My favorite marketing philosopher, Seth Godin, asks who judges your work.

We let anyone, just anyone, judge our work (and by extension, judge us.)

Sue, the airheaded but long-legged girl in Spanish class gets the right to judge our appearance.

Bill, the bitter former-poet English teacher gets the power to tell us if we’re good at writing.

And on and on.

An email arrived yesterday announcing a contest for the worst lawyer ads on the internet.  Well, that seemed like a funny enough contest to pique my interest. There were a host of categories, from worst acting to most ethically challenged.  And who was running this funny contest?  A website I’d never heard of before called .

With reckless abandon, I clicked.  “Helping Regular People and Businesses Choose and Manage Their Lawyers.”

From what I can tell, this is the brainchild of Nat Colley, a former marketer for Thomson Reuters, the folks who bring you Westlaw and Findlaw, who has created a website to find lawyers, for a fee, for those in need.  His basic service provides the names of three lawyers for $250.  His rationale for why someone should pay him is all over his site.  It makes sense, though it leaves more questions open than it answers, most notably, “why him?”  Ironic, since a person who can’t find a lawyer for lack of the ability to discern quality, would pay an unknown person to do it for him.  Go figure.

Looking around the website, I was unable to find Nat Colley’s name anywhere.  That’s a red flag to me, a sign that someone’s trying to hide something.  It’s easy to hide on the internet.  While providing his background as a former Thomson marketer, though without any details of worth, he doesn’t say who he is.  Another disbarred lawyer, perhaps?  A former lawyer, but it’s a blank from there. Maybe he’s great at what he does and provides a wonderful service. But there’s nothing to distinguish him from the mass of make-believe people online with something to sell.  And what he sells is judging lawyers.

Scanning the blawgosphere, I saw a fascinating exchange over at Affirmative Links  in the comments section of a post that riffed off the discussion here between Orin Kerr and me.  It involved efforts to make one commenter, Andrew MacKie-Mason, agree with the idea that the exceptions to the Warrant Clause have swallowed the rule.  The commenter wasn’t buying and wanted it proven to him.  What made this remarkable is that anyone cared.

A few clicks and it appeared that Andrew MacKie-Mason is a law student of no particular account.  To his credit, lawyers spent their time attempting to educate him, to no avail as it appears.  The student has a blog of his own, where he expresses his opinions.  It too is of no account.  That doesn’t mean that Andrew doesn’t sincerely believe that his opinion matters, or that he is owed an explanation to his satisfaction upon demand.  Every one of the 135,000 current law students believes, with all his heart and soul, that the world revolves around him or her, and that every lawyer in the country is obliged to indulge them. 

Somebody unfollowed me on twitter yesterday, which in itself is nothing worth mentioning.  But this person unfollowed me because I didn’t follow him back.  I don’t know who he is, or why I would possibly want to follow him.  For some reason, he thought that by following me, he made himself someone I would want to follow.  I didn’t.  I don’t.

Seth Godin’s post reminds us that the need for approval by people we don’t know, who frankly don’t exist, can be overwhelming.  There are invisible people selling their judgment of us to people too foolish to consider why they’re invisible and what they have to hide.  There are people who have done nothing in their lives to merit our attention, but who not only demand it, but receive it from people who inexplicably can’t bear the idea of someone not agreeing with them.  There are people who think they are owed our attention just because they give us theirs.

Stop worrying about being loved, respected and admired by people who don’t exist.  Just do whatever it is you do to the best of your ability and tell the rest of them to go jump in a lake.  You will never achieve universal love and popularity, respect and admiration.  There will always be some cheerleader who says you aren’t popular enough.  Who cares.

Whether it’s Nat Colley, Andrew MacKie-Mason, @LawandBaseball, do they matter in your world?  So why bother?  On the other hand, the idea of giving people the names of three lawyers for $250 is very attractive.

Mike at Crime & Federalism  broke the story.  In August, 2009, a guy named Carlos Alfredo Simon-Timmerman bought a porn video while in Venezuela, and had it in his possession when he entered the United States through Puerto Rico.  The video, “Little Lupe the Innocent; Don’t Be Fooled By Her Baby Face,” starred Lupe Fuentes, born in 1987.  The customs decided she was a child.

Simon-Timmerman spent two months in jail prior to the court case because a Special Agent of Immigration and Customs Enforcement had testified that Fuentes was “definitely” under the age of 18 in the video, as well as testimony from a pediatrician that had deemed her 100% underage; both of which Fuentes proved wrong when she showed up in court.

There are a host of ways in which this matter could have been resolved in minutes, maybe hours on a busy day. 

Under 18 U.S.C. Section 2257, all porn producers are required to verify the age of a porn actress.  Every porn production company is required to have a custodian of records.  Under the law, these records must be made available for law enforcement to inspect.

And there’s always Googling, where it would have been immediately learned:

Two months before the innocent man was arrested, Teravision signed Fuentes.  An article that appeared on AVN on June 10, 2009:

VAN NUYS, Calif. — Teravision today announced the signing of Spanish internet sensation Lupe Fuentes to an exclusive performing contract.

Previously known as “Little Lupe,” Fuentes made herself a teen model sensation and gained international stardom online. Now, she is ready to parlay that into an even brighter career in the adult video arena.

In the alternative, one would easily ascertain that Lupe won the 2006 FICEB Ninfa Prize nominee (Best New Spanish Actress – Posesión) at the Barcelona Erotic Film Festival.  It’s all there online, should anyone care.

But Simon-Timmerman was being held, lest he flee from the federales and buy another porn video, in the face of stinging evidence against him.  The prosecutrix, AUSA Jenifer Yois Hernandez-Vega, like so many young, powerful prosecutors, knew when she had an evil kiddie porn video buyer in her clutches.  She had no need to waste her time on Google, or perhaps even contacting someone to actually ascertain facts.  Not when she had “experts“.

Alek Pacheco, who works for U.S. Customs, claimed that he was an expert on child pornography.  According to Special Agent Alek Pacheco, Lupe Fuentes was between 13-14 years of age.  (See Affidavit.)

AUSA Jenifer Yois Hernandez-Vega also enlisted the help of Dr. Pedro R. Jaunarena:

Based on his numerous years of experience and training in treating children, Dr. Jaunarena will provide expert testimony regarding, but not limited to, the age of the minors depicted in the images in the labels of the DVDs and in the video images found in the DVDs seized in relation to this case.

The defense lawyer, to his enormous credit, located Lupe’s Myspace Page, tracked her down in Venezuela and got her to fly from Venezuela to Puerto Rico to prove her age.  She had to physically appear, as Prosecutor Jen would accept no less in the face of overwhelming evidence.  The judge then dismissed.

Those who love order over all else will point to Carlos’ travails as proof that all’s well that ends well.  After all, the innocent man walked.  He wasn’t executed this time, so what’s the beef?  The problem is that this case reflects a host of errors, ranging from the customs agent at the airport to the government’s experts, to the twinkie prosecutrix to the judge who allowed it to happen in front of him.  Consider this predicate to everything that happened to Carlos Alfredo Simon-Timmerman: Where it the evidence of a crime?

The entirety of this arrest and prosecution was based on one dope’s mistaken assumption, bolstered by a government in the hands of a twinkie with power far in excess of her grasp, and a system prepared to squint hard enough to allow order to prevail over reason.  When Simon-Timmerman arrived at Customs with the video, and presumably the Customs agent felt empowered to watch it, just to be sure that no evil porn watching American was bringing anything nasty back, somebody in a uniform decided, without basis whatsoever, that Lupe was a kid. 

Or maybe Lupe looked a little young after the agent watched the video for the third time (just to be sure), and Simon-Timmerman pissed him off just a little bit with his ‘tude.  Busted.

When the case landed on the prosecutrix’s desk, she could have spent the five minutes to ascertain whether there was a crime here.  She chose not to.  Instead, she turned to “experts”.  One of the secret plagues of the criminal justice system is the use of agents as “experts”, which is remarkable given how reluctant courts are to allow the defense to call someone with a few doctoral degrees, a dozen scholarly, peer reviewed studies and leading books and articles.  But if they have a shield, they are warmly embraced as experts in fields they’ve never studied or practiced.  You wouldn’t believe the expertise agents possess when it comes to drugs; they know everything there is about drug dealing, and invariably can explain why the mere possession of a beeper conclusively proves that a defendant is a major drug dealer.  Apparently, they can also discern a persons age from watching a film, so conclusively as to imprison a person.  At least to the satisfaction of a prosecutrix and a judge.

That the AUSA could have spent five minutes on Google, or made a phone call, and actually obtained information, seems to have bypassed the reasoning process here.  Why exert all that effort when one can make assure the results with the help of a friend.  Oh yes, and a doctor, since they would never say anything that was certain to a reasonable degree of medical certainty.  Just ask any personal injury lawyer, who for $500 can get a doctor to swear to anything.

But all of this comes down to the gatekeeper of the jail house.  The judge.  When presented with the allegations of possession of kiddie porn, one might wonder why a judge didn’t inquire, “have you contacted the producer of this film to ascertain the age of the actress?”  It seems to obvious, in retrospect.

It’s not only astounding how little it takes for a person’s life to be undone in the hands of the highly trained personnel of the government, from agent to all-powerful prosecutrix, but how the stop-gap, the judge, joins in the presumption of guilt.  Not only did the case proceed, but Carlos spent two months in custody until he was bonded out, without the government having an iota of evidence that a crime had occurred. 

The judge is more likely to be considered for a seat on the Supreme Court than I am.  AUSA Jenifer Yois Hernandez-Vega may leave the office and open up shop as a criminal defense lawyer, trading her claim of  insider knowledge and prosecutorial expertise for cash.  The agents will continue to watch porn videos while on duty to protect the United States from harm.

Lupe Fuentes was kind enough to travel from Venezuela to Puerto Rico to appear in court, prove her age and set an innocent man free.  She’s definitely got a good heart to be willing to put herself out to that extent.  The entirety of the United States government wasn’t worthy of the kindness of a porn star.

Samantha Geimer’s name isn’t nearly as well as known as Roman Polanksi’s, but it’s known enough.  She’s his “victim”, when she was a child of 13 back in 1977.  But now, she’s had enough .

Geimer’s attorney petitioned the court on March 23 to dismiss the case against Polanski, arguing recent changes to California’s constitution gave her more rights as a victim to influence the case.

“She is a person who is harmed by the maintenance of the prosecution and she wants it to end,” Geimer’s attorney wrote in the petition for dismissal. “She has not been treated fairly.”

Just as the prosecution for a crime is not, contrary to the mindset of victims rights advocates, a proxy for the vindication of individual rights, giving rise to the victim becoming a player in the proceedings, the termination of a prosecution isn’t up to a victim either.  Crimes are against society, though individuals may do the bulk of the suffering when there’s a victim to be had. 

The prosecution argued against Geimer, as one would expect and, perhaps, demand.  After all these years, it would be absurd to have the case die with a whimper.  Plus, there is the added concern that Polanski not be rewarded for fleeing the country rather than returning to court, particularly since lower air fares would make this an option for almost any defendant who can make bail.

Geimer’s petition was denied by the California Second District Court of Appeal without explanation.  It really didn’t need any, as the Victim’s Bill of Rights passed in California was nothing more than a political ploy to pander to those who thought it sounded really cool to make people think that victims had rights.  Another political subterfuge revealed as an empty gesture.

The question remains, however, why those who champion the rights of victims have been silent.  Do you not love Samantha, Paul Cassell?  Is she not worthy too?

It would be disingenuous of me to raise this if it involved some obscure victim, plucked out of some backwater news story that no one ever heard of.  But the Polanski case is pretty big.  Certainly big enough to make it onto the birthers victims rights advocates radar.  It seems reasonable to believe that Professor Cassell heard about it.  Even in Utah.

Obviously, the direction this is heading is down the old one-way street, where victims rights advocates are there whenever a victim wants compensation, or to veto a plea bargain, or to demand a table of her own in the well during trial, lest the prosecution not ask the questions to which the victim demands answers.  The table pounding, where is the justice, reverberates through the courtroom. 

And yet, Samantha Geimer, as far as victims go, has not only failed to achieve “closure”, that goal so often raised in the victims rights list of demands, but has spent a lifetime living, and reliving, an existence of a prop in a high profile battle that may well have made it impossible for her to exist as anything other than the 13 year old girl given champagne and a Quaalude at Jack Nicholson’s house before being raped by the boyish Roman.  Maybe she’s a real person, who wants to have a life apart of being Polanski’s victim before she dies of old age?

It’s not that this petition was any more worthy of being granted than that of victims demanding that the court ignore the terms of a plea bargain and sentence a defendant to five or six thousand years.  The decision was clearly correct, and Greimer has no right to demand dismissal, even though it means that she will continue to be the victim against her will.

The legitimacy of the victims rights movement, and the integrity of its advocates, however, is suspect when they only appear to chant “death to defendants.”  If there’s no gain to be had by supporting this victim, one who seeks the dismissal of charges rather than ever harsher punishment, then the movement  goes silent and its advocates hope that no one notices that they hid under their rocks.  Well, I noticed.

H/T Doug Berman

On CNN, the Republican Senator from Alabama, Jeff Sessions, was asked by John King about Arizona’s new birther law, requiring candidates for President of the United States to show their birth certificate before being placed on the ballot.  His response  was, “What’s wrong with that?”

Sessions , a former United States Attorney, Attorney General of Alabama and failed appointee for a federal judgeship, is the senior minority party member of the Senate Judiciary Committee, the same committee that blocked his judgeship.  He’s the fellow  who tried to insert a amendment in patent reform at the behest of the banking industry to deny DataTreasury of its ability to recover for infringement.  He’ll lead the charge against the nominee to replace Justice Stevens on the Supreme Court. 

Of course, the birth certificate requirement embraced by the Arizona legislature is in response to the birthers, those who believe that President Barack Obama wasn’t really born in Hawaii, and isn’t really qualified under the Constitution to serve as President.  Some may believe that he’s a sleeper agent of the terrorists, while others just hate him so much that they will seize on any reason to run him out of office on a rail.  WWWT?

King asked Sessions if it might present a problem to have each individual state come up with its own special demands for candidates before getting on the ballot.  Sessions’ response was, after a sly chuckle, to wonder whether it was constitutional.  He asks a lot of questions.  He has few answers. 

Being the helpful sort of guy that I am, and somehow having not been invited to join the King interview, it only seems right to offer some assistance to Senator Sessions by explaining WWWT.  Jeff (if I may be so bold), the problem is that if states are allowed to superimpose their individual political demands on candidates for national office, like, oh, president, we might end up with a system where candidates are held captive to impossible, embarrassing, demeaning demands designed to make it impossible for them to run. 

We could end up with courts deciding they meet the eligibility requirements, but states deciding they don’t.  We could end up with some screwy state, Alabama perhaps, enacting a law requiring candidates to recite the alphabet backwards while hopping on their left foot.  Ridiculous? Sure, but just a few baby steps beyond Arizona saying that a presidential candidate needs to meet their approval as to proof of birth.

The notion of states introducing their own requirements on candidates for national office opens a door to a new, heretofore unused, opportunity to make politics uglier than ever before.  And you thought Glen Beck was a bit too fruity?  I lack the imagination to conceive of all the potential requirements states might develop to block a potential candidate, maybe one of the party other than in control of the state.  But it’s not at all clear that states lack the power to do so.  As they are in control of their ballot, states may very well have the authority to impose conditions upon candidates.  Moreover, it’s not entirely clear that they need to be conditions that reflect specific requirements of the Constitution, such as being a natural born citizen.

Open this door and the ugliness that characterizes the state of American politics will reach a new low.  If it’s difficult now to find a candidate that anyone actually wants to vote for, imagine what we’ll be left with should another layer of political craziness be imposed.

On the other hand, there is one requirement to get on the ballot that I could get behind.  Why not make every candidate for office, and I mean every office, take the Advanced Placement exam for United States History and have to get a 5 to make the cut?  WWWT?

Other than the truly sick people who find crush films to their liking, it’s hard to fathom why anyone would take pleasure from the infliction of needless harm and pain to animals.  But does the Stevens decision lead us to stop eating meat?  I was a little surprised to see that Marc Randazza  found the reasoning in Jon Katz’s argument  compelling:

I wish for Stevens to be an opportunity not only to celebrate and strengthen the First Amendment, but also for people to re-examine their relationship with and treatment of all animals, both of different species and their own species.

Violence begets violence, and that concept is not limited only to human-on-human violence. How desensitized do people become about harming other humans when they eat other mammals, who are not so unrelated biologically to humans? Of course, chickens and fish also bleed and feel pain and suffering from being slaughtered.

Randazza responds:

My food consumption is one of my admitted hypocrisies. While I agree with everything Katz has to say about this subject, I simply love eating animals. Even veal and foie gras. I don’t see changing that (but never say never). Nevertheless, I do think the argument is compelling. Believe it or not, I consciously try to be more compassionate every day. I think that Jon makes a very strong, if not indisputable, point.

This has the joint failing of conceding hypocrisy while adopting a straw argument.  Maybe all that San Diego sunshine has done something to Randazza?

I respect Jon’s choice to go vegan; it’s entirely up to him to be comfortable with his own conduct, and certainly there’s no harm in not eating meat.  But I don’t share the feeling.  While inflicting cruelty upon animals for kicks disgusts me, I am a carnivore.  Human beings are carnivores. It’s our nature.  That we raise, and kill, animals for food is consistent with out nature, and consistent with the natural world, even though we’ve altered it to satisfy the need to feed ourselves.

I’ve watched the National Geographic channel.  Wild animals are often unkind to their own, and even more unkind to those critters they eat.  There’s nothing pretty about one snatching the other in mid-air, or the bank of a river, or wherever they happen to find them.  It’s brutal. 

Does it cause pain?  I’ve no doubt it does, as I’ve no doubt the alpha rhino hurts the young bull hoping to catch the interest of a mate when it give it a piece of its horn.  This is still part of the natural process of the rhino’s life, and it’s unlikely that rhino matchmaking will find a place on cable.

Jon draws a connection between the desensitization that comes from eating meat and human on human violence.  I see no connection whatsoever.  There’s no explanation for the analogy, but merely a question of “how desensitized to people become.”  Not at all, I say.  Why would they?  One involves eating meat, as is our nature and maintains our existence, while the other has nothing whatsoever to do with that.  I can accept the parallel between crush films and harming other humans, but not eating.

There are people who cannot bear to eat meat knowing that an animal died to provide it.  There are people who cannot bear to eat meat knowing the conditions under which livestock is raised to supply us with meat, or knowing how the animals are slaughtered.  It’s understandable, and I do not begrudge anyone who feels this way from making whatever choice he or she feels necessary.

That doesn’t mean, however, that there is a sound basis to extrapolate the disgust we feel toward something as horrible as a crush film with our nature as carnivores.  There is simply no rational connection between the two, and the effort to draw one will tend to make it increasingly difficult to enforce the constitutional rights that underlie cases like Stevens by suggesting that they lead down the slippery slope to such outcomes as veganism. 

Preserving the First Amendment is not the gateway to becoming a vegan, or any other personal choices for which no rational connection exists.  Let’s not get crazy about this and provide ammunition to be used to shoot down sensible court decisions in guise of shooting down dinner.

Via John Wesley Hall at the Fourth Amendment Blog, courtesy of Liberty and Justice For Y’all, the 5th Circuit decision in United States v. Garcia  brings up an old shocker, when the consent search winds up with the cops dismantling a car on the side of the road.

The scope of a consensual search may be limited by the expressed object of the search. Jimeno, 500 U.S. at 251. But where, as here, an officer does not express the object of the search, the searched party, who knows the contents of the vehicle, has the responsibility explicitly to limit the scope of the search. Mendoza-Gonzalez, 318 F.3d at 667. Otherwise, an affirmative response to a general request is evidence of general consent to search. Id. Garcia did not qualify his consent to the officers, who therefore had general consent to search the truck.

General consent to search a vehicle does not, however, give an officer carte blanche over the vehicle. Id. at 669. A search must still be reasonable, given the totality of the circumstances. Id. The search here was reasonable. When the officers requested permission to search the truck after asking Garcia whether he was carrying “anything illegal,” it was natural to conclude that they might look for hidden compartments or containers.

The problem, of course, is that the scope of the consent is whatever the cops say it is, and is based on a parsing of the language that far exceeds anything a reasonable person understands it to be.  When a cop asks a motorist if he can take a look in his car, does the motorist understand that to mean that he’s going to pull off the fenders in search of a secret compartment? 

During the 1980s, it became fairly commonplace for drug dealers to build secret compartments into their cars.  The Spanish word for this was clavo, the New York City police quickly became aware of the situation.  There was even an office in the 34th Precinct who took it upon himself to keep files on clavos in various types of cars, and was later called to testify as the Clavo Expert, with his notebook filled with his collected details about secret compartments in various types of cars. 

The problem was that the cop who made the car stop and obtained consent had to figure out where the clavo was and how to get into it.  They were often kept closed by substantial locks, triggered electrically, and secreted deep within the body structure of the car.  Based upon model, cars would have voids in different places, and the clavo was designed to fit the hole in the particular model.  Some cars, like the Nissan Maxima, were favorites, because they were fast and offered some great hiding places.

The solution became clear.  Not only were cops targeting Maximas, but after obtaining consent, physically dismantling the cars by pulling off body parts on the side of the road.  It was bad enough when they happened to stop a mule carrying drugs, but when they destroyed cars of innocent people in their search for the clavo, people were outraged.  Unfortunately, there was little to be done to stop it.  The courts ignored the issue of the search exceeding consent, the outrageous destruction of property in the never ending war on drugs. 

Notably, the second quoted paragraph above is the one that presents the problem.  The court held that general consent doesn’t give the police carte blanche, but that a search must still be reasonable under the totality of the circumstances.  The court then finds the search reasonable for no particular reason at all. 

When the war on drugs was at its most heated stage, it was hardly surprising that courts would empower the police to engage in routine dismantling of cars to search for secret compartments. Hey, that’s how the drugs were transported and that’s what was needed to find them.  Nobody was going to let a detail like excess or reasonableness stand in the way of the war on drugs.  So what if consent was obtained without any clue that it entailed the destruction of the car.  As the 5th Circuit says, it’s only “natural”.

But the war on drugs has wound down quite a bit since then.  The old crack days are largely past, and headlines no longer scream about the plague of drugs on the streets.  Courts can now take a more principled view of the old search at any price precedent when it came to drugs and automobiles, and rein in the harm done to the warrant clause when there was no search they didn’t approve. 

But the 5th Circuit instead stuck to the old drug war program and approve the search, engaging in the legal fiction that anyone giving consent would naturally understand that to mean approval of the cops dismantling the car, or any part of it, they wanted.  Isn’t that what we would all believe to be the case when we knowingly, voluntarily and intelligently consent to a quick look by the cops to see if there’s “anything illegal” in there?

And I’m sure that the defendant’s name, “Garcia”, didn’t have anything to do with it.

Things happen all the time, and so posts move forward to the new, leaving the old behind to fester for posterity.  Even an old post, however, can come back to life when someone “discovers” it and decides that it’s worthy of their attention despite the length of time that’s past.  It happens here from time to time.  It happened again yesterday.

The first thing I saw was a comment by a Brooklyn lawyer named Marina Tylo.

I had a misfortune of reading your blog about me. I wish I would be an anorexic chain smoking middle age broad on cheap wine.

I am plump; I do have a cig here and there, I do have a glass of Chablis on Saturday.

What the hell is your problem???

What do you gain by besmirching my reputation? Have we ever crossed our path?

I do happen to be one of the nice guys.
Just let me know what the fluff is up.

Please, reply. My potential clients are reading this and it does hurt my business.

Just tell me what I did to piss you off this much.

I couldn’t remember who this person was.  It was much like the bizarre call from Texas lawyer and publicity hound, Mimi Coffey.  Then there was the message from Tylo on my voice mail, telling me to call her back so we can keep this “friendly”.

Her comment doesn’t make a lot of sense to me, unless she’s got some weird hang-up about being weight, smoking and cheap wine, but I fully get the point of the rest of it.  Why can’t she do something wrong, then something stupid, then be left alone?  Why should any lawyer suffer the consequences of her actions?

When the question comes long after something is posted, there’s a different sense about it then when first done.  At the time, their conduct is fresh and the need for transparency certain.  But later, the question arises whether they’ve “served their sentence.”  As the internet is forever, to the extent anything is forever anymore, it’s brand new whenever someone stumbles upon an old post about some incredibly stupid move, such as Tylo’s ridiculous $10 million suit  against Andy Bluestone for mentioning a malpractice case against her for her defective service of a summons.  But should this follow her forever?

Of course, the reason Tylo was immortalized online wasn’t because of her stupid, though relatively trivial, service of a defective summons, but her compounding the stupidity by suing a blawger for mentioning it.  This was a far more significant, and disturbing, act than her initial screw-up, and one that serves as a critical message to any lawyer who thinks they can sanitize their online reputation by threats or suits. 

Like so many lawyers whose grasp of the digital world is that it’s all about their right to market themselves without fear that their ugly side appear anywhere for potential clients to find, Tylo wants to know what she’s done to me personally to make me do something so harmful to her that I would harm her practice.  It’s all about her.  Why would I besmirch her reputation?

When a blawger is attacked by someone, even someone as empty as a Marina Tylo, it’s an attack on all of us.  This is important, even if her initial failing was relatively trivial.  The lesson is that suing to shut down a blawger will itself be the cause of negative consequences.  The message is necessary, and remains necessary.  Just ask Streisand.  Frivolous defamation suits are the bane of the blawgosphere, and the attempt to sanitize one’s oneline persona by threatening, or in fact suing, is an outrage and an attack on all of us.  It’s a message that needs to remain, and should be repeated as often as necessary to make sure the Marina Tylos of the world get slapped and remain slapped.

Maybe Marina Tylo will sue me too, since I’ve no plans to call her back and discuss anything with her to keep it friendly.  My bet is that if she doesn’t like her online reputation now, she’s going to really hate it if she compounds her stupidity by doing it again.  But every lawyer gets to make her own bed. 

There are consequences for such actions, and they will be online for as long as forever lasts these days.  The message is don’t do it.  It appears that Tylo still hasn’t gotten the message.

As the decision in Stevens  came out yesterday after I’d gotten down to work, and has since been announced and discussed everywhere in the blawgosphere, there’s no point in mentioning that the Supreme Court, in a case that presented (hopefully) the most extreme example of speech unworthy of protection, upheld the First Amendment anyway. 

Need proof that people can be truly sick?  Watch a “crush film” and know that there are people who get sexual gratification from it.

For non-lawyers, it’s hard to comprehend why the Supremes would, by 8 to Alito , find a law prohibiting, criminalizing, this to be unconstitutional.  Doug Berman  has plucked the sentence from the opinion that explains.

We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

While the law would criminalize the wrong of these sick, disgusting films, its sweep covers expression that isn’t wrong.  Our government’s answer is “trust us, we would never use an overbroad law to go after people who didn’t deserve it.”  Even a Supreme Court that’s moved so far right as to make Justice John Paul Stevens the leading liberal couldn’t tolerate that justification.  This is why “plain English” laws can’t work, despite their superficial appeal to those who blame obfuscating lawyers for all that ails society.

But this line presents another interesting problem.  While the Supreme won’t tolerate a law that’s overbroad merely because the government says “trust us,” they willingly, no happily, tolerate, no enable, men and women with guns, batons, tasers, moving amongst us with no real check on their conduct beyond the promise to use their weapons, their authority to seize and imprison, their ability to make people do as they say upon pain of . . . pain, based solely on their promise to use it responsibly.

While we applaud the Stevens decision for upholding the First Amendment in the face of such sickness as crush films, we ignore a gap of monumental proportions that falls into the same category. 

What good is scrutinizing laws to this extent when the reality on the street, when, as commenter Alan  put it so clearly,

the police do what they need to do to get the job done. Right or wrong, the police sometimes need to circumvent the letter of the law an instead use the spirit of the law to get these scumbags off the street.

The legitimacy of our entire system of criminal law depends not on the decision of member of the Harvard or Yale Clubs, but on the decision of one cop to raise his weapon and bring it down on the head of a human being.  This is the real crush, and it happens every day across this country.  There are a thousand battles fought in the war of government responsibility, and the Supreme Court shuts its eyes to them, too trivial for their notice.

It’s wonderful that the Court held that constitutionality can’t be left to the government’s promise to act responsibly.  It’s a shame that they do so anyway.  To any person who was stopped and frisked for no reason, or beaten, tased or shot because they comply with some cop’s demand, or sent to prison for lifetimes because a cop lied on the stand knowing that he can say anything, and as long as there’s no videotape to prove it, will get away with it and get a medal, this line from Stevens brings no comfort.

The government’s promise is only as good as the integrity of every cop on the street.  If only the Supreme Court realized this.

Update: Yesterday, a judge in Glendale did the California version of an ACD in the case of a woman , traveling with her 93 year old, wheel-chair bound mother, who tried to stop a TSA agent from seizing her cooler with applesauce so that her mother would have something that she could eat on a plane ride to a family wedding.  She was arrested, strip searched and prosecuted.  No word on what happened to the 93 year old mother left at the airport.

Los Angeles County Superior Court Judge Fred Rotenberg said he would dismiss the case against Nadine Kay Hays only if the grandmother of six stays out of trouble for the next six months. Prosecutors had no objections during the hearing at a Glendale courthouse.

The case generated national attention, drawing the ire of talk-radio hosts who railed against the TSA agents and challenged how confiscating a disabled woman’s applesauce would improve national security.

A TSA supervisor told officers that Hays made a fist and struck her on the hand as they tugged at an ice chest containing the snacks, according to the arrest report.

Hays has denied hitting the agent, maintaining that she brought down her hand to keep agents from taking away her mother’s applesauce, cheese and milk.

This is being reported as a victory for sanity over an overbearing abuse of authority by the TSA.  How many government agents, prosecutors and a judge had an opportunity to exercise that promise to use its power responsibly?  And after a year, the best they could come up with is an ACD?  Yet this aspect of the promise of responsibility eludes our Justices.

Norm Pattis posts the news from Butner, North Carolina.

When the nominee stood to address the assembled press corps, there was an eerie silence. The man was on no short list of candidates. Indeed, he was a man few present had ever considered.

“I am flattered and humbled by this honor, Mr. President,” Gerry Darrow said. “In all my years at the bar, I never dreamed that I would be considered for such a post. I’ve represented folks at the margins of society for so long, I had begun to think of myself as an outcast.”

Thus began the improbable confirmation battle of a former plaintiffs’ lawyer turned mid-life public defender.

Court watchers and legal academics were stunned by the nomination.

Norm has captured something truly important in this post, and I implore you to read it in its entirety.  But the last sentence quoted above was the one that got me.  With all the punditry by “right in the center of the box” thinkers, Norm nailed it.  We look to the Lithwicks, the Liptaks, to tell us what we think.  That big pool of possibilities, consisting of federal appellate judges from Harvard or Yale, from which to choose.  Why?  Well, these are the people who know, and that’s what they say.  No one asked Norm what he thinks.

Years ago, Baskin-Robbins announced that it had 31 flavors.  Today, we have a choice of chocolate or vanilla, and both frankly taste the same.  We’ve become a nation of followers and cowards.  Presidents are cowards too.  Senators are cowards.  We are cowards for voting for cowards.  We are cowards for taking the path of least resistance, for indulging ourselves with rationalizations of the practical and predictable. 

“I promised hope when I asked for your trust during the last election. And you heard me. Together we transformed hope into a new and audacious reality. Today I redeem a part of my promise by naming a man who is no stranger to the suffering of ordinary Americans as the next Justice of the United States Supreme Court,” the president said.

It’s my turn to make a prediction.  We will never again have a president with the guts to make this statement.  We will never have a Senate that would consent to such a selection.  How many of you, dear readers, will think to yourselves that you’re satisfied with this future, that vanilla suits you just fine and, besides, it’s the easiest way to go, and, well, why bother since nothing ever changes.

Cowards.

Expect nothing and your expectations will always be met.

Goldman Sachs is possibly the biggest boy in town these days, with the town being every power hub in America, which makes the SEC investigation into its ABACUS subprime mortgage deal curious, both that it’s happening and it’s such a small part of the problem raised by GS’s business practices.  Mike at Crime & Frederalism has been well ahead of the curve on Goldman for a long time, and it’s nice to see the SEC catch up to Mike, if only a little bit.

The details of the deal aren’t all that interesting, except to finance geeks and lawyers paid to care, but the defense  run up the flagpole to see if anybody salutes is worth a look.  Via Ashby at WSJ Law Blog :

all participants were highly sophisticated institutions that were knowledgeable about subprime securitization products and had both the resources and the expertise to perform the due diligence, demand any information that was important to them, analyze the portfolio, form their own market views and negotiate forcefully at arm’s length.

The Big Boy defense, that the others involved in the transactions were big boys, knew what they were doing, and if they got burned, well, it’s their own fault.  It’s a defense with some superficial appeal.  After all, GS’s point, that it wasn’t selling “subprime securitization products,” a description that makes one wince, on the street corner like hot dogs, and no doubt the purchaser won’t come back by arguing that it was far too unsophisticated, incompetent and ignorant to know what it was spending other people’s money on.

Moreover, what difference did it make that Paulson & Co. was betting that the speeding Mack truck was heading straight for a huge brick wall?  There’s no guarantee that somebody wasn’t going short, so why shouldn’t it be Paulson?  Every Big Boy knows that someone out there may be against the thing you’re betting in favor of.  Maybe Paulson wins. Maybe you win. Big boys take risks, which is why they get the big rewards.

The problem with this argument is that even Big Boys get burned.  Big boys may not really be so big, so smart, so sophisticated, which is why an argument like the Big Boy defense has appeal.  A not-so-big-boy will never admit to not being a Big Boy.  They don’t want anybody to know that they really aren’t all that smart, that they got burned.  It would be humiliating.  And Goldman Sachs’ argument plays on this desire to conceal that the “victim” won’t admit to being the dope in the room.

The other problem is that it ignores that it’s a scam from the start.  The objective is to make a beautiful pig, whether by a little lipstick, or more.  Paulson bet against the risk because it knew the ABACUS product was a pig.  The gig was all about making the pig sufficiently beautiful that it would pass scrutiny (to the extent any actual scrutiny happens) with others.

Even if buyers were indeed the sophisticated Big Boys that Goldman, and the victims themselves, would profess to be, you still can’t run a scam on the theory that the victims should have known better.  It’s enough that the seller of the securities knew that it was a pig under all that lipstick, whether the make-up job was good enough to slide it past the victim or not.  Even if no one was fooled, running scams is a wrong.  Even on Wall Street.  Even if you’re Goldman Sachs.

But the real flaw of the argument is that the ultimate victim is never the Big Boy.  The Big Boy plays with the money of the little pipsqueaks, put together in a really big pot.  That’s out money, that was aggregated and shipped in a single electronic transfer to Goldman Sachs.  Millions of our little pipsqueak dollars were aggregated to make a check big enough to interest GS. 

We thought the guys we handed our money to were Big Boys as well, which is why we trusted them with it.  They told us they were sophisticated.  We believed them.  They told us they did their due diligence. We believed them.  They told us to trust them with our money, and we did. 

When the Big Boys get burned, so do the pipsqueaks.  The only Big Boy here was Goldman Sachs, and it was a bad boy too.