After the presentation yesterday, both Bennett and I realized that we had barely scratched the surface of what we wanted to day.  There was so much, so many variations, such a big learning curve with people all along it.  And going out on three dimensional paths we had never thought about.

Afterward, guys came up and asked questions.  A lot of questions.  Some were interested in getting started.  Some had, and listened to the salesman from one company or another.  It wasn’t working, and they were trying to decide whether the excuses were true and they should keep sending the checks.  Some checks were huge.  Others less so.  The lawyers sending huge checks felt particularly bad.  They just found out who the fool in the room was.

It became difficult to watch other speakers, like Ben Kuehne  talk about what it’s like to be the object of the government’s affection, as lawyers kept asking questions.  Was she on the right track or getting burned. Was Justia as bad as Findlaw (“Nobody is as bad as Findlaw, but Justia is still bad,” Bennett responded.)  How does he stop the shameless skeezeball across town from claiming he won that big capital case that he won. (“Call him out,” I said. “But I don’t want to make enemies,” he responded.  “Bummer”, I said.)

There was a bottom line here, and one that disturbed me.  If there was one question that permeated all others, it was clear and simple:  How do I make this work to get business now?

There was a voice in their head that told them that the whole point of the internet was to make money.   It was the voice of the marketers, whispering that the internet would fill the voids in the day with new clients, flush with enough cash to pay both fees and costs. 

The marketers have done their job well.  It’s not just that they believe, but that they can barely imagine any other purpose, any other benefit to be had.  A conversation?  What a waste of time.  All that effort to write a blog post just to have a conversation when you can chat with the guys at the bar, or the lawyer in the office next door if you feel the need.  Oh no, this is about ROI.  Put in the time to write, and there’s got to be a fee at the end of the rainbow.

The problem was that many were trying, and paying some silly numbers to marketers who swore they would make them rich, and it wasn’t happening.  The lawyers quietly licked their wounds, assuming it was their fault.  They must be doing something wrong.  If everybody else was online, making oodles of money, why were they the only one sucking wind?

What eventually came out was the they were all sucking wind, but feigning success before their peers because that’s what lawyers do.  They never want to show weakness, and believe in the benefits of projecting a strong image of success.  Success breeds success.  No one wants to be the failure.

But they weren’t failures, even though they thought they were.  They were lied to and, like most victims of scams, didn’t want to admit they were foolish enough to be taken.  And taken, they were.

It’s going to take more than a one hour presentation to straighten out this mess.  It’s already unbelievably deep and pervasive, and there’s an awful lot to clear up.  But these are our friends and brethren who have been taken for a ride by marketers, and helping them is the least we can do.  Just as we would hope they would help us if we were the victims.

Jeff Gamso tells us: 6.17 quadrillion to 1. He also tells us why they don’t mean what they say.  Despite the numbers crunching, the certainty of experts and the desire for judges and juries to have the hard decisions lifted off their shoulders by the experts who assure them that there is no way, none, that the defendant isn’t the bad guy, Jeff also explains why criminal defense lawyers need to go old school and listen to our clients.

What got me started on this, though, wasn’t Balko’s piece at Slate.  It was Walter Reaves of Texas and his discussion of what happened in Ohio last week.

It’s about Stephen Myers.  That’s the factually innocent Stephen Myers.

In Myers’ case, prosecutors decided to retest the DNA, even though it had already proven conclusively that Myers was the guy in tests 10 years earlier.  The retest turned out differently.  Myers suddenly wasn’t the guy who committed the home invasion.  Up to then, there were only two people who were sure about the outcome, Myers and the guilty person.

It’s a fluke, an oddity, that the prosecutors decided to retest.  Reaves sees in this story not just a prosecutor who did the right thing, but a lesson for defense lawyers.  When your client insists on his innocence, and after you’ve had a heart-to-heart about what testing might prove still wants it done, you should have it done.

Don’t trust the prosecutor to do your homework for you – or, sadly, to give you the good news if she does.  Maybe.  But maybe not.  Regardless, defense counsel have a duty to investigate, not merely to trust that the prosecutor got it right.

After a while, we begin to feel that we’re just a cog in the wheel of justice, part of the system that populates courthouses on a daily basis.  We feel more aligned with the system than our clients.  We see the trends, the norms, the way things usually go, and it can save us a lot of time and effort to just go with it.  After all, what are the chances that anything could go wrong?

Whether the chances of a DNA mismatch are 6.17 quadrillion to 1 or less, the protestations of our clients count.  Sure, there’s a good chance that their demands will sink them, although it’s never clear that they can be sunk more than they already are.  It’s just that we’re never an arm of the prosecutor or the court, even if that means we have to turn down the opportunity to be one of the gang at court.

Sure, the odds are against us.  Very much so.  Chances are that the retest will be a waste of money and just more evidence to nail the lid even tighter on our client.  But when the client insists he’s not the guy.  When the client squeezes your arm and says, “please, you gotta do this,” there’s no choice in the matter.  In all likelihood, the test will reaffirm the defendant’s guilt.  But what if your client is Stephen Myers?  You can’t take that chance, no matter how easy it is to do nothing.

A post at Mashable by a non-lawyer, Matt Silverman, told how real lawyers were getting “real results” by blogging.  It hit the right notes, naming names and explaining how those bold enough to make use of the vast resources now available online were paying off for those lawyers savvy enougn, gutsy enough, to get into the game. 

I was ready to jump on the bandwagon, but for the fact that I’m already here.  And that I know the people referred to in the post, the ones telling lawyers about “real results.”  Silverman never actually tells what these real results are, but hints that they are great, fabulous, wonderful.  It made Connecticut employment lawyer Dan Schwartz the “go to” guy by “expanding his reputation nationally.”  It “reignited” Niki Black’s legal career.  They must be raking in the dough, with clients banging down their doors, right?  Adrian Dayton says so:

Just look at attorney Roy Ginsburg and his blog Quirky Employment Questions. After three years of blogging weekly, last month his blog hit over 10,000 unique visitors. Thanks to his blog he has landed a six-figure client, and has won the Author of the Year award from Lexology. His blog is working for him, and the firm is benefiting. It may not be the firm’s message, but it is a message that is resonating.”

Now it’s not my purpose to say whether this is great news, bad news or no news.  If Roy Ginsburg is happy, then I’m happy for him.  But if we parse this into hard terms, landing one “6-figure client” isn’t going to make a law practice, and 10,000 visitors over three years isn’t exactly what most bloggers have in mind.  In a month, or a day, sure, that would be a fine number fo reach.  After all, there are millions upon millions of people online, and they’re all supposed to find your blog, settle in, be dazzled by your billiance and send in a check. 

Today, I will be honored to sit next to Houston criminal defense lawyer Mark Bennett on a dais in Orlando to speak to social media, blogging, twitting and such.  Yesterday, Mark Britton, CEO of Avvo, gave his presentation.  He gives a great talk about social media, and it’s a very soft sell about Avvo mixed in. He knows that you have to get lawyers online before you can sell them anything.  Make it warm, fuzzy and transparent.  Mark’s talk is very informative and, for the most part, accurate.  Only when he referred to the two bloggers in the audience who were getting clients online did Mark, Brian and I wince.

But there’s another side to this game, and it’s important that people understand what they’re getting into.  There are good reasons to be online, to blog, twit, whatever. There are also things that can destroy a reputation in minutes, suck up time and money that a lawyer may not have to waste, and produce negligible, if any, results.  There aren’t too many folks interested in tempering the euphoria of the great, wild internet. 

We’re not killjoys.  We’re not antagonists to Mark Britton’s (or Matt Silverman’s) happy face.  They’ve got lawyers feeding along the bottom of the Avvo ocean, answering questions in unfamiliar practices in the hope of getting any case from any one, anywhere.  They aren’t too picky about stuff like competence or reputation, unless it impairs their ability to score the next client.  Yet there are a bunch of lawyers out there who do care about such things, and care deeply. 

Bennett and I would like to be happy and smiling as we talk fo the lawyers of the Florida Association of Criminal Defense Lawyers.  We certainly plan to.  But our message won’t be all sunshine and rainbows.  It’s a warning, because people can and will be hurt, maybe even devastated, in the rush to blog.  We don’t want to see that happen.  We’re going to try to let them know that it can happen and how to avoid it. It’s a lot to do in a short presentation, as it’s taken us years to learn about the many pitfalls.

Maybe we can help a couple of lawyers from making the mistakes we’ve made, we’ve seen others make.  Neither Mark Bennett nor I have anything to sell anyone in Orlando.  We’re just trying to help.  Whether anyone wants help, wants to hear the hidden problems with Mark Britton’s and Matt Silverman’s transparency has yet to be known.  We can only let them know.  What happens after that is up to them.

The sun is rising over Orlando, and the natives are waking.   There’s a huge crowd of Florida criminal defense lawyers here, and it’s because of one thing.  The installation of the new president of the Florida Association of Criminal Defense Lawyers.   It’s not easy becoming the president.  You need to work your way up the ladder.  You need to have the support of your peers, as well as those you looked up to while climbing that ladder.  You need to be a person in whom others repose trust.

These “others” are lawyers.  Criminal defense lawyers, many of whom have practiced long and hard, and risen to the top of their profession.  They are the cream of the crop, the best around.  Without the belief of these “mandarins” of the criminal defense bar, you don’t get to be president.

Around here, everybody seems to think of themselves as a mandarin.  They don’t exactly say that, but they have opinions and aren’t afraid to voice them.  In fact, they aren’t afraid to tell others that they are wrong.  Clueless even.  Like peacocks, they strut the blawgs announcing their thoughts and giving others, particularly the blawgers, the benefit of their wisdom.  Wise they must be, for they assert themselves with absolute certainty.

It doesn’t seem to matter that they have only been a lawyer for five years.  Or three.  Or maybe only 8 months.  Or maybe they aren’t yet lawyers at all.  They still know what they’re talking about, and experience doesn’t matter.  Plenty of old lawyers are lazy and incompetent.

But what of these very same lawyers in ten years.  Will they know nothing more than they do today?  Will the new lawyers then tell today’s heroes that they are lazy and incompetent?  If experience doesn’t count today, will it count ten years from now?  Is it their view, with the same certainty they bring to everything else, that experience will teach them nothing, just as experienced lawyers today aren’t nearly as knowledgeable as our new lawyers are?

One lawyer who has a great deal of experience is Brian Tannebaum.  But he’s been roundly criticized by young lawyers, who haven’t hesitated to tell him he’s wrong and clueless.  He’s been tough on them, calling them out whenever and wherever needed.  To Brian, it’s a matter of tough love and integrity. 

To those who feel persecuted by Brian, he’s just mean.  Their entire life has been about coddling, and they expect it to continue online.  For the most part it has, with coddling being a two-way street.  You coddle me, I coddle you.  If everyone is nice to each other, then everyone feels good about themselves.  Tannebaum won’t play the game.  He’s been harsh to them.

They’ve been harsh back, telling him he’s a jerk, often in more colorful language.  They may be young, inexperienced, unaccomplished, but they have a right to their opinion, and their opinion is that they know better than Tannebaum.  Amazing value is given the opinions of two-year lawyers.

They know better than Brian Tannebaum.

The Florida Association of Criminal Defense Lawyers will be installing Miami criminal defense lawyer Brian Tannebaum as its new President.  How many of the baby lawyers will become the president of a bar association when they grow up?  How many will enjoy the respect, trust and admiration of their peers, even their betters, as does Brian Tannebaum?  Let there be no mistake, the criminal defense lawyers of Florida repose enormous faith in Brian.  He’s earned it. How many of you will earn the faith of your peers?

Not too many.  Perhaps some of you ought to reassess the relative value of Brian’s opinions and your own until you’ve had some accomplishments of your own.

Congratulations to Brian Tannebaum.  He deserves it.

Following the natural consequence of Dan Solove’s excellent book, The Future of Reputation, comes David Thompson’s post at Volokh Conspiracy about how the ubiquitous Googling of people has fundamentally altered the landscape.

Online, Google search drops users onto a website with no context or history of the site.  There’s no indication whether a site is a parody (witness Salon being fooled by Landover Baptist), populated by anonymous trolls, a personal rant, or anything else.

Google has elevated the ramblings of a lone speaker to the same visibility as the New York Times.  This is a wonderful development for politics and freedom.  It is a frightening development for personal privacy.

In the old days, the major media (think New York Times) was very unlikely to write about you.  Your privacy was generally at the mercy of your neighbors and acquaintances—who often had to stake their own reputations when they chose to attack yours.

But today, anybody with a blog can (and all too often does) smear you, defame you, or invade your privacy.  Their motivations are many: politics (if you read VC, you might have strong opinions), envy (think job promotion), mischief (think 4chan), etc.  If you don’t have a big presence in Google before being attacked, Google will inevitably find the smear and bring it to the top of your search results: and tabloid material often rises to the top of a Google search because it gets the most clicks and attention.

According to Thompson, “Google creates the illusion that just ten search results reflect some meaningful judgment on a person’s life.”  Via Scoresearcher, he notes that the first five results get 88% of the clicks. 

A running “joke” around the blawgosphere is that you are what Google says you are.  It didn’t start as a joke, but as a serious proposition by Adrianos Facchetti at one of the most ridiculous blogs around, Blog for Profit.  Adrianos offered the proposition in support of his contention that any moron could create an internet persona of expertise by playing Google.  Of course, he neglected to mention that creating the appearance of expertise isn’t exactly the same as having it, but then, that’s the nature of the beast.

What’s often unappreciated by non-geeks and people with lives is how much effort is put into search engine ranking, “optimization”, to get one’s site onto that first page of Google, and the holy grail, the top five.  There is an industry built solely to do this, and people pay good money for these services.

Some sites rise to the top of Google organically, meaning that they just do what they do and, because of popularity or interest, obtain enough of the secret magic Google juice that they show up high on the list, no effort expended.  But most don’t want to put in the effort to build a site (or a blog) of sufficient merit to reach that height on its own.  Moreover, they want it now, and organic growth takes way too long.  Who has the time to wait for earning the position? 

The other day, I mentioned in a post that it would be great if others put my name in a blog post to push a nutjob who wrote garbage about me off the second page.  Though I expected everybody to get a laugh out of my post, the reaction was amazing, and I was humbled by the unanticipated support.  Thanks to all.  But it makes Thompson’s point quite clearly, as the craziest lunatic with a computer can cause mischief.  It’s no reflection of his importance, though in nutjob land I’m sure it would appear to feel that way, but merely the ability to type on a page so that Google picks it up.

Are blawgs the functional equivalent of, say, the New York Times?  Some are and others aren’t.  Some are better, some are worse.  But without a significant degree of sophistication on a subject, or knowledge of the background of a blawg, it would be difficult, if not impossible, to know.  Yet, if they are at the top of the first page of Google, many well-intended people will accept them as gospel.

As anyone who has become embroiled to any meaningful extent in internet culture has learned, there is no control over this.  Worse still, as new people adopt technology, they frequently make well-intended but mind-bogglingly dumb mistakes without the slightest appreciation of the consequences of their actions. 

For example, a good friend posted a twit to me the other day, asking a question that suggested horrific conduct on my part in order to ridicule something a nutjob claimed about me.  It was meant as a joke, but it would thereafter be searchable in Google.  It would be easily found, since twitter is always close to the top of the Google results, and coming from my friend, it carried far greater credibility than it would had the nutjob twitted it.  Yet he had no idea that his little joke had such broad ramifications.  As n00bs enter the room, clueless about how this newfangled technology works, the danger increases exponentially.

Thompson offers no solution to the problem, and I doubt that there will be any found.  Google has indeed leveled the playing field, and given every nutjob or moron the ability to have a voice heard.  Since we “are” what Google says we are, at least as far as the ignorant masses are concerned, we could well be in for a rough ride.

Assuming no last minute commutation or reprieve, Utah will execute Ronnie Lee Gardner on June 18th.  That, unfortunately, isn’t particularly newsworthy.  What is unusual is that Gardner, as is the law in Utah, got to select the means of death, and he chose a firing squad. 

It conjures up images of the old west, or at least the old fashioned, way to die.  Lacking any experience in how such an execution would actually be performed, Doug Berman provides some of the details.

Ronnie Lee Gardner will be strapped into a chair, a hood will be placed over his head and a small white target will be pinned over his heart. The order will come: “Ready, aim…”

The 49-year-old convicted killer will be executed by a team of five anonymous marksmen firing with a matched set of .30-caliber rifles.

While five bullets are fired, they are fired at the same moment so the sound is of one.  Utah is the only state in the Union that still allows for execution by firing squad, which critics argue is “barbaric”.

Critics decry the firing squad as a barbaric method that should have been relegated to the dustbin of the frontier era. “The firing squad is archaic, it’s violent, and it simply expands on the violence that we already experience from guns as a society,” Bishop John C. Wester, of the Roman Catholic Diocese of Salt Lake City, said during an April protest. The diocese is part of a new coalition pushing for alternatives to capital punishment in Utah.

The choice is left to the dead man walking, who in this case “politely” asked the judge for a bullet.  No reason was given for the choice.  While one might wonder how it feels to be the person pulling the trigger, Berman also provides the answer to that question:

The former firing squad member asked not to be named, as he remains a law enforcement officer in the state. . . The officer agreed to recount his experience because he believes in the death penalty — and thinks the firing squad method is plagued by misconceptions.

It is not like the scenes depicted in movies, with a condemned man tied to a stake and smoking a last cigarette before being riddled with bullets in a gruesome spectacle. Instead, he says over coffee, toast with grape jelly and an omelet, the process is instantaneous and carried out with the utmost professionalism.

“It was anti-climactic,” he says. “Another day at the office.”

Does he have any lingering effects from his role in the execution? “I’ve shot squirrels I’ve felt worse about,” he says. He volunteered to participate, he said, and would do so again, given the opportunity. “There’s just some people,” he says, “we need to kick off the planet.”

“I haven’t lost three seconds of sleep over it,” he says. “… it’s true justice.”

Obviously there is no remorse when the taking of life is on the government dime.  Another dedicated public servant.

It’s often struck me as inexplicable that people focus on the method of death rather than the sentence of death, the former being the least of the defendant’s worries.  It would be one thing if the defendant was tortured, subjected to excruciating pain, as his life ebbed from his body, slowly, slowly, until he finally prayed for death to stop the pain.  But the methods are all relatively quick and painless.  I use the word relatively since we rarely get much feedback from the defendants, except in Ohio where the news wasn’t good, but wasn’t bad enough to change much.

The shooter’s description of his job, “another day at the office,” captures the cavalier attitude of the state.  Killing people is just another function of what government does.  The only question remaining is why, in this time of budget cuts, don’t they just use one shooter with one bullet and get it over with.  After all, it doesn’t sound like the firing squad member has any qualms with pulling the trigger, and there doesn’t appear to be much need for all the drama attached to this wild west production.

Since we’re unlikely to be offered a ringside seat, though you can bet that somebody, given half a chance, would turn this into a reality television show, here’s an image that will remind us of the heritage of an execution by a gun.  Utah, the Viet Nam of the United States.  It won’t be a whole lot different.

That was how Brooklyn District Attorney Joe Hynes described Michael Vecchione, now chief of the rackets bureau, repeating the word “very” twice for emphasis.  Eastern District Judge Dora Irizarry repeated herself for emphasis as well: “I think it is shameful.”  From Law.com :

In vacating a murder conviction and barring prosecutors from retrying the case, a federal judge in New York has lashed out at the Brooklyn district attorney’s Office for failing to take responsibility for its prosecutors’ alleged misconduct.

At a contentious, 90-minute habeas corpus hearing Tuesday morning, Eastern District Judge Dora L. Irizarry noted that petitioner Jabbar Collins, a renowned jailhouse attorney, had uncovered numerous documents while serving his 34-years-to-life sentence suggesting that prosecutors had withheld evidence, coerced witnesses and lied to the court and the jury.

The rule of Brady, disclosure of evidence that tends to be favorable to the defense or tends to impeach a prosecution witness, always observed in the breach.  Even when conceded, yet not acknowledged.

Judge Irizarry called the office’s lack of contrition “sad,” “shameful” and “beyond disappointing.”

“I didn’t hear any kind of acknowledgment that things were done that should not have been done,” Irizarry said.

Noting the “well-documented” evidence that prosecutors withheld evidence and misled the jury, Irizarry asked Assistant District Attorney Kevin Richardson “You stand by that? I think that is shameful.”

It’s by no means extraordinary that it happened, with Brady being in the eye of the beholder, and in the possession of the prosecution.  Courts leave it to the prosecutor to decide whether it exists, and if so, when to disclose it.  In those rarest of instances where a prosecutor discloses Brady, it’s invariably at the last possible millisecond, and always too late to make the best use of it.  I’ve written about the failure called Brady often, calling it the worst joke ever played by Justice William O. Douglas.

Fortunately for jailhouse lawyer Collins, he had real lawyer, Joel Rudin, by his side since 2005.

However, in a motion that the two sides negotiated Monday evening, Rudin, Collins’ attorney, told the court that the district attorney’s office was agreeing to Collins’ unconditional release.

The motion cited the office’s failure to inform the defense prior to trial that a witness had temporarily recanted his allegations — the Brady violation to which prosecutors had already conceded.

Richardson told the court that the prosecution nonetheless stood by its original conclusions regarding Collins’ guilt. He added, “It is the opinion of the office, based on the weaknesses that now exist with the witnesses and the unavailability of portions of the physical evidence, that to retry the defendant is no longer a viable option and that we can no longer secure against him a conviction beyond a reasonable doubt.”

The evidentiary hearing would have required Vecchione to take the witness stand.  That, of course, had nothing to do with the decision to concede, even though he would have been subject to Rudin’s withering cross, and I’ve no doubt that Rudin, a great lawyer, would have tap danced all over Vecchione. 

And, again unsurprisingly, the prosecution wants to have its cake even as it’s caught red-handed.  They stand by the defendant’s guilt while claiming they couldn’t secure a conviction.  Have you ever heard them announce that while they recognize the defendant’s innocence, they are prosecuting anyway because they can secure a conviction? 

One might expect that there will be an investigation, maybe even a commission, to study how this “shameful” failure could possibly happen. That’s the typical way to deflect attention and responsibility from such problems, since no one will remember it happened after tomorrow.  But Joe Hynes isn’t your typical sort of District Attorney.

District Attorney Charles J. Hynes answered questions about the Collins case following a press conference Tuesday afternoon at his office announcing the donation of 500 pairs of shoes to the Family Justice Center.

Hynes said that his office would not conduct an internal investigation of Vecchione or any other prosecutors involved in the case, as the only evidence of any prosecutorial wrongdoing was the single Brady violation, which the prosecutors discovered and reported on their own. Hynes said his office ended its opposition to the proceeding because the case had become unwinnable, and that the timing had nothing to do with Vecchione’s imminent appearance on the witness stand.

While the story is a bit unclear at this point, it does not appear that the 500 pairs of shoes constitutes restitution, but rather spring cleaning at the Hynes’ residence.  And as for the price to be paid by the Brady-denying prosecutor, who “ridiculed” the defense at trial for its claims that witnesses were intimidated, now known to be precisely the case?

“Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer,” Hynes said.

Kinda makes you wonder what it takes to be an unprincipled lawyer.

H/T Mike at Crime & Federalism

When Scott Rothstein finished his conversation with “G-d” and decided to return from Morocco and face the consequences of his fragile self-esteem and lust for the trappings of wealth, he thought his plan was foolproof.

Rat fast and hard, and then claim you’re a “changed man.”

I understand that this Court must, and I expect it to, sentence me to a significant term of years. I only ask that you deal with me fairly and that based upon the fact that the record now exists, from my decision to return from Morocco and all that I have done since, that I am truly a changed man and that I have sincerely tried to redeem myself, that you consider giving me an opportunity to live at least part of the remainder of my life as a free man with an opportunity to do some good in this world. I will never forgive myself for what I have done nor do I expect anyone else to forgive me. But I will spend the rest of my life doing everything in my power to make right all the harm I have caused and to restore my family’s good name as best as G-d will allow.

And Rothstein stuck to the plan and gave the government its money’s worth . 

“While the defendant’s criminal activity in this case can only be described as reprehensible, it is beyond dispute that his post-offense conduct has been extraordinary,” Assistant U.S. Attorney Lawrence D. LaVecchio wrote, referring to Rothstein’s cooperation explaining his fraud and working as an informant in a case related to organized crime.

But the government isn’t the most agreeable of business partners.  While Rothstein’s lawyers sought a sentence of 30 years, the government, despite his “extraordinary” cooperation, fixed on 40 years in prison.  Did Rothstein think he might receive just a bit more love from the government than 40?  You can bank on it.

Cooperation.  The magic bullet, the get-out-of-jail free card.  If it wasn’t the perfect solution, it was better than the alternative, thought the man staring down a .357 magnum.  Everybody says that if you cooperate, if you give the government whatever it wants, you get to sleep in your own bed.  Eventually, anyway.

It was surprising that his lawyers offered 30 years.  Under the split the difference theory (provided you don’t go too low such that you’ve hit the point of absurdity), the court might be more inclined to find a happy medium between the government’s number and the defense’s.  In the best of all worlds, the two are close enough that it doesn’t matter much.

Scott Rothstein was sentenced today to 50 years in prison. 

It doesn’t appear that Rothstein’s plan was nearly as foolproof as he thought.

H/T Brian Tannebaum

I became a huge fan of Denver District Court Judge John Kane after hearing his interview with CharonQC, where he expressed disgust for the war on drugs, a remarkably frank view given his position.  Rarely does a sitting judge express so clearly his views on a controversial subject, and I was amazed that Judge Kane had the fortitude to speak out.  He won a permanent place in my heart and mind.

Stephanie West Allen of Idealawg told me about Judge Kane’s talk at his 50th law school reunion,  Unlike Charon’s interview, it had nothing to do with issues of substantive law, but with our profession.  

I want to spend a few serious minutes commenting on our common legacy. About what we have learned and can pass on. About what a lifetime as lawyers enables us to share with the next generation which graduated today.

These young people are called the Millennium Generation. They don’t have it easy. I’m not suggesting we did, but their is is a different world. Maybe that’s why the Millennials seem to differ so greatly from any generation that came before.

I wish I had a better grasp of the issues, but this newest generation seems to possess an entirely different set of values. They are more concerned with lifestyle than clients or causes. We thought hard work and perseverance would eventually lead to a partnership in a firm and it was an unusual event when a partner left one firm and joined another. That kind of dogged loyalty is a thing of the past. …

He goes on at some length, and it was worth the read to me.  Whether it is to you, I can’t say.  I don’t know whether Judge Kane was familiar with Jean Twenge’s study or the work of Theodore Dalrymple.   The issues were significant enough to justify panels for in-house corporate counsel at the last two SuperConferences to address the problems that corporations are facing in dealing with young attorneys.  Television news magazine 60 Minutes thought it worthy of a story, as did the New York Times Magazine.  The list goes on.

A 50th law school reunion is significant in two respects.  One, it’s quite a milestone, especially for someone as experienced and accomplished as Judge John Kane.  Two, it means you’re old.  One doesn’t reach their 50th reunion without getting old.  There was a time when age and experience suggested that something might have been learned along the way, but that time was before the internet, the blawgosphere and twitter.  There was a time when credibility was established by achievement, but on the internet, any twitter has the equivalent voice of a scholar, a judge, a man who has reached his 50th law school reunion.  Indeed, it’s almost a disqualification to be so terribly old, as the young simply dismiss you, no explanation necessary.

This became sadly clear to me yesterday when a post, written a few days earlier, was suddenly discovered on twitter, and retwitted with approval by a number of the young bucks and buckettes.  I read it and was unimpressed, not because it denied the problem but because it was grounded entirely in strawman arguments.  I suppose this is why it was popular with the younger lawyers, as it fed into the very characteristics that give rise to the issue.  By demonstrating no recognition of the real questions, it was an exercise in superficial sophistry.  Its proponents didn’t see it that way, but like that it made them feel better about themselves.

The gist of the post, in defense of the Slackoisie, is that they are doing their best.  This rings harsh.  How many times did we tell our children to just do their best, that was all we could ask of them.  Do your best and you’ll get a trophy.  Do your best and we will be proud of you.  Just do your best.  When we said these words to our children, they made so much sense.  When these words are spit back at us by our grown children, they are hard to hear.  Don’t they understand the difference between efficiency and effectiveness?  Don’t they realize that doing your best isn’t the same as achieving success?  At some point, trying isn’t enough.  Somebody has to take responsibility for actually doing.

Since the discussion spread across twitter, a medium ill-suited to thought or discussion from my perspective, but apparently the one of choice for others, In a post at The Trial Warrior, Antonin Pribetic offers some parameters to the discussion, sorely missing from the fuzzy thought of the twitter chatter.  Of course, it’s hard to capture any comprehensive thought in 140 characters, but for many of the proponents, it’s all the room they need. 

Antonin juxtaposes the word “Slackoisie” with a word tossed around only on twitter up to now, Dependsoisie.  I don’t care for it because it’s meaningless and silly, created by a 140 character thinker to fend off the taint of the word “Slackoisie”.  In another sense, however, it’s a great word to offer to counter the word “slackoisie”.  Mindless, pointless, definitionless, vapid, knee-jerk and empty.  How better to demonstrate what substitutes for thoughtfulness.  (Update:  Antonin has since twice changed the word so that it now appears: Dependsoisie Boorishoisie Billuminati, the latter two of his own invention. I’m partial to Billuminati.)

There is room for discussion and debate about whether there are generational issues and problems, and how to address them, but it has yet to happen.  Instead, it’s been superficial and thoughtless, whether by false arguments, ignorance of the real issues or simplistic denial and shifting blame.  But that’s just my view.  It seems that most of the fury on twitter feels otherwise.  They’ve no need to learn much about a subject before reacting, responding, deciding.  They know what they think, and that’s that.

I’ve yet to reach my 50th law school reunion.  Still, I am beginning to feel as old as Judge Kane.  My reliance on information before reaching a decision dates me terribly.  No doubt if I were to accede to the fashionable, to pander to the things that make the young, the predominant voices online, feel good about themselves, they would like me better.  It seems that so much of what happens online has become about being liked by others, regardless of anything else.  The adoration of school girls melts even the hard heart of trial warhorses. 

Yet I choose to side with an old man, Judge Kane.  Though this will make me unpopular, perhaps even anathema, to the Slackoisie, it ironically won’t matter since if you ask them, they don’t exist.  And they should know since they know more than anyone else, without any evidence to support their absolute certainty.  Still, I would rather walk beside Judge John Kane than be popular. 

Coming so close on the heels of the introduction of the iPad, I barely caught my breath before the introduction of the new iPhone. I can’t say which version it is, since I don’t have one, never used one and couldn’t distinguish one version from the next if my life depended on it.  But that’s just me.  It appears that other people think it’s a marvel, even if Steve Jobs couldn’t get it to work.

I don’t have every new shiny toy for a very simple reason.  I don’t want to pay for every new shiny toy.  I don’t want to pay the ancillary costs for the service needed for every new shiny toy.  I work too hard to piss away money on every new shiny toy.  Yet it seems like every young person around has one.  Or two.  I see them, on the train, walking about the city, with a shiny thing in one hand and another shiny thing, but with a bigger screen, in the other.  There are often wires coming out of their ears as well.

I’ve seen newborn babies.  They do not come out with wires in their ears.  I surmise that the wires connect to something shiny, even if it’s hidden in a pocket.

How do all these kids manage to have all these shiny toys?  It could be that they are all far wealthier than I, and hence the massive constant expenditures to be on the cutting edge of technology doesn’t affect them.  And yet I keep reading about layoffs, deferments, huge unpaid student loans, no jobs to be had.  In my day, there was a causal connection between jobs and the accumulation of wealth.  Did I miss something?

I fear I did.  I fear that one of two things are happening, and right under my nose.  And I missed it.  Since I know that Apple gives nothing away, and that they must pay for all the shiny toys, these people must have plenty of expendable income.  Either they earned it or somebody put it in their hand and told them to have lots of fun.  If the former, it may signify that they are earning great sums of money, or that they are spending every penny they make.  These toys aren’t cheap, and I know for a fact that a house, food, children, vacations, clothing and cable television aren’t cheap.

If they are spending every penny they make, what will they do on a rainy day?  I can’t believe that holding an iPad over their head can be very good to keep the rain off their head.  Or their iPad.  And what about the other stuff one needs to survive?  Can they afford that too?

But worse than spending every penny of disposable (and not disposable) income is the idea that someone is putting money in their wallet when they aren’t looking, perhaps as they are sitting on the couch playing GameTube and eating Cheetos.  If that’s the case, I bet I know who it is.

I’ve often rapped the Slackoisie for their entitlement and narcissism.  But watching the two-fisted technophiles strutting their stuff, I realize that it’s their parents, my tribe, who have and continue to enable this.  Will they ever believe that a day will come when they have to turn in their iPad for baby food or a new interview suit?  If they never learn, how can they continue to cruise through life with all the toys they haven’t earned?  How can we expect them to learn to grow up, to appreciate the value of a dollar and a hard day’s work, when money continues to appear in their wallet as if by magic, and converts itself into the iPhone 97.0 (platinum card version)?

There’s no reason for the young to stop when we won’t stop enabling their most unproductive tendencies.  It’s bad enough that we’ve blown their priorities, but now we exacerbate the problem with disincentives to take responsibility for themselves?  We tell them it’s a rough world out there, but then put little pillows under their feet so their every step can be cushy and soft.  How do they learn to walk by themselves?

Yes, despite our mistakes and misguided love by shiny toy proxy, they will ultimately have to grow up and take responsibility for the world.  But the persistence in enabling them isn’t helping.  And it’s most assuredly hurting.  Don’t put another twenty in their wallet.  Don’t make their bed or wipe their cute little tushy.  Let them chew their food themselves. Heck, make them chew their food for themselves.

And for crying out loud, don’t give them the money to buy anything that begins with a lowercase “i”.  If they want an i-whatever, let them wait until they can buy it for themselves.  And only after they’ve bought enough food to feed the baby.