Though it’s been less than 24 hours since the Supreme Court issued its opinion in Maryland v. King approving the Maryland law that permits the taking of DNA from presumptively innocent defendants, the blawgosphere is already awash in posts decrying the  intellectually bankrupt rationale of Justice Kennedy,  extolling the bombastic outrage of Justice Scalia and exposing the  constitutional duplicity of Justice Breyer. No one needs me to add to the misery, so I won’t.

But I will take heed of Gerard Magliocci’s post at  Concurring Opinions about slippery slopes.

With the . . . ahem . . . annual avalanche of Supreme Court opinions on the way, I thought I’d raise a question about how slippery slope arguments play out.  The reason advocates make this sort of argument is that they want to convince someone not to do something.  If A leads to B and B is seen as unacceptable, then people will be less likely to do A if they are convinced that there is no line between them.  The problem, of course, is that this tactic can backfire.  It might convince people that there is no distinction between A and B when they thought that there was, and thus make B more likely once A happens.

Unlike the rest of humanity, lawyers never do monumentally stupid, embarrassing and humiliating things. Almost never. Well, maybe just as often as anyone else.

Rarely is any mention of it made here, unless there is some point to be made that illuminates matters for the rest of us. It’s not just offered for its titillating or salacious value, to grab eyeballs of people who can’t get enough of snarky cat memes and who learned about sex on the internet. 

But this post at a UK blog calld  Legal Cheeks disturbed me.  A Brooklyn solo practitioner, Stephanie Hendricks, had a really bad day and ended it drunk and stupid.  Very drunk and very stupid. It had absolutely nothing to do with her being a lawyer, and offers no insight to lawyers other than to avoid getting very drunk and stupid. But this is a message for everyone, not just lawyers.

Why?  Her story appeared in the New York Post, a tabloid known for its hard-hitting, deeply thoughtful content. So let’s spread the word around the blawgosphere in order to free ride off the salaciousness of her having removed certain articles of clothing and uttered some particularly poorly chosen words to police officers.  Like I said, she had a very bad day.

Adding insult to injury, this is the sort of thing likely to appear in Above the Law, where no humiliating moment that happens to a lawyer, without regard to whether it’s of any consequence to her professional responsibilities or performance, is offered to titillate the senses of young lawyers whose own lack of a life is fulfilled by Staci Zaretsky’s posting dirty stories on the internet.  Oops. Too late, it’s already there.

There is an allegation that Hendricks ran off without paying a $6 cab fare before, well, other things happened.  Whether that’s true, and whether that was a by-product of her drunkenness or a deliberate act, might be fair for commentary, but let’s be real here. Had she not been naked from the waist down, and not spoken as she did to cops, nobody would ever care about the $6 cab fare.

It’s one thing to raise and discuss things done by lawyers that provide lessons in what to do, and what not to do, in the conduct of our practices, our representation of clients, our integrity as professionals. Lawyers certainly do plenty to feed the discussion of wrongs that need to be righted.  But this was nothing, a person who got drunk and behaved incredibly poorly. That the person happened to be a lawyer is irrelevant.

When the blawgosphere resorts to spreading stories which serve no purpose other than to humiliate people who happen to be lawyers, stories which offer nothing of value or thought, and are posted merely to titillate, it makes us puny.

Have you never seen a naked person before? Have you never heard rude words? Big deal. Grow up and get over it.  We don’t embarrass people for no reason.  When we do, we embarrass ourselves and our profession.  This was disgraceful, and it’s unbecoming to get your kicks off someone else’s really bad, and wholly irrelevant, day.

Are you proud of yourselves for getting a cheap laugh out of Stephanie Hendricks’ drunken behavior?  If so, you really need to grow up.

In a decision that can only be described as weirdly right, the Appellate Division, Second Department vacated the Queens County  convictions of Walter Hurdle for assault 1 and assault on a police officer. It’s not that Hurdle didn’t do it, or that the officer, Sgt. John Pagnotta, wasn’t hurt. According to the decision, he was severely hurt.

And yet, the court held that Hurdle lacked the requisite intent element, in this case depraved indifference pursuant to Penal Law § 120.10(3).

On January 18, 2007, at approximately 8:00 p.m., the defendant was sitting in his legally parked vehicle, a black SUV, when an unmarked police car pulled up to the driver’s side of the SUV, and one of the four uniformed officers in the car, Sergeant John Pagnotta, had a brief conversation with the defendant. Unsatisfied with the defendant’s answers to his questions, the sergeant directed the officer driving the police car to pull in front of the SUV and park at an angle, blocking the defendant from pulling out of his parking space. The officers then exited the police car and approached the SUV. Sergeant Pagnotta opened the door on the driver’s side of the defendant’s vehicle; standing between the door and the door jamb, he continued to question the defendant. When Sergeant Pagnotta ordered him to exit the car, the defendant shifted into drive and pressed his foot down on the gas pedal, crashing the SUV into the police car in front of it and dragging Sergeant Pagnotta, trapped between the door and the door jamb of the SUV. When the SUV pulled away from the police car, Sergeant Pagnotta was released and thrown into the middle of the street, where he was almost hit by an oncoming car. As a result of this incident, Sergeant Pagnotta sustained severe injuries.

In fact, not only was the evidence insufficient to establish that the police had an objective, credible reason for approaching the defendant in the first place but, also, Sergeant Pagnotta’s testimony indicated that the initial approach was a mistake, since Sergeant Pagnotta had intended for the officer driving the police car to pull up to a grey car parked behind the defendant’s vehicle. Furthermore, neither the defendant’s startled demeanor nor his responses to the police inquiry provided the officers with “the quantum of knowledge to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity [was] at hand.”

The People’s attenuation argument is unpreserved for consideration upon appeal (see People v Hunter, 17 NY3d 725, 728; People v Nieves, 67 NY2d 125, 135-136) and, in any event, is without merit.

“‘Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill [or to cause serious physical injury to another person]’” (People v McMillon, 31 AD3d 136, 139, quoting People v Suarez, 6 NY3d 202, 214). “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created”

Via Doug Berman, a new  law review article from University of Texas lawprof Susan Klein suggests that Gideon, having failed to deliver on its promise, the criminal justice system has been turned into the plea bargaining system.

Yet fifty years later, indigent defendants, (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty. Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced. Some blame falls on legislators for failing to adequately fund defense counsel. Our criminal justice evolved from an adversarial system to what Judge Lynch calls, “a defacto administrative regime”. The criminal justice system is the plea bargaining system.

In this essay, the author posits that last term’s Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system. The defense bar cannot buck a system stacked so heavily against them. Large-scale structural reform such as legislation or proper funding for defense is equally unlikely. Plea bargaining has failed.

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences.

A second proposal is for the Department of Justice and local District Attorneys’ Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures. Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.

A letter to the editor appeared in the  New York Times from former New York County District Attorney, Robert M. Morgenthau. Morgy is old now, and out of office, but in his day he was the most powerful politician in New York.  Not up front, giving speeches or kissing babies, but a word from Morgenthau could change the political landscape. 

And now, he wrote a letter to the editor, not to extol the virtues of the system he carried for decades, but to complain of its failure.  This is an extraordinary thing.

On Tuesday [May 28th], the United States Supreme Court declined the opportunity to correct an egregious Brady violation that put William E. Kuenzel on Alabama’s death row 25 years ago.

Mr. Kuenzel was convicted in 1988 of killing a convenience store clerk. During the trial, the prosecutors assured Mr. Kuenzel’s lawyer that, in accordance with the Brady rule, they had turned over all potentially exculpatory evidence to the defense.

Twenty-two years passed before Mr. Kuenzel discovered that the prosecutors had concealed revealing police notes and grand jury testimony that supported his unwavering claim of innocence.

A brief description of the Brady violation follows. A rather pedestrian concealment of details that would have given Kuenzel the tools to fight the charges. There was no DNA to scientifically prove anything, but a basic Brady violation.

Mr. Kuenzel asked the Supreme Court for the chance to present this obvious Brady violation in federal court. The Supreme Court could have cut through the legal thicket of procedural impediments and held the state government accountable for flouting Brady.

But the court refused. As a result, the unthinkable consequence of the toothless Brady rule will be that an innocent man is executed and the prosecutor goes unpunished for his misconduct.

Remarkable words coming from a man who was DA for 34 years, and U.S Attorney before that.  Morgy was part of a trio who put their names to an amicus brief in support of certiorari, along with former Los Angeles DA Gil Garcetti and Milwaukee DA E. Michael McCann.  As they make clear up front, they are not people to be trifled with.

Indeed, one of those baby prosecutors Morgy trained who went on to serve in a judicial capacity was none other than Associate Justice Sonia Sotomayor. Of course, there was no need to mention this detail, and she knew where she came from.

They go on to concede the “truism that prosecutors’ offices and juries occasionally make mistakes, even if ever so rarely.” (My italics.)  And this case, the three former prosecutors contend, is that ever so rare mistake.

The gist of their amicus argument is that the procedurally-defaulted first-time habeas petitioner shouldn’t be saddled with the additional burden of Schlup v. Delo, presuming guilt and requiring him to show the probability of innocence before being entitled to a hearing.  They argue such a clarification of the burden will “ensure the fairness and accuracy of convictions,” and thus the integrity of convictions and imposition of the death penalty.

That a petition for cert by a death row inmate is denied is routine. That a petition with the support of Morgenthau, Garcetti and McCann as amicus is denied is ever so rare.  Claims of innocence by death row defendants with DNA to back them up have become something of the darling of innocence, having both the ability to meet the burden with scientific evidence that takes the burden off the courts. 

Even so, they don’t always succeed.  They still provide that painful glimpse into the working of a machine that convicts the innocent through the same ordinary, reliable methods that are adored by prosecutors, juries and judges, even though the ever so rare event that an innocent person is wrongfully convicted happens. It makes it increasingly hard to mouth the word integrity, knowing that in the absence of scientific evidence, there would be nothing to slow down the plunge of the needle.

The irony here, of course, is that when the sentence is death, even former prosecutors demonstrate an elevated concern for the integrity of the conviction.  Remember those 7,000,000 criminal proceeding for which these three former prosecutors are responsible? How many of those convicted innocent defendants?  There must be some, by their measure, even if mistakes are ever so rare.

Yet, no one can fault Morgenthau, Garcetti and McCann for signing on as amicus in support of William Kuenzel, who was convicted upon a failure of the “toothless Brady” and will now be put to death.  That they stood up for innocence, for Brady, is worthy of respect.

And now these three former District Attorneys know what it feels like to be a criminal defense lawyer, when despite their power, their bona fides, their more than 100 years of combined prosecutorial experience, the Supreme Court denied the petition without a word.  Perhaps Morgenthau trained his prosecutors too well.

After the recent spate of stories about grade schoolers violating zero tolerance policies with lego guns, pastry guns, itty-bitty sized guns, a  Hello Kitty gun that blows bubbles and unloaded fingers pointed in a gun-like shape, there is relatively unanimous agreement that this reflects a inane over-reaction to gun violence in schools, with the notable exception of school administrators.

But is there a line to be drawn below that of actual weapons?  It’s easy to ridicule the utterly absurd application of these zero tolerance rules as applied to pop tarts, but what about a toy gun that wasn’t created by teeth?  Via The Washington Post :

A kindergartner who brought a cowboy-style cap gun onto his Calvert County school bus was suspended for 10 days after showing a friend the orange-tipped toy, which he had tucked inside his backpack on his way to school, according to his family and a lawyer.

The child was questioned for more than two hours before his mother was called, she said, adding that he uncharacteristically wet his pants during the episode. The boy is 5 — “all bugs and frogs and cowboys,” his mother said.

“I have no problem that he had a consequence to his behavior,” said the mother, who asked that her name be withheld to protect her son’s privacy.

“What I have a problem with is the severity,” she said, and the way it was handled.

If the punishment stands, it would become part of the boy’s permanent school record and keep him out of classes the rest of the school year, the family said. He would miss his end-of-year kindergarten program at Dowell Elementary School in Lusby.

The mother said the principal told her that if the cap gun had been loaded with caps, it would have been deemed an explosive and police would have been called in.

The case comes at a time of heightened sensitivity about guns in schools across the country.

On blogs, in classrooms and most notably in courtrooms, we discuss the way things should be. We argue that the fantasies and aspirations that appear on the pages of court opinions should be the way they happen on the street. We can reason out intellectually the right way, the lawful way, interactions between law enforcement and citizens ought to be framed.

And then there’s this.

While very little actually happens in the video, it’s jammed with issues, questions and problems that, but for a poor choice and finger twitch, could have led to a very violent end.

Washington State is an open carry state, meaning that no license is required to carry a weapon in open view. In other words, it’s like the Wild West, where any person can strap on a gun and walk about. At the same time, this is likely proscribed for felons and the insane, though how one distinguishes the law-abiding person with a gun in plain view from the felon or crazy with a gun on his hip isn’t clear.

Here’s the problem: if the person with the gun on his hip is lawfully entitled to walk around that way, he has a constitutional right to be left alone, as he’s doing nothing suspicious, no less giving rise to probable cause. Contrary to what’s said in the video, probable cause isn’t required for the police to inquire as to identity, but reasonable suspicion is. So is there or not?

Officer Daniel isn’t going to wait to find out. The First Rule of Policing kicks in and he’s going to make sure that either way, he’s going home for dinner that night. So he draws his weapon.  The rule is that an officer doesn’t draw his weapon unless he is prepared and lawfully authorized to use it, but that rule is down the list from the First Rule. Way down the list.

As other officers arrive, however, Officer Daniel speaks magic words: Gun, gun, gun.

This is where the potential for everything to go horribly wrong is at its strongest, as these magic words are a warning to officers who know nothing about what’s happening at the scene, have no clue whether a crime is happening and, most importantly, whether their lives are endangered.  They now have only one bit of information: gun.  As information goes, this is a big one, perhaps the gravest motivator of action there is for a cop.

In this video, no one gets crazy, rushes the scene with guns drawn ready to fire or, if the “perp” was down to get in a few cheap kicks to the head long after any excuse for doing so has dissipated. But the new officers on the scene could just as easily have reacted very differently. When a cop yells “gun, gun, gun,” it’s tantamount to a command to fire. There is a reason why the First Rule is first, and that’s because no risk of harm to a cop is worth shooting second.

Notably, when the camera pans left, you see another office on his cellphone, perhaps calling for a supervisor.  He doesn’t look concerned. His hand isn’t on his weapon. His body language is relaxed. He’s neither ready nor interested in shooting anybody. He realizes there is no threat to his safety, and that Daniel over-reacted and is now stuck, refusing to back down for fear it will diminish his authority.

As for the person taking the video, note the timber of his voice, how it rises. His words suggest that he’s prepared for a confrontation, running what he would say through his head if the police confront him, but the calm assertion of rights gives way to the realization that although he may be doing nothing unlawful whatsoever, he remains a heartbeat away from a bullet. 

Law-talking guys are usually able to string together some very persuasive and official sounding arguments of law in a courtroom, often in a stentorian basso voice that carries inherent authority. But had that been me behind the video camera, I can similarly imagine my pitch rising to an alarmingly high tone, and my words failing to be as artful as I might hope. You see, I would be scared to death of an officer with his gun drawn, regardless of whether I was right or wrong about the lawfulness of my conduct. It’s not how I envision myself dying.

And then the supervisor comes.

Aside from the standard “what do you have to hide,” perhaps the most effective line police have in their arsenal of persuasion, and his “explanation” that allows the cops to save face for having over-reacted, improperly drawn a weapon against citizen engaged in lawful conduct and created a potentially explosive situation, the supervisor diffused the tension, allowed the man taking the video to go on his way and everyone made it home for dinner that night.

No court will ever review what transpired here. No judge will watch these videos, except perhaps here, and be required to determine what wrongs occurred and whether extant search and seizure law makes any sense or has any reasonable chance of adequately addressing this scenario.  The outcome was that the video-taker, the open carrier, was not arrested, searched or shot, so it falls into the dark hole of no harm, no foul. 

But it’s really not. There was a harm. A person who had a constitutional right to be left alone from the outset was not left alone. A person who could lawfully take a video, lawfully carry a gun in plain view (regardless of whether you think that’s a good idea or not), was seized for a while and put in risk of his life.

And in fairness, nobody knows, based on the video, whether the open-carrier was a felon or insane, and therefore lawfully entitled to open carry a weapon. But since there was no reasonable suspicion to believe he was a felon or insane, there was no way for Officer Daniel to find out and he still had the First Rule of Policing to consider.  That’s how things really happen on the street, and it’s kismet that this interaction happened without anyone being harmed.

At 6:14, a TSA drudge makes  Maria Muldaur’s prediction come to life. 



Via Huff Post, Ashley Jessica, a 27-year-old Ph.D student from Toronto, didn’t go to the San Diego Airport looking for a good time.

About halfway into the procedure, a TSA agent feels the area between Jessica’s breasts, and Jessica puts up her hands as if to protect herself from further touching.

Less than two minutes later, the agent appears to run her hands all the way up the inside of Jessica’s leg. Jessica pulls away and becomes visibly uncomfortable.

“OK, you need to hold still for this process,” says another TSA agent, who is off-screen.

“She just touched my vagina!” Jessica replies. “Seriously! That was not my upper thigh.” (Jessica eventually submitted to the pat-down and was cleared to fly to Toronto.)

In review of the closed-circuit video, it is abundantly clear that the two TSA officers conducting the pat-down carried out their responsibilities in a professional and polite manner and according to procedure, offering the passengers the opportunity to have the pat-down conducted in a private setting and taking time to explain each step along the way.

The subject line of the email read:

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Attorneys participate in the Avvo Legal Marketplace because it offers an efficient and effective way to showcase their expertise and experience to consumers who are ready to hire.

In his 2013 State of the Judiciary address, New York Chief Judge Jonathan Lippman spoke the unspeakable, announcing the formation of a committee to ” to study the feasibility of allowing non-attorneys to provide legal services to poor New Yorkers in “simpler” civil matters.”  You’ve got to give him credit for using the fiat of his office to begin the process of making change, as he did with the  50 hours of pro bono as a requirement for admission to the New York bar.

That there are systemic problems is nothing new, at least to those of us paying any attention at all. So what pushed Lippman into the fray?

Despite the pro bono contributions made by attorneys and the courts’ funding of civil legal services, Lippman said the state “simply cannot keep pace” with the growing need for legal services among low-income New Yorkers.

Some civil legal services providers say they turn away as many as seven in eight people who seek services because of insufficient resources.

The new committee will examine to what extent “non-lawyer advocates” who are expert in certain areas “can help the most vulnerable and the most disadvantaged,” Lippman said in an interview.

Roger Maldonado, a partner at Balber Pickard Maldonado & Van Der Tuin in Manhattan, and Fern Schair, chairwoman of the Feerick Center for Social Justice at Fordham University School of Law, will co-chair the Committee on Non-Lawyers and the Justice Gap. Lippman said the committee will make preliminary recommendations for pilot programs by November.

The 20 members of the committee in addition to the two co-chairs include private attorneys, civil legal services providers, bar association representatives, advocates for the poor and one judge, Jenny Rivera of the Court of Appeals.

Meanwhile, the bar has categorically refused to investigate how educated and character-tested non-lawyers may participate in the delivery of legal services and how that participation will help make legal services available to those who cannot now afford them but can afford something. The fact that the near-poor are largely cut off from legal help in civil matters has been long decried and as long uncorrected. 

Given the traditional bar’s new competitors (outsource companies; differently trained lawyers abroad in differently constituted firms; compliance officers who, after all, advise on compliance with law; companies selling computer-driven legal advice like Turbo Tax sells tax help; Axiom and its competitors), you’d think the organized bar would want a seat at the table, if only to help formulate adaption to the new world that technology and cross-border practice entail.