Q:  What kind of Luddite lawyer won’t use email to communicate with his client?

A:  A good one.

While many lawyers are pondering the efficacy of the Cloud to store their client’s most confidential information and communications, because it’s not like the NSA (or any other fine agency known best by its initials) would ever think to look there, what has become the basic, prompt and most effective means of communications in our society is off limits for pre-trial prisoners.  You know, the ones we presume innocent?  The ones with the right to effective assistance of counsel?  Right?

Via the New York Times:

“That’s hogwash,” Judge Irizarry said. “You’re going to tell me you don’t want to know what your adversary’s strategy is? What kind of a litigator are you then? Give me a break.”

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My fellow curmudgeon, Mark Herrmann, miffs the Slackoisie over at Above The Law by raising a hated presumption.

I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

A nice person functions in society by giving other people the benefit of the doubt.  We assume people are honest, kind, hard-working and caring.  We assume they know what they’re doing and desire to do whatever it is they do well.  We like kitteh videos too.

But Mark’s point doesn’t apply to nice people. It applies to lawyers.  Well, at least lawyers when they’re being lawyers.  They can be nice people the rest of the time, when they’re on their own time. But when they’ve got their lawyer hat on, it’s a different matter. Continue reading →

Swirling around the controversy in the NYPD killing of Eric Garner was the use of a maneuver called a “chokehold” by those charged with giving names to the things cops do to people.  I say “swirling,” because some don’t see what happened as a chokehold, others don’t see it as choke-y enough to have done much damage to their lay eye, and still others watching the video decline to say with certainty that it was the cause of death.

Then there are those who wonder why Officer Daniel Pantaleo didn’t just pull his weapon, blow Garner’s head off and end the issue without risk of getting his uniform dirty.  After all, he could have just complied, so he was asking for it.

Of course, everyone believes they’re entitled to an opinion on such matters, because this is America and knowledge is a highly over-rated commodity.  NYPD Police Commissioner Bill Bratton saw a chokehold.  A former police officer and instructor here saw a chokehold.  But you didn’t. Well, your opinion matters too.  Just not as much as someone who actually knows something about the subject.

The “chokehold” uses the forearm to compress a person’s windpipe such that it cuts off the flow of air to the lungs, which in turn can cause death by asphyxiation. It’s considered a lethal maneuver, and its use was prohibited by the NYPD Patrol Guide in 1993.  Continue reading →

In a surprising burst of lucidity, Ross Douthat’s New York Times column, The Parent Trap, offers some excellent beef before reaching his requisite listicle.

For instance, they might have ended up like the Connecticut mother who earned a misdemeanor for letting her 11-year-old stay in the car while she ran into a store. Or the mother charged with “contributing to the delinquency of a minor” after a bystander snapped a photo of her leaving her 4-year-old in a locked, windows-cracked car for five minutes on a 50 degree day. Or the Ohio father arrested in front of his family for “child endangerment” because — unbeknown to him — his 8-year-old had slipped away from a church service and ended up in a nearby Family Dollar.

Or (I’m just getting warmed up) like the mother of four, recently widowed, who left her children — the oldest 10, the youngest 5 — at home together while she went to a community-college class; her neighbor called the police, protective services took the kids, and it took a two-year legal fight to pry them back from foster care. Or like the parents from two families who were arrested after their girls, two friends who were 5 and 7, cut through a parking lot near their houses — again without the parents’ knowledge — and were spotted by a stranger who immediately called the police.

Or — arriving at this week’s high-profile story — like Debra Harrell, an African-American single mother in Georgia, who let her 9-year-old daughter play in a nearby park while she worked a shift at McDonald’s, and who ended up shamed on local news and jailed.

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NYPD Commissioner Bill Bratton, to the surprise and appreciation of many New Yorkers, didn’t pull a Ray Kelly.  Instead, he immediately condemned what clearly appeared from the video of Eric Garner’s seizure and killing to be a prohibited chokehold.  It was just one of many problems with the needless killing, but former Commissioner Kelly would never have been man enough to admit the obvious.

Bratton moved on his cops, for the chokehold if nothing else:

The officer who placed Mr. Garner in what appeared to be a chokehold while trying to put him under arrest, Daniel Pantaleo, was ordered to turn in his badge and gun; another officer who first approached Mr. Garner, Justin Damico, was reassigned to desk duty; and the roles of the other officers at the scene who helped wrestle Mr. Garner to the ground are under review by the Police Department’s Internal Affairs Bureau as investigators await the results of an autopsy by the medical examiner’s office.

In the past, it’s unlikely the names of the cops involved would have been released, because police deserve privacy, according to their defenders, to go with their special rights.  Instead, media statement number 6 would be trotted out, about how we need to reserve judgment, about how an investigation will be conducted that will take at least 3 years, about how if you don’t like cops, next time call a criminal.  The usual. Continue reading →

There is no one as passionate as a mother in defense of her child, and indeed, when that child has suffered the indignities of the legal system in one of its many permutations, the need to do something can be overwhelming.  Often, this passion serves as a driving force for change, for good.  But passion is just part of the equation.

Emails arrive announcing new organizations dedicated to good causes all the time.  Often, they’re a bit disconcerting, like when the Marshall Project went public with its goal of being the savior of criminal justice because no one had been doing or writing a damn thing until it showed up.  It’s not merely insulting to those toiling in the fields long before the saviors arrive, but it reflected the arrogance of one niche (journalists) presuming to know better than those who actually did the very work they could only see from afar.

The other day, another new organization appeared on the scene, with a press release that came as a bit of a shock.  It was Families Advocating for Campus Equality (FACE).

Fargo, ND – Families Advocating for Campus Equality (FACE), a newly formed not-for-profit organization dedicated to ensuring fairness and due process for all parties involved in allegations of sexual misconduct on college campuses, was officially launched today, it was announced by Sherry Warner Seefeld, president and one of the organization’s co-founders. Continue reading →

Lawprof Brian Clarke raised another dirty little law school secret problem at the Faculty Lounge that implicated an issue that non-academics have long pondered: what’s so horrible about real world experience?  He questioned why significant practice experience was not valued in tenure track professors:

I was unpleasantly surprised by the prevailing wisdom regarding practice experience when I went to the meat market in 2010.  Back then the conventional wisdom seemed to be as follows:  Ideal:  zero to 3 years of practice; Acceptable: 3-5 years of practice; Potentially Disqualiying: more than 5 years of practice up to 10 years of practice; Disqualifying: more than 10 years of practice.

This is not an absolute rule, there always being an exception (like Suffolk Law’s Jeff Lipshaw, who practiced 26 years), but it’s certainly the general rule.  They’ve even got derogatory expressions to characterize it, “retiring to teach” being a description to suggest that old guys want to ease out of the hard work in the trenches to the cushy job in the Ivory Tower to spend their last years making big bucks while telling war stories to kids.

This issue has taken on added relevance over the last year or more given the changes taking place in legal education and in the larger legal economy.  (See, for example, this post from PrawfsBlawg, and this one and this one from Conglomerate, this one and this one from ProfessorBainbridge, and, of course, a vast number of message board comments [including some on the foregoing posts]).  There is a greater focus on the need for experiential education for all law students (due to ABA mandates and otherwise) and on the aspiration that law schools produce something close to “practice ready” lawyers.

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In the future, everyone will be a cop for 15 minutes.

— Apologies to Andy Warhol

And if you don’t fulfill your duty, the government will indict you.  United Parcel Service decided it was a better business move to pay off the government, at a price tag of $40 million.  Federal Express refused. The government has now indicted FedEx for its refusal to capitulate.  Via Mike Masnick at Techdirt:

Apparently, FedEx was unwilling to fall on its sword and cough up a similar amount to the US government, so the DEA and DOJ have announced they’ve gotten a grand jury to indict the company for delivering drugs associated with internet pharmacies. You can read the full indictment, which tries to spin a variety of stories into evidence that somehow FedEx “knew” what was in those packages.

Maybe it did. Maybe it didn’t. So what?  FedEx is in the business of delivering packages. There is no crime in that.  It is not in the business of assessing the lawfulness of the contents of the packages it delivers.  And this is what pissed the government off. Continue reading →

There was no good reason to discuss the false rape claims of Crystal Magnum against three young men on the Duke Lacrosse team, or the outrageous conduct of prosecutor Mike Nifong.  No matter what I might say, Brooklyn College history professor K.C. Johnson would have already said it, and said it better.  His blog, Durham-in-Wonderland, was the mother lode.

Johnson announced that he is done, which makes it a particularly good time to note both the service he has provided all of us, and the impetus for his blog in the first place.  As will become apparent, it is both a critical problem and, sadly, a problem that has continued to grow and pervade all walks of academic life.

When I first started writing about the lacrosse case, . . . I did so in reaction to the Group of 88 statement. Then (and now) I considered the statement an indefensible betrayal by professors of their own school’s students, an action that contradicted many of the basic values on which American higher education rests.

The Group of 88 statement was Continue reading →

From Carlos Miller at Photography is not a crime:

New York City police officers killed a man Thursday after he had broken up a fight between two other men, insisting on placing him in a chokehold and slamming his head to the pavement, piling on top of him as he gasped for air and as he continually told the cops he couldn’t breathe.

The entire incident was caught on video from a witness who kept telling the cops that the man had not committed a crime.

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