Today’s New York Times reports: New York Minorities More Likely to Be Frisked.
 
And Francisco Franco is still dead.

“These are not unconstitutional,” Paul J. Browne, the Police Department’s chief spokesman, said of the stops. “We are saving lives, and we are preventing crime.”

Since when are these mutually exclusive? 

Sorry, but we’ve been over this turf already.  The only difference is that the total number of people subject to stop and frisk for nothing has increased from 469,000 (2007) to 490,000 (2009) to 575,000 this year, all but 53,000 being black or Latino.  The good news, however, is that of the more than half a million people stopped and frisked, the cops recovered 762 guns.

We’re really getting our money’s worth out of cops this year. 

The National Police Misconduct Statistics and Reporting Project is the rather lengthy name given the efforts of Packratt at Injustice Everywhere.  It’s a labor of love and personal conscience on his part, and it’s a gift that he gives the rest of us.  Yet, even Packratt has to eat, as does his family, as he put in an enormous amount of time and energy toward a project that no one else had done.

This might have been a fine project for one of the Think Tanks to fund, but that would take money away from pundits who were busily trying to cover their own family meals.  One particularly viable source remained, a grant from the Open Society Institute, funded by George Soros.  This source seemed particularly well suited to what Packratt was doing, and they had sought my input and help in locating worthy projects.  None struck me as worthier than Packratt’s.

Packratt applied for funding.  His application was excellent, well prepared and thorough.  He was rejected.

It’s Packratt’s belief that the Soros Criminal Justice Fund wants nothing to do with police misconduct.

Of course, upon further review it was even more of a long shot than I first thought since the OSI seems to have a very heavy pro-police bias. Out of the 337 grant listings for “Law & Justice” projects that they’ve supported, not a single one had to do with police misconduct or brutality.

He may be right.  Perhaps recognition of a police misconduct problem would subject the fund to claims of anti-police bias, a potential controversy that they prefer to avoid.  Perhaps they don’t agree that police misconduct is an issue in America.  There’s no way to tell, since they don’t explain their reasons for rejection of a request for funding.  They send the typical rosy rejection letter.

It’s one thing to be rejected, but it’s another to see what’s been funded.  In the past, the OSI has funded such important efforts as Amy Bach’s book, Ordinary Injustice, a must-read for anyone interested in criminal justice issues.  So, as Packratt rightfully wonders, what was more important, more worthy than his project?

Well, today, the OSI finally released its list of 2010 Justice Fellowship winners and among the projects that were deemed far more important that trying to determine the extent and causes of police misconduct in the United States were:

• A book of poetry about mass incarceration
• A support group for families of juvenile offenders
• And a project defending pleasure clubs in Louisiana

…and, yet again, not a single project that deals with the issue of police misconduct.

Really… a book of poetry beat out the NPMSRP for funding?

Not exactly a book of poetry, though it may well be the case.  More precisely,

Reginald Dwayne Betts, Bowie, MD

An author, poet, and juvenile justice activist, Betts will write a book about the ways that crime and mass incarceration affect the families of both victims and incarcerated, social workers, teachers, and others who will never see the inside of a jail cell.

He will write a book.  Whether or not it’s poetry remains to be seen.  Not to denigrate this, or any of the other recipients of grants, but there seems to be a theme throughout.  They appear to prefer projects that put band-aids on wounds rather than doing anything to stop the wound from happening in the first place.  Many of the projects seem, well, painfully obvious, having been done (and done, and done again).  Others have huge potential for dangerous messages, such as this one:

Jesse Wegman, Brooklyn, NY

Wegman, a lawyer and journalist, will write a series of articles about jailhouse lawyers. Every day, in prisons across the country, these lawyers do the work of their counterparts on the outside: they conduct legal research, draft legal briefs, oppose government motions, and scramble to meet filing deadlines, all in the service of their clients.

In the service of their clients? Apparently no one explained to the board handing out cash what exactly that means in a prison, where “service” is a euphemism. 

On the pleasure side, there’s this interesting project:

Alison McCrary, Safe Streets / Strong Communities, New Orleans, LA

McCrary will challenge law enforcement practices that criminalize New Orleans’ Social Aid and Pleasure Clubs and Mardi Gras Indian tribes. The centuries-old cultural groups, which number almost 150 citywide, are persistent victims of racial profiling, police abuse, harassment, illegal arrests, and intimidation.

This, of course, tends to suggest that Packratt’s view that OSI won’t fund police misconduct projects is mistaken.  At least when it comes to misconduct affecting “social aid and pleasure clubs.” 

Upon reviewing the proposals that received grants, however, another aspect stood out.  There seems to be a tendency to favor the “liberal arts,” proposals that seek to produce a book, articles or social service.  Packratt’s proposal was entirely internet related.

In my prior discussions with the Soros people, I noted their failure to recognize the medium of the internet as a way to broaden the reach of their projects.  Was it better to sell 1000 copies total of a dead tree book or to reach out to 10,000, 100,000 people a day, every day?  They had heard of the internet, but had yet to appreciate how far and wide a message could spread online.  Technology had yet to make it onto their radar as an effective means to an end.

I realize that old school mentality dismisses the internet as a serious medium, worthy of the attention of serious people.  This is exacerbated by the overwhelming use of the media for crass commercialism, deception and self-promotion, not that those of you who believe in your hearts that there can be no higher purpose to life than putting a buck in your pocket care.  But if the OSI folks think that a book of poems about how families are affected by mass incarceration is going to accomplish more good than Packratt’s project, they’re clueless.

There are some hardcore efforts being made to change things that cause pervasive harm, and some of them are happening online. While some books, like Amy’s, have made a difference, most will amount to nothing more than bit of vanity by people who really don’t know their ass from their elbow.  Which explains why they are funded by people who are similarly knowledgeable. 

In the meantime, maybe Open Society Institute funds will eventually find their way to the internet, likely the day after everyone shuts their computers down for good.  But hey, It’s George Soros’ money and he can waste it any way he wants.

Wholly unrelated, but there have been a number of posts lately on the subject of crazies.  Norm Pattis complains of the Connecticut Trial Lawyers Association’s attempt to deny defendants the opportunity to assess the craziness of a plaintiff who alleges that defendant made him crazy.  As Norm says, that’s just crazy.

Over at Popehat, Ken complains of the sort or clients sent his way via Martindale-Hubbell.

This afternoon we got a cold call from a man who wanted us to sue the county for implanting a microchip in his head. On contingency, of course.

That was fairly representative of the 3-4 cold calls a day we get recently. Most of which I have to deal with.

Somebody remind me — why did we decide to pay a ridiculous amount for a Martindale Hubbell profile again? If I wanted to meet crazy deadbeats, I could do it with a $20 and a short walk to Pershing Square.

Anyone who has been in this business for a while has received inquiries like this.  These are the tin foil hat folks (used to deflect the gamma rays that the government is shooting at their brains), who want us to deal with the government conspiracies against them, from the implantation of microchips to the CIA watching them in their bathroom. 

There are a surprising number of people who believe in such things, and they want lawyers to make their paranoid delusions go away.  The reason they seem to find lawyers via such online means as M-H and Avvo is that they’ve worn out their welcome locally and need to expand their search for a lawyer who truly appreciates their situation.  Real clients don’t need online sources for lawyers.  Clients no one wants do.  Ken was right, of course, to turn down the case.

But what made this post curious was that only a few days ago, Ken posted a query  about the ethics of accepting another case.

Say a client comes to you and says that they believe they are being watched by various law enforcement agencies, and that they want you to do something about it — say, send letters to the agencies asking what’s up, or file Freedom of Information Act requests with the agencies. Say that based on your interactions with the client, you’re pretty sure that there is no surveillance and no investigation, and that the whole thing is part of a delusional structure. Say that what the client wants you to do — send a letter or a FOIA request — does not impinge upon anyone else’s rights: it’s not like suing somebody or sending a threatening cease-and-desist letter. Say that doing this for the client might even give the client some peace of mind. Say that the client is not a danger to himself or others, and would not be made subject to a conservatorship if somebody tried that.

Is it ethically wrong to do the service for the client?

While it’s arguably different that this client, as opposed to the microchip client, comes with a delusion that’s slightly less absurd, though Ken states he’s “pretty sure” that there’s no basis for the client’s fears.  And there’s one other big difference.  This client is willing to pay for services rendered.

The comments to the query are very interesting.  While some note that, from a practical perspective, crazy clients are almost always the ones who end up being very unhappy clients (likely because of their certainty that the ultimate determination that “no, the government is not surveilling you,” makes the lawyer part of the conspiracy), resulting in grievances, maybe even a lawsuit, lots of wild telephone calls and perhaps a screaming match in the waiting room (assuming you have a waiting room). 

Most of the comments, however, reflect a “situational” ethics approach, or moral relativism based on the fact that the client has the wherewithal to pay.  When the client has cash, they aren’t quite so crazy.  In fact, maybe they are right, as even paranoids have enemies.  There are some interesting gymnastics played to justify taking the money of a potential client when the lawyer is “pretty sure” that there’s nothing to be done.

As lawyers, we have an amazing ability to rationalize ourselves into pretty much any hole we choose.  We know what we believe to be right and wrong, and then argue a way around it so that we can grab the loot.  If we don’t believe that we are providing a meaningful benefit to someone, then we’ve answered the question. 

Could we be wrong?  Of course.  Sometimes crazy things happen, and sometimes the tin foil hat person really has gamma rays being shot at him.  Well, maybe not gamma rays, but something.  And no one should be denied access to counsel if they have a legitimate need or grievance.  But that doesn’t mean that any lawyer they call has a duty to take on a client, no matter how crazy they seem.  Or if they have cash. 

Notice that there was no hesitancy, no effort to rationalize, taking on the microchip case on contingency?  Suddenly, no concern for the crazy case and denial of access to counsel?  Of course not.  It’s only about money.  Contingency means they have none, and that makes them crazy and broke.  Crazy with money makes them eccentric.  Eccentric sounds so much better.

When we ask questions like Ken’s, it means we already know the answer.  If it were otherwise, we wouldn’t ask.  We get retained and get to work.  We need no one’s approval or permission to represent our client.  At the same time, when someone we believe to be crazy calls, we similarly need no one’s permission to say no.  If we can distinguish the crazy seeking representation on contingent fee, we can do it when they have cash in hand.

Times are still hard out there for many lawyers.  Turning away a potential client who can pay a fee is like taking a meal away from your beloved child.  When we need to go through rationalization gymnastics to justify taking on a client, when we believe them to be delusional, we are offered an opportunity to decide whether we are lawyers or mercenaries.  There are plenty of crazies out there, and you will have the opportunity to decide whether to take their money.  This isn’t a test of them, but a test of you.

The jury returned a verdict of not guilty.  At least that went in her favor, as Tonya Craft sat in the Catoosa, Georgia courtroom of Brian House, now her judge but previously a lawyer for her ex-husband.  Gideon at A Public Defender offers an in-depth look at the trial from the pre-trial remove. Circumstances have borne his assessment out.  From the Atlanta Journal-Constitution :

The Catoosa County Superior Court jury found Tonya Craft, 37, not guilty on each of 22 charges of child molestation, aggravated sexual battery and aggravated child molestation.

The defense claimed that the children were manipulated by parents and investigators into falsely believing they were molested.  The jury agreed.  But it’s been two years in coming.

Since her arrest in May 2008, Craft has been fired from her job at Chickamauga Elementary School, lost custody of her daughter, lost her Georgia home and moved with her husband to Soddy-Daisy, Tenn., about 30 miles north of where she was on trial in Ringgold.

The community was deeply divided, as allegations of sexual molestation of children tend to do.  Those in the community who believe that the molestation happened see the verdict as a failure of the system.  Those who believe that the allegations were false feel vindicated. 

There is no argument that Tonya Craft is not innocent.  She carried into trial a presumption of innocence, and the State failed to strip her of it.  While the jury only said she’s “not guilty,” the law says she’s innocent.  That won’t change the beliefs of those who are certain that three little girls were molested, but the discussion is closed on that subject.  Of course, the three little girls were molested, if not by Craft than by the adults trying to get Craft.  Either way, the children suffer.

As for Craft, she will be perpetually tainted by the trial and its attendant publicity.  When accused of molesting children, there’s no place to recapture one’s reputation, no matter what the verdict.  No job. Lost custody of her daughter.  No home.  What a great win, right?

The only thing that would have made it worse is a wrongful conviction.  Keep telling yourself that it may not be perfect, but it’s the best system anywhere.  Tonya Craft was acquitted, and every person touched by this case has suffered.  The people who build courthouses like to chisel platitudes over the doors.  I’m not aware of any courthouse, however, that bears the phrase, “It could have been worse.”

While it won’t impact murderers or sex offenders, it’s likely to matter to your next door neighbor, or perhaps the guy down the block.  From David Ingram at BLT:

The subcommittee on crime and drugs, chaired by Sen. Arlen Specter (D-Pa.), is hearing testimony from academics, advocates, and at least one voice from Big Law. One major point of dispute: a proposed requirement for some financial-services employees to meet a fiduciary duty to their customers, or else face criminal charges and potential prison time.

“I have long believed that it is insufficient to have fines for fraud,” Specter said in an opening statement, adding that fines from the Securities and Exchange Commission are “calculated as part of doing business.”

This isn’t nearly as isolated at Arlen Specter suggests.  Those who are engaged in the business of selling drugs realize that what they are doing could net them some serious prison time.  That’s the price of selling drugs.  There’s a lot of money to be made, and there’s a risk associated with making all that money.  They get it.  They’ve weighed the calculus, the risk of getting caught, of being convicted, of doing time.  They make a choice.

The same is true of those in the financial services industry who engage in wilful deceit and manipulation, except that they don’t need to package their product in glassine envelopes. 

Proving fraud, of course, is quite another matter from proving that someone sells drugs.  The view from behind can be very different from the view in front.  What’s perceived as fraud due to bad, sometimes horrific, results, is often just a lousy job.  Memo to Justice: Not everybody in the financial services industry knows what they are doing, or makes the right guess.  Worse still, not everybody has all the really good information or puts it together the right way.

The impetus for this latest round of criminalization comes from Lloyd Blankfein’s inability to follow his lawyer’s advice when answering questions on television.

Sen. Ted Kaufman (D-Del.) said the public is demanding some action by Congress, especially in the wake of last week’s congressional testimony by Goldman Sachs executives. “I just think there’s a crisis, in terms of people thinking there are two sets of rules,” Kaufman said.

It’s not just a knee-jerk reaction, but one that allows politicians to become overnight heros by criminalizing something.  These opportunities are growing fewer and farther between, and to pass up a chance to pander is just foolish.  There’s always another election right around the corner.  But how novel is this approach?

Damon Silvers, associate general counsel of the AFL-CIO, said such a statute would not be unique. “I would submit that there’s nothing particularly exotic about criminalizing willful breaches of fiduciary duty. It’s a well-known feature of our pension law today,” Silvers said.

It’s a well-known feature of the law that applies to essentially every endeavor, except when it comes to financial services.  A curious omission, to be sure.  When a person deliberately defrauds someone, the idea that they have committed a crime doesn’t strike anyone as odd.  So why has the financial services industry been exempt from criminal liability up to now, with the worst ramification a fine levied by the SEC? 

It could be part of a Financial-Military Complex conspiracy, or that distinguishing wilful conduct from screw-up in this context requires too fine a point.  Then again, Goldman Sachs seems to be awfully good at trading when it comes to their own account.  Why aren’t they ever that good when it comes to anyone else’s?

Of the people who testified before Sen. Specter’s committee, one was there to speak up for the potentially downtrodden.  Not poor, mind you, but downtrodden inchoate.

Among those testifying at the hearing is Andrew Weissmann, former director of the Justice Department’s Enron Task Force. Now the co-chair of the white-collar defense practice at Jenner & Block, he said a new criminal statute relating to fiduciary duty would raise questions of fairness and proper notice to those who might be covered.

“Would every breach of a duty of care now become a crime?” Weissmann asked this morning.

Only in passing do I note that Weissmann went from DOJ to co-chair of white collar defense in the blink of an eye, since he naturally had vast experience in the defense of financial crimes as opposed to their prosecution.  Or maybe it was his huge portfolio of clients.  Or maybe it was because Jenner & Block knows that most of their potential “white-collar” defendants wouldn’t realize that prosecutorial credentials, which sound so impressive, lead down the road to perdition (and conviction).  Still, lack of skillset notwithstanding, Weissmann was chosen to defend the public good.

No doubt there was more said than just one question, but the question is an interesting one.  “Would every breach of a duty of care become a crime?”  As opposed to what, “would every crime be a crime?”  If a fiduciary duty is imposed, and it someone wilfully violates that duty, and if violation of that duty is criminalized, what question is there?  Does he mean, “Would this apply to Goldman Sachs too?”  Does he mean, “What if the loss is under $10 million?” If the question is whether the breach has to be wilful, rather than accidental, then it would appear that he wasn’t listening.

The better question is how one distinguishes the deliberate fraud from the basic fact of life that players in financial services talk a good game but often don’t have a clue how a bet will turn out.  As is brutally clear to anyone who has spent any significant amount of time trying to defend such matters, this is where systems that sound good in theory break down. 

Intent is discerned from conduct, since we can’t see into people’s minds, and conduct is rarely clear enough to differentiate between malice and ignorance.  Pretty soon, everything gets swept together and the negligent get tossed in the same hopper as the deliberate fraudsters.  They all look the same, more or less, and once they are tarred as criminals, nobody really cares all that much whether they meant to do harm or just couldn’t do any better.

As AFL-CIO associate general counsel Damon Silvers noted, it’s really not all that exotic a notion to subject people to criminal sanction for deliberate fraud.  The question then becomes, how has it worked out for others?  It’s unfortunate that nobody thought to ask that question, but then, there was nobody in the room capable of answering.

I’ve long subscribed to Norm Pattis’  trench lawyer movement, predicated upon the belief that it would be really, really useful to have a Supreme Court justice who had some actual experience in the field of endeavor over which he or she presides as ultimate decision-maker,  Now that Elena Kagan, former dean of Harvard Law School, Solicitor General, woman of ambiguous sexuality, has been nominated to the court, and more particularly since she will be the primary focus of discussion for lawyers everywhere for a while, how does she look from the trenches?

Aside from the whole Harvard/Yale thing, and the “third set of breasts on the court” sexist argument, Eric Turkewitz notes from his review of Tom Goldstein’s s 9750 Words on Elena Kagan (more than you ever wanted to know) that the sum total of her legal experience on the ground is

Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.

That ended in 1991, and there are no further details to flesh out what she did at Biglaw aside from warming a chair in the library.  It doesn’t make her a bad person.  It also doesn’t make her experienced in what real lawyers do or what really happens in courtrooms to real people.  Max Kennerly  notes that lack of experience, like an Ivy League education, is a hallmark of our Supremes.

The experiences of Justices Scalia, Thomas, Ginsburg, and Roberts should be discounted. Their work was either for only a few years at the very early part of their career and involved primarily institutional representation (e.g., Monsanto Corporation or the United States itself), or was in a particularly rarefied air, e.g. Supreme Court cases. That leaves us with the “trenches” experience of Justices Kennedy, Alito, and Sotomayor, who together have 34 years of “trenches” experience, compared to the, say, 130–150 years of collective pre-Supreme Court experience on the Court, most of which was policy work for the government or political work for politicians.

You would think that putting nine lawyers in a room, they would have to come up with more than 34 years of actual experience in the trenches.  Nope. Not this bunch.  It must be hard work to find that many lawyers with that little experience.  But, Max asks, “do we need more?”

Most of the time, they’re policy-making politicians like Congress, setting up big generalized rules with which the rest of us must deal. By tradition and by necessity, the Supreme Court rarely sets down useful, unambiguous rules for the benefit of the public. Instead, they reverse or affirm lower courts based on their own views of what the law should be, then justify that decision with sweeping essays about precedent and the public policy of the United States. Given the context in which those essays are created, they’re bound to be vague, self-contradictory, and inscrutable to lower courts.

To put it another way: if someone is going to lose, it’s because the Supreme Court wants them to lose, not because they don’t understand the reality of the law. They don’t care about the reality. That’s the way it has always been and the way will continue to be.

A wee bit cynical, but certainly a fair assessment of the court over the past generation.  From this, Max concludes:

Thus, as much as I would like to see a “trenches” lawyer on the Supreme Court, it’s more important to me that the nominee have sound views on legal policy — sound views on who should win and who should lose — than genuine experience in legal reality. What good is experience in the trenches if the Justice ends up ruling the wrong way anyway?

Here’s where the analysis goes awry.  That we have a Supreme Court bent on political policy making, whether from right or left, without regard to the real life implications of their “vague, self-contradictory, and inscrutable” pronouncements (and let there be no doubt that this Court’s decisions have invariably done more to muddle than clarify, and rested on a “clear” view of life that bears no resemblance to reality in the trenches), the solution isn’t capitulation.  That’s the whole point of the trench lawyer movement.  It’s bad, but it shouldn’t be and doesn’t have to be. 

The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right.  That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn’t mean that putting another theorist (more or less) on the court is the solution. 

There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better.  Now that it’s a life and death struggle for political hegemony from two political parties whose members can’t be distinguished without a scorecard, the risk of nominating a real lawyer is far too great.  There might be a tea party, or coffee klatch, or beer bash, because of it.  We can’t take the risk of doing something right.

With the practicalities of politics duly acknowledged, do we just give up and take the best we can push through?  Not to say that Kagan is necessarily the best, or even any good, but she certainly appears to be capable of getting consent of the Senate after the requisite bashing for the television cameras.  Of course, after approval, she could always hire a couple of real lawyer to show her where the courthouse is, explain what lawyers do in there and describe how people who didn’t attend Harvard or Yale are forced to live with her decisions.

Instead, she’s likely to hire a few clerks fresh out of law school.  I wonder what schools they’ll be from?

While the blawgosphere will be atwitter today over Elena Kagan’s nomination to the Supreme Court, about which Norm Pattis has pretty much captured my feelings, Attorney General Eric Holder’s revelation  that the Obama administration will support changes to Miranda to deal with the Communist terrorist threat is likely to get lost in the sauce.  Aren’t you glad you voted Democratic?

The Obama administration is considering changes to the laws requiring police to inform suspects of their rights, potentially pursuing an expansion of the “public safety exception” that allows officers to delay issuing Miranda warnings, officials said Sunday.

Attorney General Eric Holder, in his first appearances on Sunday morning news shows as a cabinet secretary, said the Justice Department is examining “whether or not we have the necessary flexibility” to deal with terrorist suspects such as the Pakistani-born U.S. citizen who tried to detonate a car bomb in Times Square last weekend.

“We’re now dealing with international terrorism,” Holder said on ABC’s “This Week.” “And if we are going to have a system that is capable of dealing in a public safety context with this new threat, I think we have to give serious consideration to at least modifying that public safety exception.”

I feel safer already, just knowing that Holder seeks to further entrench the facile distinction between terrorists and criminals.  Whouldathunk criminals would be the preferred crowd? Well, not quite preferred, but to the extent they can’t be labeled terrorist.

Over at Volokh Conspiracy, Orin posts about some underlying legal questions with the concept of Congress legislating some new variant on Miranda, given that it’s derived from a Supreme Court decision.  Of course, the remedy for a Miranda violation is the inability to use statements in direct evidence at trial.  That presupposes that terrorists get trials, which isn’t exactly a given yet. 

There’s no word on what exactly Holder is talking about when he says that the adminstration will expand the public safety exception.  Will there be changes to the warning itself, such as “you have the right to remain silent, and we have a waterboard right here with your name on it,” or will it be that Miranda warnings need only be given when the TV cameras have moved on to the next story of public fascination? 

Either way, the concept that there is a new enemy to America that transcends the system that now exists and requires new rules because, well, this is War, will permeate our approach to all threats, real and perceived.  We’re always at war with something these days, and by using the jargon of war to explain our situation to a public ridden with fear, thus muddying up the thought process and creating the appearance of distinctions that justify, if not compel, new approaches for these new threats, our war against the terrorists today will be our war against somebody else tomorrow.  Just as the war against crime, against drugs, brought us to this point.  Full of fervor.  Full of fear.  We must fight the enemy.

Some 110% American will inform me that I just don’t get it.  There are evil people out there bent on destroying our way of life, and here some pantywaist criminal defense lawyer would treat these murderers like they are entitled to a walk in the park in the spring-time, with cable TV.  “You just don’t get it.”  No, I don’t.

Put aside that my idea is to treat murderers like . . . murderers.  Whatever was I thinking?  Despite the intrinsic issues with the criminal justice system as it now applies to those accused of crimes, it’s not enough to deal with the threat of terrorists.  It might give them some chance.  We can’t have that, because these aren’t just mere criminals.  These are especially evil criminals.  Not good, wholesome criminals like those other ones.

We’ve tried suspending the rules, along with our ability to reason, in the past, and it has always come back to shame us for our disgraceful lack of fortitude in the face of a perceived threat.  Anybody remember Japanese internment camps during WWII?  Yet we ignore George Santayana and manipulate those with short memories by offering solutions to today’s grave threat. 

Who knows what fine measures Attorney General Holder and the Obama administration have in mind.  No doubt this will change everything and make us much, much safer.  You can never be safe enough, you know.

Via the first worthwhile post I’ve seen from Deliberations  since Anne Reed left to save the whales of Wisconsin, the Blog of Legal Times  posts about the advice provided Goldman Sachs’  executives when called to give “testimony” before Congress.

O’Melveny & Myers partner K. Lee Blalack II spoke to The American Lawyer for a March 2009 story about what it’s like to prepare clients for a congressional hearing. His advice: a congressional hearing room is not a forum for getting at the truth. A day in the klieg lights, he said, should end with minimal damage to reputation while not complicating a client’s position in other investigations or litigation.

“Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a member’s allotted questioning time.”

Outrageous?  Disgraceful?  Maybe, but so what?  Effective?  You bet, and that’s why Blalack gets paid the big bucks, and you can bet the bucks are big.  Having watched some of the hearings, my bet is that Goldman CEO Lloyd Blankfein was too smart to heed sound counsel.  Clients are like that sometimes.

Lest anyone get too bent out of shape about the advice, bear in mind that congressional hearings are all about speechifying and showmanship.  The questions can go on for hours so that a Congressperson can keep his mug on TV as long as possible.  It’s not like they actually want an answer to questions, as long as they get to make a speech ask the questions.

There has been an explosion recently of new blawgs that run the gamut of emotional pleas about Justice.  They ooze.  They make my eyes feel sticky when I’m done reading them.

Criminal defense lawyers have a strong innate sense of justice, a desire for fairness and zeal for fighting for the underdog.  It’s our passion.  But it’s not our job.  Our job is to serve our clients, and that often bears no relation to justice.  With all this emotion, writers wrapping themselves up in their feelings about right and wrong, good and evil, fair and unfair, it appears that they may either forget what they do or begin to believe their own press.  No one owns the side of good.  The prosecutors who believe that they sit at God’s right hand are just as foolish as defense lawyers who believe the same.

Unless you happen to be on the bonus list at Goldman Sachs, you are not likely to feel particularly sympathetic toward Blalack’s advice, at least in this instance.  There may be no enterprise more evil than Goldman, at least today.  Never underestimate the ability of a financial services corporation to come up with something even more evil tomorrow.  Certainly, no criminal defense lawyer feels great love for Goldman, unless they are on the payroll through the good fortune of indemnification. 

But Blalack’s advice is effective and undeniably sound.  That’s what a good lawyer gives his client, even if it stinks to high heaven.  Nothing unlawful or unethical, but effective.  Emotional rants are the stuff of childish self-indulgence and blind faith.  That’s fine when it doesn’t count, but it’s worthless when a client seeks advice.  Lawyers serve their clients and leave their emotions at home.

From Saturday to Sunday, it was as if the world shifted on its axis.  Saturday was the senior competition in Poughkeepsie and it promised to be a tough one.  My little chunk of it involved epee, my son’s weapon of choice.  He’s just 15 years old, but he’s pretty good at it.  Far, far better a fencer than his old man ever was.

It was the North Atlantic Section of the United State Fencing Association championship.  It qualified fencers to compete in the Summer National Championships.  It was held at Vassar College in Poughkeepsie, neutral ground.  And it teaches fencers something that young lawyers and law students have yet to learn.  There are winners and losers. The winners go on to fence again. The losers go home.  The winners get a medal.  The losers go home.  If the losers don’t like it, work harder and become a winner. 

Or maybe it just wasn’t your day, and that happens too.  Sometimes, no matter how hard you work, you still lose.  That’s life.

My son wanted to do well in the senior competition.  You don’t need a recitation of how fencing competitions work, so I won’t bore you, but he won his first two direct elimination bouts (which come after the pool round) handily.  His third DE was against a college fencer he had beaten in the pool.  He got the first three touches, up three to zero.  He was feeling pretty good about things.

His competitor didn’t give up or lose faith. He upped his game and took the next six touches.  In frustration at his inability to stop his opponent, my son first lost focus.  He then lost his cool.  Then he lost the bout. 

He ended up doing okay in the competition, but nowhere near as well as he hoped.  He was crushed, though his reaction was overwrought.  That’s the nature of serious competition: someone wins, someone loses.  This was his day to lose.  He gets no medal, no glory, no win.  There’s no sweet spin to put on it.  He did fine.  He lost.  Pack up and go, your day is over.

After the competition, my son and I had a talk.  Actually, it was more my talking and his being in my presence.  Father/son talks with a 15 year old tend to be that way.  They don’t talk all that much.  He was furious with himself for having failed and wanted to go home, even though the Junior championship (under 19 years of age) was the next day.  I told him to toughen up, that losing is part of the nature of competition and you have to take losing in stride, just like winning. 

I told him that this was just a sport, and if he thought this was the end of the world, just wait until really important things in his life went sour.  It would happen, and it would be crushing.  Still, you have to brush yourself off and get on with it.  The only real losers are the ones who wallow in their misery and can’t muster the will to fight again.  He went to sleep in silence.

The next morning, he woke up and dressed for competition.  He came in second place, losing a tough gold medal bout.  The final score was 5-2, but it doesn’t tell the story.  While bouts go to 15 in three 3 minute periods, his was one of cat and mouse, with the score 3-2 with ten seconds left.  He was behind.  He tried two desperation fleches in the final ten seconds, and was caught both times.  His opponent was older and much stronger than he was, and was able to parry his attack.  But he did what he had to do to try to grab victory.  It was tactically perfect, even though it didn’t work. 

He was proud of himself, even though he didn’t take the gold medal.  He fought the good fight.  He didn’t give up, or offer an excuse for the loss, even though it would have been easy enough to do.  He took the defeat with grace.  Afterward, he hugged the other fencer, and I shook his hand and his coach’s.  We talked about what a great bout it was, and how the winner fenced.  He talked about how well my son fenced and how difficult a bout it was.  They were most gracious in winning.

From a father’s perspective, he did spectacularly well, and I swelled with pride at his effort and spirit that day.  For his fencing, his grace in defeat, his will to continue the fight, and his looking forward to his next chance to do battle.  My son is certain that he will win next time, even though he knows that he can lose, whether because he didn’t work hard enough or it just wasn’t his day. 

Losing is a more important lesson in life than winning, and far too many young people have never learned to lose.  You just don’t want to learn it too often.