Strategic Shunning

Amongst the issues swirling around the Hank Skinner case is that DNA tests now sought, which may or may not tend to exculpate him, could have been done before trial, but were not.  His trial lawyer, Harold Comer, chose not to have additional DNA testing done.  The ABA Journal writes:



Skinner’s lawyers want DNA tests that his trial lawyer shunned because of fears the results would be incriminating. Among the items that have not been tested are two knives, a bloody towel and a rape kit. Comer says he now backs DNA testing, but his trial strategy was justified, AP says. “I would make the same decision with the same circumstances again,” he said.
From this side of the verdict, many have been highly critical of Comer’s decision not to test for DNA when the opportunity was available, making it a significant stumbling block now. 

In retrospect, it’s easy to argue that Comer made the wrong decision, at least until the tests come back, should they end up showing Skinner’s DNA was there all along.  One huge point that can’t be ignored at this stage is that testing isn’t so much to prove his innocence as to preclude the execution of a man who might be innocent.  Should the tests come back with Skinner’s DNA all over the place, game over.

The view now, however, is based on an entirely different situation than the view Comer was looking at when he decided to “shun”, a ridiculous word choice, the testing before trial.  We now look at the case with verdict and sentence in hand, guilty and death.  Harold Comer had a trial to do on behalf of a presumed innocent defendant.

The last thing a trial lawyer wants to do is push for evidence that will seal his client’s fate.  Comer was already faced with problematic, though not overwhelming evidence, against Skinner.  Based on the evidence in hand, he had a chance of beating the case.  How good a chance is easier to assess afterward.  We now know that it wasn’t very good, but Comer didn’t know that at the time.  Who knew how testimony would come off or the evidence would play out.  Who knew what mistakes might happen. 

To the general public, as well as lawyers who don’t try criminal cases, the multitude of unknowns at trial are staggering and incomprehensible.  As clients love to say, “you’re the lawyer; you’re supposed to know this.”  Unfortunately, not even criminal defense lawyers are endowed with the ability to see into the future.  It’s one of our biggest faults.

While we don’t know, and will never know, what was said within the confines of privileged communications between Comer and Skinner, that might have influenced the decision, it is completely understandable that Comer made the decision not to seek additional DNA testing before trial for fear that it would seal Skinner’s fate.  Neither side knew, for sure, what the testing would reveal.  Comer had to make a decision, and he did.  That it looks wrong, horribly wrong at the moment, is irrelevant.  He wasn’t working with a case where his client was already convicted and sentenced to death.  He was trying to win.

All this makes those seeking DNA testing now appear disingenuous.  He had his chance to get the DNA tested, and made his choice.  Now he wants a second bite of the apple?  Tough.  If Skinner wants someone to blame, look to Harold Comer.

This argument is flawed.  While it’s true that Comer could have decided to seek DNA testing pretrial, and Skinner’s post appellate position does seek a mulligan on DNA testing, the propriety of Comer’s decision cannot be judged based on post-trial circumstances.  Trial lawyers make a million decisions before a verdict is returned.  Some are bound to be wrong.

These only become problematic because of the systemic need for finality, but that equation changes when the sentence is death.  While society may be prepared to accept that an innocent person goes to prison because his lawyer made the wrong choice, it’s not prepared to execute an innocent man, even when it can be partially blamed on strategic defense decision.

Harold Comer was constrained to make a decision on behalf of his client, Hank Skinner.  He was flying blind, as is so often the case, but that’s the nature of the job.  Whether it was the wrong decision remains unknown, but he didn’t have the benefit of having nothing left to lose.  Today, we have the benefit.  Test it all and let science give us the answer.  Comer had a case to try.  We have a man about to be executed.  Finality doesn’t trump innocence.

Don’t blame Harold Comer for doing his job, even if it turns out that he made the wrong choice.  That the ABA Journal described his decision as “shunned” is irresponsible; only someone who doesn’t grasp the nature and function of trial counsel would use that word to describe the choice facing the defense.  Comer made his decision based on what was known at the time, and that’s all he could be asked to do.  We now face a different situation, and that changes everything.

Fonts of Wisdom

It’s not for lack of concern or appreciation, but just lack of time.  When I wrote of Blawgospheric Darwinism, I wasn’t being snippy, or arrogant, or self-important, but stating a harsh reality.  We work for a living.  We have real clients with real cases that require our time and attention.  It’s not that the blawgosphere is just a game or diversion, but that it takes time to stay abreast and read all the things that it offers.

Still, it pains me that I haven’t properly acknowledged the fine efforts of many new, and not so new, comers.  I was a newbie once, and others who were already here welcomed me to the blawgosphere.  The least I can do is pay it forward.  Some of the following blawgs have already been mentioned or discussed, some in a less than entirely favorable light because of a particular post or assertion, but they all offer substance and have their virtues.  Some will appeal more than others to a particular audience, but that’s for the reader to decide.

Check these out and see if they are good fit for you.

Trial Theory
Not Guilty, No Way
Affirmative Links
Jamison Koehler’s Still Unnamed Blog
Liberty and Justice For Y’all
Public Defender Revolution

They aren’t all my cup of tea, and they may not be yours.  But you’ll never know if you don’t check them out.  Whatever you think, it would be a shame for fonts of wisdom to run dry merely because no one knew they were there.  Take a look.  It won’t kill you.

#HankSkinner: Maybe Nothing, But Something

The United States Supreme Court granted a stay of execution to Hank Skinner about an hour before the Texas death machinery had a chance to put on a show.  The stay will terminate of its own accord should Skinner’s petition for a writ of certiorari be denied, meaning that it’s a baby step toward the goal of the only issue blocking his execution, DNA testing to either confirm his guilt or not.

Jeff Gamso has links to the relevant documents and an array of posts on Skinner.  Mark Bennett provides the procedural history leading to this point, not to mention a bit of blawgospheric trickery to get those otherwise disinclined to care to become aware of the issue.  Brian Tannebaum takes on the simple minds who are incapable of understanding why there’s any issue at all.  And a broad group of lawyers online spent a good deal of time yesterday spreading the word as far and wide as they could.

We’re not so delusional as to believe that it was our twitter campaign that moved the Supremes to grant an 11th hour stay, or had Texas Governor Rick Perry cowering in the corner of his governor house hiding from the digital townspeople with their pitchforks and torches.  But it showed that they cared enough about the right thing to act.  If it played any role, even to merely encourage those engaged in the real fight to stop the possible execution of an innocent man, it served a purpose.  If it played no role whatsoever, at least we didn’t turn our backs.

It was a day of gross juxtaposition, however.  While some blawged, some twitted, some did both, in the name of keeping Hank Skinner alive long enough to make sure he was guilty before killing him, other lawyers were occupied with doing the things most important to them.  They had no time to notice the impending execution of Hank Skinner.  They were busy with more important things.

There was marketing to do.  There were ten tips on how to best use social media to connect with your tribe to be told.  There was a delicious luncheon to describe.  And somewhere, there was a conference being held on how to make lawyers more money.

Self-promotion depends on making others like you, think you’re fun and interesting, want to engage with you.  Nobody wants to love you when you’re busy being a downer, harping on some unpleasantness like the execution of some guy in Texas.  It’s not like the guy is a member of the family.  Or even a friend.  Hey, people die every day. What’s one more?  It’s not like life doesn’t go on, you know.

Life does go on.  No one expected any lawyer anywhere to go on a hunger strike yesterday to protest the impending execution of Hank Skinner.  Enjoy that delicious luncheon.  It would be terrible shame to waste fine food.  But going about your life doesn’t exclude your ability to be aware of, care about, do something about, a pretty big issue happening within your sphere of concern as a lawyer.  Even if it’s only to join in the chorus, one more voice makes the hosanna louder.

It made me proud that I could be a part of the group of lawyers who raised a hand, maybe only a finger, to be part of the solution.  It may have meant absolutely nothing to the grant of a stay or the transitory extension of Hank Skinner’s life, but it’s better to try than not.  In contrast, the swell of lawyers who were too busy going about their daily lives online, eying themselves in the mirror to see if their hotpants made their butt look fat, may have found a new client while we were trying to save a life.

These are the choices that lawyers have to make in this digital age.  Social media can be put to good use, but it’s up to each of us to decide what a good use is, and whether trivial, self-serving interests are sufficient to make you feel that you’re day wasn’t wasted.

Merge or Start-Up, We’re Doomed

While it’s become painfully clear to practitioners, and even more clear to the public, that the good ol’ US of A is awash in nice men and women with law degrees without enough to keep their idle hands occupied, the Legal Academy, much like a good trade union, sees the situation differently.  From the Faculty Lounge, via Volokh, we get a view of their inner thoughts, uttered between sips of sherry in leaded crystal stemware.

If there’s one thing that’s clear, it’s that lots of colleges and universities covet a law school. The reasons vary. For research universities, a law school serves to complete a portfolio.  For smaller schools, it can place them on the map.  And finally, there are a few schools that are simply built to make money.  At the moment an institution decides to start down the law school path, it has to face a crucial choice: start-up or merger.  For-profits and smaller non-profit schools usually have little choice but to start fresh; few existing law school see a benefit from linking up with these smaller fish.   I want to focus a bit on bigger institutions: private research universities and state universities.  They can choose to build or merge.

Ah, a law school of your very own.  Every cool university needs one.  To an academic, it’s the jewel in the University crown.  To the practitioner, it can be the turd in the porcelain bowl.  How can something so clear to academics be so similarly clear to practitioners, if only at the polar extreme? 

It would seem that the numbers speak loudly.  American law schools are producing warm bodies at the rate of 45,000 per year, when there are only 30,000 jobs.  Of course, that doesn’t include those who fly solo or use their degree for something more productive,   But it also doesn’t account for all those solos and small firm lawyers staring at the telephone, praying it comes to life with something that can make it past Rule 11 sanctions.  Or the small army of Biglaw partner wannabes who are told to turn in their Oxfords for flip-flops.

Dan Filler’s attempt at compare and contrast in his post offers even more insight into the faculty mindset:


The biggest advantage to a start-up is faculty quality.

Jobs.  Not just jobs, but jobs alongside those with whom you feel comfortable, happy, mutual admiration and, dare I say it, a camaraderie.  Some might respond that if the faculty were any good, they would already have jobs elsewhere, meaning that the start-up law school would be staffed by those who were otherwise unemployable or unable to make the cut.  But since no one in academia is allowed to say anything aloud questioning the scholarship or virtue of another, all faculty are quality.  Some more so than others.


Another big plus for a start-up is the ability to create both an agenda and a culture.

You thought we were talking about law schools, didn’t you?  To the outside world, that’s how it would appear, but to the new faculty (oops, to the new quality faculty), each wheel gets to be reinvented with its own agenda and culture.  Apparently, training young men and women to be lawyers is not a sufficient agenda.  I shudder to think where the concept of culture applies.  Maybe training them to be honest, ethical, hard-working lawyers? 

Nowhere in this discussion does a consideration appear about swamping the nation with yet more lawyers to serve in the devil’s workshop.  Of course, if universities in desperate need of a law school were to merge with existing schools, at least we would be saved from yet more deeply indebted, grossly unneeded, men and women being sent out into the legal world primarily due to their inability to stomach the sight of blood (in which case they would have gone to medical school) if they just merged with an existing factory.  What does Filler find to be the main virtues of merger?


Why might a school choose to merge?  The first obvious answer is lower front-end transaction costs.  You already have an administration.  Starting a new law school is incredibly time consuming for both faculty and administrators, and inevitably involves driving through a lot of potholes.  You also already have a faculty, which means you don’t need to spend five years in endless job talks.
Lower transaction costs and no new jobs.  Talk about making merger look sexy.  Who doesn’t have a soft spot for lower transaction costs, especially when compared to the ability to “create both an agenda and a culture?”  Plus, they would have to come up with a mascot, and everyone knows what a minefield that can be.

While the fine academics who sit alongside Dan Filler in the Faculty Lounge drinking sherry from leaded crystal stemware are certainly brilliant people and scholars, the disconnect between their self-interest and the nasty reality of too many lawyers is hard to comprehend.  Do they concern themselves with how many lawyers per capita we have?  Will they be satisfied when there’s a lawyer for every man, woman and child in America?  Will it end when a law degree becomes de rigueur for every public sector job, from sanitation worker to traffic cop?

Not as long as there are jobs to be created and agendas and cultures to create, as would be the position of any self-respecting guild.

Is It Always Just About Money?

Oral argument was held yesterday before the Court of Appeals in Hurrell-Harring v. State of New York, where the NYCLU seeks reinstatement of its action on behalf of 20 plaintiffs to hold that “the current system for representing poor defendants creates an unacceptably high chance that defendants’ constitutional right to adequate legal counsel will be violated.” 

Under persistent questioning by Judge Robert S. Smith, New York Civil Liberties Union attorney Corey Stoughton conceded that lawyers for plaintiffs in the case do not know how much it would cost to significantly improve the effectiveness of counsel assigned to indigent defendants.

 “That’s absolutely true, I have no idea,” Ms. Stoughton replied.

“Isn’t that a problem with systemic failure questions?” Judge Smith persisted. “What you’re really doing…by upholding the complaint, you’ve signed a blank check that someone is going to have to fill in later?”

That’s all it is?  Money? 

From the standpoint of  Gideon, my favorite public defender, yes, money is the answer.  Not an answer.  Not part of the answer. The answer.  “We’re only as good as our funding.”  I know it’s meant with the best of intentions, but money is a false god.

There is no public agency/service that doesn’t say it could do better with more money.  That should be engraved over the door of every government building.  I’ve no doubt that it’s true, particularly when it comes to indigent defense, where lack of funding has been a perpetual problem.  But there’s another view of the big picture that can’t be ignored.

The NYCLU is seeking class action status for the plaintiffs, who contended their counsels did not appear in court, failed to keep them apprised of the status of their cases, did not properly investigate their cases or otherwise provided inadequate representation.

In the case of lead plaintiff, Kimberly Hurrell-Harring, her lawyer had her plead guilty to a felony, when it should have been a misdeamnor.  How much money would it cost to correct that incompetence?  Her public defender was informed by a lawyer from NYSDA in advance of sentence of the problem.  He still didn’t bother to raise the issue.  How much money for that?

It’s not to say that adequate funding isn’t critical to the functioning of indigent defense.  It most assuredly is.  But funding a broken system doesn’t fix the system.  It just makes it a more costly broken system. 

The Chief Judge, Jonathon Lippman, asked an incisive question of New York’s Solicitor General, Barbara Underwood:

“Do we have a particular role to play here, given that this is about the justice system, the court system—that it works?” he asked at one point. “Or can we take just a hands-off approach and say, ‘Listen, there is no real controversy here, just have the individual cases go through to completion [and correct mistakes post-trial]. It doesn’t matter that this is about the justice system, about the courts.’ Should it matter to us?”

There’s no way to answer that the courts shouldn’t have a role to play in making certain that the court system works.  And Underwood acknowledged that, but added that concern alone doesn’t make a claim justiciable.  While Judge Lippman pressed on whether the only thing the court could do is correct mistakes afterward, Lippman argued that there was no assurance that allowing this case to proceed would prospectively produce effective assistance of counsel for anyone.

In tacit acknowledgement, the NYCLU told the court that it would drop the suit if the state forms a “statewide independent indigent defense commission.”  This is what’s really needed, together with funding.  And it’s something the court can’t order.  There must be money available to pay the cost of indigent defense.  There must be a system that assures that the money spent will result in an indigent defense system that serves poor defendants by providing effective representation.  It’s not just money.

It’s heresy within the criminal defense community to question any action that would produce more funding for indigent defense, and to the extent this suit will do so, and I’ve no doubt that increased funding will help to provide effective assistance of counsel, it’s hard not to support it.  But if the goal is true effective assistance for indigent defendants, then the system for delivering effective representation must be improved, and neither this case, nor even a blank check, will fix a broken system.

Our Last Day with Hank

Texas will put Hank Skinner to death today. 

For those who feel comfortable with the death penalty, Hank Skinner’s death may also be the death of their comfort.  The issue here is that there is untested DNA which may well show that Skinner isn’t guilty, but the State of Texas will take no chance of upsetting its conviction and sentence.  They could have tested it all and, if it went badly for Skinner, still kept his date with death.  Instead, they fought it off.

Mark Bennett explains it as confirmation bias.  While accurate, it’s too sanitary.  It makes it sound clinical when it’s anything but scientific.  The officials of Texas, a state inclined to put people to death more so than any other, who believe that the death penalty must be used at all costs, fear that science will create doubts in their legitimacy, so they won’t take the chance of letting science intervene in their execution.

Even for those who believe that the death penalty is a necessary and viable deterrent, the question looms why Texas wouldn’t let the Skinner team have the rest of the evidence tested for DNA.  If guilty as sin, then the DNA will show it.  That Texas refused, stonewalled, fought and, upon the death of Hank Skinner, will have won, leaves a lingering doubt that no amount of blind faith can ignore.

There is no platitude that covers the execution of Hank Skinner to make us feel good about his execution.  It doesn’t matter what the outcome of the DNA tests would be.  It only matters that Texas managed to avoid the tests and kill him anyway. 

The Strap of Louis Vuitton (Update)

I was walking down 57th Street when it struck me.  There was the mothership for Louis Vuitton, all white and glassy.  My dear wife, Dr. SJ, had not been particularly mean to me that week, and I was in a jovial mood, so in I walked.  And out I came with one of those bags that have the LVs all over them.  She was very happy when I gave it to her that evening, though suspicious about what I’d done wrong that she had yet to learn about.  I assured her that it was pure love. 

This happened a couple of years ago.  When exactly, I can’t remember.  Why would I?  Today, Dr. SJ stopped at the Louis Vuitton store because the leather strap was starting to break.  She showed them the bag.  They showed her the door.  It would cost $160 for them to repair the strap.  She told me about it, and I was not amused.

I called up the store and spoke with an effete, yet official, young man.  I told him of my discontent, and he patiently explained to me that leather doesn’t last forever, and they cannot be responsible for leather wearing out.


So you’re telling me that I pissed away more than a thousand dollars on vinyl bag where one of the few pieces of leather on it wore out within a couple years?  You’re telling me that these ridiculously priced bags don’t last longer than that?

Well, leather doesn’t last forever.

Screw forever, how about five years, ten years? This is less than three years, and it’s shot. This is a piece of crap.

Well it’s only $160 to repair it.

Only?  If it’s only $160, then why don’t you eat the cost?

We couldn’t possibly do that.

I bet.
Vanity.  When you go to the LV store, hushed and luxurious, they treat you like a king.  And they treat their products like gold.  But you’re not a king, but just the fool, as would be anyone willing to pay such absurd sums for vinyl pocketbooks.  It’s the ego play, the appeal to self-importance.  And I, fool that I am, fell for it. 

Over the years, I’ve accumulated a few things are described by their marketers as luxury goods.  Some of you may recall my Mont Blanc pen, the one where the plastic bottom broke.  Oops, my bad.  They aren’t made of plastic, but of the finest resin.  That would be the finest resin that broke. It changes everything when you say it that way.

Now I’ve been proven the fool again, this time by a venerable firm, Louis Vuitton.  I have a trunk by Vuitton that’s more than 120 years old and looks great.  Dr. SJ’s bag is less than 3 years old and is falling apart.  Go figure.

When you have a problem with your Louis Vuitton bag, and you go into the tres chic Louis Vuitton boutique, they start out being very nice to you, mistakenly thinking you are there to buy something.  As soon as you tell them you are there with a problem, they are not nearly as solicitous.  You need them.  Off comes the salesgirl’s smile, and on comes the official woman’s sneer.

As with my pen, I have no plans on spending $160 to fix the strap.  And the chances of my buying my 18 piece set of matching Louis Vuitton steamers trunks have been considerably reduced.  Instead, I am considering tying some bailing twin from one side of the bag to the other, so that people will ask why the bag lacks the only significant piece of leather that Louis Vuitton uses in its manufacture.  I will then explain.

However, I fear that some will see my twine fix as a fashion statement, maybe even a new trend by Vuitton itself, given the new designs they carry.  And to think I threw a grand away on this piece of crap that can’t last three years.  She barely even used it in all that time.  I’ve got stop this impulse buying thing.  I’m far too easy a mark.

But if the leather strap on a rarely used, thousand dollar Louis Vuitton bag doesn’t last at least 10 years, then the bag is a piece of crap and the whole deal is a scam.  Just wait until my daughter finds out about this. It will break her heart.

Update:   Within minutes, comments are coming in suggesting alternative brands.  Please don’t.  I will not allow the comments to post under any circumstances, and nothing in the post should be read as a request for alternative brands or for others to tell me about their favorites handbags, shoes, belts, gloves, accessories, etc.

Today, I Am A Virginian

Within minutes of President Barack Obama signing health care reform into law, the attorney general of Virginia (and maybe 13 other states) will file suit against the United States of American to block imposition of the mandate as being unconstitutional.  The basis for this suit will be that the federal government has exceeded its authority under the commerce clause.  I stand with the Virginny AG.

The argument that Congress has applied the commerce clause with Hamiltonian abandon such that it covers everything short of a dirty look between spouses under some ill-conceived theory that the air molecules moving through the lungs of Americans originated in some foreign state has long been troubling.  Virginia says it’s unconstitutional.  I do too.

No particular reason to mention at this moment that if Virginia prevails, every federal criminal law and regulation enacted within the past 50 years is also unconstitutional.

Orin Kerr, who is considering a new career as an oddsmaker in Vegas, figures that the chance of the Supreme Court holding health care reform unconstitutional is 1%.  Maybe Mr. Negativity needs a little Vegas sunshine to shake off that Washington pallor.  Forget the odds, Virginia.  Go for it.  Stand up to those usurpers in Washington.  Don’t let them tell you that you can’t win.

Go Virginia! Fight, Fight, Fight!

Bad Apples Shouldn’t Drive Systemic Change

While others have taken up arms following the New York Times article on the action by the New York Civil Liberties Union heading to the Court of Appeals, I’ve been (strangely?) silent.  It’s not for lack of caring.  I care. But the use of the anecdotal evidence of how contract indigent defender Patrick Barber failed, and failed miserably, to properly represent Kimberly Hurell-Harring, “a nobody in the courts,” proves nothing of the system.  It proves that lawyers, on the whole, can be great, awful and everywhere in between.

The NYCLU brought suit to reform the New York indigent defense system, currently managed county by county, with vastly differing benefits and detriments.  Taken from Gamso’s post on this matter:


“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. . . .

The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer. 

Sounds good, but tries wraps up a plethora of problems with too neat a bow.  The delivery of indigent defense in upstate rural counties is quite different than downstate counties or more urban areas.  New York State isn’t just Manhattan, or Washington County.  The problems encountered by Hurell-Harring in Washington County are quite different from those suffered by her counterpart in the Bronx.

There is no question that every defendant is entitled to “competent, qualified and timely representation.”  The first two are supposed to be covered by the requirement that the law-talking guys who stand next to defendants are lawyers, duly admitted to practice law in the courts of the State of New York.  Lawyers should not require someone sitting on top of them every second of the day to fulfill their professional responsibilities to their clients.  They are supposed to be competent, qualified professionals, whether they represent the indigent or the wealthiest corporation in the world. 

The reality, of course, is that it doesn’t quite work this way.  Some are hacks.  Some are just awful.  Some don’t care and some do drugs or drink alcohol such that they fall down, literally.  This isn’t an indigent defense fault, but a lawyer fault.  Contrary to common wisdom (which I define as facile assumption), hacks are all over the place, and not limited to the ranks of indigent defense.

What the NYCLU suit is really all about is forcing the creation of a statewide indigent defender system, an idea which should be implemented and which has, if properly crafted, the potential to resolve many of the faults in the existing system.  But this isn’t the way to do it.

The 3d Department was right to conclude that this was a political issue, and not one that the courts could fix under separation of powers.  It involves many interests and concerns, with many difficult choices.  While I trust the legislative process no more than anyone else, it’s still the means by which such things are supposed to be decided.  For better or worse, and I anticipate the latter.

As for Kimberly Hurell-Harring, she got screwed by bad lawyering, or as we like to call it, ineffective assistance of counsel.  The bad news is that no “system” will ever eliminate IAC, and anyone who believes that it will is living a fantasy.  Only we, individual lawyers and judges, can take responsibility for the quality of our own representation and those around us.  If we were to spend as much of our professional capital on quality rather than marketing, perhaps improvement can be achieved.

As for improving the system for indigent defense, I’ve no doubt that the NYCLU is right that we can do far, far better than we do now.  But the solution won’t be found in some pathetic case from Washington County.

Cory Doctorow Learns The Meaning of Why

It’s never quite the same when the person sitting in the chair reserved for a defendant is someone you know.  Suddenly, it’s all real and very personal.  Where before it was merely bad, it’s now a disgrace.  That’s how it always happens.

Peter Watts is a Canadian science fiction writer, who traveled across the border to help out a friend.  On his way back, he had the misfortune of being targeted for a random search by one of the United State’s well-trained, disciplined and helpful border guards.  Watts assumed, as do so many others, that this would be a relatively normal human interaction, where a person could ask a question when given confusing directions.  Normal people speak to one another.  Normal people ask questions. Normal people anticipate a reasonably respectful interaction. 

But this wasn’t to be normal. This was a border crossing. This was an interaction with law enforcement officer backed by the might of the United States of America.  When such an official says jump, there is but one question permitted: “How high?”  Canadians may not be aware of the proper way to respond.  Peter Watts apparently wasn’t.

His friend, Cory Doctorow, expresses the pain he felt when his pal was convicted of obstruction.  He had the epiphany that comes from knowing the defendant.


That’s apparently the statute: if you don’t comply fast enough with a customs officer, he can beat you, gas you, jail you and then imprison you for two years. This isn’t about safety, it isn’t about security, it isn’t about the rule of law.

It’s about obedience.

Authoritarianism is a disease of the mind. It criminalizes the act of asking “why?” It is the obedience-sickness that turns good people into perpetrators and victims of atrocities great and small.

It’s all about obedience.  The law puts the power to command into many thousands of hands of people wearing badges, who can by their mere order turn a normal person into a criminal.  There are, of course, rights mentioned with some regularity in court decisions, but these are best saved for the quiet of the courtroom to assert, as the border guards generally lack the specific interest necessary to have a discussion with a recalcitrant crosser to engage in debate.  And they’ve got guns and shields to let people know that they must do as they are told.

The testimony at trial shows the problem quite clearly.



When officers started searching through the vehicle’s trunk and bags in the back seat, Watts said he wanted to know what was going on and got out of the vehicle. He said he was irritated and under the impression officers were required to talk to him about what was happening.

“This is weirdness upon weirdness,” he testified.

Watts said an officer twice ordered him to get back into the vehicle, but he didn’t immediately comply. He said at least one officer grabbed his arm, and he pulled away in a “flinch response.”
Peter Watts did what a person would do when dealing with a normal person; he asked “why?”  He thought he was entitled to an answer.  He thought the guard was “required” to respond.  He learned otherwise.




Beaudry said Watts grabbed the collar of either his uniform or jacket, and it felt as though he was being choked. The officer said he broke free after hitting Watts twice with his elbow and once with his knee. Eventually, both got out of the vehicle and Watts was ordered to the ground, Beaudry said.

At that point, Watts took an “assaultive” stance, Beaudry said. When Watts didn’t comply with orders, Beaudry said he used his pepper spray and the author eventually sat down on the ground.

The testimony reflects the different views from each seat in the house.  Movements become “furtive movements.”  Standing becomes “assaultive stance.”  The reflex of pulling away from an unwanted touching becomes resisting arrest.  Asking why becomes belligerence.  Normal people expect an answer to a fair question, to normal body movement, to being left physically unmolested.  Border guards expect people to do exactly what they say immediately and offer no resistance in the process.  Anything less is characterized as nefarious, threatening, even evil, by the mere addition of an adjective in front of it.

Had the border guard been civil, cooperative, polite, normal, this would never have escalated into a dispute.  That’s the normal perspective.  From the guard’s perspective, had Peter Watts just done what he was told to do without challenging the guard’s authority to do his job, this wouldn’t have escalated into a dispute.  The law sides with the guard, since the guard does the dirty work of the law and the law tries to make his job easier in return by providing him with authority far beyond the limits of good judgment.  Order is paramount, and would be put at risk if our boys on the front line don’t have our blind support.

Doctorow’s post about his friend demonstrates that he doesn’t have a great deal of knowledge about the mechanics of the legal system.  That’s fine.  He’s not American, and there’s no reason why he should.  But he wants his friend to continue the fight.


I don’t know if he will. He may decide to take his chances for a suspended sentence and forswear ever visiting America again, opting to be a writer instead of a professional litigant. I’d understand. But tonight, I’m understanding that dark place that so many of Peter’s books seem to come from. I think of myself, fundamentally, as a optimist and a believer that justice can and will prevail. But in the face of that jury’s decision, in face of the dishonesty of the officials, in the face of the absurdity of the statute, I feel like justice is a joke and hoping for it is a waste of time.

I’m sorry that the system failed you, Peter.

So sad, and so naive.  The system didn’t fail Peter. The system worked perfectly.  It’s the expectation that the system exists to satisfy some existential concept of justice that causes the dissonance.  Putting aside the axiom that justice is in the eye of the beholder, the system doesn’t exists to serve justice.  The system exists to maintain order.  Did you think otherwise?

The person who tipped me on Cory Doctorow’s post, Cathy Gellis, was appalled by the conviction.  She wrote, “Thought point was to arrest the bad guys, not the good ones.”  The vast majority of criminal laws in the United States are malum prohibitum, merely a choice between various behaviors where the government decides to make one choice, otherwise a perfectly fine choice, a crime.  There’s no necessary moral taint connected to the behavior.  Under other circumstances, the person who engages in such behavior wouldn’t be “bad”, except for the fact that it’s criminal to do so because a law says it is.  And that’s all it takes.

Like Cory Doctorow, I agree completely that Peter Watts’ conviction is absurd and horrible.  He was convicted for acting like a normal person under abnormal circumstances.  He was convicted for lacking the understanding that when interacting with officials with guns and shields, one bows deeply like a supplicant, just to avoid irritating small minds. 

Of course, there are many in the United States who would see his conduct as an affront the power and might of the border guard, who believe that any lack of total obedience to the command of a law enforcement officer is, indeed, evil.  They adore order.  Until it’s them or someone they care about in the defendant’s seat.  And that, Cory Doctorow, is why.