The acquittal of kindergarten teacher Tonya Craft for the alleged molestation of three young girls is a victory, of sorts, provided you don’t demand too much of a win.  At the same time, it was big, ugly loss for Herbert E. “Buzz” Franklin, district attorney for the Lookout Mountain Judicial District.  Buzz didn’t come out looking very good.

While the DA handbook says that it’s impolite for a prosecutor to whine about a loss, Buzz tries to get as close to the line as possible in his post-verdict interview with the Chatanoogan.

Mr. Franklin said, “I was disappointed with the verdict in the Tonya Craft case. The state presented a strong and compelling case to support a conviction. However, the jury chose to acquit her and we must accept this decision. Unlike the defendant, the state has no right of appeal. However, we need not agree with the verdict.

The word “compelling” is always one of the prosecutor’s favorites.  It’s never been clear to me what exactly is meant in this context, since the jury obviously didn’t feel compelled to convict, but it makes their prosecution seem so much more reasonable, more necessary.  As if they had no choice but to serve justice by prosecuting false accusations.

Why then, since the case was so compelling, did the jury acquit?

“In most cases the media strives to present their coverage of criminal trials in a fair and even-handed way that serves to inform the public. In this case, a number of local reporters openly took sides and heavily slanted their coverage in favor of the defense.”

When the media condemns a person who is presumed innocent, they are fair and even-handed.  When the evidence doesn’t seem nearly as “compelling” to the media as it does to Buzz, the coverage is “heavily slanted.”  Fair is good.  Heavily slanted is bad.  But if the case was so compelling, was the heavily slanted media coverage enough to overwhelm the jury?

“Combined with the dynamics of the Internet blogosphere, it created an environment hostile to the state’s ability to receive a fair trial and portrayed the victims and their families in a negative light. This was an integral, purposeful and shameless part of the defense strategy. This will result in child victims and their supportive family members refusing to come forward for fear of a similar portrayal in the public.”

It’s the Internet blogosphere.  I knew it.  The collective blogosphere conspired to deny the state’s ability to receive a fair trial.  And you probably didn’t even know the state had a right to a fair trial, and here we are screwing it all up for the state.  Poor state.  How evil of the internet blogosphere to assert its vast power and rip the state’s right to a fair trial right out from under it.  Evil blogosphere.

Buzz goes on to present his rather uncompelling detailing of our evil doings, none of which bears much on the negligible detail of the failure of the evidence and manipulation of the children’s memories and testimony in this modern day witch hunt.  Apparently, the acquittal couldn’t have much to do with the fact that the prosecution’s evidence against Tonya Craft was just not as compelling as Buzz thought.

It’s highly unlikely that the blogosphere had anywhere near the influence on the outcome of this case as Buzz would like to believe, thus shifting the responsibility for this debacle off of his shoulders and onto the keyboards of blawgers everywhere.  No, the blogosphere can’t take that much credit.  The failure is his, and the success belongs to the defense. 

But it’s good to know that the blogosphere was there to help.  To the extent that the acquittal of Tonya Craft was a victory, it’s good to think of the blogosphere as a laboring oar in the effort.

H/T JKB

It’s only been two weeks since the video of the February raid by the Columbia, Missouri SWAT team went viral.  It caught fire because of the brutal, pointless, banal killing of the family dog, as cops in helmets and body armor swept into a home with a young child.  The one saving grace, if it can be called that, is that they didn’t shoot the child.  This time they did.

DETROIT – Seven-year-old Aiyana Jones was asleep on the living room sofa in her family’s apartment when Detroit police searching for a homicide suspect burst in and an officer’s gun went off, fatally striking the girl in the neck, family members say.

Her father, 25-year-old Charles Jones, told The Detroit News he had just gone to bed early Sunday after covering his daughter with her favorite Disney princess blanket when he heard a flash grenade followed by a gunshot. When he rushed into the living room, he said, police forced him to lie on the ground, with his face in his daughter’s blood.

First, the flash grenade, designed to stun and disorient the people inside the home.  That the neighbors told them there were children within, and the toys on the front lawn, meant nothing.  They had a warrant and they were going in. 

Assistant Chief Ralph Godbee said officers set off the flash grenade as they entered the apartment with their guns drawn about 12:40 a.m. Sunday with a warrant to look for a suspect in the Friday slaying of a 17-year-old boy. The lead officer’s gun went off after he encountered a 46-year-old woman inside the front room of the house and “some level of physical contact” ensued. Police do not believe the gun was fired intentionally, he said.

The story is that the lead officer bumped into Mertilla Jones, Alyana’s grandmother, and his weapon discharged.  There were three other children asleep in the house.  No word on why police thought this might be a good home to raid at 12:40 a.m. on a Sunday night. 

It’s unclear to Alyana’s father what had happened, as he was held on the floor for the next two hours, lying in his daughter’s blood, along with his mother. 

“I saw them (police) running with my daughter out of the house. They had my mother on the floor, and they just kept me there for like two hours,” Jones, 25, told The Detroit News. “I knew it was bad, and they probably had my baby at the hospital, because someone asked me if she had any allergies.

“Her blood was everywhere and I was trying to stay calm, but nobody would talk to me. None of them even tried to console me.”

There’s no mention in the story that police found whoever they were looking for, and you can bet your life that if there was anything to be said that could be used to justify their presence, or smear the character of the child killed, it would have been the first thing out of their mouths.  Instead,

“This is a tragedy of unspeakable magnitude to Alyana’s parents, family and all those who loved her,” Godbee said. “It is a tragedy we also feel very deeply throughout the ranks of the Detroit Police Department.

Not enough of a tragedy, however, to have made the Detroit Police think twice before their late night raid of a home with children inside, going in hot.  When a finger is on the trigger, bullets sometimes come out the other end.  That’s how it works.  And when there are children within, the bullets can strike them.  And when bullets strike children, even little 7 year old girls who like Hannah Montana and Justin Bieber, sometimes they die.  A tragedy?

If the police believed that a suspect was holed up inside the house, one known to have little children dreaming of their future, a couple of patrol cars parked down the street with their eyes on the place would have found him in the morning.  No child would have died so that the lobster shift could play storm troopers.

We often talk of worst case scenario.  The needless death of a puppy is very bad, but this is worse.  Godbee says that this tragedy is very deeply felt by the cops.  Deeply enough to rethink the raid on the next home filled with sleeping children in the middle of the night, and waste all that fine police gear and a search warrant? 

H/T Ed at Blawg Review

Update:  Via Jdog, this article from the Detroit News :

The police “were excited; they were on TV,” said Oak Park attorney Karri Mitchell, who is representing the family of Aiyana Jones. “They didn’t have to throw a grenade through the front window when they knew there were children in there.”

The attempted arrest of a murder suspect at a two-unit house on Lillibridge on the city’s east side was videotaped for an episode of “The First 48,” a reality crime show on the Arts & Entertainment Network, Detroit police spokesman John Roach. He was not immediately available this morning to respond to Mitchell’s allegations that the police operation was influenced by TV production values.

So here was their chance to be heroes on TV, and they were excited.  They wanted to use all the toys and be very dramatic, so the viewing audience would be so very impressed.  And, of course, there would be another fine show on the air to educate the public on the fine work of the officer and sell commercial time.  So many benefits, and such an inexpensive production, provided one didn’t factor in the cost of a 7 year old’s life.

Also confirmed is that there were two units in the building, and the murder suspect was found in the upstairs unit, while Alyana was killed in the downstairs unit.  Still no explanation for why the no-knock warrant would permit a search of both units rather than just the upstairs.

Update 2:  If appears that the family has retained Geoffrey Feiger, no stranger to a criminal courtroom, to represent them against the Detroit Police Department.  If that’s not strange enough, consider Feiger’s first allegation:

“It’s not an accident. It’s not a mistake. There was no altercation,” Fieger said. “The bullet was shot from outside the house.”

This is a huge distinction, suggesting the entire “grandma altercation” allegation to be a lie and cover up.  Though why a police officer would have fired the shot from outside is also inexplicable, but Feiger claims, if not a mistake, that it was a deliberate act.  He says he will file suit on Tuesday (why so quickly is also not clear, but likely to keep ahead of the news cycle and keep his face on TV).

In response, Assistant Chief Ralph Godbee said:

He said, “If Mr. Fieger has access to any evidence in this case, he must as an officer of the court provide it immediately to the Michigan State Police.”

There’s that “officer of the court” crap again.  If nothing else, you can always count on the cops for saying something silly to pander to public mispreceptions.

H/T Packratt at Injustice Everywhere .

When a story of how a pro se defendant wins something hits the stands, the groundlings rise to applaud.  Proof positive that lawyers are scum, unnecessary and part of a massive conspiracy of wealth redistribution.  Hah!  We don’t need you.

Every once in a while, however, a story appears that tells the other side.  From the NYT City Room Blog :

Every now and then we get a defendant who does not trust the system and deems himself best suited to play the role of his own lawyer in court — better suited, that is, than someone who went to law school.

One such case is playing itself out in a courtroom in Manhattan, where a man accused of killing his girlfriend in Chelsea could deliver his opening statement in his own defense as early as Monday.

As is the case in many instances in which someone goes pro se — legalese for representing yourself — this defendant, Robert Camarano, 62, seems ill suited for the job. Just ask Justice Carol Berkman, who criticized Mr. Camarano’s lawyer skills this week.

The reason it makes the papers when a pro se defendant succeeds is that it’s highly unusual, a rarity.  It’s man bites dog, since dog bites man is of no interest to anyone (other than the man who got bitten and the owner of the dog that did the biting).  Yet one story about the winning jail house lawyer and every Ironsides in an orange jumpsuit think’s he’s the next Cardozo.

So what did Justice Berkman have to say about Camarano?

“You don’t know how to ask a question,” Justice Berkman told him in State Supreme Court. “You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not. I do not say this to insult you.”

It’s the stupid speeches line that gets me.  Every lawyer on TV makes speeches, right in the middle of testimony, they don’t ask a question but make a speech.  And they always win too, so speeches must be a really good way to win.  Why don’t real lawyers know about this?

Justice Berkman was a former legal aid lawyer who became a judge before I became a lawyer.  She’s seen a lot.  Too much, some would say.  She’s suffered through a lot of bad over the years, and her tolerance for it has waned.  Some lawyers say that she’s turned mean-spirited over the years, nasty even.  But even if you think she should have been more charming in her manner of informing Camarano that he was digging his own grave, the fact remains that he was and she told him so.

It’s true, as many criminal defendants complain, that there are plenty of lawyers out there who don’t care, don’t put in the time or effort necessary to do their job, or who just don’t have the ability to perform.  That doesn’t mean that the pro se defendant does.  If it’s hard enough to do that so many who have gone through law school and practiced law still can’t perform adequately, what makes you think you can do it better?

The trick is finding the right lawyer, not taking over the reins yourself and praying that you will be the million to one shot at winning your pro se defense.  Yes, it sucks to be a criminal defendant.  Don’t make it worse than it already is.

Judges think that police detectives have a sixth sense when it comes to sniffing out a perp on the street with a gun.  Why?  Because in every case that comes before them, some cop, despite having no objective basis whatsoever (recognizing the “furtive movements” is a total sham offered to appease the search and seizure gods), came up with a gun.  Or drugs. Or something proving that cops are so special that they can smell crime a mile away.

This is the “availability heuristic,”  Mike at Crime & Federalism wrote about it the other day (and does so with some regularity).  Then Jeff Lipshaw wrote about it at PrawfsBlawg too.  And as someone who adores such concepts, I started giving it some thought as well. 

The availability heuristic is a cognitive bias that makes us believe that x is more or less likely based upon our last experience with x.  See Wiki entry. (“The availability heuristic is a phenomenon (which can result in a cognitive bias) in which people predict the frequency of an event, or a proportion within a population, based on how easily an example can be brought to mind.”)

Or as Lipshaw puts it, a behavioral psychology phenomenon where the “conclusion [is] based on the availability, not the correctness, of the data.”   One of the aspects of writing stuff here that’s come to bug me is that new readers, or the day tripper (the reader who comes upon a single post because of an interest in a particular case or issue) believe that nothing existed prior to (or beyond) whatever it is they’ve read. 

SJ has been around for a little more than three years, but during that time I’ve written more than 3000 posts covering a fairly broad spectrum of things and ideas.  Yet, I’m defined in the eyes of readers/commenters by whatever shows up on the front page, or possibly just above the fold.  If it happens to be in favor of, or critical of, something with which the reader agrees, I’m the cat’s meow.  If it happened to skewer a sacred cow, I’m the mean, crabby old man.  If it addresses a nuanced detail of a broader subject, they want to explain to me their vision of the broader issue.  As if I hadn’t written about it a dozen (or a hundred) times before in similarly nuanced detail.

The internet is a big place, with people of all heights and hair colors able to access a computer and come across posts of interest.  Some come here because they are criminal defense lawyers and have some interest in the subject matter.  Others just to see if they can grab some backlink juice for their hemorrhoid treatment.  Others to show how smart they are.  If you think there are a lot of comments that come across the screen, you have no idea of how many I trash in the process.  Some because they are just blitheringly stupid, and others because they are offensive or annoying, at least to me.

Newbies on the internet, and particularly in the blawgosphere, think they’ve invented the place in their first few minutes online.  Some are good writers, but lousy thinkers.  There are a lot of lousy thinkers out there, but they don’t necessarily see it.  Pretty much everybody thinks they’re brilliant, and to the extent that others don’t appreciate them, it’s because everyone else is stupid.  Maybe that’s my problem as well. 

To each new person who shows up here, it’s the dawn of a brand new day.  Nothing exists before they arrived, and they feel empowered to tell me what I’m doing right and what I’m doing wrong.  When I tell them to go fly a kite, they tell me what a jerk I am.  After all, from their perspective, they’ve done me a great favor by correcting the error of my ways by imparting their brilliance.  I’m not sufficiently appreciative.

It’s bad enough that people come here to try to jump on my soapbox and give their spiel.  Some, whether lawyers or not, write some incredibly banal crap, and I’m torn about whether to allow it, whether to call them on it or whether to ignore it.  For those who have followed my posts for some time, they know where I stand on many of these matters, but the person who doesn’t thinks my allowing some idiotic comment to pass without response suggests that I agree with it, or can’t muster response to it.  Mind you, stupid people find the stupid comments of other stupid people far more persuasive than others. 

It’s tiresome, trying to deal with the availability heuristic.  If I wrote less, it would be less tiresome, but I write what I want, and as often as I want, and on whatever subject I want, and then find myself having to deal with the detritus.  My reality is that I address conclusions based on this phenomenon when I feel like it, and ignore it when I don’t.  Of course, this gives rise to a completely new round of erroneous conclusions, based upon whatever my last reaction was, and just becomes increasingly tiresome.

Before you jump to whatever brilliant conclusion you believe to be justified by whatever it is you just read, without regard to the 3000+ things that I’ve written beforehand and about which you know nothing, do me a favor and make sure your fly is zipped.  I couldn’t bear to think that I ponder what to do about your brilliance while you’re walking around with your fly down.

Postscript to Norm:  Yes, Norm, I know this is self-indulgent, but I’m allowed the occasional wallow.   So give me a break.

Slate has started a new sub-blog by Kathryn Schulz on what it means to make mistakes, called The Wrong Stuff.  Naturally, the first place she looked was criminal defense lawyers, who (as opposed to any other discrete group on the planet) are universally wrong more than any other.  So why is her first interview with Alan Dershowitz?

Do you think lawyers have an unusually hard time admitting that they’re wrong?

Oh, yeah. I think that lawyers are terrible at admitting that they’re wrong. And not just admitting it; also realizing it. Most lawyers are very successful, and they think that because they’re making money and people think well of them, they must be doing everything right.

There is possibly no individual who dabbles in the field of criminal defense who less reflects the mainstream of criminal defense than Dershowitz, Harvard lawprof and perpetually available guest whenever there’s an open microphone.  This opening Q&A smacks of his disconnect from reality.  I bet you didn’t know that your problem is that you’re making too much money.  I bet other people didn’t know that they think well of you.  I bet.

Dershowitz is one of the few in criminal law to attain the status of household name.  Whether it’s Larry King or the Jewish Daily Forward, Dershowitz is the go-to guy to espouse the criminal defense lawyer’s point of view.  The only problem is that he doesn’t have the slightest clue what it means to be a criminal defense lawyer in the trenches. 

It comes as no surprise that when Schulz needed a criminal defense lawyer to pontificate, Dershowitz would be there.  There’s no state of being that he prefers to sound emitting from him, and he does so with abandon.  Ironically, while he’s clear about how terrible we are at admitting mistakes, the same doesn’t apply to him.

I worry about it. That’s why I always have young people around me; I insist on my students and the people who work with me telling me about my mistakes. And I think I learn from them.

If the rest of us surrounded ourselves with young people, we’d worry about allegations of pedophilia.  Not Dershowitz.  He’s better than us, immune from the reality that surrounds our work. 

The problem is that we are terrible about admitting mistakes, but hardly for the reasons he floats.  But the wrong stuff has been discussed here many times, and this post isn’t about why criminal defense lawyers react as they do, but about how exemplars like Dershowitz as the voice of criminal defense creates so many of the misimpressions, misunderstanding, mistakes, that frame people’s understanding of our work and our nature.   This was the same voice that propounded that the secret to successful white collar defense was hiring some Biglaw kid who was an AUSA last week to help the defendant to become a rat before the next guy.

Can you give me some examples of instances where you’ve been wrong?

I had an experience early in my career where I was working with a young woman who insisted on putting an argument in the brief. I thought the argument sucked and I didn’t want to put it in the brief, and she said, “Well, you’re the boss.” I said, “No, that’s not the way we do things. You’re going to persuade me to do it or you’re going to persuade me not to do it.” She ultimately didn’t persuade me, but she came so close and she was so committed to the argument that I actually put it into the brief — very reluctantly. I really thought I was making a mistake. And we ended up winning the case on that argument. I was just dead wrong and she was completely right.

Remember the old joke where a fellow is asked if he ever made a mistake, and he replies, “No, I thought I did once but I was wrong.”  Meet Dershowitz.  How many of us are so fortunate as to be dead wrong and yet always the big winner?  Even his screw-ups are better than ours.  How fortunate for his clients that right or wrong, Dershowitz is never wrong.  But then, we are a profession of people incapable of admitting failure because we’re too fabulously wealthy.

The theme of Schulz’s blog is interesting, and she does an admirable job of trying to pin down Dershowitz when it comes to the “discomfort”  endured in being a criminal defense lawyer.  But Dershowitz isn’t an easy man to pin down.  Fortunately, as Dershowitz explains, the trauma of criminal defense is something he only sees from the outside:

It was for thinking about what would happen if I ever got to that position. I’ve never been in the position where a client that I’ve gotten acquitted—and I’ve gotten a lot of people acquitted—has ever quote “done it again.” I’ve never had that. But it could happen, and I’ve thought about it a lot. I’ve had nightmares about it. But my biggest nightmares are cases where my client is innocent and where I think I might lose.

It must be wonderful to be Dershowitz, always self-aggrandizing and never suffering the “discomfort” that permeates the work done by the rest of us.  Rarely has anyone been held out as an example of the criminal defense lawyer who less reflects what we do.  There is absolutely nothing in his answers to Shulz’s questions that suggests the he has the slightest appreciation of what real lawyers do every day in the trenches.  But then, we’re often wrong and fabulously wealthy, so why should Dershowitz care?

And this is the understanding that the public has of our efforts.  It must be great to be a superstar criminal defense lawyer.  For the rest of us, who haven’t managed to meet Dershowitz’s norm, it’s just hard work in the trenches.  At least we’re all fabulously wealthy.

While there is a growing correlation between issues arising with students in schools and the immediate resort to the criminal justice system as a solution, there are situations which just make one wonder who is more disabled?  From Fox in Atlanta comes this story of Shane Finn, a 14 year old autistic student with an IQ of 75 at Ridgeview Charter School and not a particularly good artist.

Shane Finn’s mother said he was in a special needs class when he drew a picture of two stick figures, and one had a gun.

The eighth grade boy’s picture depicted a stick figure with a gun that was labeled “me.” The figure was shooting another figure that had his teacher’s name above it.

The picture led to Finn being suspended, and he is now facing criminal charges.

“They’ve pressed felony charges for terroristic threats,” said the teen’s mother, Karen Finn. “It’s that sweeping zero tolerance and I think it’s ridiculous.”

There is certainly good reason to have a talk with the student about why this isn’t a good thing to do, what he meant by it (if anything), and how it makes his teacher feel.  But all of this needs to come within the context of his comprehension. 

Finn said her son drew the picture on the page of a school assignment where his teacher would easily see it. Finn says her son doesn’t really understand why he’s in trouble. Finn said her son is autistic and has the mental capacity of a third grader.

Even if the teacher’s peculiar sensibilities are offended, and assuming the charter school, like so many others, has the dreaded “zero tolerance” policy that compels it to act in monumentally foolish ways toward conduct that reasonableness suggests would be better dealt with by the exercise of thoughtfulness, what kind of prosecutor would charge a kid like this?

One can only assume that eventually, someone will decide that this young man, whose limitations already present enough of a challenge in life, really isn’t a threat of any sort, no less a terrorist one. 

As long as this absurd story is on the table, however, it’s worth considering a different angle.  Why is this a “terrorist” threat?  The use of the word “terror” as almost Pavlovian, conjuring up the image of the twin towers collapsing and compelling otherwise reasonable people to blindly forego basic liberties to protect themselves from Jihad.  Will Shane Finn be described as a “homegrown terrorist” perhaps, or will there be allegations of his having been trained in drawing by the Taliban?

The word “terrorist” has become one of the most abused words in the criminal justice system, and its Orwellian impact is no doubt intentional.  If nothing else, the absurdity of this case offers an opportunity to recognize just how crazy this has all become, and how it is used to manipulate public perception.  I would like to suggest that this is about as bad as it gets, but somehow we all know that there will be a worse example down the road.  There always is.

H/T Turley

When Cy Vance became the first new District Attorney in New York County in a millennium, a change of guard was inevitable.  One fixture at risk was the Chief of Appeals (and SJ reader), Mark Dwyer, one of the smartest guys to ever grace Hogan Place.  When the changing of the guards took place, I wondered what would become of Mark.  By accident of Legal Blog Watch’s Eric Lipman, the answer appeared.

Governor Paterson, in a fit of thoughtfulness, appointed Mark Dwyer to the Court of Claims, and he’s been assigned as an Acting Supreme Court Justice in Kings County.  ADA Dwyer is now Justice Dwyer. 

Before anyone indulges in the knee-jerk prosecutor-to-judge-pipeline reaction, consider Justice Dwyer’s decision in People v. Abdul-Akim, suppressing the stop, search and seizure of a handgun and body armor,   In this extremely thorough decision, Justice Dwyer went through the entirety of the interaction, noting at each level where the police conduct failed to comport with constitutional mandates.

The police must be alert to possible violence and must safeguard the community from criminal activity. But crime prevention may not be effected at the expense of disregarding the constitutional requirement that citizens be free of unreasonable searches and seizures.

Of course, fine statements like this are one thing.  Backing them up with the goods is another. 

Justice Dwyer initially held the the police arrest of the defendant for mistakenly believing that the driver possessed only a Virginia learner’s permit rather than a temporary license was unreasonable, finding that

In short, in view of the “driver’s license” notation on the Virginia document, it was unreasonable for the police to conclude that defendant Ayala was not a licensed driver. All the evidence corroborated the conclusion that the document was a license, not a learner’s permit.

This is the “nobody could be that stupid” part of the decision, in which the court holds that if the “Temporary Driving Permit” says “driver’s license” rather than “learner’s permit,” that means it’s a driver’s license rather than a learner’s permit.  The “texting” excuse similarly falls, since it wasn’t unlawful at the time of the arrest.  But then comes a very interesting nuanced aspect of the decision, where Justice Dwyer rejected the reasonableness of using the purported cellphone/learner’s permit excuse to justify a full custodial arrest, and subsequent inventory search:

A custodial arrest may not be employed as a pretext to conduct a search. True, an objectively reasonable traffic stop is not invalidated because the primary motivation of the police was to investigate some other matter (see Whren v United States, 517 US 806 [1996]; People v. Robinson, 97 NY2d 341[2001]. However, the scope, duration and intensity of a seizure, and any subsequent search, “remain subject to the strictures of article I, §12, and judicial review” (People v Troiano, 35 NY2d 476 [1974]; People v Marsh, 20 NY2d 98 [1967]). A custodial arrest and impoundment for using the cell phone was not called for under the circumstances in this case.

To anyone offended by the Whren decision, approving pretext stops, this portion of the decision offers a fascinating counterpoint, that while the pretext stop may be authorized, that doesn’t necessarily mean that a pretext search follows, a critical distinction and one that serves to return sanity and integrity to constitutional doctrine.

Ironically, when Eric Lipman brought this decision to my attention, it was part of his snarky approach, reflected in his opening paragraph at LBW :

If you find yourself riding with a couple of your buddies around the Brooklyn neighborhood where your brother was recently murdered, wearing a bulletproof vest, with a loaded handgun in the glove compartment, well, I’m comfortable calling you a “bad guy.”

Not that it would occur to Eric that maybe the defendant feared he would be harmed by whoever killed his brother and had a weapon and vest for his own protection, but the whole constitutionality thing doesn’t seem to affect his comfort level in the slightest.  And Eric Lipman was never a prosecutor (though he was an associate at Cahill Gordon).  What does that tell you?

It would have been a terrible waste for someone with the experience of Mark Dwyer to end up in some Biglaw firm drawing millions in salary, as if money was something that might interest for him anyway.  But for anyone who thinks that a career prosecutor can’t make a good judge, I’ll take a brilliant mind and an honest man on the bench any day.

Congratulations, Justice Mark Dwyer.  It’s funny how people end up where they can do the most good.

While I don’t write about my cases, Norm does , and he offers a painful appellate outcome in State v. Pentland.

Mr. Pentland pleaded under the Alford doctrine to two misdemeanors, was given a suspended sentence and was told by his lawyer and the judge that he would not have to register as a sex offender. (The state merely stood by and said nothing, a form of adoption of omission.) The client had every reason to believe he would face a future unclouded by the manifest cruelty and absurdity of the new sex offender regime: humiliating “treatment” by half-ass probation officers bent on humiliation, and, perhaps titillation; registration as an offender, a felony conviction; imprisonment.

A plea bargain, at its core, is merely a deal.  And a deal’s a deal.  If not to enforce the contractual relationship, whether it’s the social compact or an everyday handshake bargain, what purpose do courts serve?

Many clients are ill suited to face the risk of trial. Many choose to work out a deal of some sort. Even innocent men, like Mr. Pentland, can choose to avoid the risk of conviction by taking a deal. Mr. Pentland thought he had scored a hollow win of sorts with his plea: just a brief period of probation. Indeed, he never admitted to committing a crime at all: An Alford plea permits a client to enter a plea merely by acknowledging that the state’s evidence, if believed by a jury, could carry consequences far worse than those for which he bargained.

Once the deal was cut, the bargain made, and everyone walked away, the defendant learned that the deal had changed, that the understanding spoken out loud in the courtroom, agreed to by all whether expressly or implicitly, that would be written in stone, was suddenly not.

Imagine Mr. Pentland’s surprise when the state claimed he violated his probation by not registering as a sex offender. Didn’t his lawyer and the judge tell him he did not have to register? Didn’t the state stand by silently as this information was relayed to him? Wasn’t this a condition of the plea he entered?

Deal or no deal.  Norm took it up and the answer was “no deal.”

Graciously, the court offered Pentland the opportunity to withdraw his plea, thus not merely undoing the bargain he made but putting him in the worst of all possible positions.  The absolute last thing he wanted to do was go to trial.  As alternatives go, the idea of going back to the starting gate fell slightly behind sticking a needle in his eye.  But this is the means of extortion courts use to give the appearance of relative fairness.  It’s not like they didn’t offer the defendant an option.  He doesn’t like it?  So, go to trial and take your chances.  I can hear the laughter coming from chambers ringing still.

When it comes to bargains between defendants and federal prosecutors, the courts have understood it to be a matter of contract and enforced it as such.  Why should it be different when the deal is between the defendant and the state?  Is there no interest in promoting the integrity of the law when it’s the newest flavor in the state’s smorgasbord against crime?  Does the notion of responsibility, finality, adherence to the law mean nothing when the state is involved?  Apparently so.

As Norm points out, there was a bit of a failure at the time of plea, when the defendant’s lawyer could have, and should have, done more to lock up the deal, or at least inform the defendant that they were trying to fly under the legal radar and might ultimately crash.  Norm was left to try to pick up the pieces afterward, always a difficult thing but very much part of a lawyer’s job.  We’re janitors at times, cleaning up someone else’s mess.

But there is much to commend the idea of a plea bargain as an enforceable contract rather than a game of Russian Roulette for the defense.  The state demands much of its citizens, not the least of which is fidelity to its obligations. Let the state be subject to the same.  And let the defendant be able to fully rely upon the words of a judge when compromising his life.  To do less is not merely disgraceful, but reduces the law to a farce.

There has long been an allure in New York State when it comes to local government control, a throwback to colonial days when all politics was local.  It remains in our courts and legislature’s refusal to rid us of lay judges in local justice courts, despite the rampant impropriety and abject ignorant demonstrated regularly.  It’s part of our heritage, no matter how pathetically badly local governments are run.

Welcome to Jackson, New York.  Via the WSJ Law Blog, meet town councilman Roger Meyer, 76, who apparently regrets not having moved to Arizona.

“For too long, the federal government has shirked its duty by not passing English as the official language of the United States,” said Roger Meyer, 76, a town council member in Jackson, N.Y. “So seeing as this law couldn’t be passed from the top down, I felt I’d start a grass-roots movement to try to get it passed from the bottom up.”

The Jackson law, writes the NYT, designates English as the town’s official written and spoken language, “to be used in all official meetings and business conducted by the elected officials and their appointees.”

There are few who suggest that the ability to speak English isn’t important, if not the sine qua non, of living the American dream.  It’s a common thread amongst the many who have come to the United States over the years to seek a better life.  But it doesn’t necessarily happen overnight, or upon demand.  As prior generations of immigrants have shown, assimilation happens, but it takes some time.  At 76, Meyer may not feel that he’s got enough time left to wait.  He wants it now.

But Meyer said the law was in support of English, not in opposition to any group. “It’s not prejudicial or anything like that,” he said.

Or anything like that? Very folksy, and nobody who speaks in a folksy way means any harm.  Or maybe just stupid, lacking the ability to recognize why something that seems abundantly obvious to him, given his circumstances, is so damaging to others. Let’s take the example of the 22 year old Swedish female tourist who comes to beautiful Jackson for a visit, gets a little lost, and asks a local officer for directions.  He’s forbidden from offering any assistance in the Swedish language in which he obtained his doctorate?  Okay, a bit farfetched.

But what of the Salvadorean legal (I add that for those who invariably question whether anyone not fluent in English is here legally) immigrant wants to ask a question of those who tax his home at a town council meeting.  Yes, the ability to speak English would certainly be helpful, but is he to be denied the ability to challenge those who spend his money because he has yet to master the Jackson mother tongue?

“People come here because it’s better than the place they were in,” he said. “If that’s the case, you should be adapting yourself to our ways. We shouldn’t be adapting ourselves to your ways.”

It would be great if Americans, like people in so many other countries around the world, were capable of speaking multiple languages.  We tend to be barely capable of speaking English, which appears (per the television commercials currently airing) to be because we don’t pay teachers enough money to actually do their job.  But this isn’t a reason to pass a law making English the official language, or prohibiting local government from communicating with people who aren’t assimilating quickly enough to meet the demands of Roger Meyer.

I still believe that everyone who aspired to hold a position of public trust, no matter how small or inconsequential, should be required to pass a test in civics.  In Meyer’s case, the test should be given in English.  Want to bet he still won’t pass?

That there are too many students entering law school, and thus too many leaving three years later to try their hand at becoming fabulously wealthy as a first year lawyer, is a given.  But is meanness the appropriate way to vet the weak from the profession?

From the ABA Journal, Sarah Allen had a dream, to go to law school and (if you’re going to dream, dream big) survive debt-free.  She made a video to win $10,000 in tuition from a contest, and started a blog to solicit funds to pay the balance.

Allen’s video explaining her pursuit of a debt-free life—and a debt-free legal education—is no longer on the Upromise site. Her blog, Going to Law School Debt Free, is no longer live. “I’ve just shut everything down,” Allen tells the ABA Journal.

Allen withdrew from the contest on Monday because stories about her quest drew mean-spirited comments on several blogs. “When I read certain things, it was just so much hate, and coming from nowhere,” she says. “It stunned me.”

Allen had hoped that donors would pay the $105,000 cost of her legal education at the University of North Carolina, and had set up a PayPal account for the purpose. She had explained in the Upromise video that she hoped to use any money she raised not only for herself but also to fund scholarships for others. Her thinking was that thousands of donors, each contributing a small amount, could together make a big difference.

Reporting of Allen’s efforts brought out the knives at JD Underground, where failure is celebrated daily.  Naturally, those who attend or graduated law school but have nothing to prevent them from spendingtheir days making fun of others, took unkindly to Allen’s dream, and ripped her to shreds, suggesting that if she wants money for law school, she had the wherewithal to earn it quickly on her own.

At Above The Law , Allen explains what came next.

Since the story was first published in the Raleigh News and Observer, a wave of extremely unkind and at times quite vulgar criticism has appeared online – some of which has been by attorneys and current law students (the most vulgar and completely inappropriate has been by law students on JD Underground at http://qfora.com/jdu/thread.php?threadId=10622). Both articles completely under-emphasized my intentions to start a debt-free scholarship fund and made me out to be a beggar – which I am not.

The media attention has been eye-opening, however, it has also made me realize how lucky I am to have already have job that I love and that affords me a good quality of life. For now I am better off enjoying my life and pursuing things that will bring further joy to my life and that of others. I have since returned the 3 donations that I received, deleted my blog and Facebook sites, abandoned any plans to attend law school at any time in the near future, and withdrawn my entry from the Upromise contest…

It’s no wonder that she drew the fire of the Slackoisie, who suffer the dual indignities of debt service and unemployment, since her quest to make it through law school debt free would have made the crowd at JD Underground look awfully foolish.  If only they were as good at law as they are at snark.

On the other hand, Allen’s Pollyanna vision of what it means to be a lawyer likely would have made her future one of misery, had she in fact become a lawyer and served outside the small coterie of online lawyers who wear the happy face of self-promotion and technophilia, remaining aloof from the hardscrabble life of lawyers who actually practice.  Practicing law is hard, and suffering some abuse in the process is part of the deal. 

That the attacks were vulgar and certainly unkind was unfortunate, and inappropriate.  It’s more a reflection of childishness than anything having to do with the legal profession.   But the ability to withstand attacks and endure is a key character trait that any decent lawyer must possess.  There’s no crying in baseball.  Or in court.  Better to find that out before wasting $100,000, an absurdly high sum of money whether it’s yours, the bank’s or the donations of 100,000 friends.

As with most lawyers, I’m asked fairly regularly by students (or their parents) whether they should become lawyers.  I always say “no, absolutely not,” and give them a laundry list of reasons why they should reject the law and consider becoming cowboys or such.  Others do the opposite, and think I’m dead wrong.

My reasoning is that if a person wants to become a lawyer because they truly want to be a lawyer, their zeal will compel them to ignore me and do it anyway.  If they have sufficient desire to be a lawyer, who cares what some old guy says?  But if they are really asking for my advice, and inclined to be persuaded by what I say, chances are good that they will be miserable if they become lawyers.  The purpose of my negativity is to save them from a life of misery.  If you don’t really want to do this, you’re not going to be happy.

Sarah Allen went through the ringer for wanting nothing more than to beat the tuition system, itself a perfectly reasonable goal.  That anyone should leave law school carrying more than $100 grand in debt is nuts.  But that a bunch of yahoo losers at JD Underground put her through the wringer, the gauntlet of vulgarity and so dissuaded her from her “dream”, while ugly and nasty, inured to her benefit.  If she couldn’t take the abuse, she would have been miserable as a lawyer. 

Since law schools won’t do it, and lawprofs are busy blowing baby kisses at law students lest their feelings be hurt, somebody has to let these kids know that it’s not all sunshine, lollipops and rainbows.  Maybe the jerks at JD Underground serve a purpose after all?