They are trained.  They are given a shield.  They get a uniform, belt, flashlight, handcuffs, shoes. Sometimes, they are allowed to use a car with special lights, siren and markings for a governmental entity.  All of this is paid for by the taxpayers of the jurisdiction in order to enjoy their service and protection.  In their off-duty hours, however, they are allowed to offer it to anyone willing to pay.

British Petroleum is an entity willing to pay an off-duty police officer for their services.  From MoJo, via Turley, they hired a sheriff’s deputy from Terrebonne Parish, Lousiana to make it difficult to capture images of things that BP would prefer not be seen.

Drew Wheelan was was filming across the street from the BP building/Deepwater Horizon response command in Houma, Louisiana, when the off-duty sheriff’s deputy came by.

Wheelan is a very calm and compliant fellow.  He answered a lot of questions that the off-duty deputy had no right to ask.  Though he may well be entitled to moonlight for BP, or any other entity that’s willing to pay for his shield, his authority does not travel with him to the new job.  No longer is he acting on behalf of the government, but a private enterprise.

Contrary to popular belief, corporations are not governments.  They do not have the power to dictate to citizens.  They do not, with certain exceptions, have police powers, even though they have the wherewithal to buy them as needed.  Wheelan had no obligation to speak with the deputy, no less answer his questions.  One can only wonder what the deputy would have done if Wheelan told him to go jump in the lake gulf.

But one need not wonder what the deputy’s superiors think about his being a shield for hire.

Shortly thereafter, Wheelan got in his car and drove away but was soon pulled over.

It was the same cop, but this time he had company: Kenneth Thomas, whose badge, Wheelan told me, read “Chief BP Security.” The cop stood by as Thomas interrogated Wheelan for 20 minutes, asking him who he worked with, who he answered to, what he was doing, why he was down here in Louisiana. He phoned Wheelan’s information in to someone. Wheelan says Thomas confiscated his Audubon volunteer badge (he’d recently attended an official Audubon/BP bird-helper volunteer training) and then wouldn’t give it back, which sounds like something only a bully in a bad movie would do. Eventually, Thomas let Wheelan go.

And what did the Sheriff’s office think about this?

The deputy was off official duty at the time, and working in the private employ of BP. Though the deputy failed to include the traffic stop in his incident report, Major Malcolm Wolfe of the sheriff’s office says the deputy’s pulling someone over in his official vehicle while working for a private company is standard and acceptable practice, because Wheelan was acting suspicious and could have been a terrorist.

How long will it be until Ducks Unlimited is added to the terrorist watch list?  In fairness, Wheelan was definitely acting suspicious to anyone on the payroll of BP wearing the shield bought for him by the taxpayers.  Aren’t they fortunate in Terrebonne Parish that the interests of BP and the citizens are exactly the same?

Happysphere Alert: Do not read this post if you only want to read happy things.  It will cause your eyes to burst into flames.  You too, Norm.

A while back, Mirriam Seddiq wondered what happened to all the mentors.  Mirriam had a mentor named Terry Kindlon, a hard-nosed, old school lawyer who told it like it is.  No sugar coating.  No hand-holding.  Hard work. Do the right thing. No whining.

Not everyone will have a Terry Kindlon.   But everyone should.  Young lawyers should not be expected to get out of bed and try a killer case with no idea of the tools they have at their disposal.  I get that.  But most young lawyers have friends.  Maybe even older lawyer friends.  Could not a younger lawyer ask questions of other lawyers? What about a trial advocacy class? What about just using the internet to figure out how to prep a case for trial? 

Times have changed.  Mentors have changed.  So have mentees. 

First, the bad news.  Not every lawyer with some age will necessary make a good mentor.  There’s something that happens to some lawyers between their fifth and tenth year of practice.  The idealistic zeal and certainty of youth begins to fade as they endure the harsh reality that life isn’t fair, bad things happen to good people and there is no such thing as justice.  At the same time, a new phenomenon occurs.  The bills come due for braces, the mortgage, school and the car is on its last legs.  Focus shifts off the things one can’t fix onto the things one must fix.  No longer is their time better spent reading the latest Supreme Court opinion then getting a new paying client to avoid the credit card late fee.

Life changes when you’re no longer on someone else’s payroll and your ability to feed the family depends on the next telephone call being a new (paying) client rather than a pitch to donate to the State Trooper’s Orphan and Weapons Fund.  I don’t blame any lawyer for following this path.  Feeding their family is a primary obligation.  But when their primary focus is on scoring the next client, they are unlikely to serve as the best mentors.

Mentees, however, are not what they used to be either.  I’ve mentored a number of law students and new criminal defense lawyers over the years.  I’ve seen the attitudes and expectations change.  While this is merely my anecdotal experience, it’s all I’ve got to work with, but it comports with what I’ve heard from other lawyers I respect.  Take that for what it’s worth.

My mentees used to be sponge-like; more inclined to listen, keep their eyes peeled, soak up everything that happened, whether in the office or in court.  Questions would be asked, but sparingly.  Never would they interrupt me while I was before a judge, speaking to a prosecutor or with a client.  Afterward, I would ask them what they thought, in a Socratic Method sort of way, so see what they took from the experience.  Then I would tell them my take, and we would talk about where and why we differed.  I never asked a mentee to carry my bag, but they would always grab it from my hand and carry it for me anyway.

Over time, things changed.  Mentees began asking more questions, often questions that would be answered if they simply paid closer attention.  They asked questions at inappropriate times, in front of clients and prosecutors, when I was before the judge in the well.  When told that they would have to wait until a more opportune time to discuss things, they would either persist or sulk.  No one had ever told them that they couldn’t have what they wanted on demand before.

The nature of the questions changed as well.  Rather than asking why I did what I did, they wanted to know if there was an easier way to do it.  Faster, simpler, less effort.  I would explain that there was no shortcut.  At first, they would respond with, “Just asking.”  Later, an argument would ensue.  My mentee would “explain” to me why they thought they had a better idea. Finally, it reached the point where my mentee would inform me that their opinion was at least as meritorious, if not more so, than mine.

When the mentee knows more than the mentor, there’s little point to the relationship.  After a few of these experiences, I demurred.  There was no sound reason to spend my time “mentoring” someone when the upshot was my being informed by my mentee that they knew better than me.  And make no mistake about it, it was a time suck.  Often a huge time suck, as their demands of me increased.  And I carried my own bag.

Jeff Gamso posts about a class action brought by a Toronto lawyer against Lexis/Nexis for taking briefs and motions filed in court and selling them to other lawyers online.  This post initially brought me back to the early days of the criminal defense listserv, where a common request was for a motion on “x”.  “I’ve never done a wiretap case before. Can anyone give me a wiretap motion?”

My initial reaction was that if the poster had never done a wiretap case before and felt less than competent to proceed on his own, then he had no business taking a fee from a client to do it.  My second reaction was that motions are workproduct, the physical product of what a client paid to have a lawyer create.  If the request was for the purpose of seeing the format, getting a leg up on how to approach the papers, I had no problem with it.  The poster obviously had no mentor to ask, so he put it out there for anyone, without particular regard to competency.

But my fear, and belief, was that the real intent of the request was for papers to copy, whether in whole or part, changing the name of the defendant and attorney.  Putting his name on another person’s work.

Give a person a fish and he eats for a day.  Teach a person to fish and he eats for a lifetime.

I was always happy to help another lawyer learn what I knew.  I was not happy to enable a lawyer to freeride.  The lawyer gained a fee off the work of another, while learning nothing in the process.

There are two schools of thought about sharing papers.  One is that it’s better to give the lawyer who lacks the ability to do his own work your papers than have him screw up the case and harm a defendant.  The other is that doing so is enabling bad lawyering.  I subscribe to the latter.  Your mileage may differ.

What Gamso writes about raised this problem to a new level.  Not only does Lexis/Nexis take the work of others, without their knowledge or approval, and make it available to others, thus making the author unwitting enablers should they subscribe to the same school of thought as me.  Lexis/Nexis takes publicly available papers and sells them.  They profit off of other people’s labor and effort.  It’s outrageous.

Whether this constitutes copyright infringement, and whether this is ripe for a class action, I don’t know.  These aren’t my areas of expertise, and I defer to those more knowledgeable about such matters.  But it is nonetheless wrong.

When Mirriam queried whether the internet would be the substitute for mentors going forward, I wondered whether the internet had the capacity to do what mentors do, to challenge and grow inexperienced minds.  Or would it be a place for mentees to shout to the world that they already know it all and have nothing to learn?  Or would it be a place they could just buy their “mentors” papers and never actually learn much of anything? 

From what I see in the blawgosphere, the answer is murky.  There are clearly some who want to learn, but there are also quite a few, ranging from first year law students to lawyers in practice for a few years, who not only know everything there is to know, but feel entitled to tell those of us who used to mentor people like them that we are clueless idiots.  For the sake of criminal defendants, I hope they are right, because the future is in their hands.

But I fear they are wrong.

After the panel shuffled into the courtroom and took their seats, Judge Danny Fitzgerald called us to the bench and asked whether we had any problem with his excusing the potential juror sitting in the front row.  I turned around and saw.  There was Gerry Shargel, giving the “hi” sign from the Little Rascals.

The judge took for granted that there were no possibility that Gerry could serve, even though then-Chief Judge Kaye had eliminated the exemption for attorneys on juries in her effort to make jury service more palatable to the public.  I immediately argued that there was no reason to presume that Gerry wasn’t capable of serving on the jury.  The prosecutor said nothing.  The judge responded, we’re wasting his time since there’s no way that she (the prosecutor) would allow him on the jury.

“So let her eat a peremptory,” I reply.  “Come on,” the judge said. “Granted for cause.”  He called Gerry to the bench, we all chit-chatted for a minute and he was gone.  Poof.

Via Dr. Sunwolf, long-time criminal defense lawyer Tony Tamburello was chosen to sit as a juror in a murder trial.  Via the San Francisco Gate :

Tamburello, despite his history as an advocate, told everyone he could be fair.

“It’s unusual to see in a murder trial,” said deputy public defender Chris Gauger, who handles complex litigation and appeals for the office.

Prosecutor Asit Panwala did not object to Tamburello’s service, nor did defense attorney Kleigh Hathaway or Judge Garrett Wong. District attorney’s spokeswoman Erica Derryck said she would not comment about the decision to leave Tamburello on the panel, other than to note that all the seated jurors had said they could be fair and impartial.

An interesting choice, but probably a good one in many respects.  As noted here before, criminal defense lawyers are not proponents of crime.  We don’t think crime is good, or acceptable, or tolerable.  We defend people accused of crime.  A nuanced distinction, but a very real one. 

Questions that arise from this choice suggest that Tamburello will be inherently biased in favor of the defense.  Nonsense.  What he will be is not inherently biased in favor of the prosecution, not naturally inclined to have blind faith in the police.  If he’s to reach a verdict of guilty, it will be because the defendant has been proven guilty.  And if proven guilty, there’s no reason to believe that he won’t render that verdict.

On the other side, it’s suggested that Tamburello, as a criminal defense lawyer, will be able to “see through the tricks” that defense lawyers play on jurors.  Initially, the word “tricks” is just the pejorative term for challenging the veracity of witnesses, theory of prosecution and weight of the evidence.  There’s little doubt he will see through cheap tricks, but that cuts both ways.  He will not be swayed by appeals to prejudice, by assumptive argument, or by empty rhetoric.  Neither side will gain an advantage.

If there is any legitimate concern with having a criminal defense lawyer on a jury, it’s that he may well be viewed by others on the jury as an “expert”, capable of answering questions of law that would otherwise be put to the judge and whose opinion is given greater weight than that of other jurors.  His speaking skills, couple with his familiarity with the jargon of the law, may enable to him to be a more persuasive juror than others, capable of explaining his opinion better than other jurors who are unable to find the words to express their doubt or belief in the evidence. 

The fear is that a lawyer on a jury may, for no better reason than deference by other jurors, be given control of the verdict.  That means that it’s a jury of one with eleven helpers.  It could inure to the benefit of the prosecution or defense, since it can’t be assumed that he will necessarily side with the defense. 

Then again, it’s been my experience that most jurors take their service very seriously, and once in deliberations, are unwilling to give up their vote easily.  They believe that they have a personal duty and the execute that duty with sincerity, if not always intelligence. 

Would I leave a criminal defense lawyer on my jury.  Without hesitation.  My personal preference is to have a jury consisting of smart, thoughtful, questioning jurors.  I believe they understand what happens during the course of the trial better, they are better capable of processing the information that comes to them unexpectedly and without sufficient context, and they can understand arguments of a more complex, and less concrete, nature. 

I fear stupid people.  I never know what they’re thinking, how they’ve processed the information that appears meaningless at the time it’s shoved in their face, It’s impossible to know whether they comprehend an argument or are just bobbing their heads to keep them from falling against the rail.  Some criminal defense lawyers find it easy to communicate their points to stupid people.  I’ve never been comfortable with it.

So, Tony Tamburello is on my jury?  The panel is acceptable to the defense as well, your Honor.

I’m just shamelessly stealing this outright from Radley Balko . I can’t help myself.

The majority decision in Richards v. Florida would have passed unnoticed, despite its being a flagrant example of an outcome-oriented ruling that flies in the face of reason, standard practice and that annoying detail of evidentiary gatekeeping.  So what?  It’s not like it doesn’t happen all the time, right?

The facts are simple.  Richards was caught with a change purse containing 7 packages.  One package was tested and found to contain 3 grams of coke.  The other six packages, which look like the first, weren’t tested.  Richards was convicted of possession with intent to sell because only dealers have seven packages of cocaine.  After the guilty verdict, Richards moved for acquittal arguing that it was legally insufficient to assume that the contents of the other six packages were coke. 

The majority gave Richards a new title: Loser.  It was close enough, they said, that a “seasoned” copper said they looked the same, and that’s how dealers hold their coke, in change purses.  Why they didn’t just reverse and remand, with an aside that the chemist merely test the other six bags, is beyond me.  Easy enough to do.  What should have been done in the first place.  No brainer.

Nope.  Horseshoes played out in court.  Close enough for the win.

But dissenting Judge Farmer obviously studied logic, and wasn’t having any of it.

The State’s “expert opinion” may seem enticing to those energized by the ethos, empathies and emanations of the War on Drugs. But even based on long experience in arresting drug offenders, it is really a superficial ipse dixit glibly but speciously offered as a mythical expertise in distinguishing the interior chemistry of one powdery substance from another by plain surface sight.

No conceivable police experience supports an ability to infer that, because one container looks like another, the substance within each must be the same identical chemical compound. This fancied skill is really a universally recognized logical fallacy all dressed up for trial in a charade of specialized knowledge.[6] As opinion testimony, it is a conjured science straining to salvage a failed logic.

[6] Calling it “junk science” seriously debases the value of good junk.

Logical.  Funny.  Dare I assume also good looking?  Definitely in my eyes.

Judge Farmer goes on to present the equation:

Universally accepted principles of standard Logic hold it possible to validly infer that an attribute of a collective will be found within one of its particulars; thus:

All S is C.
X is S.
Therefore X is C.

But one cannot validly infer that — as the State would have us do here — because an attribute is found in a particular it is necessarily also contained within a collective; thus:

Some S is C.
X is S.
Therefore X is C.

The evidence of sale is 7 different, separately packaged, collectives — not one. The State’s attempt to extrapolate the test result for a single bag to all bags falls apart because it is rooted in this long accepted fallacy of composition symbolically illustrated above. See, e.g., Irving M. Copi, INTRODUCTION TO LOGIC (3rd ed.) 80-83 (1968). The inference is not rationally possible.

Don’t you just love it when logic is applied to law?  And isn’t it a shame that all judges aren’t required to take logic before taking the bench?  Just imagine the gymnastics judges would have to go through to affirm convictions if they were constrained to render decisions that were consistent with logic?

H/T Tannebaum

Quinnipiac University has managed to embroil itself in a bizarrely twisted lawsuit that’s likely to make feminists run in circles.  QU decided to get rid of its women’s volleyball team, arguing that cheerleading is a competitive sport for purposes of Title IX.  The plaintiff volleyballers rested their case yesterday, arguing that cheerleading is as much a sport as chess.

Chess players are pissed.  Winks players are also pissed, realizing that they’re next on the hit list.

Whether cheerleading is a sport is really not the point.  Having watched competitive cheerleading on television and in the movies, it seems to me that they do some extraordinarily athletic moves and, when competing, fight for the win as much as any other team.  It’s not just the sideline “U-G-L-Y” cheer.  But the denigration of cheerleading in the suit is required, since it would allow QU to sideline what is unquestionably a sport, women’s volleyball, and still make their Title IX numbers.  I’m putting aside, for the purpose of this post, collateral issues about whether QU otherwise fudged the stats.

Title IX, now 38 years old, compels colleges receiving federal funds to provide equivalent athletic opportunity for women as it does for men.  On its face, it’s both fair and right.  As if plays out, it’s a problem.

As with Title VII, prohibiting certain employment discrimination, Title IX has been tested via disparate treatment and impact analysis, the numbers game.  The way to avoid scrutiny is to keep the number of women involved in sports the same as the number of men.  As a result, colleges have eliminated many sports for men while offering them for women.  The law of unintended consequences cannot be denied.  Avoiding disparate impact begets disparate impact.

The reasons for this problem are fairly simple and straightforward.  First, teams cost money.  They don’t give those uniforms, cleats and pompoms away for free, you know.  Schools, therefore, maintain the sports that bring in money, like football and basketball, both via ticket sales and alumni support.  Not exactly in the spirit of amateur athletics, but abundantly practical.

These big money teams, however, have a lot of guys on the roster.  For the school to maintain them, they need to have the same number of women (nobody calls them coeds anymore, do they?) playing sports.  Not necessarily the same sport, but any sport.  The numbers are all in the aggregate. 

It’s not always that easy, however, to keep an equal number of women on teams.  Inexplicably, there aren’t always as many women as men who choose to play college sports.  Some are very zealous in their interest and desire, not to mention skill.  Others, not so much.  It’s more of a guy thing.

This is a recipe for Title IX disaster.  Colleges actively recruit women for sports, even the sports that don’t generate big bucks, while turning the boys away.  In a sport of particular interest to me, fencing, there are a wealth of women’s NCAA fencing teams, but only a handful of men’s.  There’s plenty of scholarship money for women fencers.  A grand total of three male fencers per year get free dinner coupons at the Olive Garden to fence.  Hence, “will fence for food.” Title IX equivalency is a one way street.

The combination of these two factors, cost and availability of sufficient female athletes, has produced some problematic results.  Men’s sports that don’t generate money are tossed, no matter whether there’s a great deal of interest or little, no matter that they are traditional amateur sports (as would typically be the case for non-money sports) that one would expect to see colleges fostering.

It’s not like anyone can force women to play if they don’t want to.  And they shouldn’t have to.  But then, nobody gets to play, even if there is money.

QU is trying to circumvent the system, by eliminating a low numbers, non-money women’s sport and replacing it with cheerleading, where there is greater interest and a better fit with the big money male sports.  It’s a nasty game to trade off women’s volleyball for cheerleading,   It puts the volleyball plaintiffs in the awkward position of having to denigrate competitive cheerleading to save their own sport.  It’s unfortunate that they are in this position, and no doubt there will be many other women who will decry their argument that cheerleading is not a sport.

Don’t blame the volleyballers.  Don’t blame the cheerleaders.  Blame Title IX, a nice idea that goes too far and defies reality.  As this case shows, it hasn’t served well for anyone, male or female.

The original story of Eric Wright, a hospital medic trying to get his stroking wife to the hospital quickly enough to save her life, was a nightmare.  Aline Wright, a cancer survivor and amputee, was stroking and her husband knew that survival depended on medical treatment as quickly as possible.  He did what he had to do to get her there, including running red lights.

Chattanooga cop James Daves saw this and did what he had to do.  And more.  From ABC News :

According to Daves’ written affidavit obtained by ABC News : The “defendant stopped [his car] in the ER entrance and jumped out and ran. Police made contact with Defendant at the passenger side of his vehicle and I grabbed the Defendant’s arm and he pushed me away scraping my arm with his fingernail. Defendant yelled and said it was an emergency…”

“Defendant pushed through the crowd and carried a female back into the emergency room and place[d] her in a room with no permission of the hospital staff,” the officer wrote.

Eric Wright has denied Daves’ statements.

“I never had any [physical] contact with the officer at all,” he said. And Wright said he did not enter a hospital room without permission. “In fact, I called the emergency room to alert them and let them know we would be arriving,” he said.

Ah, the old fingernail scrape.  Not quite a paper cut, but maybe it hurt like a machete?

The story takes some additional nightmarish twists and turns, from Wright trying to turn himself in as demanded by Daves and refused, only to have the cops arrest him at home the next day.  Then there was the $7,500 bond, since he was such an obvious flight risk.  He naturally was suspended from his job at the very same hospital because of his felony arrest.  All as his wife remained in her hospital bed, the two having been married only four days earlier.

Some asked whatever happened to the days when police cared more about someone’s wife and less about asserting their petty authority?  It’s not common sense, but priorities.  Saving a life trumps the fragile ego of a cop.  Then there was the question about the cop’s lying in his report to exaggerate the facts and manufacture a crime.  The fingernail machete.  Why did the judge buy into it?  Not merely buy into it, but enough so to impose bail?

But Turley followed up with this bit of news, that Police Officer Daves has been suspended with pay for an internal affairs investigation. 

“At this time Officer Daves has been put on paid administrative leave. He has been rellieved of all of his police duties until the completion of the internal affairs investigation,” Chattanooga Police spokeswoman Lt. Kim Noorbergen told ABC News.

Suspended with pay is a soothing way of saying on vacation.  It calms the public outrage by suggesting that the police aren’t totally insane.  The charges against Eric Wright have now been dropped, and spokesmodel Noorbergen feels just awful about the whole thing.

“We deeply regret this incident has occurred and hope to meet with Mr. and Mrs. Wright at their earliest convenience to discuss the events of June 16,” Noorbergen said, adding that an internal affairs investigation would continue and that the police department would also review policy and procedures to determine whether any changes should be made.

Need a new policy?  How about saving a life comes first?  How about not lying in charging documents?  How about fingernails aren’t machetes? 

But what, pray tell, are they investigating?  The Chattanooga police know what happened, as does anyone interested enough to follow the story. 

Every time an incident such as this occurs, the official position is to call a press conference and announce that they are investigating.  Its purpose as a crisis management tool is obvious, it delays interest until the rest of us have moved on to the next instance of outrageous police misconduct.  If they’re lucky, someone will die at the hands of a cop in another jurisdiction and this whole sorry affair will be forgotten.  Thank the Lord for short attention spans.  Thank the Lord that there’s always another cop doing something horrible somewhere else to suck the attention away.

And then everything returns to normal.  Daves goes back to his desk with a stern talk from his commander not to make them look bad again.  That’s the gist of the problem, drawing negative public attention.  Don’t make us look bad, you dope.  The only time the public is supposed to know we exist is when we’re heroes. 

The sad reality is that this crisis management technique works exceptionally well.  Aside from David Packman at Injustice Everywhere, the guy who actually does the boring heavy lifting of chronicling police abuse and misconduct, the rest of us (me included) move on quickly to the next nightmare.  The last one becomes merely an old post, as attention shifts to the newest, shiniest incident of police induced horror.

And we wonder why nothing seems to change?  Maybe it’s because they’re still investigating while Police Officer James Daves enjoys his vacation.  He might as well, as it won’t be too long before he’s back to the daily grind.

And we don’t even look similar.  From Davit Lat at Above the Law, reporting from the American Constitution Society, comes the revelation that Judge Richard Posner, noted intellectual and judge on the 7th Circuit Court of Appeals, doesn’t read boilerplate contracts.

Judge Richard Posner made one remark that stole the show at a panel about regulation at the recent American Constitution Society conference. We summarized his quip on Twitter :

Judge Posner at ACS panel: For my home equity loan, I got 100s of pages of documentation; I didn’t read, I just signed. #ACS10 #Posner #LOL

I bet he doesn’t use #LOL much either.  Neither do I!  Another similarity.  Coincidence?  I don’t think so.

A long time ago, I read through the contract for the alarm service for my home.  Every word of it.  It was painful, but inexplicably, I did it.  It was just a nightmare.  I started crossing off, marking up, changing and correcting it, line by line, to reflect the representations that were made to me by the alarm guy.  A couple of weeks after I sent it back to him, I received a certified letter informing me that they were terminating my alarm services.

I called up the alarm guy and asked why.  He told me it was because I had changed the contract.  But I didn’t change the deal, I explained.  The contract he sent me wasn’t the deal he sold me.  I just modified the boilerplate to reflect what he promised.  This is one of the reasons people hate lawyers.

The alarm guy calmly explained to me that he would do everything that he promised.  His word was his bond.  But I could either execute the contract as written or find another alarm company.  I decided to sign on the undotted line, and he’s kept his word for more than a decade since. 

Contracts are for lawsuit.  Contracts are what you refer to when arguing a cause to a judge or jury.  Handshakes and a look in the eye are all that honest people need to do business.  Contracts are prepared by lawyers.  Most are contracts of adhesion, where your choice is to sign or walk.  Walking isn’t always a real option.

We are besieged with boilerplate.  Buy a spatula and read the warning and warranty.  You would think it’s the space shuttle.  Who can be bothered with such nonsense?  We’re fully capable of picking out the handful of critical things contained in the contract, price, quantity, delivery, whatever, and the rest of it just falls to the wayside.  Life is too short to spend it on boilerplate.

Does this expose us to the castigation of judges and 3Ls?  Unfortunately, it does.  It never ceases to amaze me when a judge reams someone out for having failed to read the mandatory arbitration clause in his spatula purchase agreement.  You know, the clause that requires that Indonesian rules of procedure apply?  Heck, how many judges haven’t figured out that when the boilerplate is inside the shrinkwrap, you can’t read it until after the purchase is complete, and it thus can’t bind anyone to anything.  Of course, these aren’t circuit judges like brother Posner, so maybe they just aren’t that savvy with contracts.

Chances are pretty good that my failure (and Judge Posner’s) will some day come back to bite me in the butt.  I’ll take issue with something that was promised me, like the good I purchased will actually work for its intended use, and the judge will graciously inquire whether I bothered to read the clause that its intended use was to sell to some moron and make money for its manufacturer, as opposed to flipping my eggs over easy.  I’ll stand there, red-faced, and admit that I didn’t bother to read it.

The judge, now knowing that I have no clue what I bought into, will raise the Immortal Soul Clause.  Then it will be my turn to laugh.  Hah!  I don’t have one, so there!

Some criminal defense blawgers have been disturbed about what’s been happening in our little niche of the practical blawgosphere.  Mark Bennett gives it a name, the Happysphere.

If you are a blogging lawyer, and you want to be read by other bloggers, know that being read by other bloggers includes being taken to task publicly when you write something dumb or silly or ill-considered or even just vapid.

If you don’t want to be read by other bloggers, if you are blogging for profit or to build up your practice, please let me know now.

Simply put, but clear.  For a while now, new bloggers cry for the attention of those already here.  They want attention and recognition, but they only want it when it’s flattering and wonderful.  Sometimes it isn’t.  Then they cry, or worse.  Write something that’s anything short of adoration and they go bonkers.

You’ve come to the wrong place.  I’m not your Daddy.  I’m not here to support your marketing effort or overlook some insipid position, offered for self-aggrandizement at the expense of accuracy.  There’s some truly awful stuff written.  There’s some stuff that’s just wrong.  You come begging for attention, and then explode when it doesn’t coordinate with your self-promotional efforts?  Who the hell promised you that the blawgosphere was here to help you get business?

Here’s the bad news.  Not every post is a work of genius.  Not mine.  Not yours.  The blawgosphere, that place that you so desperately want to be a part of, was here before you came along, and it’s a challenging place.  You want the respect of your peers?  Earn it, just like everyone else.  You’re not entitled to a free ride just because you’re a criminal defense lawyer. 

There have been some rumblings by the disaffected that I’m the neighborhood bully because I think I’m so very important in the blawgosphere.  What a load of crap.  I’m a blawger, just like any other. I possess no magic powers to make anyone, anyone, read my posts.  I possess no magic powers to stop anyone from reading yours.  I make no claim to being any more important than anyone else, and indeed, I’m not.  Don’t project your insecurity, your obsession, onto me. 

I’m not responsible for your lack of readers or credibility.  You want more readers?  So write stuff that people want to read.  I’m no more a bully toward you than you are toward me.  If you think I’m wrong, then say so.  I won’t stop you, even if I could.  And if you do and I don’t make your post the center of my world, don’t whine that I’m ignoring you.  Sorry if I just don’t care, or want to spend my time sparring with every nutjob in the blawgosphere who decides to come after me with a 5000 word diatribe.  No one can diminish you except you. Don’t blame me for your insecurities.

You want only respect, appreciation and support?  Then go to the Happysphere.  You will be allowed to say mean things to the typical suspects, the police, prosecutors and Supreme Court justices, as they are the politically correct targets of criminal defense wrath.  But no one will tell you that you’re ugly, dress funny or (dare I say it?) wrong.  In the Happysphere, there is only the warm embrace of others who, like you, want to be loved. 

Simple Justice is not part of the Happysphere.  If you aren’t interested in being part of the blawgsphere, the one that Bennett describes, the one that was here before you showed up demanding attention and recognition, then let me know too so I don’t waste my time with you.  And then stay away, as I can’t promise you that what I write will fill that huge need you have for self-esteem.  I’ve already removed some who I’ve come to realize are not legitimate bloggers, but self-promoting shills.  You want off my blogroll?  I’m happy to oblige.  Just leave me a comment and consider it done.

If this makes you hate me, think I’m a monster, so what?  I am not your Daddy.  You don’t need my approval.  I am not here to coddle anyone.  And I’ve got no greater claim on prominence in the blawgosphere than you do. 

Just over a week ago, the Supreme Court’s decision in Holland v. Florida eked out a stingy ruling to allow equitable tolling to apply when a defendant, not due to any fault of his own, failed to meet the time limitations that Congress superimposed on the Great Writ of Habeas Corpus when the rest of us weren’t looking, our eyes preoccupied with the sight of the ruins of the Alfred P. Murrah Federal Courthouse.

In contrast, the 11th Circuit decision in Gilbert v. U.S. shows what a court can do if it respects the robust constitutionally protected right of habeas corpus.  The procedural background is quite extraordinary.  Ezell Gilbert was sentenced as a career criminal, despite his arguing that a prior weapons conviction wasn’t a “crime of violence.”  He appealed and lost.  He moved for rehearing and was denied. He petitioned for cert and was denied.  He brought a pro se 2255 (the federal habeas statute) and was denied, with both district and circuit courts refusing a certificate of appealability.  This is as end-of-the-road as it gets.

Then, the Supremes decide Begay v. United States, 128 S. Ct. 1581 (2008), holding that violent felony means actually violent, and not just theoretically violent, for career criminal status.  The 11th Circuit then rules that weapons possession doesn’t make for a career criminal, and in its decision actually reverses the holding in the decision on Gilbert’s appeal.  Everybody’s happy, except Gilbert, who is still imprisoned even though he would have completed his sentence but for the career criminal enhancement.  Talk about a set-up. 

From the new decision, via Doug Berman : 

The government’s position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government’s statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law.  The common law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is “in custody in violation of the Constitution or laws or treaties of the United States.”  See 28 U.S. C. § 2241. Fiat Justitia, Ruat Coelum.[FN7]

[FN7] “Let right be done, though the heavens should fall.” Branch. Princ. 161.

The court just did the right thing despite the fact that the machinations that Congress imposed on the Great Writ make it wrong.  This is an activist court.  This is a court that just told the “rules committee” to go screw itself.  The bean counters and hand-wringers were given the kiss off.

The 11th Circuit decided that this was just too unjust for it to stomach, and it didn’t.  God bless America.  At least this time.