End The Franchise Tax

This New York Times editorial calls for the end of the post civil war disenfranchisement of those convicted of a crime.


Millions of ex-offenders who have been released from prison are denied the right to vote. That undercuts efforts to reintegrate former prisoners into mainstream society. And it goes against one of democracy’s most fundamental principles: that governments should rule with the consent of the governed.

One of the collateral consequences of a conviction in some jurisdictions is the loss of the right to vote.  Interestingly, it’s not one of the consequences deemed worthy of discussion by the court during the allocution, falling behind immigration consequences and subsequent conviction consequences.  Apparently, the perspective of the law is that it’s far more important for the defendant to know that any additional convictions will result in an enhanced sentence, which assumes that he or she is inclined toward recidivism, than the loss of his or her vote, where it’s a certain consequence.

Congress is considering a bill, the Democracy Restoration Act, which would entitle former convicts to vote in federal elections.  According to the Times, the prohibition has significant racial undertones, from its inception to its current impact.



Many of the laws disenfranchising former criminals date back to the post-Civil War era and were used to prevent freed slaves from voting. These laws still have a significant racial impact. About 13 percent of black men in this country are denied the right to vote by criminal disenfranchisement laws, more than seven times the rate for the population as a whole.
The problem, if not fear, is that a vote in the hands of former convicts will be exercised in favor of liberals.  After all, a conservative is a liberal with a mortgage (and there are few of those around these days since the housing bubble burst), while a liberal is a conservative under indictment (and there are more of those around these days since the housing bubble burst).   If all of these former convicts were allowed to vote, the slide into liberal oblivion would be devastating.  The love of democracy is colored by the sensibilities of the majority.

For those who enjoy a decent platitude, try “no taxation without representation.”  When these once-criminals get a job, or a house, or a life, and pay taxes, they would seem to be every bit as entitled to express their beliefs as to how their money should be spent as anyone else.  Given that foreign corporations are entitled to fund political campaigns, it can’t be too scary or Americans, post conviction, to do so as well, if only via their vote. 

Of course, there was once a belief that any person who was convicted of an offense and completed his sentence had paid his dues to society.  It was a proud moment, when we accepted the notion that a person could do wrong, but would not be a pariah forever.  After sucking it up and paying, we would welcome him back into society and embrace him.  This was before sex offender/jaywalking registries, but let’s put that to the side for the moment since there are far too many collateral issues involved that would muddy up the discussion.  The point is that when the sentence was served, the con became an ex-con, and we believed in second chances.

Throughout this belief, though, laws still prohibited the ex-con from voting.  Some punishments were never over.  Now that we’re at a stage in society where no one is every forgiven anything, where there are no second chances and dues are never paid, it’s interesting that Congress has suddenly shown an interest in voting rights for a group for whom there is no widespread support or concern. 

There appears to be no sound rationale for denying those convicted of a crime the vote once their sentence in completed, and there are many awfully good reasons to let them vote, as would any other taxpaying member of society.  Yet there’s a funny smell about the sudden concern for the franchise of ex-cons in Congress.  While this shouldn’t stand in the way of enactment of a law that should be passed, it would smell so much better if it was part of a more comprehensive concern for the welfare of those former convicts and their return to society as law-abiding, productive members. 

The vote is an important part of this transition, despite its absence from the plea allocution.  A job, a fair shake, even ending perpetual vilification of anyone convicted of a crime so that they can feed, clothe and shelter their children, would help as well.  Maybe even more so than a vote.

Blinded By The Light

Health care will likely be a big topic today, now that the time for debate and discussion has passed.  One blawger, who fortunately happens to be a professor of law on the side, hasn’t been particularly supportive.  That would be Ann Althouse.

In a sad commentary on race relations, youth and penal-on-my-mind solutions, the story of a prank by a 16 year old at a Jersey Wal-Mart was the subject of a post, coincident with the date of the House vote on health care.  The two bits have little in common, but for a sideshow to the health care debate about how members of the Congressional Black Caucus walking through tea partiers on their way into the capital were subjected to racial epithets and one member was spat upon.

Perhaps conflicted by the opposing Gestalt needs of the socially correct lawprof and the politically firm, Althouse decided to confront this news.  Notably, her husband, former commentator at her blawg Meade, was there:


From what I heard — from Meade, who was there — the people at yesterday’s protest were unusually nice and friendly and well-behaved. Still, the Washington Post uses the term “angry protesters.” That’s a journalistic device to delegitimitize the demonstration by merging everyone into the few persons who said something racist/homophobic. That’s not fair and it’s not accurate, but it has been the stock MSM treatment of the Tea Party movement all along.


Starting from the “nice to Meade” perspective, and recognizing (as is no doubt true) that the media (denigratingly characterized as MSM by those who want to undermine its integrity ab initio) isn’t necessarily correct or perfect, Althouse makes the critical point that the entirety of the protesters did not call black congressmen names in unison.  She does not discuss whether this is the nature of grass roots organization or a failure of proper rehearsal and/or adequate coordination. 

Even if there were a few epithets tossed about, Althouse is nonplussed, per the greater evil defense:


There’s nothing wrong with showing anger at the thing that motivates you to protest. That’s what protests are for! The members of Congress have a lot of power, and they ought to have to hear the anger their exercise of that power is causing. It’s outrageous for them to pose as victims without very good cause. So what if some idiot said a bad word? That’s a trivial distraction compared to the power they are about to exercise in the face of such strong opposition to what they are about to do.

But it’s the spitting that gets her goat.


A member of Congress said he was spit on? Guards were right there. Was no one detained? Show me the person who was arrested. Otherwise, I’m assuming it’s a lie.

It would probably shock no one to learn that a member of Congress lied.  It could happen.  It’s happened before, and it will happen again.  Whether or not a member of Congress was spat on isn’t the issue, at the moment, but rather the basis for Althouse’s decision to assume it’s a lie.  If no one was arrested, then it didn’t happen.

One of her commenters makes an additional point that she should have been made.



Let’s see the video. In this day and age, just about everything is videoed. That way, those people can be singled out. If there’s no video of what was alleged, then I’ll have to call BS.

I can’t tell you how many of my clients have made the exact same argument.  If there’s no video, then it never happened.  And even if it did happen, it doesn’t mean that it reflects on the tea partiers.


I have no idea who was the source of any saliva and nasty words, but it’s important to realize how easy it is for someone who isn’t typical of the group or who is even its adversary to do things like this. It’s one of the oldest dirty tricks.
It is indeed very important to realize this, because without irrefutable proof, if such a thing exists, then we are all entitled to craft our own reality and no counter-reality exists.  And you can’t make us, because we’ve got an argument to prove that we’re right and your wrong.  Or at least you can’t prove your right, which means we’re right. 

There’s nothing new or surprising that this reflects the tone and depth of political argument, given that the earth has long been scorched beyond recognition by all partisans.  But when the lawprofs simply manufacture their own reality, one has to wonder how they grade final examination answers which employ only logical fallacies to support their positions. 

Althouse is, no doubt, a very smart lawprof, and I therefore must follow her lead.  From now on, no wrong has occurred until someone is arrested, and no one can be proven guilty without a video.  It works for me.  And if anyone has an issue with this position, don’t tell me.  Tell it to Althouse.

As for 16 year old with the big mouth and no brain in Wal-Mart, maybe Althouse would consider defending him pro bono.  Given how it’s no biggie to call members of Congress bad names, this case should be a slam dunk for Ann.

Stupid and Offensive Do Not Equal Crime

Certainly many criminals engage in conduct that is stupid and offensive.  It’s almost a hallmark of banal criminal conduct, decent fodder for jokes.  But these two characteristics do not comprise the elements of an offense, even though they are the sort of things that make the public mumble, “there oughta be a law.”

Over the loudspeaker at the Wal-Mart in Washington Township, New Jersey, a 16 year old kid could be heard :


”Attention, Walmart customers: All black people, leave the store now.”

What sort of upbringing would make a kid think this was funny?  A sad reminder that racism is not dead.  Black president or not, we’ve yet to get beyond it.  Is this news?

And it’s appropriate that something so offensive, happening in a store with a history of being questioned about how it treats blacks, makes the news.  This is a teaching opportunity.  This is a chance for more discussion about relations, human beings, parenting.  But it didn’t end there.


The boy, from Atlantic County, was charged by Gloucester County authorities with bias and intimidation and harassment in connection with the episode last Sunday. If convicted, he could face up to a year in a juvenile detention center, officials said. His name was not released because he is a minor.

This dopes words clearly reflected bias.  Had they not, no one would have ever known that this happened.  Imagine how inconsequential the prank would have been if he had said, “everyone leave the store now.”  Not even a chuckle from the dumbest skinhead.  But harassment?  The heat ended quickly.


“Witnesses said store officials took about 5 minutes before announcing that the statement was a prank and apologizing.”
New Jersey law (N.J.S.A. 2C:33-4) provides that harassment occurs when someone:

Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm.

It easy to imagine some shoppers to be annoyed, in the generic sense of the word, by this prank.  The language was offensive, though not course (I suspect they meant coarse, but this is Jersey).  The kid didn’t announce who he was when he pulled this move, but then he didn’t actively conceal his identity either.  They caught him on camera, and he was outed when he bragged about pulling it off.

No doubt people at the Wal-Mart were offended by this announcement.  They had every right to be.  And in a better world, that wouldn’t be limited to blacks who heard it, but to any right-thinking person in the store.  Still, offended and angered by stupidity isn’t an element of the offense.  If it was, most people would find their way into a jail cell at some point in their lives.  Is there anyone who has done something stupid that angered someone?

Harassment statutes are deliberately vague and meaningless, as they are meant as a catch-all for conduct that people think should happen and have to be written in such a way as to cover a broad array of conduct.  As bad conduct goes, this comes relatively close to something that, at least arguably, is covered.

But do we really want to put kids into jail, or even saddle them with a conviction, for pulling stupid pranks where no harm occurs?  This remains a great teaching moment, both for the kid as well as the rest of us.  Are we afraid he’s going to become a serial prankster, roaming from Wal-Mart to Wal-Mart, trying to sneak onto the announcement system? 

If he does it again, throw the book at him.  This time, let’s turn one incredibly stupid act into something positive.  And that doesn’t include the standard prosecutor announcement that this kid’s going down.  Every stupid and offensive act does not require a prosecution.

H/T Randazza


I Couldn’t Agree More (With Special Added Attraction)

That’s what people want to hear.  It makes us happy.  It makes us like you. It makes us friends.  It’s validation.  It’s what we’re looking for on the internet. 

The proof of this came to me in a thousand ways, each of which was left here by someone who wanted me to leave up his comment so that the link to his website would remain in the little box, be noticed by Google or you, the reader, and would eventually help to make him money.  He knew that by writing something that made me feel validated, the chances were good that I would approve the comment and post it.  He played the odds. He played to my ego, my insecurity, my lingering self-doubt, my need for approval.  Forget my stomach, validation is the quickest way to a man’s heart.  I love you for approving of me.

Put aside that none of these comments received the appreciation their authors expect, or see the light of day.  The more important point for the long term is what this says about the nature of the blawgosphere (and the blogosphere, for those who aren’t blogging lawyers).  There are a bunch of schemes designed to get readers to read a person’s blog, all sub rosa as far as you, the reader, are concerned, from SEO to comment spamming, to telling others that you couldn’t agree more.

It’s like a big puppet show with Social Media Gurus, Marketers and Public Relations experts, pulling strings to turn lawyers into marketing machines.   Where once we were mere lawyers, we are now marketing juggernauts on the internet.  Just a few basic concepts will turn us from lone wolves on the prairie to a valued member of a tribe.  Make others love you by telling them that you love them.  Be authentic, which loosely translated means make other people believe you care deeply about them even though you don’t know them, you know nothing about them and you share nothing in common with them. 

It’s really all very easy.  Speak no evil.  Say nothing to offend.  Just tell them you couldn’t agree more.  Within minutes, hours at the longest, you will make friends.  They will invite you to join their tribe. You will find a home, where you can agree with others and they, in turn, will agree with you.  The swell of validation will overwhelm you, and you will bask in the warmth of agreement, feeling wholly validated.  Big group hug.

Some criminal defense lawyers prefer that I keep my posts on topic, writing about caselaw, trial experiences, tactics.  Sorry, if this seems off topic, but it’s not from where I sit.  Too many of you are allowing yourselves to be seduced by validation.  There are other areas of the blogosphere that are so absorbed with self-promotion that they cannot bear to be questioned, no less challenged.  The discussions range from “I couldn’t agree more” to “you are the most important person in my life and I love you more than life itself.”  It’s so sweet.  Is this what you want?  Is this why you’re here?

I’m not going to name names, because my purpose isn’t to attack you but to persuade you to exist.  There are blawgers who agree with everyone, wholly divergent positions notwithstanding.  There are blawgers whose posts are so tepid, so devoid of substance, so safe, that no one could disagree with them.  God forbid they write anything that takes a position, that means something.

I know why you do it.  You want to be loved.  You want potential clients to feel that love and want to retain you.  You want them to pay you money so you can have a successful law practice.  And the good people on the internet who sell sequined cellphone covers want a successful business too.  Is that so bad?

And then there are trolls.  People who are so filled with hatred and anger that they feel compelled to disagree with even your most tepid, meaningless, impossible to disagree with, post.  You’re just trying to make friends, and they won’t be your friend.  They won’t agree. They won’t validate you and contribute to the welfare of your tribe.  Those people undermine your purpose, your goals, your warm and fuzzy glow of approval.  That’s what makes them trolls, at least to you.

If you’re selling sequined cellphone covers, this is understandable.  There’s really no pressing societal need for sequined cellphone covers.  Some people like them.  Some don’t.  Some may even like them enough to buy one.  But you’re a criminal defense lawyer.  You signed on for a higher calling, one that involved the lives of real people and has the potential to help those people or add to their misery.  We achieve that through discourse, for when someone posts about a Supreme Court decision and gets it all wrong, or about a trial tactic that makes no sense, someone may read that post and believe you know something.  We engage in peer review so that stupid things don’t go unchallenged on the internet, as in the courtroom.

Have some pride in yourself.  Stand on your own two feet.  If you actually have something to say, have the guts to say it.  If you have nothing to say, control the urge to make noise anyway.  But if the noise comes out, be lawyer enough to face the challenge. 

The internet is rife with naked gurus.  Some are just the wastrels who happened to get here before you, and to whom you now look for validation.  They have becomes chiefs of tribes only because they were a step ahead of their sycophantic followers, playing the game of agreement so that they will be allowed to join.  Their intellectual vapidity, deception and fragile self-esteem is quickly revealed when you give them a poke.  They crumble and cry.  They know that this internet validation isn’t real, and they fear that their carefully crafted internet personas will crack and expose them to the internet world as worthless.

Being real means more than following the gurus’ advice to be “authentic”.  Being real means that you will disagree with someone else’s assertion from time to time.  Being real means that you have the fortitude and intelligence to question and challenge.  While the rest of the internet may spend their days and nights trying desperately to sell sequined cellphone covers, we are trial lawyers.  Think like a trial lawyer.  Act like a trial lawyer. Write like a trial lawyer.  Be a trial lawyer.

If you’re not behaving like a trial lawyer, and merely agreeing to be part of the tribe, then you might as well sell sequined cellphone covers, or Tony’s Pizza*, because you’ve already sold out.

* Special Added Attraction:  There is always something new to learn on the internet, and yesterday was no exception.  First, a twit came across my screen about @Rex7, renown for having accumulated more twitter followers than anyone else connected, however remotely, with law.


when was the last time you tried one of Tony’s Crispy Crust Pizzas? – http://spn.tw/5FOh get one today! #mmm #TonysPizza #ad
Rex, who is an unemployed law school graduate cum social media/twitter expert, found a way to monetize his collection of followers.  I applaud his ingenuity.  I applaud the fact that he’s doing something with what he’s got to earn some money.  I said as much in a twit, but unfortunately, Rex must have thought I was making fun of him (I wasn’t) or is embarrassed that he’s forced to be a paid twit for Tony’s Pizza, and blocked me on twitter. 

I was curious as to what this newfangled means of monetizing twitter followers was all about, and Amy Derby alerted me to a new venture, Sponsored Tweets.  For a price, you can have celebrities twit your message, from real rock stars to social media rock stars.  Remember Tamar Weinberg from these posts?  Well, she’s available on page 2, selling her twits, as a “web celeb” and “social media rock star.”  Not too many people get to be called “web celebs,” and I didn’t realize how important Tamar was in the internet.  Imagine, I had a social media rock star right here, at my humble blawg.  Want Tamar to twit for you?  It will cost you $294.13.

Rex7 gets $174.38 for a twit.  Good for Rex.  I hope he makes some decent money.  I would retwit his sponsored twits if it gets him a few more dollars.  That would be a good cause.  My only fear is that my RT would lose him some dough, and I wouldn’t want that to happen.

As George Bernard Shaw (though some attribute this to Winston Churchill) quipped, after getting a woman to agree to sex for a million dollars, “we’ve established what you are.  Now we’re just dickering over price.”  It doesn’t get more authentic than this.




Three Years of Bennett

When he first started, he was just a kid lawyer from Houston.  Three years later, he’s a force to be reckoned with.  It’s not just me saying that, either.  Mark Bennett, the man behind Defending People, has made his presence known.

Today marks the third anniversary of Defending People, started a mere month (and a few days) after this blawg.  Our paths have regularly intertwined during those three years, as we share agreements, disagreements, perspectives and dinner at Sammy’s Roumanian Steakhouse on the lower eastside.  Happy anniverary.  The place wouldn’t be the same without you.

Will Bernie Be A Crip or Blood?

It would come as no surprise that news of Bernie Madoff being beaten to a pulp at FCC Butner won’t cause a lot of people to lose sleep.  There are a lot of people who remain very angry at Madoff, and a good shellacking is hardly a problem for them.  In fact, some might complain that Bernie’s broken nose was misguided, and the pain should have been felt in a lower portion of his anatomy.

Of course, this is part of the visceral anger toward someone whose crime has harmed so many.  Imprisonment isn’t supposed to include the occasional beating, nor worse.  Initially, the United States Bureau of Prisons claimed that Bernie wasn’t beaten.


Madoff is currently serving a 150-year sentence in Butner, N.C. On Dec. 18, Madoff was moved to the prison’s low-security medical center for treatment. At the time, the Bureau of Prisons said that rumors of an assault were false and that Madoff suffered from dizziness and hypertension.

But the Wall Street Journal says otherwise.



But that wasn’t the case, report Searcey and Efrati. According to an inmate at Butner, Madoff was treated for a broken nose, fractured ribs and cuts to his head and face. Another inmate who recently was released from Butner after serving time on drug charges also confirmed the assault, as did a third person familiar with Madoff’s situation.

The former inmate said the dispute centered on money the assailant thought he was owed by Mr. Madoff.
Not surprisingly, the BOP says that it “investigated” the incident, and Bernie denied that he was assaulted, ending the investigation.  It must have been one of those spontaneous broken noses.  Rare, but they do happen in prison on occasion.  As does denial of assaults, if one wants to survive the return to the population.

Since the BOP can’t protect Bernie Madoff, who will?  Crips? Bloods? White supremacists?  Forget for a moment that we’re talking about Bernie here, and consider what a lesser known prisoner experiences.  Granted, federal correctional facilities are renown as being safer than state and local facilities, but the point remains.  Prisons are not safe places.  It’s hard to rehabilitate people who are more concerned with making it through the day without being beaten or raped.  They tend to be preoccupied.  Safety in groups becomes an imperative when threatened, and survival requires a certain amount of loyalty to the group.

The argument about punishment tends to focus on length of imprisonment rather than the nature of the experience.  That this has happened to Bernie Madoff, regardless of whether your inclined to applaud the beating, abhor the beating or shrug your shoulders, isn’t the point.  Defendants are sentenced to terms of imprisonment, not imprisonment plus beatings and rapes.  It’s hardly “coddling” criminals to expect them to survive their sentence physically intact.  And it’s surely beneficial to have them return to society without a gang tattoo to show for their survival.

No matter how hard you squint your eyes and think happy thoughts, it doesn’t change the fact that prisons can be very dangerous places.  If that doesn’t bother you, it should.  And as judges blithely come up with how many months or years are needed to fulfill the purposes of 18 USC 3553(a), and inquire what facility a defendant would prefer, perhaps they should ask what gang they want to join so they know what color accessories to bring with them that will best match their needs for survival.

Suppressing the Good Faith Search

Over at Volokh Conspiracy, Orin Kerr has done (as of now) a six part series of posts about the why the Good Faith Exception should not apply to a search that is lawful at the time it’s performed but subsequently held to be unconstitutional.  The purpose of this series is to address the apparent conflict between the Supreme Court’s holdings in Herring, which Orin describes as a case with “language suggesting a broad approach to the good faith exception,” and Arizona v. Gant, which put the breaks on the common police practice of securing the defendant first, then performing a search incident after any potential threat is gone.

Before getting to Orin’s argument, a few words about the two cases giving rise to this mess are warranted.  Herring , which approved a search and seizure based upon a negligent error in a warrant database, was characterized as the Barney Fife exception to the warrant clause.  It would be funny, if it wasn’t held constitutional.  The bottom line is that there is no remedial benefit to the exclusionary rule when the error was negligent, so while there may be a 4th Amendment violation, there’s no remedy.  I am not a big fan of the Herring decision.

On the other hand, Arizona v. Gant ended the tyranny of Chimel, a decision that followed the rubric but forgot the rationale, or a search incident to arrest, though it left the door swinging open for an untethered evidentiary search, sans warrant, even though every conceivable basis for a warrantless search ceased to exist.  But we take wins where we find them, and this was a better decision than it could have been.

Orin explains that the Good Faith Exception is misunderstood primarily because the name suggests that it refers to the officer’s subjective good faith.


The error is one of labels:  “good faith.” Although the doctrine is called the “good faith exception,” that is a confusing label: The subjective good faith of the officer is actually irrelevant, as decisions from Leon to Herring have all emphasized. It’s more accurate to think of the so-called “good faith” exception as the “technicality” exception. The exception applies when the police violate the Fourth Amendment but the violation is a sort of technicality — the kind of violation for which exclusion would be an extravagant remedy.

Examples of such technical violations are minor defects in a warrant (Leon), knock-and-announce violations (Hudson), and reliance on negligent errors in a police database (Herring). These are minor, technical sorts of violations: Imposing the remedy of suppression is just too much given that the violation isn’t such a huge deal in the overall scheme of things. But the key is the nature of the violation, not the officer’s subjective state of mind.
So far, so good.  But the question that remains unanswered at this point is “why?”  This proves to be more difficult, and Orin goes into a Socratic Q&A to make his point.  Offering examples of subjective bad and good faith conduct by officers, and relying upon his assertion that subjective good faith is irrelevant as a given, he demonstrates that an officers desire or lack thereof to apply existing law creates logical conflicts if the Supremes determine otherwise during the pendency of the case.

While I agree completely with Orin’s outcome, I see two issues arising from his argument.  First, it presents a bit of a problem in court, since federal judges are funny about being presented with an argument, particularly one as prolix as this, that requires them to answer a lawyer’s rhetorical questions.  Second, putting aside an officer’s subjective good faith, searches that adhere to existing precedent at the time performed seem also to comply with objective good faith, and a subsequent change in law doesn’t change that.

Like Orin, the name “good faith exception” is problematic both from an application perspective as well as political perspective.  It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous.  Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?

The better approach, at least from my perspective, is to cut loose the Herring rationale of pure deterrence in favor of reading the 4th Amendment as a right given the citizenry to be free of unreasonable search and seizure, and the exclusionary rule as the remedy due the people for a violation of that right.  The only issue then is whether the courts, yesterday, today or tomorrow, conclude that the 4th Amendment has been violated.  Return to the rule, that a warrantless search is per se unreasonable, and tether any exceptions to the rationale giving rise to them, as opposed to sliding down the slippery slope of “it’s just a few baby steps away from lawful search and it makes the cops’ job so much easier.”

Until we stop considering the 4th Amendment only from the perspective of good cop/bad cop, which presupposes that there is some inherent authority to search and that any limitation is the exception rather than the rule, we’re going to struggle with reasons why adherence to bad law is wrong.  We’ve got a ton of bad law already, but it’s hard to blame cops for enjoying its fruits, and harder still to explain why the law would penalize cops for compliance with existing precedent.

The problem, of course, is that my view flies in the face of Herring, where the Supremes ignored the rights of the defendant in favor of limiting the exclusionary rule, and only remedy there is for a 4th Amendment violation, to those situations where the conduct was sufficiently deliberate that the exclusionary rule would serve as deterrent.  In other words, Orin’s approach could be applied given the state of the law, while mine would require a change in the law.  What else is new?

The Cutting Edge

In a time of universal deceit, telling the truth is a revolutionary act.


George Orwell

Chatting with another criminal defense lawyer yesterday, one who has a decade on me in the trenches, we talked about the truth and what’s become of our fellow “gladiators”.  Between spin, sugar-coating and outright lying to avoid a harsh reality, deceit has become essentially a universal norm.  Despite our self-image as tough, hardened to the choices we make daily in the trenches, even criminal defense lawyers have come to cherish deceit in the name of getting along, ruffling no feathers, being liked, offending no one. 

Following a post here yesterday, a reader recommended it, twitting that it was “edgy”.  What made it edgy is that it was blunt and clear, no equivocation or apologies for saying what it was meant to say.  I asked my lawyer friend what happened to us, that makes it edgy to speak one’s mind without trying to soften the blow, or the point.  How did we reach the point that sugar-coating is the norm, and anything else is considered edgy, even harsh?

We’re not very good at hearing the unpleasant news that someone, somewhere, disagrees with us.  Whether it’s that someone doesn’t like us very much, or thinks we’re dead wrong, or merely disagrees, our new-found sensibilities demand that if we express it at all, and many wouldn’t even think of expressing an actual idea for fear that it would boomerang and shine a bad light on them, we are required to do so in a way that makes it palatable.  The idea of just saying so is outrageous. 

I’ve often called the slackoisie “teacups”, too fragile to hear anything critical without cracking into a million shards.  They love to hear how wonderful they are.  They can’t bear anything else.  But this trend isn’t just a slackoisie issue; it’s become increasingly pervasive.  The old maxim, if you can’t say something nice, don’t say anything at all, was taught to every child when engaging in polite conversation.  It was not, however, meant to spell the end of honesty when engaging in substantive commentary on issues of significance.  It was to avoid creating an awkward moment at the tea party.

While dealing with comments in the post yesterday, the two subjects of the post, Jason Falls and Tamar Weinberg, complained that I was being unfair to them.  The issue at hand was whether bloggers owed PR people, who approached them with unsolicited pitches, a duty to be nice and polite to them.  I thought not.  They disagreed, but their complaint was that I was too harsh on them, that  we should all play nice with each other.  Their comments were couched in dulcet tones of peace and reconciliation.  Mine not so much.

The conciliatory words in the comments here belied the truth exposed on twitter.  After Falls issued a call to arms to the PR crowd, one responded by twitting :


That’s rich! @ScottGreenfield (A LAWYER!) is questioning the morals & ethics of @Tamar & @JasonFalls on PRs vs Bloggers
Put aside that he completely missed the point of the post, which wasn’t about morals or ethics, since it’s not like PR people can be expected to easily follow language, and note that his thrust was A LAWYER would question a PR person.  Hah!  But then, it’s not like Jason or Tamar have any say over what their followers think, and the mere twit by a third party in no way suggests their agreement.

On the other hand, Tamar’s responsive twit thanked him for the laugh.  Falls twitted back that he was Falls’ new hero.  The twitterer may be a moron, but at least he had the guts to talk straight.  Tamar and Falls, unfortunately, was revealed as cowards and liars.  Though I never questioned their morals and ethics, their own words belied their deceit.  If they hate lawyers, have the guts to say so.  If they want to call me a “twat”, then do it.  But neither had the guts to say what they meant here.  It was all sugar-coated nonsense, concealing what they really thought.

One of the reasons I began Simple Justice was as a vehicle to express ideas.  Not to make anyone love me (or even like me, as the case might be), to “engage” with anyone, to entice potential clients to hire me.  This is about straight talk, even if it means that someone’s feelings are hurt.  It’s not for the purpose of hurting feelings, but for the purpose of speaking the truth as I see it.  Your mileage may differ.  If you find unvarnished commentary too harsh for your sensitive eyes, then this is not the blawg for you.

But if you want to speak out, whether it’s in agreement with me or disagreement, don’t lie.  Don’t feign being conciliatory when you mean something else.  And if I find out that you’re lying, expect me to call you on it.  It was my opinion that Tamar Weinberg and Jason Falls were totally wrong, but I had no reason to question their honesty.  Now, they’ve made it clear that they weren’t being honest.  They might call it being “respectful”.  I call it being deceitful.  Tell the truth, whatever that truth is to you.  It would have been a far more interesting discussion had they told the truth.

And if you can’t take the truth, then shield your eyes, avert your gaze, look elsewhere for something to read.  You will most assuredly find Simple Justice way too edgy.  And don’t urge me to join you on the shelf with the other teacups.

H/T Seth Godin, for the Orwell quote (irony duly noted).

Advice Between Friends

Murray Richmond is the last of the old-time gunslingers.  Back in the days when criminal defense lawyers were divided up as “trial guys” and “law guys,” Murray was the epitome of the trial guy.  I’ve known him for more than a generation, and learned things from Murray that could not have been learned from anyone else.  It’s not that he’s the perfect lawyer; no one is.  But there are some things Murray does better than anyone else.

Over a half century of lawyering in the Bronx, you make a lot of friends (and enemies), and one of the friends he made was Efrain González, a former state senator who found himself on the wrong end of a federal indictment.  Without a pot to piss in, González turned to his dear friend Murray.  That’s where things turned ugly, according to the New York Times.


“Are you pleading guilty to each of these crimes because you are guilty?” the judge asked.

“Yes, your honor,” Mr. González replied.

Asked whether he was satisfied with his lawyer, Mr. González said he was.

But Mr. González later decided that he was neither guilty nor happy with the work of his lawyer, Murray Richman, his close friend for more than 40 years.

After obtaining new counsel, González moved to vacate his guilty plea.  He wanted to go to trial.


Mr. González, 61, who is free on bond, declined to comment through his new lawyer. But he said in an affidavit in support of withdrawing the plea that although he “never wavered” in his desire to prove his innocence, “it was obvious to me that Mr. Richman seemed wholly uninterested in trial preparation, wanted me to plead guilty and was pressuring me to produce this outcome.”

To appreciate the significance, both of the claim and the conflict, you would need to know that there is probably no lawyer in New York City more willing, no, thrilled, to go to trial than Murray.  Murray loves a trial.  Sure, he appreciates a good disposition as much as the next guy, but Murray would never shy away from trial.  It’s his sustenance after 50 years in the well.  Murray can quote every half applicable bible verse on summation from memory, and there isn’t a trick on cross he hasn’t pulled.  Murray loves trial.

But that’s Murray, the gunslinger.  This was Murray, the friend.  Murray defended González gratis, and Murray is more of a capitalist than me.


He agrees that not charging his clients can be especially problematic. He even has a display in his office with one of his favorite sayings, “Three things work for nothing: a mule, a tool and a fool.” But he has been known to violate that maxim where friends are involved.

For Murray to handle a case without fee, especially that of a former senator (meaning that González had nothing to offer, his day in power over), it must have been friendship.  Murray has relished the nickname “Don’t Worry Murray,” along with his collection of screaming loud ties, over the years.  But when it comes to friends, lawyers worry. 


Mr. Richman explained to the judge that their disagreement centered on how they viewed the evidence. Mr. González felt it proved his innocence, Mr. Richman said, adding, “I am of the opinion that, frankly speaking, that it does not.”
In other circumstances, the lawyer would likely take a long, hard look at his client and tell him, it’s your life.  I will fight my heart out for you, but I think you’re going to lose.  I think you’re dead wrong.  The call is yours.  This comes from honesty combined with the detached perspective of the case that a lawyer brings, and is supposed to bring, to the case.  Friends aren’t detached.  Friends want friends to do what’s best for them.  No longer is the lawyer detached, but a participant in the decision making process, even if it means overcoming the defendant’s decision making authority when it comes to the rest of his life.

Almost any criminal defense lawyer would be there for a friend.  Most won’t charge a friend, money almost always being a complicating factor, even when they happily offer to pay.  We just want to help. 

There’s a lesson here, naturally.  Some might attribute what happened here to money, to González’s fear that Murray’s advice was tainted by the lack of a payment to take the case to trial, to spend the time necessary to prepare and lose that time to paying customers.  It doesn’t seem likely to me, Murray having made a ton of money in his career and being at an age where the marginal dollar doesn’t mean very much in his life.

It strikes me that the conflict arose from familiarity and the lack of detachment.  From González’s perspective, Murray was a friend who happened to be a gunslinging criminal defense lawyer, and his familiarity with his buddy Murray caused him to discount Murray’s advice.  From Murray’s perspective, he wanted what he believed to be the best outcome for his buddy González, and pushed it beyond the limits that would ordinarily constrain a detached lawyer. 

It’s a problem to represent a friend.  And yet, how could you say no to a friend in need?

H/T Andrew Bluestone

PR to Bloggers: You’re Ugly and You Dress Funny, You Idiots

About a week or two after you start a blawg, you start receiving emails from public relations people.  They announce important things, like the law firm of Smith & Smith has finally gotten a retained case, or just purchased a new scanner, and ask you to write about it because they are sure that your readers will be fascinated.  You delete the emails, but the PR people just keep sending them, often the same ones with a note attached that they didn’t see your post on this critical news to the legal community and you’re not doing your job.

There are plenty of permutations on this theme, from announcing the new movie on William Kunstler (but no offer to provide a copy for review) to a symposium on the fertile octogenarian rule (but no offer to attend).  What they want is simple: Promote their stuff.  They get paid by somebody to try to interest you in whatever they’re selling.  There’s nothing in it for you, but that’s what they do for a living.

It’s been interesting to follow the efforts of the PR gang in attempting to coax me into becoming a cog in their marketing wheel.  I marvel at the chutzpah, that my purpose (as far as they’re concerned) is to be their free advertiser.  What I neglected to give sufficient consideration to is how they feel about the subject.  Two posts from publicists have changed all that, and I now correct my misguided understanding.

At Social Media Explorer, Jason Falls posts about What Bloggers Should Know About PR and Advertising.


I was dumbfounded when I read a recent New York Times article about mommy bloggers that indicated a conference session topic at an event called Bloggy Bootcamp was how to let public relations firms know you don’t work for free. A few months ago, I reached out to a prominent mommy blogger on Twitter to let her know that I had a client whose products she might be interested in – not a pitch, just a light toss that indicated I may pitch her down the road. She responded by saying, “I’ll be happy to work with your client. My fee is $125 per hour.” I was stunned.

It seems that some bloggers (not just the mommy kind) have a vast misunderstanding of what public relations professionals are supposed to do or be used for. It also seems that some think receiving a pitch for a product somehow entitles them to call themselves consultants and charge hourly rates to someone else for writing content for their own website. Far be it from me to criticize a blogger’s ability to make money, but these attitudes deeply concern me. While the media landscape is evolving to account for new media roles, blogger ignorance to how traditional communications and marketing works may forever ruin the notion of an unbiased media.

Do you think that Jason, maybe, missed the point entirely?  Is it possible that the mommy blogger wasn’t really trying to get paid, as much as send a message that her blog doesn’t exist so that Jason can get his client, for which Jason is getting a fee, some free publicity?  Nah.  Bloggers are ignorant.  It can’t be the myopia of self-serving public relations people.  After all, they are professionals, and the mommy blogger is just, well, a mommy. 

He goes on to acknowledge that bloggers are under “no obligation” to go along with their pitches (very kind of him to say so), but they are obliged to treat public relations people like the “professionals” they are.  After all, what possible reason would a blogger, receiving an unsolicited pitch from an unknown flak seeking to get some free publicity for their paying client on some nonsense issue have in not owing the flak a duty of being nice to them?  Bloggers.  What a bunch of dolts.

And then we have Tamar Weinberg at Techipedia who has graciously provided a Miss Manners-type resource for blogger etiquette.  No, Tamar is not a blogger, but a public relations person who, no doubt as a public service, created rules for bloggers to be nicer to public relations people.  She explains the purpose of her rules, oh the pain of being a professional PR person forced to deal with those evil, nasty bloggers.



What if you were involved in the task of blogger outreach? Let’s say you worked with a client to give away a freebie to readers of specific blogs. The client approves the pitch, which you targeted to the blogger, and you send it off to the chosen bloggers.

Now let’s assume one of the bloggers responds with, “I have read your email carefully and it would appear that you have omitted the part where you request my advertising rate card.”

(Yes, forget about organic promotion. The money is where it’s at for some bloggers, and story tips or ideas are unwanted. I bet you’d wonder what the FTC would say, especially given that this particular blogger has a disclaimer stating that they will never post sponsored or content where money exchanges hands.)

Instead, you decide to clarify your specific role in this initiative. You say, “this is merely a story idea as there’s no advertising budget. Would you like to run with the story?”

The blogger responds with something that goes along the lines of, “they could pay you to email me, maybe they should pay me to blog about it.”

They then write two nasty tweets about a poor approach that they likely thought you never saw.
Tamar is so right.  I never thought about it that way.  They’re just trying to make a living, pitching their client’s promotional stories just in case we’ve got nothing else to write about.  Is that so bad?  Why do we take offense at their efforts to turn our blog into their promotion machine? 

Seriously, they are right to some extent.  Blog and you’re going to get pitched, for stories, products, whatever.  To the extent you have readers, other people want to get their message before them, and that’s how they roll.  If you’re not interested, there’s always the delete button.  The PR people know that it’s a shot in the dark that you’re going to take them up on their offer, and that’s the nature of their job.

But this, like most things, is a two-way street.  When some PR firm decides to target you, it may well result in a dozen emails a day for things that hold no interest whatsoever.  And the emails inform you that you are receiving them because you requested them, shifting the burden to you to “unsubscribe”.  A wee bit disingenuous?  Then there are the ones that want you to promote a product or the movie, but don’t want to let you use the product or see the movie.  A wee bit disingenuous?

Then there are the overly aggressive flaks, who email over and over because “you didn’t respond to my last email,” until you get the email telling you what a jerk you are for not showing them the respect of responding. 

The problem with PR people demanding respect in return is that nobody asked for them in the first place.   They assume, as one would expect from a job (no, it’s not a profession) demanding thick skin and facile rationales, that they are doing the blogger a favor.  As both Tamar and Jason argue, bloggers are going to need them one day.  Don’t be too sure of that.  You may be giving yourselves way too much credit.  Somehow, I suspect I’ll manage just fine without you.  When you show up unwanted and unneeded, you really don’t get to demand much of anything.

Bloggers don’t really expect you to pay them to promote your wares.  Jason said he was “stunned” by the mommy blogger.  He apparently stuns easily.  Rather, bloggers are trying to make it clear that they are not your freebie promoters, and they are not interested in being your freebie promoters.  It’s not that they might be against the idea of making a little pocket change on their blogs, and yes, we are all aware of the FTC rules and are happy to comply (do you really think nobody knows anything about anything except you?), but we similarly know that you’re trolling for free publicity.  For somebody who thinks they are a “professional” in sending messages, you’re not very good at receiving them.

I’m just trying to be friendly and helpful, in a Miss Manners type of way.