My favorite marketing philosopher, Seth Godin, notes that “there’s an awful lot of work put into the last ten percent of quality.”

Answering the phone on the first ring costs twice as much as letting it go into the queue.

Making pastries the way they do at a fancy restaurant is a lot more work than making brownies at home.

Laying out the design of a page or a flyer so it looks like a pro did it takes about ten times as much work as merely using the template Microsoft builds in for free, and the message is almost the same…

Except it’s not. Of course not.

While it’s not as obvious to figure out how this translates into the practice of law, it remains every bit as true.  There is an initial problem, however, that must be overcome.  Before one can strive to reach that last 10% of quality, one needs to know what quality is. 

In Godin’s first example, answering the phone rather than letting it go to voice mail, the goal is clear and simple.  His second example, pastries, is a bit harder to achieve.  Do you know what a really fine pastry is?  Chances are that you think you do, you know what you like and expect others to be satisfied with the same.  Have you taken the patisserie tour of Paris lately?  You might be surprised to learn that the pastry from your local bakery isn’t quite up to snuff.  In fact, it’s awful.  You just don’t know any better.

A lot of time has been spent reviewing the work of other lawyers.  Sometimes, I’m blown away by the quality, the depth of reasoning, the thoughtfulness and effectiveness of the work.  Other times, it’s less than impressive.  On occasion, it’s just awful, particularly when it’s some generic cut and paste job demonstrating a woeful failure to put in the effort to do competent, no less good, work.  When I speak with the writers of the really awful work, they never (with a few notable exceptions) think that they have deliberately failed to produce quality work.  They believe that they’ve done at least a perfectly adequate job, if not a good job. 

Godin’s admonition, about putting in the effort to achieve that final 10% that distinguishes real quality, is lost on them.  They aren’t ready for it yet.  Before one can hope to achieve mastery, assuming mastery can ever really be achieved, one has to be capable of understanding what mastery is.  They are busy trying to achieve journeyman status, without the slightest clue of what the work of a master looks like.

This has become increasingly more apparent, and problematic, since the growth of computer technology and the advent of the internet.  Listservs routinely include requests for motions or briefs on a subject.  They are not merely indiscriminate requests, but requests that ignore that the creation of these documents is what our clients pay us to do.  Real estate contracts 30 years ago may have included a page or two as a rider, but today routinely include a 20 page rider of terms and conditions inserted one at a time over a period of years until they become a behemoth of irrelevant provisions.  Briefs recite paragraphs and pages of argument that get recycled into the next generation.  Most of the time, the lawyers are thorough enough to remove the name of the last user in the body of their work.  Sometimes, an old name slips through.

Today, lawyers with a few week’s experience are writing blawgs about how to be great lawyers.  They write of their experience (often too recent for the sweat to dry) as if it’s an epiphany.  How accurate some of these experiences are may be in doubt, but they often cast the writer in a glowing light, showing how he or she masterfully seized victory from disaster (with a due nod to self-deprecation so as to avoid looking too smarmy). 

I love a good war story as much as the next guy, particularly when they carry a worthy lesson along for the ride.  But much of what I read provides a different insight than what the writer intended.  It informs me that had the writer put in the effort beforehand, he wouldn’t have found himself in that situation. It tells me that the writer was sloppy, careless, superficial in the process of reaching the point of the great story.  Oftentimes, it tells me that there was a far better solution to the problem, and the writer doesn’t realize it.

What’s often left out of these fascinating stories is that the lawyer doing all the pontificating has little to no experience.  Other times, the lawyer has plenty of experience, but it’s pretty bad experience, working under untenable conditions and not realizing that they don’t know how to practice law the right way because they’ve never had the ability to do so.  It’s not their fault.  They just don’t know any better.

Sometimes, other neophytes will tell you how they share your experiences, feel your pain, enjoy your stories.  Great, a support group bolstering mediocrity.  Even worse, non-lawyers hop aboard to appreciate your depth of analysis, satisfying the expectations of those who don’t know any better.  This should be as clear a clarion call as possible that something is seriously awry.

It used to be that people spent some time learning before they tried to impress the world with their knowledge and expertise.  Those of us who care about achieving that last 10% of quality that Godin writes about realize how right he is about the difficulty of reaching the pinnacle of quality, mastery, achievement.  We may never reach it, but we will never stop trying.

Consider that you will never achieve quality if you don’t have a clue what quality is.  Consider whether you want to announce to the world your cluelessness by writing about your exploits over the first 12 minutes of practice.  Or am I completely wrong about your purpose, and this is all to score the next thousand dollar felony that walks into your office so you can plead ’em out at the first appearance? 

Scott Hensen at Grits for Breakfast  picked up on a discussion at a prosecutor message board about what he calls “penny-ante” criminal cases, such as cyclists who fail to obey traffic laws or pedestrians walking on the wrong side of the street.

Scott conceded that cyclists could conceivably pose a safety threat, but

It’s one thing to ticket cyclists violating traffic laws, but ticketing people for walking on the wrong side of the road? That can only be a priority when police have WAAAAY too much time on their hands. It’s nigh unbelievable to me that any case of walking on the wrong side of the road ever makes it all the way to a jury! What an outrageous waste of time and taxpayer dollars! These examples show how a small town like Corsicana might end up locking people up for 3,000+ bed days last year for fine-only Class C offenses.

There are two thoughts about police and prosecutors bothering with these “pointless” offenses.  As noted in the comments, they are used as a pretextual excuse to stop and challenge people in the hope of finding real crimes and open warrants, allowing police to search those who are using bicycles to transport drugs or run background checks to see if someone is wanted.  The flip side is that these petty offenses make for a decent revenue raising opportunity.

Scott then asks a fascinating question:

Awhile back I read a law review article – I cannot now recall the title or author – which posed the question, if it were possible to construct a machine that would allow detection of every law violation and ensure 100% enforcement, should the machine be built?

There is a law or regulation covering essentially every aspect of human existence.  Over time, lawmakers with too little to do create the rules that keep us from bumping into one another by telling us to keep to the right.  They protect us from ourselves by telling us to wear seat belts and helmets, and eat less salt.  They appease grieving parents and outraged communities by crafting laws named after dead children that duplicate, triplicate, existing laws with minute additional requirements.  In isolation, some people applaud these laws as serving a good function.  Proponents are always well intentioned, but they become part of the vast mass of laws regulating us.

For every regulation, there must be a consequence for its violation.  When Harvey Silverglate wrote Three Felonies A Day , this could have been his inspiration, even though Scott’s referring to petty offenses.  The point remains that, as a society, we seek the elimination of crime and encourage and support the police in their efforts to enforce our laws.  We do not, however, think much about the scope of our laws that render each of us a criminal, to some greater or lesser extent.

If there was a machine that would detect every violation of law, we would all be found guilty of something.  Granted, most of us would be prosecuted for petty, stupid offenses, but they are offenses nonetheless.  If they are so petty and stupid, and if we wouldn’t want to be prosecuted ourselves for them, why do we support their existence, enforcement and prosecution for others?  Largely because we don’t think it will ever happen to us.  We don’t mind unfairness to others anywhere near as much as we hate it when it happens to us.

The machine would likely put us all in a cell, at least for a brief period of time.  There’s a serious question of who would arrest us, given that the cops would likely be in the cellblock with us, probably for something more serious than what we’re in there for.  But given that this is all theoretical, let’s not get caught up in the details.

The point was well summed by this commenter at Grits:

Allowing these type of stops for silly things to be used as pretexts for searches is one of the reasons Texas is now a police state. Why not just do away with the pretext. Just allow officers to stop, detain and question anyone they wish anytime they wish. Take away the pretext. Would there really be any practical difference?

If it was put up to a popular vote, my bet is that most people would support the authority of cops to stop at will.  That’s because they only expect them to stop the other guy, the criminal.  Not the good people like them.

What makes this remarkable is that it appears in the the ABA Journal , the publication that’s long touted the demand for work/life balance and faux legal rebels, who have “earned” their stripes by buying a first generation iPad and set up shop next to a vente latte.  Still, when is the last time anyone endorsed the notion that the discontent of the Slackoisie might be resolved by a return to professionalism?

William Lee, the co-managing partner of Wilmer Cutler Pickering Hale and Dorr, and former General Electric general counsel Ben Heineman make out their case in an article for the American Lawyer.

“It is now time for a new paradigm for law firm leaders, as past fissures in firms, caused by relentless business pressures, begin to crack open from the earthquake of the Great Recession,” they write.

The idea is outrageous.  A profession grounded in dignity, integrity, excellence rather than unrestrained self-promotion, self-aggrandizement and an anything-for-a-buck mentality.  As Turk noted, the race to the bottom has finally hit the urinal.  Could this finally be the bottom?

Having been assaulted by the shrill screams of “third wave” lawyers cum marketers cum internet rock stars that everything is different now, that the internet changes everything, that every precept of professionalism upon which our responsibility as lawyers to our clients is out the window, and that we’re not only allowed to strut the internet in hot pants, but required to do so or die,  Maybe this new wave is what’s sucked the will out of lawyers to live up to the demands of a profession?

But it won’t be easy. Firm leaders will have to raise the issue in extended discussions with law firm partners, they say. “And some partners will certainly view the ideas expressed here as quaint or, worse, a threat to their autonomy or markets, or civilization as we know it.”

The partnership will have to move away from a mechanistic “eat-what-you-kill” mentality that rewards only top business-getters, they say. Associates should be treated as respected colleagues rather than hourly billing machines “as if they were Charlie Chaplin in Modern Times.” Firms should redefine productivity in a way that serves their clients. And top leaders should set the example, perhaps by taking out less money than they are due.

In the 1980s, as barely educated Wall Street bonus babies were pulling down numbers that shamed top firm partners, refusing to talk to them at parties for their sensible wing-tipped shoes and lack of hand-ticking on their bespoke cashmere blazers, it was driving lawyers absolutely nuts.  How could these scoundrels, learning the trade on a squawk box, come home with checks bearing twice as many zeroes as theirs?  It was shameful.  Something had to be done.  And so devolved the profession of law into a business, as crass and carry as those Masters of the Universe.

From there, it was only a hop, skip and jump for those who never knew a time when law was a profession to exalt work/life balance and pure, unadulterated commercialism, selling themselves like new and improved laundry detergent.  And with this great new medium, where every lawyer with 12 minutes of practice could claim that he was the most experienced, caring and wonderful lawyer ever, ever, ever.

Many can’t conceive of a time when there was intrinsic pride in becoming a member of a learned profession.  Some likely think we wore waistcoats and breeches then.  So quaint and antiquated.  What ignorant dinosaur doesn’t realize that those days are long gone, when there was pride in our work for its own sake.

For me, I was reared by parents steeped in the lessons of the Great Depression and World War II, where the only things no one could ever take from you was your education and integrity.  There was no guarantee of wealth, but an absolute assurance that you would be able to go to sleep at night knowing that you’ve fulfilled your obligations to those who placed their lives in your hands.  It meant more to know that you served a purpose by helping others than that you bought a shiny new toy.

It’s been a long time since I’ve had much nice to say about the ABA Journal, but this article by Debra Cassens Weiss is one of the first things I’ve seen there in a very long time that suggests that there’s still hope for the return to honor of a once noble profession.  Maybe the time has come to stop looking for comfort and succor in all the new places and return to the lost concepts that once made us proud to be lawyers.

It’s not easy to be a stand-out criminal defense attorney.  Jerry Guerinot has managed to accomplish this difficult feat, earning recognition as the lawyer with more clients on death row than any other, according to Adam Liptak.

A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.

Twenty of Mr. Guerinot’s clients have been sentenced to death. That is more people than are awaiting execution in about half of the 35 states that have the death penalty.

Of course, that doesn’t mean that it’s Guerinot’s fault.

“The easy ones, somehow, never came to me,” he said. “I think it’s a recognition that if I represent them, the state is in for one hell of a fight. Nothing goes down easy.”

Of course, that doesn’t mean that Guerinot’s self-assessment is accurate.

“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said.

Of course, not every lawyer who has defended against a capital charge and lost would agree.

There are plenty of things to be said about the massive failure demonstrated by Guerinot’s spectacular record.  And others are quoted saying some of them in Liptak’s column, speaking to his failure to put in what most would consider to be minimal effort in a garden variety drunk driving case, except that his clients are facing execution. 

It seems to boil down to a failure to conduct even rudimentary investigations, said David R. Dow, a law professor at the University of Houston and the litigation director of the Texas Defender Service, which represents death row inmates, including not a few of Mr. Guerinot’s former clients.

“He doesn’t even pick the low-hanging fruit which is hitting him in the head as he’s walking under the tree,” Mr. Dow said.

How bad a lawyer does one have to be before being held up for singular ridicule?  Guerinot sets the bar very low.  He’s a hard act to follow, based on his numbers alone.  But now there’s good news, and bad news.

Mr. Guerinot, for his part, has given up capital work and now handles more ordinary criminal cases, on a volume basis. An analysis in The Houston Chronicle last year found that he had represented 2,000 felony defendants in 2007 and 2008 — far above the caseload limits recommended by bar associations and other groups that take criminal defense work seriously.

No more defendants will be executed because of Guerinot’s representation, but many more defendants will be convicted.  Courts from Texas to Washington, D.C. appear aware of Guerinot’s incompetence, but nobody seem inclined to do anything about it, whether to rid defendants of this blight or to help the defendants infected by his representation.  And Guerinot continues to practice law, and his former clients continue to sit on death row.  Plenty of sighs, but no pen stroke to end the madness.

What if Jerry Guerinot was a very nice fellow?  Witty and well-intended, the sort of fellow who would make friends easily and charm other criminal defense lawyers with his supportive and empathetic thoughts.  But for Liptak’s revelations, he could join the blawgosphere and in no time at all, find himself surrounded by caring criminal defense lawyers proclaiming him a “kick ass lawyer.”  That seems to be the phrase most favored lately, though it’s unclear who is doing the kicking and who is getting kicked.

Over the past year, a spate of criminal defense lawyers from various parts of the country have joined the practical blawgosphere, with a vengeance.  In the past, Niki Black pointed out to me that the criminal law blawgosphere was a clique of sorts, with a handful of old-time blawgers who were both critical of, and reluctant to, let new people into the fold. 

Her point was well taken, though it seemed to me that it was more a matter of distinguishing those whose involvement was too self-promotional, too soft, too lacking in substance, to break their way into the circle.  One of the virtues of the practical blawgosphere was the ability to survive critical peer review.  It wasn’t enough that Guerinot was a nice guy to join the sphere and receive the support of others.

This appears to be changing.  It’s becoming more of a big group hug than peer review.  Nice, charming, witty posts, even though they reflect nothing of depth or consequence in the law, have become enough to earn the admiration of other new-comers, and even some old-timers, to the blawgosphere, and the title “kick ass lawyer.”  Being liked by another blawger seems to be enough for someone to be endowed with great skill and worthiness, even though nothing exists to suggest that it’s in fact the case.  Many who have fallen into this circle have very little experience, and very little history to know whether they deserve it, or whether they deserve the right to bestow it on anyone else.  This no longer seems to matter, to them or others. 

I fear that some of them might be more Jerry Guerinot than Gerry Spence.  I don’t know.  I can’t tell from what they’ve written whether they are any good or not.  It’s not that I don’t think they are likable, charming or witty, though the blind search for companionship on the internet is also disturbing to me. 

Some people think I’m too miserly with my respect.  It’s not a scarce resource, so I can hand it out to as many people as possible and still have more to give.  But then it doesn’t mean anything, if I give it to anyone who is nice to me.  I would like to think that one of the things that I’ve accomplished during my career is the establishment of credibility, and when I show my respect for a lawyer, it means something.  Others, old-time, battle-tested veterans, have fallen victim to flattery and sheepishly allow themselves to be sucked into the group hug.

As I watch others hand out the title “kick ass lawyer” to people they don’t know, attribute skill, courage, worth to anyone who will hug them back, they devalue themselves, as well as the battle waged by those who came before them to establish the credibility of the blawgosphere to distinguish between criminal defense lawyers who demonstrated their worthiness under the scrutiny of their peers.  We were harshly criticized for our refusal to endorse any pandering fool who showed up, but we withstood that criticism in order to maintain the integrity and quality of the lawyers and writings we embraced.  It wasn’t easy to obtain recognition, and it wasn’t meant to be easy.  Anybody could earn it, but it had to be earned.

If what you seek on the internet is validation, support, recognition, and you are willing to sacrifice your credibility and respect to pay for it, then proclaim that people you don’t know are “kick ass lawyers” so that they will say nice things about your in return.  Just remember that your new best friend may be Jerry Guerinot, the “undertaker for the state.”

There’s something about a Wheeler and dealer who outsmarted Harvard.  Adam Wheeler, that is.  From the Boston Globe :

After two years of blending into campus life and racking up academic prizes and tens of thousands of dollars in grants and scholarships, Wheeler allegedly upped the ante: The 23-year-old senior applied for the prestigious Rhodes and Fulbright scholarships last fall using falsified credentials, including a fake transcript and work he plagiarized from a Harvard professor, said investigators.

He was wrong.  Very, very wrong.  But still, he almost pulled it off.  And he managed to make it to his senior year at Harvard without anybody saying, “hey you dolt, you don’t belong here.”  Come on, that’s got to be worth something.

No, I’m not promoting the idea that being a con man, a liar, a cheat is a good way to live.  But pulling this off is, well, impressive.  I mean, it seems like he’s got to have something on the ball, not to mention brass ones, to do what he’s done.

The Suffolk County district attorney will have a field day with this prosecution.

Wheeler was indicted yesterday on charges of larceny and identity fraud, among other charges. If proven, the charges — he is also accused of falsely claiming to have attended MIT and Phillips Academy and coauthored several books — suggest a student on a fraudulent quest for advancement at all costs, and raise questions about how he nearly got away with it.

“This defendant seriously undermined the integrity of the competitive admissions process, compromised the reputation of some of the finest educators and educational institutions in the country, and cheated those who competed honestly for what he fraudulently received,’’ Middlesex District Attorney Gerard T. Leone Jr. said in a statement.

What he’s seriously undermined is the belief that this can’t be done, that some kid who got tossed from Bowdoin College beat Harvard at its own game.  Absolutely wrong.  But some feat.  If he gets time, anybody want to bet he won’t find a way to become the warden before he’s done?

Sorry for this post, but in an internet with more marketing scammers than anything else, this kid stands out.  I’m so ashamed of myself.

Mike at Crime & Federalism posts about the 8th Circuit’s decision in White v. McKinley , calling it the “must-read” case of the year.  He’s absolutely right.  First:

In White v. McKinley, a wife falsely accused her husband of child molestation. The cop she was dating withheld evidence exonerating the husband. At least two prosecutors (Jennifer Mettler and Jill Kanatzar) knew that the cop was having sex with the wife, but didn’t disclose this information to the defense.

Not bad enough? Then:

White was tried three times in Missouri state courts for the alleged molestation of Jami. At his first trial, the jury convicted White of 12 counts of sexual molestation.

“White learned after the verdict that Tina White and the chief investigator of the alleged crime [McKinley] had been engaged in a romantic relationship. White also learned that the prosecution knew about the relationship for approximately one year but failed to disclose the information to the defense.” State v.White, 81 S.W.3d 561, 566 (Mo. Ct. App. 2002).

What happened in trial number 2?

White’s second trial resulted in a hung jury—11 jurors in favor of acquittal and one in favor of conviction. 

So like good little prosecutors (with full knowledge that their cop was schtupping the defendant’s wife/accuser), they tried him a third time.  After all, what’s an 11 to 1 for acquittal mean?  He could still be guilty, right?

But the part that I chose to focus on, notwithstanding the variety of outrages to choose from, is that White’s acquittal after trial number 3 meant that he finally was released from custody after 5 years.  Five Years!  Tom White spent five years in jail, through three trials, until he was finally acquitted.

Of the many decisions made by a judge during the course of a criminal prosecution, few are more arbitrary and capricious than the setting of bail.  While the 8th Amendment prohibits “excessive bail,” there’s no meaningful definition.  It’s just one person’s notion of what it should be, whether it’s because the judge knows that the poor man can’t make $100 or the wealthy man can make $1 million.  If the judge wants a person to stay in, chances are very good that he will.  If the judge wants to cover his butt, lest a defendant be released on bail and do something to embarrass the judge for being “too lenient,” that becomes the basis for making sure that bail is set at a number that gives the appearance of reasonableness while being just beyond the defendant’s reach.

There is one purpose, and one purpose only, for bail.  It is to assure that the defendant returns to court as directed and adheres to the conditions of his release.  It is not punishment.  It is not to protect society from the evil criminal.  It is not to vindicate the judge’s sense of “justice” or protect the judge from getting her mug on the front page of the New York Post.  At least it’s not supposed to be.

Lacking any basis to infer why the judge in White’s case would keep him in pending his third trial, particularly given the 11 to 1 to acquit after his second and the lying prosecutors after his first, it’s impossible to know whether this was a decision of malevolence or mere stupidity.  Either way, White lost five years of his life to this sham.  He will never get it back.  Did anybody really think that Tom White was going to flee the country and avoid prosecution? 

Is there any bar association president out there who wants to spout some platitude about how this is the best system there is?  I know you inspire me whenever I receive a dues notice.  Maybe your platitudes will bring Tom White some comfort, and make him forget about the five years of his life lost to his big win.

No one with a reasonably adequate education is unfamiliar with double secret probation, imposed by Dean Wormer on the naughty boys of Delta house.  It was a knee-slapper at the time, but its real life counterpart may not be nearly as funny.  Via Doug Berman, the Washington Post reports:

In April, the 53-year-old Beckwith left prison in Massachusetts and headed to a northern Virginia homeless shelter. Beckwith wrote to the Virginia attorney general’s office asking for help and was directed to Virginia State Police, which administers the sex offender registry. He wrote to the state police twice with no answer.

“I feel like I’m being set up to fail,” said Beckwith, who was convicted of having sex with an underage girl on a military base.

Unlike some states, Virginia doesn’t provide its 16,500 registered sex offenders with a list of restrictions on where they can live, work and play. Instead, registered offenders must search state websites to determine how to comply with laws meant to keep them away from schools, parks and other places where children could congregate.

Officials say it would be too costly to provide copies of the laws to all offenders and that the websites are sufficient.

Forget copies of the laws.  How about just a cheat sheet covering what they can’t do?  Just a clue as to what will send them back to prison will suffice.  Bearing in mind that the scope of defendants covered to sex offender registry laws is wildly, irrationally broad, including not only those who may present a risk of harm to children, but those who have never engaged in any act beyond being a normal hormonal kid, let’s not resort on autopilot to the “who cares, screw the sex offenders, they should all rot in prison forever” attitude.  Many, perhaps even the vast majority, aren’t sex offenders, in the sense that normal people would understand that phrase to mean, at all. 

Yet if they are never adequately informed of the limitations imposed upon them by law, how then are they supposed to comply? 

The Virginia response, that it’s too costly, is just sheer unadulterated nonsense.  Of the plethora of costs associated with locking them away, handing them a sheet of paper is the least of them.  Certainly, if it prevents harm to a child, it’s worth the nickel, right?

But there is an underlying sense that while this neglect, this double secret probation, dooms them to failure, no law-maker is losing sleep over it.  Whether it’s deliberate or simply the tyranny version of benign neglect, the ramification of sex offenders violating the terms and ending up back in prison smacks of an outcome that many people are happy to live with.  Oops.

For those who believe it bad enough that defendants who have completed their sentences, paid their debt to society as was once a notion that served to allow those who had committed a wrong to return to the fold, this twist is outrageous.  Not quite as outrageous as “civilly” imprisoning people in perpetuity after they’ve completed their criminal sentences, but outrageous nonetheless.

That we’ve lost all perspective when it comes to the underclass called “sex offenders” in this country has long been clear, but to affirmatively choose to withhold the limitations imposed on them, to make it a trick to comply, is not merely offensive, but counterproductive.  Unless, of course, you just want an excuse to toss them back in prison.

Serious trial lawyers have long believed intuitively that appearances matter.  Despite the fact that they are immutable and irrelevant, some people just look guilty.   This has been backed up by numerous studies over the years, but a new study out of Cornell, that ugly people are 22% more likely to be convicted than attractive people, suggests that it depends on whether jurors are more emotional or rational.

According to a recent study by Justin J. Gunnell ’05 law ’08 and Prof. Stephen J. Ceci, human ecology and the Helen L. Carr Professor of Developmental Psychology, more attractive defendants in court are less likely to be found guilty than less attractive ones. If there are damages, then more attractive people tend to receive higher rewards and in criminal cases, better-looking defendants receive lower sentences.

“We [already] knew about this phenomenon, so our question was: is there a specific type of person who’s more likely to do this?” Gunnell said.

In their report –– which will be published in the academic journal Behavioral Sciences & the Law and is titled “When Emotionality Trumps Reason” –– Gunnell and Ceci studied how individual information processing styles affect juror decisions.

The purpose of the study was to determine what characteristics made a juror more likely to be affected by an extraneous factor like attractiveness.  The study concluded:

“Information processing can proceed through two pathways, a rational one and an experiential one. The former is characterized by an emphasis on analysis, fact and logical argument, whereas the latter is characterized by emotional and personal experience,” the study said.

While this bit of information, and confirmation of our less than empirical beliefs, is good to have, its value is more as a novelty than substantive.  Regardless of the study, serious trial lawyers have always included the defendant’s appearance within the sphere of things to be addressed.  Ugly?  Make them look the best you can.  Tattoos? Cover them up.  Bad hair?  Get a really good cut.  Weird clothing?  Take them to Brooks Brothers or whatever clothier suits the need. 

The point is that no stone is left unturned, rather than we aiming for the cover of Elle.  To the extent that any oddness, weirdness, ugliness in appearance makes a person appear to be more guilty, or simply less innocent, we do what we have to do to eliminate the issue.  In one case, a defendant had particularly piercing eyes, a gaze so intense that it made people feel uncomfortable.  We had eyeglasses made with clear lenses (his vision was perfect) to soften his gaze and minimize the effect of his stare. 

As for the rational/emotional distinction, it’s neither easy nor reliable to expect to be capable of ascertaining on voir dire how any particular juror processes information.  We resort to gross generalizations based on answers to a few well directed questions, but as the study notes, the distinction is context sensitive.  Ask the wrong question to the wrong juror and end up with a wrong conclusion.  Hardly something to stake a person’s life on.

While there’s no doubt that the study reflects a very real concern, it’s ultimately of little consequence.  There’s never an excuse to neglect a defendant’s appearance at trial.  While it may not be possible to make a butt-ugly defendant appear beautiful, we can certainly do everything possible to make defendants appear their best.  To the extent it matters, we neutralize the ugliness and enhance the attractiveness.  To the extent that even rational jurors are subject to what the study calls the “unattractive harshness effect,” there’s simply no justification for ignoring it.

As much as we would like to believe that trials are rational creatures based on evidence alone, neglecting experiential reactions is just  foolish and unacceptable.  Leave no stone unturned, and that includes making the defendant look as innocent as possible.  If there’s going to be a conviction, let it not be because he looks guilty.

H/T Above the Law and Dan Solove.

Much will no doubt be written about the curious votes and finely honed statements of the two decisions handed down by the Supreme Court today.  In U.S. v. Comstock, the Court upheld a law allowing the detention in perpetuity of a defendant who has completed his sentence, but is believed to be mentally ill and a dangerous sex offender.  In Graham v. Florida , the Court held it’s a violation of the cruel and inhuman punishment clause to sentence a child to life in prison without parole for a lesser crime than homicide.

The former decision puts people in prison for what they have yet to do.  The latter preaches proportionality as a fundamental tenet of punishment.  No doubt a thorough reading of the decisions will produce provocative discussion, but a cursory reading produces mere confusion.  Is there a rational thread that follows through the court’s view of punishment?

From my seat, the Graham decision is wonderful, as it’s long been clear that the venality ascribed to children by over-zealous lawmakers is a disgraceful and disastrously wrong fiction created to pander to the knee-jerk anger of shut-in newspaper readers.  These are children.  They have the capacity to do wrong, but not the understanding.  They should not be given death over the long haul in prison.  It shouldn’t be for homicide, and absolutely shouldn’t be for whatever crime gets the lawmakers re-elected, short of homicide.

But how do we square the Court’s burst of rational thinking and conscience with the Comstock decision?  Did they forget the word “proportionality”?  When a defendant has served his sentence, paid his debt to society, how does switching the name of the punishment and holding the defendant in prison for the rest of his life make sense?

The proportionality argument, which incorporates the notion that eventual release serves as an incentive for a person to not commit the greater offense, and hence receive the more severe punishment, dies in Comstock.  The sex offender who will never be released if he lets the child live has every incentive to kill.  The one sane enough to refuse the incentive may still be subject to perpetual imprisonment.  Regardless, this approves of the idea of imprisoning a person for something he has yet to do. 

There can be no proportionality for a crime not committed.  There can be no rational end to something that a person never did.  Are there animals out there, sick and disgusting, who will harm children and who, if each of us were left to our visceral reactions, we would personally offer to exact a punishment, there’s no doubt.  But this is a law, an institutional response.  Once we break through the wall of imprisoning people for what we fear they might do in the future, where is the conceptual ledge that stops our slide?

Sure, the law offers some protections via due process, albeit with the lesser standard of clear and convincing evidence despite the open end of imprisonment.  Sure, the fear evoked by wild-eyed sexual predators is one that strikes abject fear in the heart of every parent.  Of course we do not chose to sacrifice our children on the altar of abstract notions of law.  But that’s why we have institutions, like the Supreme Court if not Congress, that are expected to protect us from ourselves, our collapse into panic and anger.  They are supposed to protect the worst among us from our tyranny.  They are supposed to be better than us, and make us better by their existence.

There isn’t any way to reconcile these decisions, as the thread between them seems never to meet.  Yes, children should not be treated as harshly as animals to appease the fear of adults who despise them from a distance.  But even adults, even the mentally ill, even those who are so hated by society as to be deemed unworthy of our slightest consideration, are supposed to be worthy of an opportunity for redemption. 

Taken separately, these decisions offer much to chew on.  Taken together, they offer no coherent penal philosophy.  Taken that they come from the same court on the same day, they offer no clue what we stand for.

Perhaps more thoughtful discussion later.  For now, nothing but confusion.

From St. John’s lawprof John Q. Barrett’s Jackson List :

The courtroom was jammed.  Most justices had told their law clerks to be sure to come to Court that day—but only that.  Many attorneys were present.  As people saw Justice Jackson, looking well after forty-nine days in the hospital, take his seat on the bench, a knowing murmur moved through the audience.  (In a courtroom alcove, Jackson’s family, one of his doctors, a nurse, his secretary, his law clerk and the historian who was taking Jackson’s oral history all were present, watching him closely and hoping for the best.)

The proceedings began with the admission of a very large number of attorneys—119 of them—to practice before the Supreme Court.  Former secretary of state Dean Acheson moved the admission of his son David.  John Lord O’Brian, another leading Washington lawyer (and one of Dean Acheson’s law firm partners) who years earlier had moved Robert Jackson’s admission to the Supreme Court bar, moved the admission of three lawyers from his native western New York State.  United States Senator John Calhoun Stennis (D.-MS) moved the admission of a constituent.  Department of Justice attorney Warren E. Burger moved the admission of three friends, two from his native Minnesota.  Another Member of Congress, Representative Roman Hruska (R.-NE), was admitted to the Supreme Court bar.  (In later years, Burger of course succeeded Warren as chief justice of the United States and Hruska, by then an elected U.S. Senator, defended mediocrity as a credential for appointment to the Court—a remark that lives in infamy.)

The Justices then began to read the Court’s decisions of the day.  Justice Clark read his opinion for the Court in United States v. The Borden Company, an antitrust case.  Justice Douglas then read his opinions for the Court in Capital Services, Inc. v. National Labor Relations Board, a case concerning an injunction against union picketing, and in United States v. Gilman, which rejected a government effort to seek indemnification from an employee whose negligence had created government tort liability.  Chief Justice Warren then announced the Court’s summary affirmance, per curiam, in United Shoe Machinery Corporation v. United States, a major antitrust case that had been tried in Boston.

As these somewhat boring announcements were occurring, reporters in the Supreme Court press room were told what many in the courtroom already understood:  the Court was about to announce its decisions in the cases concerning the constitutionality of racial segregation in public elementary and secondary schools.

At about 12:40 p.m., Chief Justice Warren began to read his opinion for the Court in Case Number One on that Term’s docket, Oliver Brown et al. v. Board of Education of Topeka, Shawnee County, Kansas, along with its companion cases from South Carolina, Virginia and Delaware.  In a clear, unhurried voice, Chief Justice Warren took about thirty minutes to read his opinion, which is not lengthy.  (Published the next day in newspapers, it filled less than one-third of a page.)  As he read, the other justices sat almost motionless.  Near the end of the opinion, Warren read the Court’s judgment:

We conclude, unanimously, that, in the field of public education, the doctrine of “separate but equal” has no place.  Separate educational facilities are inherently unequal.  Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

“Unanimously” does not appear in the Court’s written opinion.  The Chief Justice, nodding toward Jackson’s physical presence that day and the perhaps surprising votes of one or two of the justices who hailed from the South, added it extemporaneously.

Following his reading of Brown, Chief Justice Warren read his opinion for the Court in Bolling v. Sharpe.  It held, also unanimously, that the federal government’s racial segregation in the public schools of the District of Columbia violated the Due Process Clause of the Fifth Amendment.

At 1:15 p.m., the Court adjourned.  Justice Jackson, returning to his chambers, had a celebratory lunch there with his family, colleagues, doctor and nurse.  He then left early, heading home to Hickory Hill for the first time in seven weeks.

Back in chambers the next day, Justice Jackson received a note of good wishes from the Solicitor General of the United States, Simon Sobeloff. “It did my heart good,” he wrote, “to see you in your seat yesterday.”
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John Q. Barrett’s Jackson List has proven to be a constant stream of fascinating, inspiring and humanizing information about Justice Jackson, the Supreme Court and the law. If you aren’t a subscriber, you should be.  Especially for those who have lost faith in the ability of our courts to do right, to find their way after going astray, John’s stories of Robert Jackson’s life and times reminds us that as long as good, strong, brave, well-intended people exist, there is hope.

If you’re not on the list. get on the list.