so that’s where she immediately turned.  She found Avvo, and she got down to work.

She had amassed a list of 100 lawyers.  She culled the list from those lawyers in New York, New York  whose profiles said that they practice at least 50% criminal defense.  She was very methodical.

She then read through the Avvo website and put together a list of questions.  These were the questions she was supposed to ask, according to the website, to assure that she would locate the right lawyer.  She was determined to call each lawyer on the list and ask as many of the questions as needed until she could exclude a lawyer from the running.  At the end of the exercise, she anticipated having a list of lawyers, maybe ten, who would meet her criteria.  She would then meet each of the ten and make a decision.  It was a plan.

When I answered her call, she launched into a breathless explanation of her plan.  She was charming, apologetic for being so official in her approach to hiring a lawyer for her friend, I listened intently, and was fascinated by the amount of effort she put into her task. 

After a few minutes, I interrupted her and, in a few minutes, learned the vital information that I would need to understand why she was calling.  For all her questions, she had neglected to think about how to provide the information about her friend’s case that would enable me to know what we were talking about. 

My initial reaction, when she told me about the charges, was that it wasn’t the sort of case that interested me.  It wasn’t particularly serious, though it was certainly serious to her and her friend.  Her friend had done everything wrong in the process, cutting off avenue after avenue of defense.  They were ordinary folks, working people, for whom a legal fee would be a stretch and a hardship.  Yet she would do whatever they could to try to obtain the right lawyer for her friend.

After I understood the basics about the case, she asked me what I could do for her friend.  I explained what lawyers do; that if she sought a quick guilty plea, I wasn’t the best choice of lawyer.  That I couldn’t tell her anything about the outcome, as I knew nothing about the case as yet.  That what she gets in a lawyer is experience, competency and hard work, not promises of success or parlor tricks.

She asked me how many cases like this had I done before.  I thought for a moment, and told her, “I don’t know.  Hundreds.  Maybe thousands.  I never kept track.”  [Memo to new lawyers: Keep track of the things you do, like trials and appeals.  I never did, but there have been numerous times since when I’ve been asked to list the cases tried and I can’t remember.  I estimate, but fear that my memory may not be terribly accurate. My failure to keep track was a mistake.  Don’t make the same mistake.]

I must have been fairly close to the top of the list, as she told me that while she had spoken to a few lawyers before me, she still had many left to call.  She told me that others she had already spoken to had pitched her on their having been a prosecutor.  She explained that she used to be in sales, and knew a pitch when she heard one.  She didn’t care for it, and was particularly unimpressed with prosecutorial experience as a selling point.  “I need a criminal defense lawyer, not someone who put people in jail.”  If prosecuting people was the best they could say about themselves, they didn’t make the cut.

After hearing her plan, I told her that she was very ambitious, but perhaps too ambitious.  That’s a lot of effort to find a lawyer.  It could take quite a long time to wend through a list of 100 lawyers, with calls back and forth, sale pitches to be heard, and questions to be asked and answered.  And for the most part, she was unlikely to find herself much more knowledgeable than when she started.  Talk is cheap, I reminded her.

I explained that her questions were certainly appropriate in some instances, but not very useful in others.  For a rookie lawyer, or a lawyer who doesn’t really practice criminal defense, her questions made more sense.  For an older lawyer like me, however, they didn’t apply well.  Then came the zinger.  “I’ve told you that I’ve done a lot of these cases in my career.  How do you know if I’m telling you the truth?  Even if I am, it tells you about quantity, not quality.”

She started to laugh.  She was trying so desperately hard to do it right, but realized that what sounded good on a computer screen meant nothing. 

She then said to me, “I want you to be the lawyer.”  She still had a long list of lawyers, and a longer list of questions.  She would have to do her “due diligence” before her friend and his employer and family would be satisfied with her choice of counsel, but she already knew who she wanted.  She wanted me.  She was charming.

It really wasn’t a case that interested me.  Normally, I would refer the case to my protege, my outside associate, who would provide excellent representation.  But something about the telephone call made me willing to take the case, even though it wasn’t a big case or big money or fascinating from a legal perspective.  It was her charm.

I told her that I would be happy to represent her friend.  She told me that I was the lawyer she wanted, but she had to complete her due diligence and run down the list.  She knew it was silly, but felt that it was her duty.  I wished her luck.  An hour later, she called to tell me that she told her friend about me, and he wanted me to be his lawyer too.  The decision was made.  But still, she had her list.

There were two more messages on my voicemail from her when I checked my messages that evening, confirming that the more lawyers she called, the more certain she was that she wanted me to represent her friend.

Under normal circumstances, a client comes because someone has recommended me.  They have no list of names.  They will have a few questions, but not a checklist.  They are there to seek my representation.  I am there to decide whether the case interests me.

This woman was charming, and I didn’t mind the time I spent on the telephone with her, which totalled more than an hour.  Whether I will ultimately represent her friend is unknown.  Though she told me that she wants me to represent him, she still has due diligence to complete.  She could change her mind.  She could change her mind 100 more times.

I thought about all the lawyers she will speak with, some who will want the case and others for whom this low-level felony won’t be of interest.  I thought about all the time spent, both hers and lawyer’s.  As much as it was fascinating to learn about her plan this time, it won’t be nearly as fascinating next time.  And few callers are as charming as she was.  It’s unclear to me that the next  charming woman who calls will seem as captivating.  I can’t imagine giving the next Avvo caller an hour of my time.

If this is what criminal defendants and criminal defense lawyers will go through in the age of the internet, there’s no amount of charm that will make it worthwhile.  And at the end of the plan, no one will be the wiser.

If some rude blawger was to suggest such a thing, he would be ridiculed by the forces of marketing, wrapped up in vague phrases that simultaneously embrace the ignorant while explaining the errant.  But since this comes from no less a marketing guru than Seth Godin, maybe his lessers will hide in their holes.

When you measure an activity, you can improve it. Computers make it easy to optimize just about every portion of your life.

Surely, you can optimize a website or a blog for traffic. You can optimize ads to make them yield more results.

And then, at some point, you realize you’re spending your best energy on optimization, not on creation.

That’s one reason I resist the temptation to optimize this blog for traffic and yield. I’d rather force myself to improve it by having the guts to write better posts instead.

Lawyers entering the blawgosphere want one of two things.  They want a locus to post their thoughts or they want to get on the social media gravy train.  That there is no such train is beside the point.  Too many people are busy telling them that they have to get their sorry butts online or they will shrivel up and die.  Die!  They actually say that.

Creating something worth reading is hard work.  It requires thought.  This makes people’s head hurt.  Nobody likes a hurting head.

Creating something involves risk.  People may read your creation and tell you they hate it.  They may say you’re stupid and ignorant and despicably ugly.  There is no shortage of critics. 

Creating something can be counterproductive.  It usually involves making choices, and once a choice is made, there’s an extremely good chance that it will alienate someone who would make a different choice. 

On the other hand, there are a few enterprising folks out there who will be happy, for a small fee, to provide you with a shortcut to wealth and success.  There is search engine optimization (they even use the “O” word in the title of their services).  They can teach anyone, even you, how to strategically place words and links in posts to trick Google into thinking you’re a major player.  And players drive that gravy train.  Players get to call themselves things like “thought leader” and “social media rock star.”

And SEO is only one of the many tricks in the social media bag.  There are many others, from backlinking to running around the interwebz pretending to care deeply about every insipid poster or twitterer in the neighborhood.  A tried and true method of becoming a player is getting everybody to love you, and all you need to accomplish that is to pretend to love everyone else.  Nowhere else but the blogosphere has rank insecurity and the need for validation been raised to such high art.

Or you can write good posts that other people, for whatever reason, want to read.

But creating something that others might want to read is hard work and risky.  Why chance it?

Via Radley Balko, Carlos Miller from Photography Is Not A Crime, and Stretch Ledford, a veteran photojournalist currently pursuing a Masters degree in Multimedia Journalism at the University of Miami School of Communication, decided to do a test.  After speaking with the head of security of the Miami Metrorail, they planned to take their cameras aboard a train and go three stations to see what would happen.

Ledford had done his homework on this project, having interviewed Miami-Dade Transit head of security Eric J. Muntan who informed him that people had the right to take pictures within the Metrorail station with the exception of commercial photography, which needed prior approval.

Muntan also sent him Miami-Dade County Code 30B-5 (2) which states the following:

Commercial photography or recording. No person, unless authorized in writing by MDTA or the County Manager when appropriate under Section 2-11.14 of this Code, shall take still, motion, or sound motion pictures or sound records or recordings of voices or otherwise for commercial, training or educational purposes, other than news coverage anywhere in the transit system.

There also happens to be an exemption towards students and faculty regarding the “educational purposes” portion of this code, which is outlined in Miami-Dade County Ordinance Sec. 2-11.14 (2) (iii).

“[n]othing in this section shall require any permit from: (i) Individuals filming or video taping only for their own personal or family use; (ii) Employees of print or electronic news media when filming on-going news events. This exception shall not apply to simulations or re-enactments orchestrated by print or electronic news media; or (iii) Students and faculty filming exclusively for educational purposes. “

However, Muntan also told Ledford the contracted security guards at the stations are allowed to harass question photographers.

As we spoke on the telephone and as I informed you, in a proactive effort to maintain the highest vigilance of the MDT system, MDT’s contracted security officers and this office’s security supervisors do reserve the right to question those individuals who may be engaged in any photographic activities in or around MDT property.

And so, Carlos and Stretch took to the rails.  Or tried to take to the rails.  This is what happened:

For obvious reasons, Carlos and Stretch focus on the photography aspect of their encounter, and provide a superb description and discussion of what went horribly wrong here.  No need for me to repeat their commentary, and it’s definitely worth the read.

Instead, my focus is on something a bit more fundamental, and unfortunately more pervasive.  Just as people commonly attribute magical powers to police to know that someone is lying or has committed a crime despite the absence of evidence, people also attribute a certain amount of knowledge of the law to police.  When a cop says you’re breaking the law, we assume he knows.

What this encounter shows is that they just make it up as they go along.  Sure, they find a dead body with a bullet hole through the forehead and they are likely to be correct in calling it a murder, but that’s the rarity.  The basic encounter between police and the citizenry entails far more mundane situations,  Like this.  Like telling someone they can’t stand on a public sidewalk. No horrendous crime.  No act of violence.  Just people doing stuff that cops think, for whatever reason, they shouldn’t do.

Lawyers and judges recreate these scenarios in legal terms, parsing them to an extreme degree to ascertain whether the actions were lawful.  Of course, the police have some huge loopholes to use to their advantage, ranging from disorderly conduct to interference with governmental administration to failure to obey a lawful order.  Ironically, these are laws used to punish people not for the underlying “crime”, the purported wrong that police make up to get people to do as they are told, but for the disobedience of the citizen.   The crime is not obeying the cop, even if the cop is pulling his justification for his command out of thin air.

Courts may offer the consolation that we have the right to be left alone, but that right apparently ends upon a police officer’s decision to not leave us alone.  Don’t try to reconcile the concept.  It only exists on paper, and has no bearing on the real world. 

In this instance, it struck some government security guards as wrong that two guys with cameras were trying to enter the Metrorail.  Why it was wrong was beyond their pay grade, but they knew that the details were irrelevant.  They had the power and they knew that it wasn’t the sort of thing they should allow.  They don’t need to explain themselves or justify their conduct to two camera guys.  They have the power, if not the understanding.  The rest of it is left to lawyers and judges to sort out.

Nothing has changed the legal landscape more than the advent of pervasive citizen videography.  Where before it was a pissing match between the decorated veteran police officer and the lowlife, self-serving criminal, it’s now available for your viewing pleasure in amazing technicolor.  No matter how tightly a judge shuts her eyes and sings “lalalalalalala”, it’s out there.  The reality of street encounters between law enforcement and citizens can no longer be ignored or denied.  We know, judge, that you’re watching.

So far, the system has yet to acknowledge what has become increasingly apparent to the rest of us.  The sanitized versions of these encounters, where police say nothing pathologically stupid, or overbearing, or offensive, are accepted by courts as if they really happened.  We know it didn’t happen quite that way.  You, judge, know it didn’t happen quite that way.  Yet we address the situation as if it did.

The integrity of the legal system depends on people believing that the police are relatively honest and, to at least a reasonable extent, aren’t just making this stuff up.  The integrity of the legal system is at risk, because they are just making this stuff up.  We all know it.  When are we going to acknowledge it?

Contrary to the way lawyers talk about witnesses, we don’t own them.  There aren’t really prosecution or defense witnesses, even though there are witnesses whose testimony would make them more naturally appropriate for one side or the other.  They are just witnesses. 

If a witness whom I wanted to call on behalf of a defendant, and who was cooperative with the defense and sympathetic to the defendant, is willing to talk to me, we talk.  At no time, however, would I tell the witness that he cannot speak with the police, the prosecutor or anyone else. It would be obstructionist, unethical and wrong.  I can, and will, tell a witness that he can choose not to talk to anyone he doesn’t want to talk to.  That’s his right, and the cops, who may well try to strong arm or trick the witness into talking to them by telling them that it’s a crime for them to refuse and they will be arrested and executed if they don’t, are lying.

Then, cops lie, and it’s perfectly lawful and proper for them to do so, making a bit of preparation of a witness not only appropriate but necessary.  What is too often forgotten, however, is that cops too can be witnesses.  And like any other witness, they are free to talk, or not talk, as they wish.  Except in Houston.

Via Murray Newman at Life at the Harris County Criminal Justice Center, a blawg begun when Murray was a prosecutor and, following his unceremonious dumping in a regime change, continued as a criminal defense lawyer. a memo issued by Houston Police Department Chief Charles A. McClelland, Jr. directed officers not to speak with defense lawyers absent express permission.

If the picture is blurry on your computer, the highlighted portion reads:

Effective immediately, officers shall have no discussion with criminal defense attorneys regarding any pending criminal case without first obtaining express permission from the federal prosecutor, assistant district attorney or municipal prosecutor assigned to the case. This circular applies to criminal cases pending in any federal, state, county, or municipal court and shall include the prosecution of traffic citations.

So much for claiming the moral high ground, eh?

It’s not as if there was an epidemic of cops sitting down in the comfy chair in a criminal defense lawyer’s office, being tricked or coerced into admitting that they didn’t see what they claimed they saw, or conceding to fabricating evidence.  It’s more along the lines of the first prong of the Miranda warnings coming back to bite them in the butt.

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.

It doesn’t take much to find a crack in the testimony, description, explanation of what happened to exploit the difference on cross-examination.  The certainty and clarity found in a sworn complaint can give way to some equivocation and confusion when questioned.  It lends itself to the question, “but officer, didn’t you tell me out in the hallway of this very courtroom that you didn’t actually see the drugs in the defendant’s hand?

Well, yeah, I said that.

Were you lying then or now?

No, these chats don’t usually go that way, but this is only a blawg post and I can make up testimony any way I please. 

As Murray points out, as well as Scott at Grits for Breakfast, this memo at minimum will provide great fodder for the cross-examination of Houston police officers as to why they’ve been ordered not speak with defense lawyers.  Fear of the truth?  Got something to conceal?  Can’t be trusted to tell the same story twice?  Hard to remember every detail of a story?  And so on.  It could add an hour or two to any cross-examination. 

But for all those who labor under the misimpression that one side is closer to truth and justice than the other, the memo serves as a testament to the hard reality that the police own no greater truth than anyone else.  If they did, there would be no reason to fear their speaking with anyone, defense counsel included.  This memo is a direct reflection of the fear that cops can’t tell the same story twice.  It’s written evidence of the fear that talking to a criminal defense lawyer will reveal something the prosecutor does not want revealed.  They fear that the truth will come out.

The Houston Chief of Police has the authority over the members of his department to order them to do pretty much anything he wants.  If he wants them to keep their big mouths shut, he need only have someone type the words (assuming he doesn’t do his own typing) on a piece of paper and have it disseminated amongst the force.  He’s already done this.

This gives rise to the next question: Will prosecutors give their “express permission” to police officers to talk to criminal defense lawyers?  If not, how bad must their case, or their witness, be?