A quick adventure down the twitter hole  over the merits of a Brit futurist named  Richard Susskind yesterday reminded me that the notion of depth of thought, attention span if you will, is on its death bed.  After some  brief mention over the past few days of #ReinventLaw, which is a gathering of the techno futurist faithful that predicts Anglo-American law will be done by machines serviced in India using commodity pricing from a Chinese take-out menu, I expressed my view that it ain’t happening.

The quick take on Susskind, for those unfamiliar, in his own self-promoting words :

In his latest book, Richard claims that legal institutions and lawyers are poised to change more radically over the next two decades than they have over the last two centuries.

The future of legal service, he says, will be neither Grisham nor Rumpole. Instead, it will be a world of virtual courts, Internet-based global legal businesses, online document production, commoditized service, legal process outsourcing, and web-based simulated practice. Legal markets will be liberalized, with new jobs, and new employers, for lawyers.

No need to read the whole book, I can just glance over the Cliffs Notes… I get it.

I don’t need to hear your whole pitch, just show me the summary slide… got it.

No, I already heard about your vacation… remember, I saw the Instagram feed.

Him, why would I go out with him? I read his match.com profile.

You’re probably smart enough to ‘get it’ merely by reading the 140 character summary of just about anything. But of course, that doesn’t mean you understand it, or that it changed you. All it means is that you were quickly able to sort it into an appropriate category, to make a decision about where it belongs in your mental filing cabinet.

You get it? No you don’t. Not yet. Because all you’ve gotten is a tweet.

Read the book. The whole thing. Use the product. A few times. More than a few times.

Immersed. It can change you.

Within the niche of criminal defense, there’s a subset of lawyers who do drunk driving defense. While they may technically fall within the larger niche, it’s a very different practice in that they are constrained to do high volume for low prices. There’s just no other way to survive as a drunk driving lawyer.

Which makes California DUI lawyer Christopher McCann’s monumental screw up more understandable.  I don’t know him. He may be a great DUI lawyer. Or not. I have no clue. But it’s clear that he’s engaged in every smarmy method of getting business the internet has to offer.  From using a  marketeer named Nader to do the guest post backlink scheme, to twitting DUi stories, to Youtube videos, to every  website gimmick known to marketeers, he’s there.

As a result, he’s attracted the attention of a few fellow blawgers, Brian Tannebaum,  Matt Brown and even Alfie Jordan Rushie,  McCann, in a misguided effort to impress upon those who were critical of his marketing methods (he called himself “Mr. McCann” in a comment to Tannebaum, as if he was a grown-up chastising a five year old), he made some mind-numbingly foolish assertions.  Most notably, that he was justified in engaging in these smarmy schemes because he was too busy to behave better, and that it was somehow Tannebaum’s duty to call him if he took issue with his sleaze rather than McCann’s responsibility not to engage in sleaze. 

With Matt Brown, it was worse. 

Your problem is you republish [Tannebam’s] link and insult me again, and put me in a false light, without looking into the fact that that other lawyer is falsely portraying what happened so he can crowbar me into a point he wants to make. I answer my own calls and do my own work. I write content. I just don’t have the time or know how to find places to publish it. I hired someone more knowledgeable than me to find websites that would publish it to get my name out there. That neither makes me a bad lawyer, nor a “scumbag marketer.” All that lawyer had to say was “no thanks.” I get requests all the time. Instead he hides behind a computer and insults me and my colleague who stuck up for me.

McCann doesn’t know Matt. McCann doesn’t know how the internet works. He thinks he does, and he projects his misguided grasp onto Matt, but he has no clue. Tannebaum could have just said “no thanks” to McCann’s “scumbag marketing” scheme, but he chose instead to take note of it. That’s Tannebaum’s choice, and when McCann engaged a marketeer to run amok on the internet under his name, that was the risk he took.  Had he known better, he might have acted differently, but it’s no one’s fault but McCann’s. 

You have insulting me by clearly portraying me in a false light. As a private individual, that is actionable. I demand you remove any reference to me from that post and my comment.

If you do so, I’ll leave it at that. If not, I am going to explore my legal options against you and your partner who is cc’d on this communication.

Another empty threat by another clueless lawyer. Not only does the provide greater insight into McCann than his marketing methods, but the internet tends to respond poorly to such methods. Even more poorly than it does to sleazy marketing schemes.

That’s where Rushie entered the picture, because the blawgosphere does not take censorious threats lying down.

Quite frankly, you’re acting like a school child whose feelings were hurt and now you’re throwing a temper tantrum. And while hurt feelings might make you very sad, and Matt Brown is a big mean bully who hurt your feelings, I’m sure you understand that none of it is actionable at law. As a lawyer, you know better, and you should be deeply ashamed of yourself for trying to engage in petty and baseless intimidation.

If these kinds of childish antics are your way of trying to build an internet presence, congratulations, you have succeeded. You have earned an online reputation for using scummy marketing tactics, engaging in censorious thuggery, and trying to intimidate young lawyers with frivolous SLAPP lawsuits because they hurt your feelings (while apparently not threatening Tannebaum with a lawsuit for, well, whatever reason…).

So Christopher McCann has managed to screw up his carefully crafted internet persona on just about every level possible. Had he left it alone after hiring some guy named Nader to do the guest post scheme on his behalf, this would have faded into oblivion. Had he realized that he screwed up, and that he was dead wrong to demand that the blawgosphere go out of its way to accommodate him and his expectation that all the other lawyers on the internet were engaged in sleazy marketing just like him, then apologized for his egregious errors, it would have dissipated over time.

But McCann screwed up, doubled down, then doubled down again. 

Yesterday I sent McCann an email to find out whether he had learned from this, whether he came to realize that it wasn’t the blawgosphere that had wrongly maligned him, but that he had handled himself poorly.  There were two reasons I wrote him.

First, maybe Chris McCann is a damn fine DUI lawyer. Maybe he knows his stuff, takes great care of his clients and defends them zealously.  It’s just that DUI lawyers need to churn to stay afloat, and marketing makes that happen.  Lawyers whose practice demands constant marketing tends to have a blind spot there, but it doesn’t make them any less competent as lawyers.  So all the hubbub over McCann’s sleazy marketing and incredibly poor manner of dealing with criticism may not reflect his ability as a DUI lawyer. Or not. I have no clue.

Second, maybe Chris McCann’s lack of understanding about why his marketing and subsequent behavior has served him so poorly reflects one of my gravest fears about the internet and the blawgosphere, that lawyers jump in blindly, taught by marketeers, schemers and futurists that this is how they ought to act. No one tells them that trying to bluster their way through their screw-ups is far more likely to give rise to the Streisand Effect than make anyone bow to their lawyerly will. 

For a long time, I’ve pondered whether lawyers will come to the web with the understanding that guys like Eric Turkewitz offer. But “there Are 181,000 Social Media ‘Gurus,’ ‘Ninjas,’ ‘Masters,’ and ‘Mavens’ on Twitter.”  What chance does a guy like Turk, or me for that matter, have against this swarm?  And what chances does a guy like Chris McCann have of learning how to conduct himself properly when there are 181,000 voices telling him to walk the boulevard in hotpants?

So Chris McCann got his butt kicked on the internet, when all he wanted to do was market the crap out of himself and bring in as many “leads” as possible. Does that make him a bad lawyer? No. No, it does not.  But it also doesn’t make him smart enough to know when to stop digging that very deep hole that’s about to crash down on his head.  Given the choice of the road to perdition and the path of apologia, he gets to decide which route is right for him.  He chose.  He chose poorly.

I tried to help, but he didn’t respond to my email. So much for trying to save Chris McCann from himself. Don’t make the same mistake.

It was hardly surprising that SDNY Judge William H. Pauley III held that unpaid internships were unlawful in Glatt v. Fox Searchlight Pictures.  It’s one of those concepts that don’t fall neatly into the world of law, like why football should be a monopoly or why waiters at Wo Hops should have to be Chinese. Yet they are.

There has to be something, some benefit, like college credit, in return for the hard labor of being an intern. And there have to be internships because there is no other way for young people to get their foot in the door, their first break.  After all, who would hire these kids, utterly lacking in any skill worthy of compensation? 

Aside from fetching coffee and carrying the trial bag, they’re a royal pain in the butt, always asking questions and expecting people to acknowledge their existence. 

There is an exception in the Fair Labor Standards Act that allows for internships, but its criteria require that an employer derive no benefit whatsoever from the intern, and in fact, that it suffers for their being present.  That’s an absurd burden, as merely fetching coffee confers a benefit on the employer and, seriously, why would any business suffer an intern who was nothing but a total drain.

And so, we have a paradox. Kids need a chance to learn, to show their stuff, to get some experience if by doing nothing more than observing how the real world happens.  Businesses are willing to let them hang around provided they neither get too much in the way and do those little things that contribute something. And bang, we’ve got a violation of law.

No doubt there are businesses that take gross advantage of interns.  After all, Skippy is all too happy to do whatever he’s told, hoping and praying that he will impress the crap out of someone and be found sufficiently indispensable to get a real job. If nothing else, when Skippy is ready for the real world, he’s got something to put on his resume other than Glee Club treasurer, which isn’t as impressive to potential employers as he may think.

Yet without internships, young people have few options available to get some insight into the real world of their chosen/hopeful occupation and to put some meat on the bones of their resume.  They need internships, because nobody is going to pay them to hang around for a couple of months to fetch coffee.

If interns are forced labor, slaves to the practical economy, then lack of internship opportunities means young people send out indistinguishable cover letters begging for a chance to prove themselves without any hope of offering anything of value besides their willingness to show up.

We need internships. We need unpaid internships. We need to give young people an opportunity to learn their craft, to impress potential future employers, to show they can do the job they hope to hold for years to come.  And if internships must be paid, they aren’t internships and the they aren’t worth it.

The Daily Beast covers whether Judge Pauley’s decision will have an impact, dissuade employers from taking on unpaid interns and put an end to the hopes and dreams of young people.

There are no hard numbers on how many unpaid interns are working in U.S. movie studios, fashion houses, and newsrooms. A 2008 study by the National Association of Colleges and Employers found that 50 percent of graduating seniors had an internship; it is estimated that as many as one half of them are unpaid. New York, Chicago, and Los Angeles are besieged by young interns at the start of the summer, especially in creative industries such as film, media, and fashion. “It’s places that have a certain appeal, a certain glamour, and so students and young people are willing to go through hardship to get their foot in the door,” said EPI’s Eisenbrey.

Is the pipeline over?  There are some who find the ruling legally uneventful, more of an invitation for big companies to fuss with the details to make their internships appear more legally compliant.  But that does nothing for small companies, who don’t have departments to handle such things, or for companies who really just don’t care enough to jump through those hoops. After all, who wants to invite a lawsuit?

With tuition costs increasing alongside student debt, would-be interns may start to decide that their services must be compensated. And the ruling this week comes on the heels of a number of cases about unpaid internships, including the Hearst case and another against talk-show host Charlie Rose’s production company.

Can’t you hear it now, interns grumbling about the value of their efforts?  It’s not enough that they get the opportunity to intern, but how they aren’t sufficiently “appreciated” once they’re on the inside?  Of course, if they’re not one of the lucky ones to land a gig, they will whine about how there aren’t enough unpaid internships to let them get their foot in the door. Logical consistency isn’t big among the young these days.

“Giving young people a shot to learn the ropes has gone off the rails,” said Ross Perlin, the author of Intern Nation, a critical look at the practice. “There are record levels of youth unemployment, people are saddled with debt, and there is a general sense of malaise and downward mobility among young people. These internships are just the straw that breaks the camel’s back.”

He’s got a point.  The problem is that the only things worse than unpaid internships for businesses that “abuse” their interns by expecting them to actually do something are no internships at all.  Just ask those kids sitting on the couch in their parents’ basement whether they feel sufficiently valued by their half-eaten bag of Cheetos.

Are unpaid internships wrong and abusive?  Perhaps. The alternative, however, is that young people find themselves with a lot of unpaid free time on their hands and no way to either learn or get a chance.  So Judge Pauley’s decision may well be a proper application of law, but this win for the intern is going to do an awful lot of harm to many who would give their left arm for the chance to get something to put on their resume.

And as graduation season comes to its conclusion, I wish all the graduates the best of luck in finding a suitable paid position now that your options just took a nosedive. It’s a problem on both sides, but sometimes the cure is worse than the disease.

The description, via Oregon Live, of the thief was fairly typical:

Hispanic man, late 30s, 5-feet-4 to 5-feet-6, with a thin build, wearing a cream-colored beanie, black jacket and carrying a black backpack.

Apparently, the use of the word beanie remains in fashion in Portland. It didn’t take long before the police had “one under.”

The person detained: Lisa Haynes, an African American woman in her late 40s who stands 4-foot-10-inches tall.

And no beanie.  Before you jump to unwarranted assumptions about the Portland police, they have an explanation:

[Lt. Vince] Elmore, drawing on his 23-year bureau career, replied that witnesses often get descriptions wrong.

So if an eyewitness’ description is considered sufficiently unreliable that the police feel free to disregard it, then there are two problems. The first is that Elmore now concedes that eyewitnesses are as worthless a source of proof as we’ve long contended, and the second is that they either provide no basis to stop anyone or a basis to stop everyone, regardless of appearance. See how that works?

He added that most people comply and give police their name.

Ah, there’s the rub. People who look nothing like the perp comply anyway, as the police believe they should in order to make their job easier and our world more, well, compliant.  Now your assumption is no longer unwarranted. Jump away.

The cops were looking for a guy who was allegedly rifling through some mailboxes, and came upon Lisa Haynes waiting for a bus.  The connection was immediate:

[Arresting Officer Gregory] Baldwin [who was training a rookie at the time] told internal affairs investigators that they stopped Haynes because she was wearing clothes that matched the thief’s: a black jacket, cream-colored hat with a black backpack. He told her to get off the phone and give him her name.

Hispanic man…black woman…close enough.  It wasn’t about the appearance really, but the expectation that when Baldwin asked for her name, a person minding her own business for whom he possessed no reason other than some pathologically ordinary clothing colors to address, she did not comply.  What? Everybody complies. A refusal creates suspicion, even where none could otherwise be found.

But then Haynes did the unthinkable.

Haynes said she told him she was waiting for a bus. “I didn’t feel comfortable telling him my name because he did not say why he was there,” she said.
She said the officer asked what was in her backpack. She said she called her son on her cellphone and told him she felt threatened by police. Her son asked if she was being arrested, and Haynes said she did not think so.
On her son’s advice, she grabbed her backpack to walk off. That’s when the officers grabbed her hands and struggled to handcuff her. Baldwin screamed profanity at her and placed her in the back of a police car, she said.

Baldwin was not going to have the rookie he was training at the time learn a dangerously bad lesson, that the First Rule of Policing can ever be ignored. When Haynes grabbed her backpack, it was more than any reasonable officer could bear, as Lt. Elmore from internal affairs later agreed. After all, you can’t have unarrested citizens touching their things and walking away from cops, except if you’re on the Supreme Court.

Their lieutenant, Vince Elmore, told the committee he exonerated the officers because they investigated the mail theft appropriately. He called the officers cordial and said “Ms. Haynes had no intention of cooperating with officers.”
When Haynes reached for her backpack, officers were concerned for their safety, Elmore said. They didn’t know if she was reaching for a weapon inside, he said.

There could have been a gun. There could have been a bazooka. There could have been something terribly dangerous in that backpack, and when Haynes put her hands on her own backpack to walk away, there is no way Baldwin, as a trained professional, could let this small woman ignore his commands.

Or, of course, the backpack could contain nothing threatening whatsoever, but what sort of cop is going to take that kind of crazy risk?  Not Baldwin, so according to Internal Affairs, he was fully justified in grabbing, cuffing and tossing Haynes into his cruiser. And so what if a little profanity was uttered? After all, she was a noncompliant threat to his life. Maybe.

But diminutive Ms. Haynes wasn’t taking crap that day, and “appealed” the IA decision to the Citizens Review Committee.

“The most egregious aspect of this case — the fact she was stopped — was not investigated,” said Briana Swift, a student at Lewis & Clark Law School who served as a volunteer advocate for Haynes before the committee.

Well said, and good to see a law student advocating so well for her client.

Committee members differed on what they found disturbing about the case. Some called the initial stop unreasonable, while others thought it was ok, but found the search of Haynes’ backpack and arrest improper. They all voiced disgust with the investigation.

While it might have reflected better on the committee had they recognized that essentially every action, every utterance, from start to finish here, was wrong and a flagrant violation of Ms. Haynes’ rights and the propriety of the officer’s duty, at least they all agreed something was very wrong here.

To add insult to injury, IA pulled old records on Haynes which said she called police officers “satan” in a 2011 encounter, just to show her propensity to be a cop hater. Even the Committee knew better than to buy into that:

“It felt like you were trying to tilt us,” [Committee Member Steven] Yarosh said.

Tilt? That’s one way to put it, I guess. So the committee leveled its firm judgment that this needed further investigation.

Haynes said she’s glad there will be more investigation.
“I want something done so this doesn’t happen to anyone else,” she said.

So all is well in Portland and small women are safe to walk the streets. Unless they don’t comply with the police or grab their backpack and attempt to exercise their right to walk away, in which case it’s about as likely to happen again as Voodoo Donuts is to mix bacon with maple.

H/T Spencer Neal

If they were at all gracious, they would have  waited for the ink on Maryland v. King to dry.  But no, that would be too much to ask.  In fact, they weren’t waiting for the Supreme Court to pull out the big ol’ approved stamp at all. They were already way down the slope.

From the New York Times :

Slowly, and largely under the radar, a growing number of local law enforcement agencies across the country have moved into what had previously been the domain of the F.B.I. and state crime labs — amassing their own DNA databases of potential suspects, some collected with the donors’ knowledge, and some without it.

These local databases operate under their own rules, providing the police much more leeway than state and federal regulations. And the police sometimes collect samples from far more than those convicted of or arrested for serious offenses — in some cases, innocent victims of crimes who do not necessarily realize their DNA will be saved for future searches.

These law enforcement agencies are no longer content to rely solely on the highly regulated network of state and federal DNA databases, which have been more than two decades in the making and represent one of the most significant developments in the history of law enforcement in this country.

The reasons vary. Some police chiefs are frustrated with the time it can take for state crime labs to test evidence and enter DNA profiles into the existing databases. Others want to compile DNA profiles from suspects or low-level offenders long before their DNA might be captured by the state or national databases, which typically require conviction or arrest.

“You wouldn’t mind giving us just a dab o’ DNA so we can exclude you from the list of people potentially going to prison for the rest of their natural life, would you?”

“No way, sir. Here’s my dab. If you need a bigger one, why I’ll do just about anything you ask. Anything to make you leave me alone, officer.  Anything.”

“Our take is that it’s good for law enforcement and good for the community,” said Doug Muldoon, police chief of Palm Bay…

Among criminal defense blawgs, SJ is a fairly well known, fairly well regarded, blog. Enough so that even the louts at the ABA Journal, the ones who think  Legal Rebels are the lawyers who use a white iPhone after Labor Day, included it in their inaugural Blawg Hall of Fame.  Pretty darned special, right?

The point isn’t to warm the cockles of greatness, but the hope that someone out there might stumble upon a bit of information that enlightens them, and illuminates the life we endure in the streets and the trenches at the hands of police, judges, the Law. All the very important and very self-important lawyers might see that regular folks aren’t enjoying them or life nearly as much as they seem to think.

Then comes a hard smack, a la Moonstruck, to remind me just how inconsequential SJ really is.

Gawker posted a video yesterday. It apparently just came on Max Read’s radar, and he thought it worth spreading.  No issue there, as it’s good that Gawker, with its far (by a magnitude) larger audience sees this video.  I learned about it when my buddy Radley Balko retwitted a twit by Julian Sanchez, @Normative, about the video.  I was unimpressed, it being old news and all.

You see, the whole megillah was about a video out of Vegas that was the subject of a  post here on April 30th. I would have thought, hoped maybe, that Balko had read my post, seen the video, and was just retwitting the video now on Gawker to aid in its broader distribution. That’s cool, though he might have mentioned that if others had kept their eyes open, they would have known about it months ago. But no big deal, so I moved on.

Later in the day, I saw a post from my other buddy, Elie Mystal.  Now much as I make fun of  Above the Law from time to time, I like Elie, and I’ve had  good things to say about Elie. The baby lawyers at ATL say mean things about him, and he deserves better.  Elie is interested in criminal justice stuff, so it’s not like my expectation that he might have seen my earlier post was totally out of the ballpark. But this, well, pissed me off.

There is a disturbing video making its way around social media today. It’s a six-minute Family Court video from August 2011 of a woman who complains that a marshal sexually assaulted her in a back room.

But it also means that Doninger has been sitting on the bench for almost two years since this incident, with no investigation, review, or punishment for her disgraceful behavior caught on video.

What kind of system are we running here? I get that bad people slip through the cracks. But it’s been two years and Doninger, this magistrate who literally turned her back on a woman who was molested in her own courtroom, still has a job?

Could we at least get somebody sitting in her courtroom tomorrow to make sure Doninger isn’t looking away as people are violated right in front of her?

Could we at least get somebody at blogs that post any picture of a female lawyer partially naked within seconds of its becoming publicly available to show even remotely similar concern for outrageous abuse?

If the issue was that the video wasn’t deemed worthy of making it onto ATL’s pages, perhaps ousting a very important bit of news about a law firm whose fired secretary told about how they used Starbucks coffee in the cafeteria, or the next whiny self-promoter who begs for a link to his post that no one would otherwise read, that’s fair. Just because I find a story, a video, to be worth sharing doesn’t mean anyone else has to.

But apparently that wasn’t the case here. Elie obviously found the video outrageous, and more than worthy of a post.  The problem wasn’t that it wasn’t significant, but that it only surfaced yesterday when Gawker suddenly discovered it. 

That it appeared here last April?  It’s like it never existed.

Next time you think SJ matters, or any other criminal law blawg matters, and that it carries such great influence as to move molehills if not mountains, remember that not even friends, pals like Elie or Radley, can be bothered with it.  If even they can’t be bothered, it’s hardly worth noting that it doesn’t make a ripple in the puddles of the really, really important people’s minds.

Say, did you see that really outrageous video on Gawker yesterday?  Now that’s what matters.

Ah, to be cited by in an opinion of the United States Supreme Court. One of the great honors, recognition that one’s work, thoughts, are worthy of mention.  If it happens to a law professor, it will launch a dozen self-congratulatory posts, will be used as a shining example of the relevancy of legal scholarship and raised prominently when it’s time to renegotiate the contract. Yes, quite the honor.

Unless, of course, it was mentioned to support a proposition that is contrary to its purpose, abusive of its point.  What then?

Via Adam Liptak at the New York Times :

The case, Maryland v. King , was about whether the authorities may take DNA samples from people arrested in connection with serious crimes. Justice Anthony M. Kennedy, writing for the five-justice majority, drew on a 2000 book by the founders of the Innocence Project and a newspaper columnist to explain why this was a good idea.

“In the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense,” Justice Kennedy wrote. Then he quoted from the book, “Actual Innocence.”

I asked Peter J. Neufeld, one of its authors, how he felt about the honor.

“Not great,” he said.

In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck [is it possible to write a story mentioning the Innocence Project, even one about Peter, that does not include Barry’s name?], represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne .

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.”

The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

Kennedy also misquoted Neufeld. In a quote from the book, Kennedy writes that Neufeld and co-author Jim Dwyer encourage “prompt testing” of DNA to prevent wrongful convictions. But Kennedy implies that the authors were advocating for prompt testing of all arrestees. They weren’t. They were advocating for prompt testing of evidence collected from the crime scene. In their book, Neufeld and Dwyer take six sentences to explain this. In his quote, Kennedy hides those six sentences behind an ellipsis.

Liptak points out that Kennedy’s quote from the book also includes a second interesting ellipsis. After misstating what the authors meant by “prompt DNA testing,” Kennedy then notes that they state such testing could “prevent the grotesque detention of … innocent people.” The original quote included the words thousands of in place of the ellipsis. Liptak writes, “Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings.”

A deep, dark secret within the magical community of lawyers is that the phrase “with all due respect” is an insult.  It’s the facially acceptable way of saying “that’s the stupidest thing I’ve ever heard,” but since saying that to a judge would make them unhappy with you, which rarely serves any good purpose, we pose it in more genteel language. But that’s what it means.

With all due respect, Broward County Circuit Judge Kathleen McHugh, your sentencing Chad Ochocinco to 30 days rather than probation as was agreed in the plea offer was arbitrary, improper and abusive.



What is it? Are you not a football fan? Football players give their teammates a slap on the butt as a sign of appreciation. Did you not just ask whether he was satisfied with the efforts of his lawyer,  Adam Swickle? You asked? You went out of your way to compliment Swickle’s work. And so, in conformity with your question, your statement, he was a bit demonstrative in his showing of appreciation. So what?

It probably embarrassed you a bit that others in the courtroom started giggling when Chad gave Swickle the slap on the butt. You realized then that you, not he, started the chain of events that culminated in the butt slap. You thought it made you look foolish?

Not nearly as foolish as when you chastised the defendant for having “not taken the proceeding seriously,” even though your comment reflected nothing about his conduct, but your own.

True, it’s only 30 days, hardly a blip in the scheme of sentences imposed on defendants by judges in the Land of the Free.  There are certainly far harsher sentences to be alarmed about, outraged about, and similarly needlessly imposed. But yours, judge, was captured on video and played widely because Chad Ochocinco was a football player. It’s part of the reason why you felt compelled to try to vindicate your dignity, not wanting the world to see you look weak or realize that this was your lack of self-esteem on trial rather than his lack of seriousness at the sentence.

But judge, we expect you to be bigger, smarter, more secure in your own competence, than to react like a petty tyrant trying to clean up her own mess before anybody notices who caused the problem. Had you let it pass, no one would have noticed, or thought ill of you. But it apparently struck a chord with you, enough so that you felt compelled to salvage your dignity.  With all due respect, your dignity issues are your problem, not Chad Ochocinco’s.

Your job, and your only job, was to impose sentence for the violation of probation. If the sentence of probation with community service was the proper sentence before the butt slap, it was the proper sentence afterward. What you did, and what can’t be explained any other way, is punish Chad Ochocinco not for the offense that brought him before you, but for the offense of innocently causing others in the courtroom to laugh. Oh, the humiliation of having people laugh during your sentence. How will you ever live that down?

“The whole courtroom laughed because you just slapped your attorney on the backside.”

Rarely has a judge provided as clear a path to her troubled self-esteem than this. 

The only “act” taken by Chad was to show his appreciation to his lawyer in the manner that comes naturally to him.  By no stretch of the imagination can this be construed as an affront to the court. There is no rational basis to find him responsible for others in the courtroom laughing. They thought it was funny? How is that his fault? 

While it’s easy to be dismissive of a judge behaving foolishly, even self-indulgently, at the expense of a defendant when the sentence is only 30 days, it’s wrong to do so. The lifer might scoff, but if someone who was supposed to walk out of court on a plea ended up doing time in the pokey, that’s his time, his days and nights, his life, that shouldn’t be behind bars even for a minute. That’s how it works.

So Judge McHugh, with all due respect, your conduct in the sentencing of Chad Ochocinco was a disgrace. If you can’t control your low self-esteem needs long enough to appropriately fulfill your duties as a judge, then you have no business being on the bench.  Sometimes people will laugh in your courtroom. Toughen up and get over it. That’s not a justification for your to indulge your fragile desire for the veneer of respect by taking it out on a defendant.

Following the disclosures of the NSA’s accumulation of every communication ever made by every person in the United States, debates rage over whether the leaker, Edward Snowdon, is hero or traitor, whether the government’s action was lawful or proper.  Good and important arguments, but unavailing.

What is known, conclusively, is that technology allows this to happen and the law has not prevented it. The true distinction between the Orwellian world so many of us fear and the disclosure that we’ve been living in it for, well, at least a while now, is whether those branches of the government expected to adhere to the law, honor the Constitution, would do so if the judicial branch said so.

The problem is that the government, from Congress to the Supreme Court, have fallen so far behind the curve of technology that its reduced itself to a nullity in these debates. Exhibit A is this post by Orin Kerr at  Volokh Conspiracy about a 9th Circuit decision that, had it come out a month ago, would have made for an interesting discussion.

Can Anyone Intercept Unencrypted Wireless Communications?

Google argues that the answer is “yes,” in this oral argument today in the Ninth Circuit in Joffe v. Google.   It’s an interesting question as a matter of statutory interpretation, largely because Congress wasn’t thinking about wireless Internet networks when it was writing about “radio communications.”  The statute reflects different carve-outs from different eras that each reflected technologies of its era, all of which now are now barnacles on the hull of the statute that exist decades later when the technologies are very different.

For years, the criminal defense bar has challenged the Colorado state lab’s competency, integrity and accuracy. Arguments questioning its results, its methodology have been made over and over, and rebuffed.  The problem is always the same, that without knowing what’s happening inside the onion, you can’t prove that it’s rotten at its core.  And the defense bar was always on the outside, only shown the top layer that looked exactly the way officials wanted it to look.

But they knew.  And they were right.

The March 18 report was the result of an investigation conducted by the Mountain States Employers Council. A redacted version, obtained by The Colorado Independent, shows a decline in training and oversight in the toxicology lab. It also finds it “more likely than not” that:

• “employees perceive they’re ‘not adequately trained to provide fact or expert testimony in court.’”

• “employees justifiably perceive that blood-alcohol training protocols for toxicology lab analysts are inadequate.”

• “refrigerators used to store blood and urine samples are not locked, making them accessible by unauthorized personnel.”

• A supervisor “had toxicology lab employees help him/her with his/her master’s thesis during work hours.”

• That same supervisor “made statements that suggest s/he is biased against defendants in criminal cases” and “imposes unreasonable burdens on toxicology analysts by making excessive accommodations for prosecutors and law enforcement agencies.”

• And that “employees justifiably perceive that the toxicology lab is not sufficiently staffed to handle the work load.”

Given that the problems began at least as early as August 2011, hundreds if not thousands of criminal cases could be affected by the allegations, says state Public Defender Doug Wilson.

In a letter written Friday, Attorney General John Suthers disclosed the existence of a two-and-a-half-month-old, scathing report on the Laboratory Services Division of the Colorado Department of Public Health and Environment, the agency that does forensic testing of chemical samples used by prosecutors.

The defense community is livid and wants to know how long Suthers, whose office represents the Health Department, knew about the report before disclosing its findings late on Friday. It also wants to know if the Attorney General — a former district attorney and former U.S. Attorney for the District of Colorado — had shared the report with prosecutors before telling defense lawyers who could potentially have used its findings to defend their clients. The report could be a basis to argue that test results and testimony in their clients’ cases are not, or should not have been, admissible as evidence.