Houston criminal defense lawyer Mark Bennett posts about the University of Texas Medical Branch’s engagement in the use of mentally ill prisoners as guinea pigs.  The benign explanation for their involvement:

“UTMB’s Correctional Managed Care program has an agreement with Lone Star College involving its Law Enforcement Phlebotomy Program. The participating Houston police officers at the units were there as part of the Lone Star College course they were taking. Having blood drawn is part of the standard intake process at TDCJ and mentally ill offenders were given the option of having a police officer or a staff phlebotomist perform the procedure. All of the mentally ill offenders involved chose to allow the police officers to do the procedure.”

While short of the experimentation on prisoners that marks one of the most depraved medical experiences in history, it comes way too close to the line to fall within even debatable parameters.

Now we don’t expect police officers necessarily to have a functioning ethical compass—the Supreme Court has endorsed police lies, and where the truth is optional there’s no ground on which ethics can stand.

But we expect doctors (presumably there are doctors involved with making policy at UTMB ) to behave ethically. I’m no medical ethicist, but this one doesn’t pass even the general-ethics smell test.

It seems unimaginable that anyone would elect to have a needle jabbed into them by a police officer training to draw blood.  Why, but why, would a person prefer a novice, not to mention a person whose dedication is to collecting evidence rather than caring for the sick, to put a needle into their veins rather than a trained phlebotomist? 

But this goes even further.  A mentally ill prisoner, which as well-noted by Bennett, is a very high bar given that mental illness is a pervasive problem with the prisons of Texas (and pretty much everywhere else).  To be denominated a mentally ill prisoner, someone has to be really, really mentally ill.  These are not people who have a strong grasp on reality.

Consent has three components, intentional, voluntary and knowing.  Typical of legal criteria, they all overlap to an extent, and are otherwise relatively amorphous.  But one thing is clear: They are, by definition, incompetent.  Incompetent people cannot consent.  Using incompetent people, whether with purported consent or not, for phlebotomy training is wrong and sick. 

No press release, explanation, rationalization from UTMB can make right what is patently wrong. Although it doesn’t compare with the conduct of experiments on prisoners before, it is certainly a step onto the slippery slope that could lead to the ethical and moral breakdown that gives rise to such conduct. 

No step, not even a single baby step, onto that slippery slope is tolerable.  Mentally ill prisoners cannot be used for practice by cops learning to stick a needle into a vein.  This cannot be rationalized.

In one of the more bizarre clashes of competing government interests, all naturally to the end of protecting our nation from the threat of terrorism something, comes the case of Lorraine Henderson, convicted after trial of employing an illegal immigrant, her cleaning lady.  Henderson, you see, works for the Department of Homeland Security, charged with keeping New England’s ports secure from terrorists cleaning ladies illegal immigrants.

From the Boston Globe :

Standing before him in a hearing that lasted two hours, prosecutors told [US District Court Judge Douglas P.] Woodlock that they had charged Henderson because of the unusual circumstances of the case. She had worked as the Boston area port director for Customs and Border Protection, knew about an internal warning for employees not to hire illegal immigrants, and had been told by a coworker that her cleaning woman was in the country illegally.

Nonetheless, prosecutors said, Henderson continued to employ the woman, Fabiana Bitencourt, 31, of Peabody, to clean her four-level townhouse in Salem every couple of weeks from 2004 to 2008. The cleaning woman testified at trial that she charged $75 each time.

In a sting operation worthy of our government, they wired up the cleaning lady and nailed the perp, who was taken to trial and convicted.  Nobody gets away with their house being cleaned by an illegal in this country, you can bet on that.  We are safe.

Judge Woodlock, however, had misgivings at the time of sentence:

A federal judge rebuked the government today for prosecuting a Department of Homeland Security official who employed an illegal immigrant as her housekeeper, saying prosecutors had been “overreaching” and “crushed” the defendant for what he characterized as a minor offense.

“This is a cleaning lady,” he told prosecutors, a remark he made several times. “There must be some sense of proportion.”

Woodlock conceded that it was no surprise that Henderson ended up “in your crosshairs,” given her job. He said the case represented “hapless hypocrisy on the part of Ms. Henderson” colliding with a “stern and solemn sanctimony” by prosecutors.

It’s almost impossible to avoid the overwhelming sense of schadenfreude that permeates this case.  Hapless hypocrisy (I’m a sucker for alliteration) collides with solemn sanctimony.  It doesn’t get a whole lot better than this.

Considering that no one other than Henderson has ever been charged with hiring an illegal cleaning lady, according to Judge Woodlock, and that DHS has internal procedures and sanctions for consorting with the enemy illegal cleaning ladies, the government’s “need” to make an example of Henderson emits an unpleasant odor.  There were ways of dealing with her hapless hypocrisy that didn’t involve her arrest, incarceration, prosecution and trial.  Even at sentence, the government’s position is that while Henderson doesn’t need imprisonment, 4 months in a halfway house, followed by 4 months of home detention, will do the trick.

Yet, there remains a dodgy issue that isn’t easily shaken.  While the Judge was angered with the United States Attorney’s waste of time and resources in pursuing this case, the matter went to trial before Judge Woodlock and proceeded through to verdict.  One would assume the judge was there the whole time. 

So what was the judge thinking as such titillating covert tape recordings were admitted into evidence with Henderson telling Bitencourt, “No, Fabiana, the bubbles don’t actually scrub by themselves.” 

There are numerous junctures where a judge can toss a trial.  There are even more ways for a judge to scuttle a prosecution before it reaches trial.  Was Judge Woodlock taken by surprise when the government rested, unaware up to that point that the case before him involved the dreaded crime of aiding terrorists using an illegal cleaning lady?

If nothing else, the prosecution of Lorraine Henderson should conclusively prove one thing. Our government, in all its manifestations, is no less absurd when it comes to dealing with its own than when it comes to dealing with the rest of us.  Small comfort, but it’s all we’ve got.

H/T Reader John “Rumpole” O’Connor

Only a few days ago, the news was of the arrest of Ryan Snodgrass for saving the life of a young girl lost in the rapids when the police wanted to save the girl themselves, as soon as they could get around to it. We now learn that 14 year old Edwin’s attempt to help a 3 year old girl in a Burlington Coat Factory find her mother has bought him a felony charge for false imprisonment.

Edwin was shopping with his own mother when he spotted a little girl who had gotten separated from her mom. Believing that the mother might be part of a group of women walking out of the store, Edwin headed for the exit with the 3-year-old following. When he got outside, he took her hand. He says he realized the girl’s mom wasn’t outside and was about to turn around when her understandably alarmed mother rushed out of the store.

The girl rejoined her mother, and everyone went back inside, where Edwin continued shopping—and the girl’s mother asked someone to call 911. The dispatcher asked where the alleged kidnapper was; the caller said, “He’s over in shoes.” The police came, cuffed him, and took him to jail.

There is a message here.  The message is becoming increasingly clear. Don’t help unless you are prepared to enter a world of insanity and stupidity.  Don’t help unless you want to be the blamed. Don’t help unless you  want to accused.  Don’t help.

For most of us, with at least the tiniest bit of heart and brain, the idea of walking away from a child in extremis, in need, is inconceivable.  Heck, just a person in need.  There are some horrible instances of people walking away from, or merely around, a person in need.  I refuse to believe that most of us would do that.  I reject the idea that we care nothing for others. 

For people who I would call “normal”, there is a bone in our heads that makes us want to help those in need.  Whether because we would want someone else to help us should we need it, or just a recognition of basic humanity, we would act.  We could do no less. 

But does this bone exist in the heads of those wearing the hat of law enforcement?  Has paranoia become so institutionally imbedded that the idea of a 14 year old, shopping with his mother, helping a 3 year old to find her mother, fallen too easily into the “zero tolerance” hole? 

No doubt the mother of the three year old girl loved her daughter, though there is a lingering doubt about what she was doing, shopping, that her child escaped her notice and wandered off.  It can happen.  It can also happen that parents watch their children closely enough that it doesn’t.

And no doubt the mother of the 14 year old loves her son, who clearly has the bone in his head that refused to allow him to ignore a lost 3 year old girl.  Edwin’s mother did something right with her son. 

In this particular case, a critical factor, it would seem, was Edwin’s taking the little girl beyond the magic wall, the store doors, under the mistaken belief that his mother was part of a group of women standing outside.  He held the little girl’s hand.  This could have been significant.  This also could have been a heartfelt effort to calm the fears of a little girl and reunite her with her mother.  It was certainly a demonstration that Edwin had yet to feel the taint of a paranoid society’s scrutiny of anything that remotely appears to involve the possible harm to a child.

There was nothing wrong with the mother of the lost girl calling 911 before her little girl was returned to her.  It’s hardly clear from the 911 call whether the mother, when responding to the operator’s question of where the “alleged kidnapper” could be found, meant to confirm the knee-jerk assumption that it was a kidnapping. 

What is clear is that the most modest inquiry into what happened should have left little question that Edwin was trying to help the little girl.  The police, the little girl’s mother, the store, the media, could have told a story later that day of an act of kindness, a good samaritan, who had a bone in his head that wouldn’t allow him to stand idly by while a lost 3 year old girl wandered through Burlington Coat Factory in search of her mother.

Now what do we  teach our children?  Now what do we do when we someone needs help?  The bone in my head says we take the chance of being arrested for our effort, just because the bone won’t allow us to do anything else.

H/T Peter Black via Ed at Blawg Review

As a punk lawyer, I was fortunate to be in a suite of well known, experienced lawyers.  Like all punk lawyers, I wanted to be accepted.  And so I tried to tell my war stories like the big boys.  It was a learning experience.

In the blogosphere, many young lawyers make the same mistake that I did, but there’s no one there to pull them aside and tell them that their stories aren’t yet sufficiently interesting or unusual to make their telling worthwhile.  Constraints that had helped young lawyers to smooth their entry into the profession, to save them from their exuberance and desire to be accepted, have changed. 

Now that anyone can create a platform from which to speak, and often a megaphone from which to speak loudly, and since it’s very difficult to tell whether the speaker is someone who has attained credibility over time or manufactured his own through the adept use of social media, things are often said that would be best left unsaid.  Except, people no longer want to hear that they might be best to spend more time listening than talking.

There have been a few instances of criminal defense lawyers deciding that they delight in their ability to play raconteur of late that give rise to this post.  I offer it as a Dutch uncle might offer a few words of advice.  I can’t stop others from doing as they please, and wouldn’t.  I can, however, offer some suggestions, and I will.

Jamison Koehler pulled a quote from a post of mine and used it in one of his.

I don’t own my cases, and they aren’t mine to write about.  They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet.  I respect that, so I don’t kiss and tell.

This referred to writing about my own cases.  I don’t do it.  There’s no need for it, aside from self-aggrandizement (even if that takes the form of self-deprecation).  Those who tout a win suggest to me that they must lose an awful lot, making that win such an unusual event that it’s newsworthy.  Those who take success in stride do so because they expect to succeed.  That’s why clients retain us, because we accomplish their goals more often than not.

While the quote that Jamison seizes upon is a good explanation of my reasoning, it only addresses one facet of the problem.

Confidences can be revealed directly, as when we write about a particular case or client.  Yet, we reveal something with everything we write.  We reveal something about ourselves, whether it’s our analytical ability, our emotional state, our sense of humor or our humanity (or lack thereof).  We reveal things we don’t intend to reveal.  It’s difficult, sometimes impossible, to realize how our thoughts appear through our words.  We reveal our impressions, biases, strategies, frustrations. 

Blawgers sometimes believe that they are adept at making their point while disclosing nothing.  Sometimes it’s true. Sometimes it’s not. The problem, unfortunately, is that our self-assessment of what we disclose through our writing isn’t necessarily accurate.  I speak only for myself here, but I do not trust my ability to know that I’ve given nothing away.  And I think I’m fairly good at it, as these things go.

To that end, we need to consider why we need to take the risk.  If we write for fun, then there is no comparison between our desire to enjoy blawging and a client’s dependence on our confidentiality and discretion.  Our fun is never worth the chance of doing harm to our client.  Even inadvertent harm.

For those who blawg for profit, the rationale is even less availing.  To use writing for mercenary purposes, running the risk that something we might write will inure to the detriment of our client, is inexcusable.  We can’t take comfort in accidental error, or even benign neglect.  The self-promoter is selling his confidences for the next fee.  There is no excuse for this.

An area of some concern to me relates to a group of social media users who defy the marketers’ spin, public defenders.  Clearly, they neither seek nor desire more “clients”, and hence neither blawg, nor twit, nor facebook, nor otherwise indulge in the permutations of social media for their own aggrandizement. Proof positive that no everyone online is there solely to make a buck.

Yet I often see PDs write about their cases, their experiences, with reckless abandon.  The other day, I came across a twit from someone who purports to be a PD who publicly twitted, “My evening project: formulating a plan to explain away 551kg of cocaine & 2700# of marijuana.”  Assuming, for the sake of argument, that it’s reasonably accurate, this twit leaves nothing to the imagination.  It’s tantamount to a confession.  While it may well be what all of us do regularly, trying to formulate a viable to defense to a charge, we do not state this publicly.  We do not inform the world that there is no legitimate, truthful, defense, for if there was, we would not be constrained to “formulate a plan to explain [it] away.” 

It may be that PDs, by the nature of their work or assignment process, lack the direct connection to the client that a retained lawyer has.  Diffusion of responsibility can alter one’s perspective about confidences.  On a PD blawg recently, there was a story about a trial of a sex offender that could have gone very wrong, but fortuitously ended up going right.  Did the PD consider that to those in the know, they would be able to identify the defendant, who was outed as guilty and acquitted only by dint of good fortune? 

And then there are the readers who complain, but I want to read your stories.  I want to be titillated.  I want to share the experience.  I want to live vicariously through them. Sorry, but your desire to play voyeur is no reason for my overstepping my ethical boundary.  Criminal defense lawyers often have sensational stories that will blow your socks off.  We sometimes know where the bodies are buried. Literally.  And we cannot tell you, no matter how cool and exciting that would be for you.  Your titillation plays no role in our disclosure.  So don’t ask.

My views on the subject of confidentiality are likely more harsh than those of your grievance committee or bar association.  But then, their concern is limited to whether you’ve gone over the line and committed a sanctionable violation of a disciplinary rule.  My point is that we, whether playing pundits on social media or just using social media to compensate for our lack of dear friends in the real world, have no excuse for going anywhere near that line. 

Neither our pleasure nor profit is a good reason to risk harm to our clients.  Not cause harm, but merely take the chance.  There are so many other things to write about, so very many interesting and fascinating things to engage our minds and words.  There is no reason why we do anything that might present a risk to a client.

Whether the self-assessment of your typical 3L as to the scope of his skills and quality of his work can be trusted is one thing.  That he believes himself to have so much to offer that, standing in a puddle of unemployment at a time when the potential of finding of work in a law office is slightly less likely than discovery cold fusion, he can make demands is quite another. 

Via Kash Hill at ATL, a law student from Astoria, Queens has issued the terms of his employment on Craigslist.

In order to be considered for this opening as my new boss, in addition to being willing to pay for my services, you must also meet all of the following criteria:

1. You must not be a lunatic.
2. You must not be a complete jerk.
3. You must not be a senile person who should have retired years ago.
4. You must not be disastrously disorganized.
5. You must actually show up to your legal practice on a regular basis.
6. You must not use screaming or condescension as your preferred method of communication.
7. You must actually know what is going on in your own cases.
8. You must actually be a boss, which means correcting me if I make a reasonable mistake and explaining how to do a new task.
9. You must be able to meet basic deadlines in your own case, which also entails knowing what these deadlines are.
10. You must not be a major alcoholic or drug addict.
11. You must not ask me to do unreasonable, personal tasks. I am a legal employee, not your babysitter.
12. You must not have unreasonable religious preferences, such as expecting me to wear your preferred religious garb while at work and proselytizing on the job.
13. You must not require me to lie to clients on a regular basis, or forge your signature, or do any other activities which could jeopardize me obtaining a legal license in the future.
14. You must not continually screw up your own cases, and then expect me to magically fix the problems or blame me when things go wrong as a result of your errors.
15. You must be financially stable in such a way that I am not continually worried about getting paid at the end of each pay period.
16. You must have basic, functioning office equipment, including an internet connection.
17. You must be capable of legal and logical reasoning skills that are more sophisticated than knee jerk reactions such as “that’s bullshit!” Sometimes something more complex is going on.
18. You must possess basic social skills.
19. You must be willing to pay me on a regular basis for my services (just a reminder). I do not accept food, liquor or drugs as payment. Payment must be made in valid, U.S. currency and must be a reasonable wage for a person of my skill set.
20. You must not be a crazy, obsessive-compulsive control freak.
21. You must not get off on degrading your employees.

And the advertisement offers a great deal on his side of the bargain as well, at least according to him:

I have a lot of experience drafting contracts, including very complex and lengthy contracts. I have substantial experience preparing various tax returns and forms. I am great with dealing with clients, even particularly difficult clients. I am talented at interviewing and screening potential clients. I have worked in outstanding, industry-leading law firms, where I worked on high impact cases and aided in representing major corporations, and these firms loved my work. I have a high work ethic, and I pride myself in doing outstanding work for both my employers and the clients they represent. I work well under pressure. I have good social skills, and I am a friendly person. I am the kind of employee who would hit the ground running at your firm, and do great work with minimal supervision and instruction.

I can do pretty much any work that an attorney would normally do.

Plus, he has access to Lexis and Westlaw via his educational password, which he will happily use provided nobody mention this to Lexis or Westlaw so he doesn’t get in trouble.

As one might expect, this third year law student has already been widely denigrated as King of the Slackoisie, from his [I’m assuming he’s male from the whiff of testosterone in the ad] over-estimate of his worth to his extreme sense of entitlement.  Being slightly contrarian, I’m going to take the point of view that we, lawyers of a certain age, can learn from this young man’s hubris.

This Astorian has provided a laundry list of how lawyers are perceived by the ruling class of 2035.  We are an ugly, nasty, lazy, stupid, crazy bunch, we are.  They may tolerate us to the extent we engage them on their terms, such as twitter or facebook, and even in blogs provided we don’t call them Slackoisie or any other name that makes them feel badly about themselves, but they will flip on us in the blink of an eye, the moment they see our true nature appear.

There is nothing to learn from us.  Our Astoria can “do pretty much any work that an attorney would normally do,” which may come as a surprise to some lawyers.  Lawyers in the first five years of practice may be more likely to believe this assertion, since they too tend to believe they have every skill, every competency, to do “any work that an attorney would normally do.”  From what I hear, the only thing experience does is make us increasingly lazy, greedy and senile. 

What makes little sense to me is why, given how awful the job is and we are, how it interferes with the preferred lifestyle which demands that work cease the minute they have something better, more fun, to do, and how terrible we are to work for, this Astorian wants to be a lawyer.  And that doesn’t just go for this 3L, but for all those paying huge sums of loaned money to learn worthless crap, knowing that they will either remain unemployed or be forced to work for psychotic, incompetent ogres. 

We are ogres, you know.  If we weren’t, we would see no issue with accommodating the very reasonable requests and expectations of law students like our Astorian.  Our inability to let go of the archaic notion that as experienced lawyers, not to mention the folks signing the paychecks, confers some amorphous right to expect to have a say over the terms of employment proves it. 

This Astorian isn’t going to take it. Frankly, he’s got plenty of company on that ground.  While others may not be as bold or forthright in nailing his 21 Theses to our virtual door, they agree wholeheartedly with him.  Like him, they see us as the festering remains of a legal profession gone wrong.  They can’t wait to put us on the sled, pull us out to the middle of the forest in winter and walk away.

This is the future of the legal profession, and it’s right there in black and white on Craigslist.

Bryce Bates was riding his bike to get the mail, just as his mother had asked, when he saw a police car coming toward him.  It must have been scary to see the speeding car, and in an exercise of a child’s sound judgment, the 10 year old 5th grader jumped off his bicycle and ran back toward his home.  That’s when the officer released the dog on him.  From the Gainesville Sun :

The 10-year-old, who is 5 feet tall and weighs 85 pounds, said he became scared, jumped off his bike and began running for home.

“I saw the police car, and he was speeding real fast. I thought he was going to hit me, so I jumped off my bike and ran,” Bryce said. “I heard the dog barking and looked behind and saw it running after me.”

The dog caught Bryce just as he reached his front door, biting the back of his left thigh. Bryce had one puncture wound that tore the flesh and several smaller bite wounds and scratches.

The officer was responding to a call about a burglary in progress.

Cpl. Tim Durst, with his dog Grady, responded and saw a youth on a bicycle in the area.

Police say Durst yelled for the boy to stop. The officer then released Grady, which bit the boy on the leg and caused minor injuries, Book said.

When an officer yells halt from a distance, is he talking to you?  Is he commanding a 10 year old boy to stop?   Since Bryce knew that he had done nothing more than follow his mother’s instructions to get the mail, and certainly that wasn’t a reason for the police to care much about him, the officer’s command couldn’t possibly be intended for him.  He was just a kid.  He was just going to get the mail,  He was getting out of the middle of something that had nothing to do with him.  Clearly, the officer must have been yelling stop at someone else, for it surely couldn’t have been Bryce.

As it turns out, the woman who called in the burglary in progress has “a mental health condition that causes her to see things or imagine things,” though that merely reduces what transpired to a deeper depth of futility.  It does not, however, alter the question of whether Durst had any reason to believe that 10 year old Bryce was a burglar.  Did he match the appearance of the alleged perpetrator?  Was he carrying a color TV under his 10 year old arm?  Apparently not, as there is no suggestion to the contrary.

Or could this have been a 10 year old boy, a child, who found himself in a scary situation having nothing to do with him, who ran to the comfort of his mother and his home?

It’s inadequate to chalk this up to an instance of bad judgment, or lack of the dreaded “common sense.”  Releasing the dog to hunt down a human being, about whom the officer knows absolutely nothing to suggest that he’s engaged in any criminal conduct, no less conduct that sufficiently threatens harm to another to mandate that he be mauled, viciously bitten by a dog trained to take down a human being with his teeth.

Bear in mind, when a police officer releases his dog, the intended outcome is not that the dog approach its target and bark commands to halt.  The dog is trained to attack, bite and subdue the person through violent means.  The dog cannot distinguish between a child and an adult, a criminal and an innocent.  He’s just a dog.  He will attack as commanded.

That Bryce Bates is a 10 year old boy only makes this attack more grievous, but this wouldn’t have been inconsequential had he been a 24 year old.  No one, child or adult, should be subject to an attack by a dog, bitten and subdued, in the absence of awfully good cause. 

The only arguable cause here is failure to heed a command, for there was nothing to suggest that Bryce was the putative burglar (albeit the non-existent burglary). or that Bryce had any idea that the command was meant for him.  

“It attacked him right in the doorway. I saw the dog just bear down on him and moving and tugging and constantly biting and biting,” [Bryce’s mother] Hampton-Bates said. “(Bryce) didn’t know the officer was telling him to stop. He was screaming my name the whole way here.”

An officer will describe Bryce’s running toward his mother as “flight”.  But an innocent person has the right to run to his mother’s arms, to take such action as a reasonable person would under the circumstances to protect himself from a threatening situation about which he knows nothing. 

Had this been an adult, flight alone would not have provided probable cause to believe that he was engaged in criminal conduct.  Human beings have a protective impulse, called fight or flight, that has served us well throughout our history.  It’s allowed our species to survive.  It’s in our nature.  It is not an excuse for the cops to release their attack dog.

That Bryce Bates was only 10 years old, however, is what changes this from just another case of police excess, of incredibly bad judgment, to one that makes a point about police perspective,  Cpl. Durst was too ready to capture his perp, too ready to have a person attacked by a dog, despite the absence of any reason to believe that the target of his dog was a criminal.  He was just too ready to do harm in the name of order.

Bryce Bates was ten years old and a 5th grader.  He was also black.  And he did nothing wrong.

H/T Turley

Too many worthwhile things around to write about.  Too little time.  So in the spirit of mashability, here’s the dump.

From the inimitable Frank Pasquale, Seton Hall law’s finest, over at Concurring Opinions, comes that shocking detail that, for all the raping and pillaging that banks have accomplished over the past two years, the top executives have somehow managed to survive.

For a bit of perspective on the resultant inequalities, check out the Institute for Policy Studies’ findings on bank employment and compensation since 2008:

Since the beginning of 2008 . . . the 20 U.S. banks that have received the most bailout dollars have laid off 160,000 workers. The 100 top executives at these 20 banks, in 2008 alone, collected a combined $791.5 million in personal compensation.

2009 was not a bad year for top bankers, either.

This is exceptionally good news for the caviar market.  It’s not so good for the sturgeon.

Mike at Crime & Federalism  notes that BP is still in charge of stopping the gush of oil into the Gulf, based upon the “you made the mess, you clean it up” theory of paternalism.  As the oil continues to spew, our hopes for the survival of our planet are based on the chances of BP hitting a spot the size of a dinner plate from two miles away.  But then, that assumes it will even work.

Independent experts warn that relief wells, like any well, are not without risk.“More oil could leak than before, because the field is being drilled into again,” says Fred Aminzadeh, a geophysicist at the University of Southern California. Ira Leifer, a geochemist at the University of California in Santa Barbara, voices similar concerns: “In the worst case, we would suddenly be dealing with two spills, and we’d have twice the problem.”

Of course, other experts feel confident that the relief well, after a few attempts (since everyone agrees that nailing it the first time would be like winning the lottery),  None, to my knowledge, has chosen to back up their confidence with a little wager.  It’s not like anyone voice this concern when top hat and top kill and top chef were going to save the day, but who could have possibly anticipated that there wouldn’t be another magic bullet solution to save America, yet again, from itself?

Addendum: Let’s assume, just for giggles, that they somehow plug the gusher before destroying life on this planet as we know it. Imagine how the bureaucracy of BP deals with the “legitimate” claims of fishing guys, when they demand “proof” of loss for this year’s (not to mention the next 10) catch.  I remember only too well law firms trying to get compensation for losses due to our offices being shut down after 9/11.  “So sir, you are required to prove by two independent sources how many criminal defendants would have retained your services during this period of time, in triplicate?”  Yup. Nothing to it.

Back at Concurring Opinions, Brandon Bartels brings us an interview of two academics, neither of whom is a lawyer, who explain why their “empirical study” of judicial elections leads them to conclude that their detractors, like that evil Sandra Day O’Connor, are poopyheads.

My favorite part of the Q&A is this:

2.  Your research is empirical—you analyze data from state supreme court elections to test claims put forth by judicial reform advocates (i.e., opponents to judicial elections). Judicial reform advocates have typically relied on normative arguments related to judicial independence and the need for judicial impartiality. Are these (and other) arguments grounded in reality?

BONNEAU: Based on all the evidence to date, the answer is no.  It is not only our work that highlights this, but also that of people like Jim Gibson and Eric Posner and his colleagues.  So, for example, one of the claims made by reformers is that voters don’t know what they are doing.  We find that, other thing being equal, voters are able to distinguish between challengers with prior judicial experience (“quality” challengers) and those who have no such experience.  That is, challengers to incumbents who have prior experience perform better, on average, than those that do not.  Another example:  reformers argue that nobody participates in these elections.  We find that voter participation is quite high, given a competitive election.  When voters are given a meaningful choice, they participate.  One final example:  reformers argue that these elections are exacting a toll on the legitimacy of the court system.  In a series of studies, Jim Gibson has shown that is just not true.

HALL:  This is an excellent question that goes directly to the disjuncture between political scientists and other scholars and practitioners concerned with judicial reform. The reform community, based almost entirely in the legal community, readily accepts normative accounts of judging as entirely apolitical and also assumes that any lifting of the purple curtain will attenuate judicial legitimacy. Similarly, the reform community casts the selection process simply as choosing competent technicians and has the tendency to rely on a normative ideal when evaluating the success or failure of judicial elections.

These normative assumptions are contradicted by modern social science. In fact, judges often have significant discretion and rely on their own political preferences to make decisions. Also, voters have participated in partisan judicial elections for decades without any observable adverse consequences and consistently have shown an unwillingness to relinquish their power over the selection process to political elites. Finally, an apolitical selection process is fiction, just as judges are not mere technocrats. In fact, regardless of who chooses judges, these actors seek to forward their own agendas by placing like-minded people on the bench. The federal judicial appointment process illustrates this point well. Finally, when compared to a normative ideal, all American elections fail. State supreme court elections perform as well or better than elections to other major offices in the United States.

Voters are able to distinguish between candidates with prior judicial experience and those without, dispelling once and forever the myth that voters are wholly incapable of making simplistic yet critical decisions based upon wholly irrelevant yet discrete factors.  This bodes well for Judge Gregory Galler, who need not concern himself with that day in judge school he inadvertently slept through. since he is, without question, an experienced jurist.

While the entire post is worth a read, provided words like “normative” don’t make your head explode, but the best comes at page 18 of Melinda Gann Hall’s curriculum vitae, under the heading, OTHER EVIDENCE OF PROFESSIONAL IMPACT.  Hey, it’s better than the pages where she lists herself as “discussant” (as opposed, no doubt, to “conversant”, which carries all the obvious negative connotations).

And finally, I was informed that I was  because another blogger decided to use a post of mine to launch a post of his.  Now hear this: The plane is departing Fantasy Island.  It’s a big internet out there, and I can’t stop anyone from writing about me any more than the really important and smart blawgers can stop me from writing about them.  But one side does not a duel make. 

The worst part about this slide into lunacy is that the blogger, after manufacturing the duel, whines, “I’m inclined to call it tiresome and repetitive.”  Anti-hallucinogens will make you feel that way, you know.  You’re welcome to any delusions you like, but keep me out of it.  I’ve got my own.

Awards make us feel appreciated and loved, as opposed to the slightly geeky bathrobed image that’s suggested by the unduly defensive media.  There are the Weblog Awards, which died an untimely death due to the morning coffee being spilled on the results.  There are the ABA Blawg 100 Awards, given out on behalf of Starbucks.  And then there are the Webbys.

The who? Ah, you’re obviously not keeping up with the underbelly of cult blogging.  The Webby Awards.

“An online institution for more than a decade.”

                                                                                               – CNN

“The Internet’s highest honor”

                                                                                               -The New York Times

“It’s a night designed to be as dynamic as the Internet itself.”

                                                                                               – Fox News

No, I’ve never heard of them either, but then, I’m usually the last to know about such things.  It came to my attention via twit yesterday by Kevin O’Keefe, who is invariably on the cutting edge of awards he doesn’t win, If it’s worth Kevin’s time, it’s worth mine, so I checked it out.

Much to my shock and amazement, there was a category for Law.  Given that this is the 14th Annual Webby Awards, and that it’s as dynamic as the internet itself (per Fox News, so it has to be true), which I suppose means that they keep moving it around like a floating craps game, it’s hard to imagine that I’ve never heard about this before.  I mean, how cool must it be to walk down a virtual red carpet being asked who designed your bathrobe?

So without further ado, here are the cream of the blawgosphereic crop in Law:

LAW

Webby Award Winner	Agency/Credited Organization
BITTER LAWYER http://www.bitterlawyer.com	PUSH Offices
People’s Voice Winner
Institute for Justice http://www.ij.org	Institute for Justice
Nominees
ABANow http://www.ABANow.org	Manning Productions
BITTER LAWYER http://www.bitterlawyer.com	PUSH Offices
Hartsoe & Associates, P.C. http://www.hartsoelaw.com/	FindLaw
Immigration Advocates Network http://www.immigrationadvocates.org	Pro Bono Net
Institute for Justice http://www.ij.org	Institute for Justice

Yes, like you, I was disappointed to not find The Volokh Conspiracy in the mix, but hey, this is the Webbys.  Only the really, really big guys that impact your daily existence are worthy.  Just thought you ought to know. 

Years ago, when I was a puppy lawyer hoping to achieve some middling acknowledgement that I possessed the slightest degree of competency at my chosen profession, I hoped to somehow make it onto Martindale-Hubbell’s radar so that I could be rated.  There was no guarantee that a lawyer was even worthy of consideration, no less a rating.  But M-H was like the Oracle, looking down on mere mortal lawyers to decide whether they were worthy.

That was then.  Now, M-H has not only fallen from its perch on high, but is so low down that it needs to buy a few minutes of attention.  This is the email received yesterday:

Dear Scott,

As an AV® rated attorney, I know you value your credential and want to share the distinction with as many potential new clients and peers as possible. That’s why I’m pleased to offer you a complimentary Martindale-Hubbell® AV Rated Attorney lapel pin for simply agreeing to a
5-minute phone conversation about our new Lawyers.comSM Enhanced Profiles.

Lawyers.com is the most visited site for consumers seeking an attorney, with more than 20 million visitors a year.* While you’re listed in Lawyers.com, your current profile has limited information and could be working much harder for you: Click to view your profile

Act now to take advantage of Lawyers.com Enhanced Profiles, a new inexpensive listing option available only to select attorneys. For a minimal investment, you can enhance your profile by adding:

• Your phone number and e-mail
• Your AV® Preeminent™ rating
• A direct link to your website and law firm video
• Biographic information, including professional accomplishments and Areas of Practice
• Direct links to your Facebook®, LinkedIn® and Twitter® pages
• Plus we will promote your Lawyers.com profile in Google™ Web searches

Please let me know when you would have five minutes to talk, so I can validate your credentials and mailing address to send your lapel pin, while supplies last.

While supplies last?  Do they anticipate a mad rush to get those “AV” lapel pins? I mean, hot dang, strutting my stuff through the courthouse, an “AV” on my lapel, fighting off all those Big Money clients clawing at my preeminent heels. And all this for only giving the M-H salesperson five minutes of my life, which I will never, ever, get back.

As much as I, like any other red-blooded American lawyer, crave an “AV” lapel pin, the notion of spending five minutes of what’s left of my life with a M-H salesman falls slightly below sticking a needle in my eye.  I wonder if the back of the lapel pin would serve that purpose?

But then, Martindale-Hubbell is offering to “validate my credentials.”  Are my credentials currently unvalidated?  Isn’t validation what we all seek.  Especially from Martindale-Hubbell?  I was nothing until M-H sent me a lapel pin.  Now I’m a preeminent lawyer.  Something tells me, however, that there will be an additional cash payment on my part before I’m as “validated” as I could be.

It’s just pathetic that M-H has been reduced to sending out solicitations like this.  Gone are the days when M-H was best known for its very large, very heavy, very brown books, and looked awfully darn good behind your head when the ambush interview aired.  Gone are the days when a young lawyer prayed that some old guy in a pinstripe suit and white shirt from M-H would peer over his spectacles and whisper, you’re worthy.  I can still remember the crashing anguish of a lawyer down the hall who received a BV rating, sending him into a tailspin that didn’t stop until he was found in the gutter on skid row.

Was it a joke then, but we didn’t know any better?  It’s not clear, but its certainly a joke now.  An AV rating and a metrocard gets you a ride on the subway.  What it won’t get you is a client.  What it won’t get you is the respect of your fellow lawyers or judges.  Not even if you show up for your next court appearance sporting a shiny new “AV” lapel pin.

One question, however, continues to pound at my brain.  If you were one of the lucky few to get an “AV” lapel pin, while supplies last, would you actually wear it?

In the category of people who slept through judge school, and consequently confuse the best practice in placing their head in a warm, moist, dark location, comes this story from the Minneapolis-St. Paul Star Tribune  about Washington County District Judge Gregory Galler.

But in Washington County earlier this month, District Judge Gregory Galler decided that defense attorney David McCormick went too far when his questions suggested an officer was being less than truthful.

Galler ordered McCormick to write an apology to the officer for “impugning the officer’s integrity,” according to court documents.

Judge Galler was outraged, apparently, by McCormick’s “suggestion” that the officer was being less than truthful. I, on the other hand, am outraged that McCormick didn’t make the officer cry on the stand, admitting wholesale fabrication and complicity in the kidnapping of the Lindbergh baby.  It’s a perspective thing.

One might suspect that Galler, whether in his experience as a lawyer before being measured for the robe, or perhaps during luncheon discussions with other jurists over the virtue of sobriety, was made aware of both the purpose of cross-examination, as well as the duty of a defense lawyer.  Both would suggest that challenging the credibility of a police officer is, well, kinda what we do.

Was the officer lying?  Who knows.  It’s certainly not beyond the pale for McCormick, who for some odd reason may be more inclined to believe his client’s view of events rather than the officer’s, to question the officer’s veracity.  Even if he didn’t believe in the innocence of his client, McCormick’s job requires (yes, requires) him to seek to undermine the officer’s credibility if possible.  That’s what we do.  We test the veracity of the police under withering cross-examination, should that be strategically advisable.

Galler ordered McCormick to write an apology with a deadline of last Tuesday, upon pain of contempt.

McCormick refused, missing Galler’s original deadline, which passed Tuesday. On Wednesday, Galler indefinitely extended the deadline and notified McCormick through his lawyer, John Brink, whom McCormick hired in case the judge held him in contempt of court.

There’s nothing like an indefinite extension to put some teeth in an inane order. Hah!  You write that apology, and it better be done before hell freezes over or else.  That will show him, right, Judge?

When asked about his adverse reaction to McCormick’s impugning the integrity of the officer, Judge Galler showed his shy, reticent side.

Reached in his Stillwater chambers, Galler confirmed that he “might have” ordered the apology and asked, “How has that become a story?” When told the demand seemed unusual, Galler said, “Not really.” He declined to comment further.

They say Stillwater runs deep.  Or not.  After all, don’t judges issue lots of threats to hold lawyers in contempt for questioning the honesty of a cop on cross?  Wouldn’t it be hard to remember all of them?  Not so, according to other local lawyers.

Other judges, defense lawyers and prosecutors say the demand was highly unusual.

Joe Friedberg, a criminal defense lawyer for 45 years, said, “If a judge ordered me to do that, I would tell him to go have intercourse with himself.”

It’s suggestions like Friedberg’s that make me wonder what’s become of the criminal defense bar.  It would likely be the most fun Judge Galler’s had in a very long time.

H/T Injustice Everywhere