Via Doug Berman, a new paper by Adam Gershowitz and Laura Killinger entitled The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants. contends that we should feel for prosecutors, overburdened and underfunded, for the sake of our clients.

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed.

Initially, the reference to “dozens of scholars” having documented underfunding of indigent defense, rather than dozens of indigent defense organizations, bar associations, court cases or the wealth of other sources far more meaningful, knowledgeable, informational and relevant, starts this “counter-intuitive” argument off on the wrong foot.  When lawprofs rely on lawprofs rather than reality to support their theories, they proclaim their bias off the top, and suggest that they start out disconnected from, and disinterested in, reality.  So be it.

The argument recites a laundry list of things that prosecutors, given more time and resources, could do:

Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation.  Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive. 

It’s certainly true that a prosecutor could do any or all of these things, if she only had the time.  She could also learn to paint, memorize bible passages or rehearse the Mamba.  Based upon my personal experience, it’s most likely that the prosecutor with more free time would take longer lunches and pick better players for the office fantasy football league.

Regardless of the length of time available to prosecutors to ponder, consider and deliberate over their cases, it remains the responsibility of the defense lawyer to bring issues that mitigate in favor of the defendant to the prosecutor’s attention.  Yet again, lawprofs seem to forget that it’s not entirely in the hands of the prosecution to manage the criminal justice system. 

Of course, this paper would appear to assume that the only player on the defense side is the indigent defender, since there is no other conceivable way that the burdens of prosecutor and public defender could have the same caseload.  The numbers just don’t work unless you assume that every defendant is represented by the PD.  Perhaps this reflects the assumption that the overburdened public defender does absolutely nothing on behalf of his client, or perhaps the authors put all stock in the prosecutors, as the indigent defenders are too inconsequential to merit a role in the system.

And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail. 

Of the issues raised that reflect a fundamental disconnection from reality, this stands out.  First, the authors are apparently unfamiliar with speedy trial requirements, meaning that the prosecution suffers “enormous delays” to the defendant’s benefit.  Delay long enough and the defendant walks.  It’s not always a bad thing to have delays.

As for those at the bottom of the food chain, unable to make minimal bail on a low level offense, delay isn’t an unfortunate by-product, but part of the design scheme for coercing pleas.  Prosecutors don’t want to move the case along faster, but use the delay, coupled with a plea that will release the defendant immediately, to get the quick and easy guilty plea.  Did the authors seriously think otherwise?  It’s not an accident that a person in jail for inability to post bail gets an offer of time served.  And if time served is appropriate to cover the offense, then there’s a bit of a gap in the need to keep the defendant incarcerated pending trial, eh?

Omitted from this concern over the poor, overburdened prosecutor, is the fact that prosecutors have far more control over their caseload than does the defense.  Want more time to ponder the potentially innocent defendant?  No problem. Move for lower bail, or even release, and take all the time you want.  Want to move cases along more quickly?  Offer lower pleas and many defendants will be happy to oblige.  Concerned about dubious, low-level busts?  Toss ’em.  Whatever flavor your jurisdiction provides, whether an adjournment in contemplation of dismissal, conditional discharge, you name it.  Every jurisdiction offers options, left to the discretion of the prosecutor, to reduce the caseload quickly and easily.

Every problem purportedly on the prosecutor’s shoulders, as identified by Adam Gershowitz and Laura Killinger as being something prosecutors could do, could be done today regardless of the caseload.  They simply chose not to.  And if they had lighter caseloads, they still wouldn’t do them any more or less than they do otherwise.  They would, however, enjoy a leisurely lunch.  Who wouldn’t?

There’s been a lot of discussion around the blawgosphere this past week about false accusations and apologies.  The problem arises from an apology that’s not an apology, though the apologist insists vehemently that it is.

To begin with, it’s important that I include some quotes in this post, as there have been a rash of mysterious disappearances of posts and comments giving rise to the need for the apology.  If they aren’t copied into this post, the sources are likely to be gone soon enough so that the apologist can pretend they never happened.  There’s this:

I can’t take umbrage at the harshness of any critique at this point, but I don’t agree that owe the legal profession an apology. I do a great deal for the legal profession and work hard at it, not because it’s the only thing I could do but because we have one of the most difficult professions when it comes to navigating ethical dilemmas, and while the rules are one tool, others are essential too.

Then there’s this:

Look, I am completely in sympathy with anyone who wants to bash me for this. Beyond that, however, your critique is not proportionate or fair. The best way to achieve section 7’s goals is for everyone, not just me but every lawyer, to be open, and critical when we see, or think we see, problematic conduct in a colleague–or ourselves.

And of course this:

You are deluded if you think that the suggestion that a lawyer violated a Rule automatically imparts some kind of infamy.

Followed by this:

I have done all I can do to apologize,not just to Eric but to others, explain where I went wrong, extract lessons from it, not make excuses, and move forward. But I’m sorry: despite this lapse, I know I am good at what I do, and I do not have to justify myself to you.

Coupled with this:

I think I am right that the legal profession will be better because of the issues I raise, the minds my seminars engage and ideals I advocate. And I’m not about to apologize for that. You have written me off because of two blog posts and a lot of hasty replies responding to over 70 comments, many of them personally abusive. How unfair, ungenerous, and illogical….and ill-informed.

Then there’s this:

saying a lawyer has engaged in unethical conduct and saying the lawyer is unethical are too extremely different things.

Plus this:

My mistake was referencing a Rule provision that I believed could be violated without requiring reporting or discipline, when the bulk of authority has come to assert that the 8.4 misrepresentation prohibition otherwise. In other words, my claim that this was a Rule violation was more serious than I intended, because I was misreading the Rule. I never intended to say or imply that Eric was an unethical lawyer, just that he had (mistakenly) crossed a line. If I cross an ethical line without knowing it, I want people to tell me.

And this:

I am absolutely remorseful, but I do not regret my motive at all. It’s a facile sentiment rather than a perceptive one, in my opinion.

Then the closing salvo:

How is a self-abasing apology self-serving, exactly? And I am not talking about my “accusers”—-I am talking about the jackals, bloggers who have weighed in and denigrated me after I have done everything possible to set the record straight and make amends. I am talking about suggestions—based on nothing, completely unsupportable by my professional and personal conduct, that my apology was anything other than an honest and open response to discovering that I was wrong. While the individuals who were most affected by my carelessness have been gracious and even encouraging, these people seem determined to make a big a deal out of this as possible and to interpret every action, like you, in the worsts and most flattering light.

My “accusers” were not and are not correct, in that they have said that I am a fool, a fraud, someone who doesn’t know his business and who was “linkbaiting” or trying to hurt people, someone who only apologized because of fear. Those who disagreed with me were correct about two things: this was a minor issue, too minor to support the weight I placed on it, and the predominant and accepted reading of Rule 8.4 is that if dishonesty and misrepresentation in an activity unrelated to the practice of law are not at a level indicating unfitness to practice, then there is no violation of that Rule. Some of my “accusers” stated that 8.4 didn’t apply to conduct outside the practice of law. They were wrong about that. Others claimed I was wrong that the Rules are not merely disciplinary in function, and they were wrong about that as well. I believe, though it is not a matter subject to proof one way or the other, that lawyers are obligated to meet a higher standard of integrity and honesty in everything they do. And they were wrong that I said the lawyer was unethical. I said the conduct was unethical, which is very different.

And the coup de grace.

Frankly, I think anyone who continues to attack me (or anyone)after a complete and sincere apology, and that’s what I wrote, based on a single incident, knowing little of the background and with no other experience or knowledge of what I do or have done, just looks petty and uncharitable.

In contrast, the Public Editor column in the New York Times says:

David Goodman, who writes New York Online, an aggregation of news from many sources, bit on a claim by Eric Turkewitz, a personal injury lawyer and blogger, that he had been appointed official White House law blogger. Goodman tossed in a short item at the end of his April 1 post. Turkewitz wrote the next day that he had been hoping to catch political bloggers, “whose reputation is to grab any old rumor and run with it,” but instead bagged “the vaunted New York Times.”

Goodman, who said he knows he should have checked it out, especially on April Fool’s Day, said that because several prominent legal blogs also had the item, he gave it more credibility than he should have. What he did not know was that the other bloggers were in on the hoax. Corbett said the episode pointed up the risks of news aggregation and the need to rely on trustworthy sources.

Whereas Jack Marshall apologizes out of one side of his mouth and while making every excuse under the sun to shift blame to the “jackals” who attack him for being wrong, the New York Times just concedes that it screwed up and got nailed. 

The rule is that one should never attribute to malevolence what can be explained by sheer stupidity.  With that in mind, it would be wrong to suggest that the self-proclaimed ethicist is, himself, intentionally and deliberately unethical.  Even if this conclusion can be clearly drawn from his removal of posts and comments that demonstrate his commission of conduct that some might find flagrantly unethical, it’s still possible that his finger accidentally hit the delete button on each of these embarrassing and incredibility humiliating posts that undermine his fevered efforts to pretend they never happened, or that his “self-abasing apology” wasn’t calculated to excuse, justify and trivialize any itty-bitty, tiny, technical error in his analysis (which was actually correct if you squint really hard).  And so I will not attribute malevolence to him.

Jack Marshall is stupid.  So says this jackal.  Too stupid to ever be allowed to opine to a lawyer on the subject of ethics.  I only say this because I’m trying to be kind to Marshall, Nicer than he was to Turkewitz.  Nicer than he deserves.

When will this stop?  When Marshall stops trying to sell his personal version of ethics to lawyers and gets a growth position at Dairy Queen.  But as long as he continues to try to sell his crap to lawyers and bar associations as ethics expert, then there will be need for us jackals to protect lawyers from the expert.  I’m as tired of this as you are, but it remains a concern that Jack Marshall and ProEthics are still out there trying to sell themselves.  Let no one forget or be misled, even if Jack Marshall, in his own opinion, thinks it was no big deal and he’s still a really swell guy.

H/T to The Trial Warrior, Antonin Pribetic, for the title of this post.

More serious people than me are having their say about who is likely to replace Republican Supreme Court Justice John Paul Stevens, appointed in 1975 by Republican President Gerald Ford and approved after a grueling five minutes of debate, three week after his nomination by the Democractic Senate by a 98-0 vote. 

Orin Kerr, for examples, notes the hugely divergent backgrounds of the frontrunners,

Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.

Tough, tough choices, each bringing their vastly different backgrounds and experience to the court that will obviously result in vastly different directions for the future of our nation.

But lest we not forget, there remains a stealth movement, hiding deep behind the Ivy League, law clerk, prosecutorial, judicial resumes of the frontrunners.  There is Norm Pattis’ Trench Lawyer Movement.  In retrospect, it’s understandable that President Obama, with all he’s got on his plate, might not have been ready to take up the mantle of the Trench Lawyer Movement when he appointed Sonia Sotomayor.  But now that he’s got plenty of free time on his hands, and already named on prosecutor to the bench, and recognizing that he’s never going to appease the right wing and make them believe he’s not “the most radical president ever,” there’s nothing left to lose.  Norm hasn’t forgotten.  Neither should our President.

Based upon my deep sense of patriotism and public service, and recognizing that the trench lawyer who will be first in this movement will likely be subjected to as much, if not more, scrutiny than given an appointee from the opposing political party by the Senate, I offer myself as the sacrificial lamb to my president as the next associate judge of the Supreme Court of the United States.

Already, support for my appointment is building.  Brian Tannebaum has thrown his not inconsiderable weight behind me.  Gamso appears to be reluctantly on board.  Others have told me that they will support me if I follow them on twitter.  Even the international  community is coalescing behind me.  Gideon was persuaded when I told him that I would issue opinions on SJ and leave comments open. Bennett has yet to jump on the bandwagon, but I remain hopeful that he will support me as well. 

It’s not going to be easy.  As one person commented to Tannebaum,

No way Obama has ever even heard of Greenfield. Furthermore, presidents pick people who write legal treatises and the like, not blog posts.

Certainly, my appointment will be a bit outside the box, if you will.  But Mr. Anonymous’ points are precisely why my appointment, at this juncture in history, would be perfect.  Should we limit selection of a branch of government consisting of only nine (count them, 9) people, appointed for life, to those who pal around with the president?  Isn’t that just a wee bit restrictive for a position so important to the future of our nation?  Should our President not look beyond those he’s heard of to those who would serve with distinction?  I say, think bigger, Mr. Anonymous.  And smaller.

As to the second point, I cannot agree with Mr. Anonymous.  I’ve read legal treatises. I’ve read blog posts.  Let me tell you, the former are not nearly as interesting as the latter.  In fact, the former are a bore.  I’m talking a crushing bore.  Boring. Boringas. Boringamos.  Isn’t it time that we broke from the old, the tedious, the incomprehensible, and tried to do better?  Would it be a crime for Supreme Court opinions to be a little less obtuse and a little more interesting?

And there is one additional advantage to my nomination that no one, as yet, has recognized.  After the Senate has its way with me, crucifying me for my writings and opinions, expressions of concern for others and thoughts on subjects large and small, think about how thankful they will be when my appointment goes down in crushing defeat and they are presented with another Ivy League, law clerk, prosecutor, federal judge to approve.  The person who comes after me will sail through, just in time for the first Monday in October.

The other day, Gideon at A Public Defender posted about the presumption of guilt.  He wrote of how we mouth the words “presumption of innocence” because that’s what we’re told we should, but believe in our hearts and minds that they’re all guilty.  The”bedrock principle” is a nice platitude; reality is otherwise.

Gideon’s thesis is tested by Paul Cassell at Volokh Conspiracy.  For anyone living under a rock, Cassell is a former federal judge who left the bench to become a Utah lawprof.  Law professors are paid more.  His primary focus is on the rights of crime victims, and their insertion into the criminal justice process.  By definition, this presumes there is a crime, a victim and a criminal, before the law determines any of these things.  

Cassell posts about the case of Timothy Hennis, riffing off a post by Kent Scheidegger at Crime & Consequences, who asserts that the Hennis case “conclusively debunks” the Innocence List maintained by the  Death Penalty Information Center.  Hennis, was convicted, sentenced to death, reversed, then acquitted.  However, under dual sovereignty, Hennis was tried again by the military and convicted of premeditated murder.

Scheidegger contends, in a way that might be described as smug if that wasn’t his normal state,

It was just after two in the afternoon on Thursday when I finally said to myself, “enough”.  I had “finished” an appellate brief the previous Friday, yet couldn’t stop looking back at it.  It had been proofread half a dozen times for typographical errors, grammatical mistakes and clarity.  Each time, something was found that could be corrected or improved.

Many people surmise that this blawg reflects my skills as a writer, or lack thereof.  Despite my efforts to explain, the notion persists that writing is writing is writing.  As they read what I write, they believe they have insight into my writing.  What this blawg reflects is, generally, a solid ten minutes of effort, once through and then the computer’s spellcheck takes a final pass.  After that, it’s in the hands of readers.  A few friends will email me to let me know of a typo or mistake, which I will correct as quickly as possible, but I never proof the posts myself.

Others proof it to death.  I don’t.  It’s just my approach, based on the nature of this format.  It’s informal, conversational and, occasionally replete with typos.  I do it quick and dirty, a means of getting some of the words rumbling around inside my head onto a white screen.  It’s not meant as an insult to the finer minds that read it, but in the hopes that they can appreciate a blawg post for what it is.  Others see it differently.

Formal writing, on the other hand, is a world apart.  I agonize over every word.  The passive tense makes me nuts, and I eliminate it wherever it’s found.  There is no excuse for misspelling a word in a brief, though it still happens on occasion even after it’s passed through a few other hands to give fresh eyes to the task.  But it kills me to find a typo.

Reading lines for the tenth time, I still find superfluous words.  Any word that is not necessary is deleted.  It’s not enough that it’s acceptable, but has to be necessary.  If a word has no specific, articulable purpose for inclusion, then it’s out.  Whole sentences are eliminated when, in retrospect, their inclusion failed to serve a purpose. 

Many writers think that length is a virtue.  It’s not.  It’s wasted words, boring or confusing the reader and often undermining your argument.  In my best of writing worlds, the reader will understand my point with precision and clarity.  There is no other purpose to a brief.  The shorter the argument, the greater the clarity and the easier it is for the reader to comprehend my point.  Persuading the reader doesn’t involve forcing the reader to wade through pointless words, sentences or paragraphs.  Any wasted word can be a bomb waiting to explode. 

As I read through, however, I have never found writing that I do not think can be improved.  From the time when I “finished” the brief to a few minutes after two on Thursday, I made another dozen changes.  Not huge ones, but tiny little tweaks, a word here or there.  Each time, honing it down with greater precision, a better or word perhaps, or an adjective that should never be there.  If I continued to look at the brief, I would continue to edit.  There is no point when I believe it’s perfect.  Years later when I look back on a brief I’ve written, I always see something I could have done better.  Always.  I’m never satisfied with myself.

Eventually, however, it has to stop.  Eventually, it must be sent to the printers.  Eventually, it must fulfill its purpose in life to be an appellate brief.  It’s like sending a child off to war, but I had to steel myself and do it.

Blawg posts are, for the most part, fun and, occasionally interesting or provocative.  No client is harmed in the making.  When writing in the course of my representation of a client, it’s another world.  Just as we can work in the garden in jeans and a t-shirt on a summer day, or wear a suit and tie to appear before a tribunal, never confuse what happens here with what happens there.  It’s a wholly different endeavor, and like every other lawyer who strives for excellence in the representation of a client, I dress for success.

Few cases generate as much heat amongst practicing lawyers than Padilla v. Kentucky, the Supreme Court decision requiring criminal defense lawyers to correctly advise non-citizen defendants who plead guilty of the immigration consequences of the plea, unless the consequences are unclear. 

Since my earlier discussion of the decision, and its flaws, some of the brethren have sought to provide some helpful information.  Gideon, at A Public Defender, offers this:

Never fear. Here’s a   practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

There’s nothing better than the simple life, where a handy “cheat sheet” gives a laundry list of everything you need to know.  Print it out. Carry it to court. Be brilliant.  Except…that’s not really the problem.  The problem is that the Padilla duty is largely a no brainer at the extremes, where the immigrant defendant pleads to possession of 457 kilos of cocaine with intent to sell (it’s a little large for personal use anyway), or doing 37 in a 35 mile per hour zone, with or without your windows excessively tinted.  The problem is toward the middle of the spectrum, where all this mushy information does little to inform.

What this means for the defense lawyer is clear, but even more interesting is what it means for the prosecutor who is concerned about making sure his guilty plea sticks.  Enter former TV star and Justin Bieber body double, Ken Lammers at CrimLaw to make the point.

It’s more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let’s look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Hard as it is to admit, Ken is right.  We don’t read hornbooks, law review articles or (gasp) the ABA standards (on anything whatsoever) in the regular course of our practice.  Court decisions, all the time.  The rest,

we have a widely disparate set of habeas-bait “standards” (invariably impossible to follow: see this post), never used procedural books (I’d even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don’t have time to waste with that organization), and a law review article (you’re kidding?!? tell me you’re kidding).

Ken used to be a criminal defense lawyer before he turned to the dark side.  He knows stuff.  And what this means is that the plea he worked out so carefully will be subject to all manner of challenge afterward for failure by the defense lawyer to either comply with Padilla, or be accurate.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren’t going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn’t notified. Hopefully, judges will start adding the question to the plea colloquy, “Are you aware that if you are an immigrant a conviction may effect your immigration status?” Unfortunately, I can’t do anything to effect that change.

But that doesn’t mean that prosecutor Ken plans to take Padilla lying down, waiting for the defendant (and his immigration challenged lawyer) to spring the trap.

I can change the language in my plea agreements. Henceforth, all my plea agreements will contain the following language:

 

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.

While I think Ken’s on to something, I’m not convinced that his language is going to cut the mustard.  But if copies pages 7-8 of Gideon’s practice advisory, staples it to plea form, squints a bit and prays that nothing even remotely relating to the defendant’s charge or prior criminal history happened in another jurisdiction, he might be able to squeeze it through.

You can thank me later too.

Amongst the many powers of the prosecutor is the power to compel disclosure of information needed in the investigation and prosecution of crimes.  Or maybe not quite crimes.  Or maybe, just something the prosecutor would like to know.  Or maybe something that a cop friend who belongs to a church who has an anonymous blogger would like to know so they can teach that anonymous blogger a darn good lesson. 

Fortunately, Middle District of Florida Judge Marcia Morales Howard wasn’t inclined to put her faith in church member/cop Robert HInson or prosecutor/subpoena issuer Stephen Siegel.  Normally, this is where I would insert a quote from the decision in Rich v. City of Jacksonville, but it’s one of those insufferable decisions that goes on ad naseum on every minute tangent under the sun without providing a clear point, sentence or paragraph, that would serve to inform.  Anybody wanna bet that the judge’s clerk was on law review?  So instead, here’s Eugene Volokh’s synopsis :

The most important part of the decision rests on the Free Speech Clause, but the court also concludes that if issuing the subpoena was motivated simply by a desire to “prosecut[e] an errand of the Church,” then that would also constitute a violation of the Establishment Clause. In such a situation, the court says, “the state actor [would have] lacked a ‘secular purpose’ for his actions,” and the action would have had “a primary effect of advancing religion” as well as “enmesh[ing] churches in the exercise of substantial governmental powers.” “Such ‘active involvement of the sovereign’ in the internal affairs of a church, namely a dispute between a congregant and his pastor on matters of church doctrine and administration, would violate the very essence of the First Amendment.”

Great news?  Well, not exactly.  The decision arises in the context of a §1983 action.  The blogger is long since outed, anonymity be damned, because Comcast and Google complied with the subpoenas.  Whether Assistant State Attorney Siegel was playing errand boy for the church wasn’t their business; they get a prosecution subpoena, they comply.

The issue here is whether the blogger’s complaint for damages and injunctive relief should be dismissed.  Ultimately, Judge Howard says no, at least at this stage, because Siegel’s prosecutorial qualified immunity fails for lack of any legitimate state interest in his issuance of the subpoena.  But the judge isn’t particularly encouraging about the plaintiff’s chances for recovery.

That Judge Howard held that the prosecutor cannot use the subpoena power for personal purposes seems almost too obvious for words.  That there is no remedy before the harm is done, however, reduces any after-the-fact jousting to an exercise in futility.  Here’s a tough question: How does a person prove harm/damage by having the veil of anonymity lifted?  Sure, we have a right to anonymous free speech, but what’s the dollar figure on the loss of that right?

Remember, where there’s no remedy, there’s no right.  There’s no reason to respect a right when there’s no downside to violating it.  A firmly worded “don’t do that ever again” usually evokes a foot shuffle and a head turned downward.  Not in contrition, but to conceal the sneer from the judge.  Want to slap my other hand, judge?

It’s axiomatic that the law can’t cure every wrong that man can devise.  It just seems to do a particularly ineffective job of preventing prosecutors and police from using their enormous powers in violation of constitutional rights, and all the nicely conceived decisions that labor to explain the vast complexities of immunity somehow neglect to note that, at the end of the day, no one was saved and no constitutional right was protected.

The argument against withholding immunity from prosecutors, primarily grounded in the fear that they will lack to fortitude to do their jobs if they are functioning under an ever-present concern of liability, seems hardly a match for cases like this where the abuse of authority is flagrant and far afield of any conceivable legitimate purpose.  Granted, the federal chastisement of the conduct isn’t going to win ASA Siegel any prosecutor of the year awards, but it similarly doesn’t do much to restore the plaintiff to his rightful place of anonymity.

You don’t have to like anonymity online to recognize that the government can’t abuse its authority to strip someone of it.  And as this case shows, there’s little to be done to stop it.  The best we can hope for is a tiny chance, afterward, of getting to court to say mean things about the prosecutor, even if there’s no real remedy to be had down the pike.

In the never ending saga of bar associations trying desperately to put on a program that will attract the scarce free cash of lawyers in a poor economic climate, combined with the trend of idle hands believing that there’s money to be made by defending the devil, the New York City Bar Association is offering a three hour CLE for a mere $205 on a subject near and dear:

YOU DON’T PRACTICE CRIMINAL LAW &

YOU GET THAT MIDNIGHT PHONE CALL…

NEW YORK CRIMINAL PRACTICE 101

Who is this program for?

If you haven’t thought about criminal law since you were required to take it in law school,what can you expect to encounter when a client calls you in the middle of the night about a criminal matter? What questions do you ask? How do you counsel your client? What should you do—or not do? This program is a must for any attorney unfamiliar with the practice of criminal law.Find out everything you need to do to preserve the rights of your client (whether dealing with a minor problem or a serious matter) from the first minute your telephone rings.

Not ready to hand over your credit card yet?  Consider the expertise of the program chair:

Frank R.Dudis 
Deputy Bureau Chief
Kings County District Attorney’s Office
Investigations Bureau/Public Assistance Crimes Unit

Who better to teach how to defend an accused than a prosecutor? Talk about an insider, and as we all know, it’s all about being an insider, with the little wink and nod as the backroom deal is cut.

The program covers everything from the initial phone call through disposition.  Trial isn’t mentioned in the program, but collateral consequences are.  And there’s even a Q&A period before your three hours are up.  Imagine, a mere three hours of your life and you can then confidently represent individuals accused of crimes, who may spend many years, perhaps even their life, in prison should things not go well.  Is this a great program or what?

There is a perception amongst civil lawyers that criminal law is sexy, and compared with what they do, it is.  There’s a perception that criminals are worthless, so they have few qualms about trying to take every penny they can grab.  Heck, it’s almost a duty to redistribute money from the bad guys to the good, and they are most assuredly the good guys.  Remember, in the world of civil litigation, it’s only about money.  No one’s life is on the line, and the only question is how big a pie will provide their third.  With that in mind, and business slow, the notion of passing up the midnight phone call (perhaps with the knowledge that two-thirds of the pie remains in their escrow account) or handing it off so someone else can make a fee is just, well, ridiculous.

It’s one thing to disabuse civil litigators who think they can pretend to be criminal defense lawyers by feigning a swagger and a sneer, but it’s another altogether to have bar associations place their imprimatur on the idea.  Who came up with the idea that a three hour tour course makes someone competent to defend a human being accused of a crime?  Brilliant and idiotic at the same time.

As a public service, I will teach that course in seven seconds.  What to do if you don’t practice criminal law and you get that midnight phone call?

Immediately refer the case to a competent criminal defense lawyer, then go back to sleep.

That ought to be worth 1 CLE credit in ethics.

H/T Andrew Lavoott Bluestone at New York Attorney Malpractice Blog.

Via Radley Balko, a Wisconsin prosecutor has decided that he will wield his power to indict and prosecute teachers for teaching students about contraceptives.  His theory is that since children aren’t allowed to have sex under Wisconsin law, providing sex ed about contraceptives encourages students to break the law.

The problem is that teachers are required by law to teach students about contraceptives if they teach sex education at all.

The law doesn’t force any schools to teach the sex education classes, but it sets out strict guidelines on what should be taught in the schools that choose to do so. The law passed narrowly in the legislature and was the topic of a fierce battle between Republicans and Democrats: No Republicans voted for it, and it was signed by a Democratic governor.

The legislature passes a law, the governor signs it. The district attorney prosecutes for complying with it. 

Because the law requires teachers to instruct children not only about contraceptives but about how to use them, Juneau County District Attorney Scott Southworth said, schools are forced to encourage students to “engage in sexual behavior, whether as a victim or an offender.”

In his letter, Southworth said the law would convert sex education classes “into a radical program that sexualizes our children as early as kindergarten. This, in turn, will lead to more child sexual assaults.”

Putting aside, for the moment, the question of whether one agrees with the law or the teaching of contraceptive measure in sex education classes, an issue that may well be controversial for some, DA Southworth has, by his threats of prosecution, undermined the fundamental structure of government.  Forget those silly roles played by the legislative and executive branches; local district attorneys now posses the super-veto to quash compliance with a law with which they disagree.

This reflects a change in mindset in the scheme of criminal law.  Clearly, subjecting teachers to prosecution is, in itself, a substantial harm.  Where the law mandates it, then the prosecutor’s imposition of that harm is justified.  Where the law does not mandate it, then the prosecutor has gone rogue.  Where the law mandates the opposite, the prosecutor goes beyond rogue into the realm of threat to society. 

The power to prosecute is awesome.  It’s a power that can be easily abused, with devastating results.  But when it’s flagrantly abused, deliberately and purposefully to undermine the process of government, what little integrity the system maintains is lost.

While Southworth’s threats may be viewed as mere grand-standing shenanigans by some, it strikes me as ample demonstration that he’s incapable of handling the authority that comes with his position.  He is a threat to both law and order.  That he feels empowered to threaten prosecution based upon his political sensibilities, about what he thinks should not be taught to children, reflects a clear inability to be trusted with the authority to prosecute.

Rep. Kelda Helen Roys, a Democrat, told the Wisconsin State Journal that she believes there’s no problem with the law.

She said Southworth, a Republican, is a “zealot” who wrote the letter to try to scare people out of teaching the sexual education classes.

Whether accurate or not, this is a woefully inadequate response.  The question isn’t whether there’s “no problem with the law,” but whether the State of Wisconsin will be held captive by the Juneau County District Attorney.  Is it acceptable to this representative, to all the reps, to the Governor, that laws duly enacted meet with Southworth’s approval?  And what of the other prosecutors?  Must the laws meet with their approval as well?  Must the legislature and governor go begging for permission to pass laws in the State of Wisconsin.

That a prosecutor would be allowed to remain in power, while threatening prosecution of those who not only commit no crime, but comply with the law, reduces the state government to a farce.  This abuse of power cannot be tolerated, and this attempt to usurp the power of the state must be quickly and decisively brought to an end, lest we end up with prosecutors running the world and using their power to engineer society to their liking.

Bruce Carton twitted yesterday about this latest barrage from scam lawyer website BestAttorneysOnline..  You may recall that Bob Ambrogi called it out, as did I.  But it’s still out there, and still puliing stunts designed to mislead and deceive.  Hey, anything for a buck.  Isn’t that why the internet exists?

This time, the scam lawyer website announces the .  How did they arrive at this venerable list?

A research team reviews thousands of applicants, and performs an evaluation of each firm based on established criteria. A series of questions are posed, such as “Do they represent each client fairly providing the best possible defense and representation?” or “How extensive is the firm’s knowledge of case law when it comes to an individual’s rights?”.

Seriously, that’s what this scam site says.  I wouldn’t make this up.  I couldn’t.  And thus, the list:

The nation’s 10 best criminal attorneys for April 2010 are:

1. Kochhar & Co.
2. Marks, Golia & Finch, L.L.P.
3. Malaby & Bradley, LLC
4. Jackson Lewis LLP
5. Vogel Law firm
6. Garbarini & Scher
7. Ziegler, Metzger & Miller LLP
8. Schrader Byrd & Companion, PLLC
9. Sirkin Pinales & Schwartz LLP
10. Barrett Daffin Frappier Turner & Engel, LLP

Anybody want to take a wild guess what’s wrong with this list?

The deluge of crap that permeates the internet is never-ending and utterly shameless.  It’s out of control.  For any lawyer who tries to do right, there are a hundred, a thousand, maybe more, doing anything they can to lie and deceive. 

For those who appreciate lawyer marketing as a means of leveling the playing field, offering the small firm and solo lawyer the opportunity to get their name out to the public, this is the flip side of the argument, that the public is being scammed unmercifully by those inclined to do anything for a buck.  It’s tiring and tedious to deal with this day after day.  And it never seems to stop.

For those who argue that all this information helps consumers, what do you say about these scam websites?  What do you say about the lawyer websites that deceive?  Where does it stop?  And what are you doing to stop it?

Or are you too busy promoting yourself to bother?