I explained to the defendant’s mother that it was my way to tell the truth, good, bad or otherwise. She responded that she wanted the truth, before launching into all the reasons why she thought her child should beat the charges. In every instance, she was shooting blanks. It’s not that there may not be well-founded arguments and evidence that would give her child a fighting chance, but if so, she wasn’t aware of them.

The truth tends not to be what a person whose loved one is facing decades of prison desires to hear. While she says she wanted the truth, what she told me suggests she wants hope. It’s an awkward situation, where my telling the truth isn’t going to endear me to her.  Did I want to be the bearer of bad news? It’s certainly not the best way to persuade a client to retain a lawyer.

When Judge Kopf linked to an ancient article in response to a post here, Continue reading →

Lawprofs Stephen J. Schulhofer and David Friedman wrote a policy analysis for free-market-loving Cato Institute in 2010, arguing that indigent defense is in “a state of perpetual crisis, routinely described as ‘scandalous.'”  Few would disagree. But their solution was fairly radical:

The uniform refusal of American jurisdictions to allow freedom of choice in indigent defense creates the conditions for a double disaster. In violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need.

As a corrective, we propose a free market for defense services, one that would, so far as possible, function in the same way that the existing market functions for affluent defendants who are able to retain their own counsel.

Essentially, vouchers. Let the defendant pick his own lawyer, and the state/county/jurisdiction will pay for indigent defense.  Sure, the lawyer would have to agree to accept whatever the jurisdiction was paying, as well as the defendant, but assuming those weren’t in issue, why not let a defendant have freedom of choice? Continue reading →

Josh Blackman, who was just named to Forbes’ “30 under 30” list in law and policy, found it sufficiently odd that old First Amendment warhorse Floyd Abrams, in the bio accompanying his op-ed in the Wall Street Journal, was so “modest.”

This is it:

Mr. Abrams is the author of “Friend of the Court: In the Front Lines with the First Amendment” (Yale, 2013) and a senior partner in the firm of Cahill Gordon & Reindel LLP.

Certainly both are great accomplishments, but I think he may have a few other credentials that qualify him to opine on free speech.

Well yeah, he does, which is the beauty of Abrams’ bio, and a point that sailed over Josh’s head. Continue reading →

The law distinguishes two functions of a police officer, the first being the criminal function and the second being the public safety function.  This explains the “protect and serve” motto on the side of patrol cars, which isn’t an obligation but rather an aspiration.  If you have to sell the police to the public, it’s always good to have a motto.

When Boiling Spring Lake, North Carolina, police showed at the home of Mark Wilsey, it was for the second function. Wilsey’s son Keith Vidal was schizophrenic, and was having a psychotic episode.  That happens. Nobody asks to suffer from mental illness, and most parents try to love and care for their children nonetheless. But sometimes, things can get out of control and help is needed. Continue reading →

So what if it comes weeks after the legal world knew and discussed the call to arms of the 9th Circuit chief judge, Alex Kozinski?  Seriously, so what?  Isn’t it better late than never that the New York Times pens an editorial praising his Olson dissent?  Of course it is. Don’t be a hater.

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

No, don’t cringe at how the editors took breathless liberties Continue reading →

As predicted, the Old City of New York, ruled by the sensibilities of billionaire mayor Michael Bloomberg, pushed forward with their efforts to defend the Stop & Frisk policy even after the mayor of the New City of New York was crowned.  Corporation Counsel Michael Cardozo had an office full of lawyers, and told them to get their brief done before the guards changed, and they did.

But in the cesspool of the 2d Circus that has come to characterize the Floyd and Ligon cases, affecting more New Yorkers than perhaps any other, the City’s attempt to leap-frog perfecting its appeal barely made a ripple.  When the stories involve daring feats of acrobatics and amazingly scary clowns, the filing of a brief doomed to never be decided doesn’t rate much attention.

And yet, there is another request that’s flying relatively low to the ground, enough so that it hasn’t really been noticed yet, Continue reading →

More proof of the blind squirrel theory, Above the Law posts padawan Keith Lee’s small firm/solo practice column on a theory I’ve never heard of before, The Fallacy of Chesterton’s Fence.

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

Put simply, don’t ever take a fence down until you know the reason why it was put up.

This is a life rule, but its application to law is abundantly clear and important. Continue reading →

Now that the assumed nonsense that electronic toys will crash planes and bring death raining down on the people of Kansas is over, the next big debate will be whether people should be allowed to make calls on their cellphone. There is a safety issue, of course, because people who don’t want to listen to someone talking loudly about their cat may try to kill.

In fairness, I’m not a telephone talker. I use the phone when I must, but feel no need to chat to kill the quiet.  And I am not a fan of cellphones. I never give out my number and only turn it on if I need to make a call out. I do not take calls on my cellphone. Did I mention I don’t like cellphones?  So take what follows with a grain of salt, knowing my bias.

At Volokh Conspiracy, Ilya Somin writes about John McGinnis’ libertarian position on cellphones: Continue reading →

A kindred spirit in a 29-year-old?  Well, maybe, though Evgeny Morozov gets far more traction than I ever will. Still, the immediate sense of camaraderie was obvious.  From the latest cover story at the Columbia Journalism Review:

To say that Morozov has gone out of his way to irritate powerful and influential people in the tech world doesn’t quite capture it. Doing so is his primary occupation. In the Morozovian worldview, New York University professor and social-media theorist Clay Shirky is a “consultant-cum-intellectual”; Google’s mission is to “monetize all of the world’s information and make it universally inaccessible and profitable”; and Tim O’Reilly, the Silicon Valley publisher and venture capitalist who coined “Web 2.0,” is an Orwellian “meme hustler” and the main culprit behind “the enduring emptiness of our technology debates.” To millions of viewers, TED talks are inspirational speeches about “ideas worth spreading” in science and technology. To Morozov they are a “sinister” hyping of “ideas no footnotes can support.”

And, Continue reading →

When some of the staunchest defenders of legal tech go on a rant, it tends to provide an interesting look beneath the surface of the future of law crowd.  The suspension of Fred Barakat from the practice of law in Delaware gave rise to such a rant, and certainly lit up the tech crowd, starting with Niki Black:

At issue was whether Mr. Barakat, a Delaware lawyer, had engaged in a number of ethical violations, including whether he had violated the bona fide office rule. It was alleged that Barakat had access to office space in Wilmington such that he could rent a conference room, when needed. Additionally, employees of the landlord collected his mail and directed any visitors to the fourth floor where a receptionist was stationed who greeted visitors.

In response to the allegations, Barakat claimed “that advances in technology enabled him to handle client matters effectively, despite his lack of presence in the Wilmington office.” Continue reading →