Ashby over at the Wall Street Journal Law Blog  had some fun yesterday with one of my posts .  Not because he liked my post, but because Venkat Balasubramani (referred to in the post as some reader named Venkat) commented  about lawyer stress.  The WSJ loves posts that somehow relate to stress (and include the word “Slackoisie”, as I occasionally do).

This generated a reply  from Dan Hull, which ended with this sentence:

When we went to law school, I thought we all signed up for stress. Didn’t we?

Buried in the comments to Ashby’s post is this observation:

• 8:00 pm April 15, 2010
• Anonymous wrote:

Dan Hull is a blowhard.

Now Dan is many things, erudite, worldly, experienced, funny, bold.  But blowhard is not one of them.  Put aside, for the purpose of this post, that the individual teletubbie who posted the comment went anonymous, willing to post ill of Dan Hull provided he could hide.  This per se disqualifies the comment from being of any consequence, but since this isn’t about the relative worth of the comment, we need not concern ourselves with the next Ned Beatty.

The point is that you can’t please everyone.  Dan Hull shows no fear of having an opinion and stating it.  That being so, he will have people who think he’s wrong.  More than wrong, who hate him for having the opinion and stating it.  That’s the territory.

Norm Pattis  has been writing online for a long time, and he’s never held back.  He’s made some serious enemies along the way, and if you have any doubt about it, check out his TLC posts and the anger generated by his disloyalty to the tribe and its chieftain.  And then along comes Mirriam Seddiq  who writes about discovering Norm:

Where have I been???  How have I missed this jewel of a blog?  More importantly, how do I become like him?  Where do I develop the skill and the cajones to go out and do it every day?

It doesn’t get any sweeter than that.  Of course, in a comment to Jamison Koehler’s post, disagreeing with mine, a commenter  wrote:

Why are you picking fights with the mighty Scott Greenfield? Have you not ever felt his wrath?

What a strange thing to say.  Not the wrath part, as I’m well aware of my violation of the blawgospheric rule of blowing kisses at every teacup member of the Slackoisie, but the part about “the mighty.”  How weird.  But then I realized that the reason Anonymous called Hull a blowhard was the same.  He was “the mighty.”  Norm Pattis is “the mighty.”  While I doubt that I deserve to be in their company, maybe even I’m the mighty to some out there.  But while the commenter’s use was intended to be snarky, his point is worth a second thought.

No one puts a gun to anyone’s head and says, read a blawg or die.  This is voluntary, in the extreme.  Read or don’t, it’s entirely up to you.  And if you read, care or don’t, it’s entirely up to you.  And if you care, agree or don’t, it’s entirely up to you.  When a blawger hits the “publish” button, he never know if what he writes will be read by one person or a million.  It’s entirely outside of his control.  As anyone who is disappointed in the number of readers they have at their blawg will tell you, just because you write it doesn’t mean that they will come.  This isn’t a field of dreams.

To the extent that any of us, Dan, Norm or I, are “mighty”, it’s because others made us so.  For whatever reason, other people have ascribed credibility to our writings, our thoughts, our positions.  Without that, we would be the tree falling in the forest with no one to hear.  Who cares whether the tree makes a sound?

It could be that people read things for the same reasons Alan Alda attributed to watching the cockroach races in M*A*S*H; for the crash.  But rubber necking doesn’t build a very sustainable readership, and the moment will be over quickly.  For Dan and Norm, the value of what they have to say has built over time, constantly growing and generating thought, discussion and, in many instances, change.  The reason is that their ideas have merit, and that the majority of their readers appreciate what they write and agree with them.

There will always be some who hate them for what they write, or feel compelled to attack from behind the bushes.  You can’t please everybody.

When someone tells me they hate a post, I shrug.  What am I supposed to do, change my mind to please you?  All I can do is write what I think, and you can agree or disagree, read or not.  If it makes you feel better to call me a blowhard, so be it.  But if you snarkily refer to me as mighty, then consider why that’s so.  No one, but no one, has to listen to a word I say.  No one.

You might also want to consider who listens to you, and why.  Now stop your crying, teacup, and pay attention to what Dan and Norm have to say.

He’s got the most dazzling smile of any lawyer in America.  You can’t blame him for that, or for the fact that Mickey Sherman has been able to parlay that smile into a magnificent career as a celebrity criminal defense lawyer.  Many wish that they had Mickey’s smile, or his charm and wit.  They wish that they could spend their evenings hanging around the green room at the Larry King show. 

There are only two sure-fire ways to become a celebrity lawyer.  Look particularly good on television (and be perpetually available), or ingratiate yourself with the producer.  It doesn’t matter what you say, since no one knows whether you make sense or not, and you are never put to the test of competency.  Indeed, rarely do you get to utter anything even remotely sensible, given the inane questions and brief time for response.  It only matter that there is a head, with lips moving, that doesn’t repulse the audience.

But the love shown to a dazzling smile by television wasn’t necessarily shared  by judges, and in its decision in Michael Skakel against the State, the Connecticut Supreme Court was not kind to Mickey.  The question has long been  whether Mickey did right by Skakel. 

The list of things left undone by the defense is remarkable, not necessarily because it’s the first time stones were left unturned but because Mickey had everything, and I mean everything, going for him.  He had more money than he knew what to do with to pay for every bell and whistle available.  He had the wherewithal to put together the finest legal team since OJ to do the unpleasant heavy lifting, if he didn’t want to get his smile all dirty.  He had the eyes of the world watching his every move, since the trial of a Kennedy cousin for the death of young Martha Moxley was the trial of the decade (du jour).  It’s not possible that Mickey didn’t realize that any screw up, any laziness, any failure to turn over the stone wouldn’t be noticed.

Unless he won.  If the verdict was not guilty, Mickey would get his own TV show.  Network.  Primetime.  Not guilty, and he would be untouchable.  He could have a band and a sidekick.  Dancing women in skimpy costumes.  And that dazzling smile.

But the verdict was guilty.  And now, the case will be sent back for hearings on the habeas, and every move by the defense will be picked apart by lawyers who lack Mickey’s dazzle but will likely be extremely fastidious in their attention to details of ineffective assistance of counsel.

I wish I had Mickey’s smile, charm and wit.  Instead, I’m constrained to turn over stones while waiting for the call from Larry King.

Via South Carolina’s Bobby Frederick , the bad apples keep falling off the tree.  This time, Streamwood (which apparently is somewhere around Chicago) cop James Mandarino  wails on motorist Ronald Bell, who appears to be fully compliant, non-threatening and cooperative.  Not even a furtive gesture.

James Mandarino, 41, beat the motorist 15 times as the man knelt on the ground March 28, according to Assistant Cook County State’s Atty. Alexander Vroustouris. The man received seven stitches to his ear and was treated for a concussion and multiple contusions, abrasions and bruises, Vroustouris said.

“At no time during the time period when the defendant is beating the victim with his baton does the video reflect that the victim had anything in his hands, nor does the video reflect the victim making any threatening motions toward the defendant,” said Vroustouris. “The victim is completely compliant.”

As Bobby notes, the comments to the original article are interesting in how police Gestalt compels the faithful to believe that Bell, the compliant victim, must have done something to deserve the beating, or that Mandarino, the cop, is endowed with an inherent excuse (like the stress of the job) to excuse the beating.  One way or another, the victim is guilty and the cop is not.

Watch the video and decide for yourself:

Some of the more curious reactions involved the assumption that something must have happened beforehand, outside the camera’s eye, to justifiably enrage the officer, for his conduct is otherwise wholly inexplicable.  Others suggest that the Bell, the victim, must have “mouthed off” to the cop, and everybody knows that if you mouth off, you get beaten, not necessarily suggesting that it’s right but that it’s the way life works.

While the officer’s conduct on the video leaves little room for doubt that it was legally unjustified, it does raise a hard question.  If this officer was simply a psychotic animal, one might expect that he would have shown his true nature at some earlier point during his 15 years on the job.  Why did he crack this night?  The problem is that we can’t answer the question, but only engage in speculation that reveals our point of view.  Mine is that “protect and serve” is a very hard job, for which most people are not qualified, and that we don’t put a gun and shield in the hands of such people and tell them to go out on the street and use them.

I guess we just have to suffer these bad apples rolling in, one at a time, day by day, until people (and particularly judges) can’t ignore them.  I don’t know whether that day will ever come.

The winter was harsh around here, and the spring brings the need to repair the ravages of the season.  With a few slates off the roof, I called a roofer.  Despite my efforts to be fairly handy for a lawyer, I prefer to keep my feet on the ground, and would rather pay another person to work on high.  It took a few calls before finding anyone interested in doing a small job, but one fellow was happy and interested.

He came by the give me an estimate.  The time spent giving me the estimate would have been almost sufficient to do the repair, but instead he looked, we talked and then he got back to me with his price.  I was happy, and told him to do the work.  He was happy too, and would get back to me in a few days to let me know when the work would be done.  An awful lot of time and energy was involved in the preparations to do a fairly small job. But this was how he chose to proceed.

I like the guy.  Gave him the job, and am still waiting for it to be scheduled and completed.  It would have been far better, as far as I’m concerned, had he just performed the work while he was there, but that wasn’t the way he sold jobs. I didn’t need the selling, just the work.  He likely expected me to try to haggle with him on the estimate.  I didn’t. His price seemed fair to me, and I would rather expect excellent service than quibble over money.

Brian Tannebaum  asked the other day whether people who aren’t hungry go to restaurants.  It was an analogy to a new trend he’s experiencing with people who come to see him about retaining him to represent them. 

And rearing it’s ugly head recently (probably due to the economy):

“I’m not sure I even want to hire a lawyer for this. I think it may make me look (bad, guilty, like I’m trying to hide something.)”

Every lawyer who represents alleged criminals or anyone in trouble gets these questions. When I was starting out, I would entertain this notion to the point where it appeared I was almost begging the client to change his mind.

I suspect that the question isn’t about whether the person needs a lawyer, or is hungry to follow the analogy, but a come on to the lawyer to induce the client to retain him by offering a reduced fee.  It’s just a way to haggle a bit.  Brian doesn’t haggle.  Nor do I.  So why does the potential client?

A huge rift has developed in the legal profession between those desperately seeking business and those desperately seeking to provide clients with excellent representation.  The former compete on price.  The latter on quality.  The price competition is far easier for the client to appreciate and understand.  Quality can’t be seen or touched, and can’t be proven until after the fact, and then only by comparison.  For those clients who go to law offices expecting a roofer, it’s an unfulfilling experience.

Tannebaum often writes about the ugly truths of quality legal representation.  Few want to shoulder this burden, as it’s counterproductive to marketing.  It makes lawyers seem arrogant and unfeeling, as if we are too good, too important to be bothered with potential clients.  It’s not, but it feels that way when the culture of marketing revolves around selling legal services like other products and services. 

Marketers teach lawyers who turn to them because they need business ways to “sell” the client.  We offer free consultations, which clients interpret as a free hour of a lawyer’s time to provide free legal advice which they can then take away and use.  I get many inquiries from people asking if I give free consultations.  There’s only one reason for them to ask.  I don’t.  But they expect lawyers to do so, and will be happy to enjoy a free consultation when they need answers from a lawyer.  This is because we teach them to expect free consultations.

Clients call or write for a free answer to a legal question.  They’ve been taught to expect that too.  Think Avvo Answers.

When a question or consultation won’t suffice, they want to negotiate, or pay the fee over time, as they would on replacement windows.  Many lawyers will negotiate their fees, lest a potential client walk away. Others will take payments over time, praying that the second, then third payment will come. 

The questions that Brian writes about are rarely a problem for me anymore.  I vet potential clients before making an appointment with them.  It’s quite common for callers to tell me that they have a problem and would like an appointment.  I ask them what the problem is.  Most are refused an appointment.  There’s no reason to sit down with someone when there is no possibility of my taking their case, whether because the nature of the case isn’t suited to my practice or they aren’t able to pay the legal fee. 

Callers are shocked that they can’t have an appointment; they have been taught to believe they are entitled to one.

This dichotomy between lawyers and roofers is a serious problem.  We have only so many hours in the day, and when that time is used to meet with people who will never be clients, it is lost forever.  But as long as lawyers prefer to sell themselves like roofers, as their marketing experts tell them to do, customers of legal services will expect us to behave like roofers. 

Of the lawyers with whom I’ve spoken who put stock in marketing, they would much prefer to run their practice like Brian Tannebaum, but they don’t believe they can.  They fear that if they don’t sell the potential client, offer the inducement, haggle, no one will retain them.  More particularly, if they don’t do it, some other competing lawyer will, and snag up all the good, money making cases.  And so they offer everything from free consultations to S&H Green Stamps (are they still around?).

Don’t blame the clients for expecting lawyers to give it up for free.  Lawyers have created these expectations.

Update:  Max Kennerly  makes an important point, that this view is very different for the lawyer who is compensated via contingency fee.  While they are part of the problem, in that clients are unlikely to distinguish between the plaintiffs’ personal injury lawyer and the criminal defense lawyer when it comes to the manner in which time is used/wasted, the PI lawyer lives on contingency fees, and essentially never charges for time.  The fee consultation (which Max correctly notes is a misnomer, since there’s no “consulting” going on) is just the way in which they determine whether the case has merit and to pursue it; it’s not a time drain for them.

Unfortunately, personal injury lawyers do a lot of TV advertising, and tend to hype their “free consultation” as an inducement to call.  This impacts all lawyers, but it’s hard to blame contingency lawyers for doing what’s in their best interest.  They are in a different situation, and who can blame them for doing what works best for them.

Jimmy Carlino was 14 when he went to Boston to see a Yankees-Red Sox double header with family friend, Bob Oliva.  That’s where he says Oliva raped him. The problem is that the alleged rape happened “on or about July 30 to Aug. 1, 1976.” 

Bob Oliva is now 65, having retired from his position as basketball coach at Christ the King Regional High School.

Oliva, considered one of the pre-eminent high school coaches in the New York area for nearly three decades, won 549 games and five city championships in 27 seasons at Christ the King Regional High School, located in Queens. He stepped down last season, citing health problems stemming from the accusations.

Now he’s out on $10,000 bail, with orders not to have contact with Jimmy, who is now 48 years old.  Why, after 34 years, did Carlino raise these accusations?

Carlino’s civil attorney, Mitchell Garabedian, said Carlino is testifying against Oliva “so the truth is revealed and to make the world a safer place for children.”

It seems a little late to worry about making “the world a safer place for children.”  As for revealing the truth, that doesn’t require criminal charges.

If indeed Bob Oliva raped Jimmy Carlino in a Boston hotel room in 1976, then no amount of delay alters the fact that a horrible crime was committed.  No one, certainly not me, can excuse such a heinous crime against a child.  But accusations are easy, even when heinous.  And 34 years late is a problem.  Now there’s no evidence to show a crime occurred but for the word of a 48 year old.  And there’s no evidence to defend against the allegations but for the word of a 65 year old.

This is why the law provides for a statute of limitations, because no one can muster evidence in defense of heinous accusations 34 years later.  If defendants are entitled to defend, as is their constitutional right, then they no less permitted to be stripped of that ability by time than by anything, or anyone else.  So why not here?

Massachusetts prosecutors said they were able to prosecute the 34-year-old case because the statute of limitations remained frozen while Oliva was living outside of the state.

Charles  at Popehat  did the research, and found Ch. 277§63 of the Massachusetts criminal code provides that the statute of limitations is “[t]olled when defendant is not usually and publicly resident” in the state.  Well, that’s convenient.  For the nonresident, no case ever dies in Massachusetts.

From the statute of limitations angle, this is a very broad conference of power on the prosecution, given that Oliva did nothing to conceal his whereabouts, and in fact was quite easily found should anybody so desire.  From the prosecution’s position, they can’t be blamed for the delay, as there was no accusation until last year, when he reported the crime to Boston police for the first time.  To the extent that Oliva’s defense is prejudiced by the delay, it’s clearly not their fault.

However, the problem with a 34 year old accusation goes beyond mere statute of limitations.  Where a defendant is denied the ability to mount a defense against an accusation, whether heinous like this or not, it’s not merely a question of who is at fault.  So Jimmy Carlino, who is not a state actor and for whom the state is not responsible, is the one who failed to timely report the crime to police.  Bob Oliva is still left holding the defense bag.  As appealing as the deprivation of the constitutional right to defend may be, it’s unclear how well it will play with a judge.  It’s very hard for a judge to support the argument of someone who is alleged to have raped a 14 year old boy.

Consider how this plays out at trial.

Carlino:  Bob Oliva raped me in 1976.

Oliva:  No, I didn’t.

What’s a jury to do?  On its face, the testimony should not be able to survive a trial order of dismissal, no matter how truthful Carlino sounds or how detailed his testimony.  There is nothing about Carlino’s testimony that would make it sufficient to trump Oliva’s denial.  But few judges would have the guts to toss the case, not when the allegations are of the rape of a child.

Of course, while this is not proof of anything, there appears to be no accusation by any other person of sexual impropriety against Bob Oliva, despite his being around young boys in locker rooms for decades, 

You will find this video  of John McKenna, the Maryland college student being beaten on almost every blawg around.  The sworn allegations  against him in the post-beating prosecution were that he attacked and caused “minor injuries” to the horses and cops, and that he was kicked by a horse.  So there you have it, the cops proven conclusively to be lying, baton wielding animals, beating the daylights out of some happy kid having a good time skipping down the street. 

But this isn’t another opportunity to post a video that can be found on pretty much every criminal law blawg around today, but about the message taken from it.  One bad apple.  Or in this case, a few bad apples, but all beating a kid at the same time. There was a segment about it, showing the video over and over, on Good Morning America, with McKenna’s lawyer, Chris Griffiths, doing a superb job in the interview.

The video, and the story surrounding the video, still suggests that it’s an isolated incident.  But for the video, this would be just another story about a beaten kid complaining about cops without any evidence to back him up.  This isn’t to say that the police are wrong in every instance, but that the police can no longer wrap themselves in the presumption of being the good guys.  The question remains, when a video like this goes viral amongst the general public and mainstream media, how to make clear that this isn’t an isolated incident?

Before the pervasive use of video, those of us who claimed that vicious criminal attacks by police were the subject of derision; of course we would claim that the police were lying.  That’s what defense lawyers do.  But take this beyond the atrocity of watching cops, dressed in their black riot gear, striking a kid with batons.  Go beyond the cops who rush up after the initial assault, hoping to get some whacks in as well.  Consider the lies on the accusatory instrument, about horses and cops and kicks.  Griffiths also explained during his interview that the cops told McKenna not to mention he was injured, or they would hold him in jail over the weekend.  People at the jail, however, couldn’t pretend not to see the blood from his beating, and so he was treated.

Without a video, none of this happened.  Without a video, the perjured complaint is truthful.  Without a video, the coercion to force McKenna to participate in the coverup, the lie, would be incredible. 

This isn’t the first time a video of this nature made the rounds.  Remember the video  of New York City cop Patrick Pogon nailing cyclist Christopher Long during the Critical Mass protest?  That one went viral as well.  Then it faded from memory, and we’re now shocked by what happened to John McKenna. 

It’s likely that most people inclined to read Simple Justice are already aware of all this.  But we’re a distinct minority, whether by profession or inclination.  Some might accuse us of paranoia, antagonism toward the police, bias.  Certainly, our experiences lead us in that direction, at least as far as regular folks are concerned. 

This isn’t about fostering public hatred of police, however.  This is about healthy skepticism, the end of blind faith. 

How many videos, and beaten kids, will it take before the message sinks in?  Will another ten, another thousand, make a dent in the public consciousness?  Or will It always be one bad apple?

When I started my “But For Video” series of posts, it struck me that people would start to get the message after seeing that it not only happened, but happened regularly, if they were confronted with undeniable images of police misconduct.  I fear I severely underestimated the ability of people to deny.

First and second year associates?  “They’re worthless.”

That’s not me talking, but Paul Beach , General Counsel of United Technologies.  No, he’s not being mean to young lawyers, though there’s been a rush on sales of dart boards with his image.  He’s trying  to make a point . To law schools who refuse to acknowledge that their job isn’t to produce a never ending stream of esoteric and fantastic theories in overly footnoted articles, but lawyers.  To young lawyers, that you have much to learn and aren’t as brilliant as Justice Cardozo the minute you step away from law school.

I took a look at Lawyerist  yesterday after receiving an email from Aaron    asking if I would guest post over there.  My reaction was a bit snarky, given that it’s a for-profit blog dedicated to self-aggrandizement of the Slackoisie, though it was nice of Aaron to ask, given that most of what I have to say runs counter to the sensibility of his readers.

The lead post at the time was about going solo  straight from law school, with a provocative title asking whether it equals malpractice.  It concludes:

You can handle going solo. Read the rules in your state, confer with colleagues, and research as much as you need to. Be diligent and meticulous with your cases, and you will realize you are capable of more then you think.

Deep, huh?  Inspiring.  You can do it.  Just don’t screw up.  As Ellie Mystal writes at Above the Law , there’s mass delusion about the future of law students and young lawyers, each of whom believes that, odds be damned, they will be the one who wins the brass ring.

Honestly, the depths of hubris the would-be graduating class of 2013 shows here is beyond “self-confidence,” it goes straight to “self-delusion.” There’s no way 52% of pre-law students should be “very confident” about anything other than getting screwed with their pants on — and the fact that these same people can only point out the flaws in their own logic when thinking about other people is sickening. It’s the same idiocy that makes a person say “I can get a Biglaw job coming out of Law School X so long as I’m in the top ten percent of the class,” without understanding that everybody thinks they’ll be in the top ten percent of the class.

This isn’t about putting people down, or being mean, or bursting bubbles.  The blawgosphere is largely populated by the young, many of whom get irate at the lack of love shown them.  Throughout their lives, they been given nothing but love, and like any addict, they can’t live without it.  Truth and reality are unbearably bitter in comparison.

Dan Hull spells it out as clearly as possible

. 

At a minimum, we wish that law schools could convey a few truths, and what might be called “old verities”, to part-time clerks, summer clerks and grads:

1. Even for the most brilliant, motivated, resourceful and ambitious people, law practice is time-intensive and very hard–especially in the beginning.

2. Graduating from law school with top grades and willing to give practice the old Siwash try is only the beginning of your travail. Again, practicing law is hard. Even harder to learn how. And hard to maintain as years roll by at a comfortable and honorable level of quality. You don’t get to say this much: “Sorry, Jack, but I’m on my break.”

3. Real-life client problems pose extraordinary ambiguity and complexity (you can’t “Google” the answers; you may fret over some projects and have to stay late; at first, it may interfere with your relationships and your “real life”).

4. Maybe you’ll find that private practice is not for you. It’s not about the lawyers, courtliness, lawyer-centric cults of “professionalism”, bar associations, wearing cool suits, prestige, money or being in a special club. If you stay in it for all that stuff, even if you make big bucks, you will regret it. No, you will hate it.

5. Clients. Talented people with JDs are legion. It’s really about those you serve.

The blawgosphere is replete with people who wear cardigans and whisper sweet things into your ears.  They tell you how wonderful and brilliant you are, and how all the bad things happening around you are someone else’s fault.  No one is responsible for their own lives anymore, so don’t feel badly about being unemployed, or working in a boiler room, or blowing the case because, well, you just didn’t know what you were doing.  It’s not your fault.  Nothing is your fault.  Nothing.  And blaming others is almost the same thing as achieving something for yourself, right?

The internet offers the comfort that the real world denies,  There are a ton of blogs, chat rooms, websites, directed at making you feel good about yourselves.  You love them because they agree with you, that you’re not a loser.  They offer laundry lists of people to blame and hate for your failure to achieve everything your little heart desires in the first eight months of practice.  After all, you aren’t unreasonable.  You know that it takes more than 6 months to get the corner office.  But certainly 8 is more than enough to rule the world, right?

All of this would be just fine, except for one unfortunate detail.  Why are some of your contemporaries out there, working hard, growing as lawyers and human beings, learning from mistakes and accomplishing goals, while you are sitting in your mommy’s basement eating Cheetos, playing video games and whining?  It’s just not right.

Don’t want to listen to me?  Fine.  Listen to Paul Beach.

Fred Bright, the district attorney for the Ocmulgee Judicial Circuit in Milledgeville, Georgia, said that he’s in the business of prosecuting people when there’s proof beyond a reasonable doubt.  When there’s not, his duty is to do justice, not seek a conviction anyway.  Bright said the right thing in explaining why he would not be prosecuting Pittsburgh quarterback Ben Roethlisberger.

Whether Bright would have said that had it been someone with a last name that was easier to spell is hard to say.  Information about the Milledgeville prosecutor isn’t at my fingertips, and I would no more suggest that Bright isn’t true to his word than I would that Ben raped a 20 year old coed in the small bathroom.

Let’s get this straight off the top.  Roethlisberger is innocent of rape.  He did not commit the crime.  Yet this post will continue, as there’s more to consider.

In the scheme of the criminal justice system, the failure of the prosecution to be capable of, or willing to, convict an individual brings any and all claims of criminality to a close.  That doesn’t mean that the individual who might otherwise have been called defendant is now free to roam the country in search of small bathrooms.  From the New York Times :

Roethlisberger will meet with [NFL Commissioner Roger] Goodell on Tuesday, the league spokesman Greg Aiello said. Bright gave Goodell and Rooney plenty of tawdry and troubling details gleaned from the investigation to consider when pondering whether Roethlisberger should be disciplined.

The story is this:

Bright said the woman and Roethlisberger had been drinking and had met at different bars in Milledgeville during the evening. Some of their conversations were of a sexual nature, Bright said. Roethlisberger’s group ended up in the V.I.P. area of one club, and when the woman and her friends arrived, he invited them to join him and bought shots of alcohol.

Later, Bright said, one of Roethlisberger’s bodyguards escorted the woman down a back hallway and Roethlisberger followed her into a small bathroom, which Bright said was less than five feet wide.

What happened in that bathroom is unclear.  Was there sex? Was it a rape?  Does it matter given Roethlisberger’s feeding underage girls shots, and the particular young woman was highly intoxicated when she went to that small bathroom?  It clearly matters for the purpose of determining whether Roethlisberger should be prosecuted.  The successful conviction of a two-time winning SuperBowl quarterback would be quite the feather in any prosecutor’s cap.  That Fred Bright decided that he lacked the evidence to justify a prosecution speaks well of his discretion, and hopefully he exercises the same level of commitment to the burden of proof when it comes to every potential defendant.

But the question of what Commissioner Goodell should do is not guided by the burden of proof of a crime.  The rules of the NFL aren’t merely that its players not be convicted criminals, but exhibit a level of moral conduct that earns them the right to make millions of dollars, get seen every week on television and the opportunity to be a sports hero.  That falls not on the criminal side of the equation, but on the privilege side.

Ben Roethlisberger knew very well the glory of being a sports hero.  He also knew that he enjoyed the wealth and stature only so long as two things happened: He continued to play football well enough to earn a spot on the team, and he behaved himself in accordance with the NFLs rules.  It’s not much to ask for in return for all he received.

Given the lack of evidence of a crime, it’s right that Bright decided not to prosecute Roethlisberger.  Given the evidence, it’s right that Goodell deny Roethlisberger the privilege of being an NFL quarterback, at least to some extent. 

Nobody says that a guy who can throw a football with some great degree of speed and accuracy will necessary be a fine human being.  Certainly, the scouts who look for potential NFL players are more concerned with athletic skill than anything else.  Roethlisberger wasn’t given the position because he was an upstanding, mature individual, but because he was a premier quarterback.  But he knew the rules under which he labored, and knew that the big bucks as well as the hot chicks came with strings attached.  And to the extent that there was any doubt in Ben’s mind, his first run in with the morals clause in Lake Tahoe, 2008, should have dispelled them.

Fred Bright doesn’t prosecute morals.  Roger Goodell does.  There’s a price to pay for playing in the NFL, and there’s no reason why Ben Roethlisberger shouldn’t be charged for the privilege.

Connect the dots.  There’s Harvey Silverglate’s Three Felonies a Day.  There’s the Department of Justice running stings of corporate executives for violations of the Foreign Corrupt Practices Act.  There’s the Madoff sentencing scale.  There are guys in suits and ties receiving the same sentencing numbers with the word “months” replaced by “years”.

It’s with the greatest reluctance that I use the words “white collar crime,” and I’ve been on a mission for a while now to end this terrible, misleading misnomer.  It raises an image of guys in gray pin stripe suits sitting down with guys in blue pin stripe suits, drinking Earl Grey out of china cups with saucers.  At the end of the polite conversation, all apologize, shake hands and walk away like gentlemen, agreeing to an act of contrition that will bring equilibrium back to the corporate world. 

While it was never quite so pure, those days are long gone.  The problem is that the idea persists despite near constant news reports of arrests, prosecutions and sentences, and no one within the sphere of corporate America, from the financial industry outward, that it will ever touch them.

At the New York Times Dealbook, Peter Henning writes about how the sentences for “white collar” defendants have grown to match, and exceed, those imposed on other types of criminals.

The tough sentences may be more of a reflection of the conduct of the individual defendants and their hubris in taking advantage of investors. Courts often express a desire to send a message to the community that financial crimes are deserving of the same significant punishment more commonly given to drug dealers and violent offenders because the harm is just as great.

Unlike drug or organized crime defendants, white-collar offenders often claim innocence because they were unaware of any wrongdoing, a position that can infuriate a judge. Mr. Petters testified at trial that he was misled by other executives as his company, an assertion that the sentencing judge found was “unbelievable — let’s leave it at that.”

Faced with a distinct lack of contrition, coupled with evidence that the defendant abused a position of authority to mislead investors, judges often feel they need to impose long sentences to let those in the upper reaches of society know that they will suffer the consequences of their conduct.

This points to the three omnipresent problems that arise with defendants accused of committing crimes with a pen rather than a gun.  First, they are woefully ill-equipped to handle arrest and prosecution.  There’s no class in B-School on the subject, and the in-house counsel never sent them a memo on what to do when the feds come a-knocking.

Second, the shock, indignation and alpha-male reaction, ranging from “it’s not like I killed anyone” to “everybody does it” create a mindset that’s nearly impossible to break through.  Not only are they unhelpful in their own defense, but they are often their own worst enemy.  This often strikes home when they ask which wristwatch would be most appropriate to wear with a BOP issued jumpsuit.

Third, the inability to appreciate that financial crime is the new drug dealing, the new murder, the new street crime, being investigated and prosecuted with a vigor once reserved for gangbangers and drug lords.  The stench of denial is overwhelming, and evident in every choice made, from selecting representation to the tie worn to impress the judge with their importance.

Yet the myth of “white collar” criminal law persists.  The practitioners use it as a marketing tool, knowing that it’s kinder, less threatening sound, will comfort defendants and lead them to believe that they are more specialized in handling the particularized needs of corporate executives and financial wizards who, invariably by mistake, end up in the defendant’s seat.  There is no harsher truth in the “white collar” world than that these defendants are facing monumentally long stretches in prison, lives destroyed and the fight of their life. 

There’s the new video out by Flex Your Rights providing instruction for black kids on how to deal with the police.  There’s no video available to teach a corporate Executive Vice President how do a graceful perp walk.  That will be my job when I speak to corporate general counsel at SuperConference in Chicago at the end of May.  Somebody has to deliver the wake-up call, and I’m not inclined to sugar coat it.

Until they figure out that there’s no tea cup, no saucer, no genteel meeting of the minds or act of contrition that can be completed during lunch at a decent restaurant, the myth of “white collar” crime will continue to be the downfall of the new street criminal.  It’s time to put an end to the myth, and the first thing we need to do is either kill the phrase “white collar crime” or turn it into the pejorative it needs to be to send the message that this is no longer a tea party.

A buddy of mine, a former homicide prosecutor turned defense lawyer, told me that he’s tried more than 200 felony cases to verdict before a jury.  There aren’t a lot of lawyers who can say that, at least in New York.  It’s a rather formidable amount of experience, and even if he weren’t an exceptionally good lawyer (he is), the experience alone would teach quite a bit.

Yesterday, I saw a throwaway twit by Brian Tannebaum, who seems to always have a great deal to say on twitter, with a link to an online “work wanted” website for a third year law student, who shall remain nameless for my purposes. that offered some gems:

Being in the courtroom is his passion – and forte.

Never taking “No” for an answer, [3L] will travel to the end of the earth, utilizing all available resources and working relentlessly for his clients. He is passionate about his work and sets the bar high; his work ethic allows him to achieve whatever he sets his mind to.

There is no doubt that he will go far as a trial lawyer, because of his prowess in the courtroom but also the goodness of his heart.

Mind you, this was written when he was a third year law student.  He’s no longer a law student, but unemployed.  From the perspective of a lawyer, reading a law student’s self-assessment of his “prowess in the courtroom” isn’t just good for a chuckle, but a reflection of a person who lacks a firm grasp on his skills.  No law student can credibly claim “prowess in the courtroom.”

But this excess isn’t limited to law students. Lawyers, employing the magic of the internet, are constrained to write things about themselves that test the boundaries of propriety, often going far into the stratosphere of sheer fantasy.  One young lawyer claimed that he had “personally won hundreds of cases” before being admitted to the bar.  He’s since shown the maturity to change his puffery.

It’s common for lawyers to describe themselves as “prominent”, “respected” and all manner of honored, though this is merely self-characterization, an effort to promote themselves by attributing qualities to themselves that no one else has ever done.  This is no doubt intended to play well with potential clients, under the assumption that clients won’t be able to figure out that calling oneself prominent isn’t the same as being called prominent (a) by someone else, and (b) by someone whose opinion matters.  It’s a lot like attributing expertise to oneself, when it’s unrecognized by the rest of the legal world.

Others, some very serious and hard-working lawyers, are busy on the internet offering their thoughts and ideas on how to try cases.  While some of these lawyers have interesting ideas, and many which are well-conceived if hardly controversial, they are often lawyers who are trying low-level type cases such as DUI/DWI, without juries or particularly serious downsides.  They are similarly lawyers whose experience spans made a dozen real trials at most in their five years of experience.  They believe they have a lot to offer, and perhaps they do.  But to my buddy, with his more than 200 trials, it all seems pretty goofy and self-aggrandizing.

When I was a punk kid lawyer sitting in a suite of much older, more experienced, more accomplished lawyers, the end of the day was always marked by a the guys sitting around, telling stories.  These guys had some great stories, big name defendants and wild, crazy courtroom experiences.  They had done stuff.  I wanted to be a part of the group too.  Who doesn’t?  I wanted them to hear my stories, pat me on the back and welcome me to the fold of lawyers who had something worth listening to.  I wanted them to respect me.

So one day, after a particularly funny story about one of the lawyers fighting with the cops at a crime scene over who got to keep the pile of cash in the corner of the room, I decided to jump in and tell a story of mine.  The others guys sat quietly while I told my story, then immediately turned to each other and launched back into their bull session as if I wasn’t there.  The next day, one of the most senior, and most prominent, lawyers in the suite pulled me aside and, with his arm over my shoulders, told me that the others guys liked me, thought I would make a damn good lawyer one day, but to sit and listen, and keep my mouth shut. For now.

“We were all young once.  Give it time.”

No third year law student has “prowess in the courtroom,” and nobody can take someone seriously who makes such a ridiculous claim.  Give it time.