A New York Times op-ed raised a serious question, does factual innocence matter anymore?

SUPPOSE someone has been convicted of a serious crime, but new evidence emerges proving his innocence. Does he have a constitutional right to be freed?

The answer might seem obvious, but it is far from clear that the Constitution protects an innocent person against incarceration, or even execution, if his original trial was otherwise free of defects. Despite growing awareness about the problems of unreliable witness identification, questionable forensic evidence and inadequate legal representation of indigent defendants, the Supreme Court has repeatedly declined to decide this basic question — even though some 115 prisoners have been exonerated from death row since 1989.

A strong and compelling opening to a question of fundamental importance.  If nothing else, most of us have an innate sense that the purpose of the criminal justice system is to convict the guilty without convicting the innocent.

There are some who will shrug, that no system can be so perfect as to sacrifice no innocent person to the cause of safety.  As my old train buddy Mike, who went to La Salle Academy with Nino Scalia, used to say, “every once in a while, you have to take one for the team.”  Not that Mike would volunteer.  He was such a kidder, that Mike. Continue reading →

Not to grossly overuse a damn good quote, but H.L. Mencken famously said,

For every complex problem there is an answer that is clear, simple, and wrong.

Much of the time, people don’t see why an answer is wrong. It seems right to them, notwithstanding the fact that they have a limited, at best, grasp of the nature of the problem.  Not that they care enough to expend the effort to truly understand the nature of the problem, but we’re a nation of people with opinions, yet another entitlement, without the concomitant responsibility of knowing what we’re talking about first. Yay, ‘Murica!

Governor Jerry Brown of California has signed a new law. Continue reading →

In the past two days, Casetext has come across my radar three times. First, Bob Ambrogi mentioned it in his “failure of crowdsourcing” post. Then, Cristian Farias asked if I’d seen how it’s trying to be a faux blog. Finally, Doug Berman posted about a faux blog post by a lawprof at Casetext.  Having otherwise heard no mention of Casetext whatsoever, this was pretty friggin’ weird.

I hear a surprising amount about new lawtrepreneurial (that’s the cutesy mash word that entrepreneurs in the “legal space” like, because they tend to be, well, cutesy) start-ups, many sending out blind solicitations in the hope that I, like Bob and others, will post something puffy about how they’re disruptive.  Most are the 27th iteration of something that was tried and failed, offering nothing to suggest they stand a chance of utility or survival.

I was chatting with Lee Pacchia the other day, who mentioned a start-up for criminal lawyers. I won’t mention the business, so don’t ask. It was backed by an angel, a successful civil lawyer, and was run by a baby lawyer who couldn’t find his way to a courthouse without an app. Lee asked me what I thought of the concept. Continue reading →

To appreciate the depth of the problem, everyone on the Isle of Manhattan is required to have a cellphone.  Not just a cellphone, but a smartphone. Not just a smartphone, but one of the designated latest cool smartphones, like an iPhone or a Galaxy.  I’m forced to sneak through the security gate at the Hudson with mine.

But my phone never had anything interesting on it, even though you can access the entirety of its contents just by dropping it on the ground.  As to everyone else, their phones are encrypted, and without the key, you can’t get squat.  Even the companies that make the phones can’t get squat. And this is pissing New York County District Attorney Cy Vance off bigtime.

According to Apple’s website: “On devices running iOS 8.0 … Apple will not perform iOS data extractions in response to government search warrants because the files to be extracted are protected by an encryption key that is tied to the user’s passcode, which Apple does not possess.” Continue reading →

Jay Michaelson at the Daily Beast questions why we’re all so focused on the wrongs committed by police while ignoring prosecutors gone wild.

Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.

Of course, it’s not as if prosecutorial misconduct hasn’t be the subject of a post or two here, or maybe a few thousand, discussing deep systemic problems, conflicted incentives and political resistance to change, but we’re just lawyers. What would we know about stuff like prosecutorial misconduct when it can be addressed by dilettantes with only the most superficial grasp of the mechanics of the legal system?

At Volokh Conspiracy, a wild, mud-slinging brawl broke out between Ilya Somin and Orin Kerr, stemming from Instapundit Glenn Reynolds’ USA Today op-ed in favor of jury nullification rather than relying on the kindness of prosecutors.  Continue reading →

In a twit yesterday, the holding in Mock v. University of Tennessee was wrongly broadcast as “affirmative consent ruled unconstitutional.” It wasn’t.  Chancellor Carol McCoy ruled that shifting the burden under “yes means yes” to the male to prove that he had consent, rather than placing it on the accuser to prove he did not, was unconstitutional.

And it’s one of a string of decisions finally making their way out of the intellectual cesspool of Title IX adjudication in the fantasy world of academia, where no delicate flower shall feel unsafe. GW lawprof John Banzhoff made it clear:

[N]o matter what the Department of Education or Department of Justice suggest, regardless of what a state’s statute provides, or what the University decides, the Constitution trumps it all.

Continue reading →

The one year anniversary of the killing of Michael Brown brought protests back to Ferguson, Missouri.  They were peaceful and, like the protests following the killing, were met by a wall of police in black military garb, armed to the teeth, ready to “restore calm” at the end of guns.

Looting broke out, having nothing to do with the protests per se, but since the faces were black, the media wrapped it together with the protests, because all blacks are the same no matter whether they’re behaving peacefully, so as not to offend distant pale sensibilities, or violently, confirming the prejudice against them.

Shots were fired and a black teen hit the ground.  The cops explained the shooting, based on a story only they can verify, that they returned fire.  Whether the kid they hit shot at them is a matter of faith in cops. The cops say so, and there is no one to question it. Continue reading →

An incoming read came from an old post at Big Legal Brain, a very funny blog that died back in September, 2014.  I took a trip down memory lane, and read it.  It was very funny at the time.  It’s still very funny, but also sad and telling.  The title is “The ROI of Name Dropping.”

Social media offers lawyers a wealth of opportunities, from invitations to pay your own way to speak at legal conferences to the promise of a one-day training certificate in Thought Leadership. And, once in every 476,935 posts* to Twitter or Facebook, a lawyer gets a client referral out of the deal.

But how does a non-tech savvy lawyer achieve such near-miracles in a manner that makes for worthwhile Return on Investment (ROI)? Two words: name dropping.

The post goes back to the good times when lawyers on the internets, those ten percenters who were early adopters ten years after the rest of the world discovered social media, were being told that this is the future.  Get on board now or you’ll miss the train.

Tweet about your phone conversations. For example: “Just had a great convo with @lizstrauss. I went to her conference in 2009 and even saw her house once.”

If no one important wants to have a conversation with you, stick to tweeting web celebrity sightings. For example: “Just saw @kevinokeefe having a convo with @adriandayton in the hall at #ABATechShow.”

Have no important friends and can’t afford to attend a social media conference? Just tweet about things you’ve read that were written by trending quasi-experts. For example: “Reading @nikiblack ‘2011 Tech Trends for Lawyers’ http://bit.ly/gvULIh”

Hysterical, right?  Except this post was in 2011, when social media was all new and shiny, and most early adopters hitched their wagon to the panacea it would bring to law, the legal profession, new lawyers and a laundry list of jargon words, from synergy to engagement to thought leaders.

I was strolling through my blog roll the other day, and realized that it’s largely a morgue.  A relic of a blawgosphere that once existed, and now mausoleum of lawyers and prawfs who came and went.  Some still post occasionally, when they have something that sparks their interest, but most are dead and buried.

And yet, the ones with something to sell persist.  The practical blawgosphere is dead. The marketing blawgosphere remains.  It’s apparently no more effective than it’s ever been, as tech start-ups burst onto the scene and disappear as soon as cash burn silences the silly hype, but their lovers remain, pushing an agenda of the new normal.

But the lawyers are gone.  Except me, but then, I’m an old fool who refuses to realize that the party is over and everybody has gone home to sleep it off.

The practical blawgosphere, a name coined by a guy I called the Texas Tornado, Mark Bennett, was born of a question posed in 2007 by law professor Dave Hoffman at his blog, Concurring Opinions.

There seems to be a bit of a kerfuffle about whether the blawgosphere is “stagnant.” Here’s David Hoffman’s (Concurring Opinions) post asking the question, and contrasting law blogs with progressive political blogs. Citing Stephen Bowers of Open Left, he characterizes the “short tail” (the highly trafficked sites) of the progressive political blogosphere as:

marked by: (1) a norm of group blogging and a resulting wealth of new content even on weekends; (2) blogs produced by institutions; (3) professional bloggers; and (4) Self-Reinforcing communities

Scott Greenfield commented on the new wave of blawgs bringing vitality back to the blawgosphere. I think he’s right — but Scott and David are talking about entirely different places on the web. Just as law professors and criminal-defense lawyers inhabit different places in the real world, Scott’s Blawgosphere is not David’s.

My blawgosphere? David’s blawgosphere? I can’t remember the last time Hoffman posted something.  Later, there was the happysphere, another word coined by Bennett, who is really good at coining words and phrases.

If you are a blogging lawyer, and you want to be read by other bloggers, know that being read by other bloggers includes being taken to task publicly when you write something dumb or silly or ill-considered or even just vapid.

If you don’t want to be read by other bloggers, if you are blogging for profit or to build up your practice, please let me know now.

How many likes did you get on Facebook? Did it make you feel validated to know that on the internet, people like you, even if they don’t care much for you in real life?  Does it bother you that the people who like you suffer from the same low self-esteem as you, and like you so you will like them back?

The vitality I referred to back in 2007, eight years ago now, was real at the time.  The practical blawgosphere was a wild and fun place, where ideas flowed and we argued over the most nuanced of points.  It was interesting and invigorating.  We all learned from each other, challenged each other, kicked each other in the ass on occasion.

And in 2015, it’s pretty much gone.  If having a well-regarded blawg with tons of readers was going to establish one’s credibility and expertise, make one a thought leader, bring wealth and prestige, why then is the blawgosphere a ghost town?

@ScottGreenfield, who had no comment at this time but who often posts about pressing social media marketing issues on his infamous Simple Justice blawg, once said, “How can I ever get that three minutes of my life back?”

That was in 2011.  I’ve got a lot more than three minutes into this gig now.  Since my commitment is really about me, not you, and since I never expected any ROI to flow from my catharsis, I have no cause to complain.

But when I open my RSS feed every morning, and see only a handful of marketing posts and not a single fucking post from the practical blawgosphere, I realize how lonely the blawgosphere has become.  They’ve all grown weary of the effort, I guess.

There just wasn’t enough in it to keep them going. The real lawyers didn’t seek the embrace of disembodied sycophants on the internets, like the pathetic happysphere crowd.  So they faded until they disappeared.

And here I am, talking to myself.  Not to diminish those of you who read SJ, but my fellow blawgers are gone. I miss them.  The only people still around are the ones trying to sell snake oil, and the n00bs who still buy it.

Bill Lewinksi, the forensic fraudster whose phony “science” is embraced by police because it excuses their needlessly killing people to make sure they live no matter what, ultimately relies on the phrase, “Sorry, too damn late,” as a justification to shoot and kill before a cop knows whether an actual threat exists.

Matt Apuzzo recounts his use of an analogy to sell this “science” to people who don’t appear to have a well-tuned grasp of how analogies work:

“A batter can’t wait for a ball to cross home plate before deciding whether that’s something to swing at,” he told the Los Angeles deputy sheriffs. “Make sense? Officers have to make a prediction based on cues.”

Why no, a batter can’t. But then, he knows that a pitcher is throwing a ball for the purpose of getting it over the plate without him striking it with his bat. He knows that the pitch will either cross the plate or not. And he knows that if he fails to swing, it will be one strike. He will get more. And if he swings, he will either strike the ball or not. Either way, he won’t die because of it. Neither will the pitcher. Continue reading →

Following World War II, the Allies, including the United States, dedicated their efforts to trying Nazis for the atrocities committed. I was reminded of this when St. John’s lawprof John Q. Barrett sent out his latest Jackson List email*.

On August 8, 1945, Justice Robert H. Jackson and his Allied Nation counterparts signed the historic London Agreement.  It created the International Military Tribunal and, in a Charter annexed to the Agreement, prescribed the IMT’s constitution, jurisdiction and functions.

The London Agreement fulfilled and advanced Allied leaders’ declarations during World War II that the major German Nazi leaders were international law violators, that their offenses transcended particular locations and affected more than particular victims, and that these criminals thus should be, after their military defeat and captures, punished by an Allied international process.

To call the Nazis, and the atrocities they committed, criminals is an understatement beyond any other.  It’s hard, if not impossible, to find human beings who engaged in worse crimes against humanity.  Certainly, if there were any people unworthy of being treated fairly, or being given the opportunity to defend themselves, it was the Nazis.  And yet: Continue reading →