Few people who stumble on a blawg realize there’s history.  For those of us who have been doing this awhile, there can be quite a bit of history, enough that we don’t quite remember all we’ve written.  Every once in a while, someone will find an old post and feel compelled to put in their 2¢, and we are reminded of words that disappeared from the front page years ago.

In the intervening years, new things come up and old things are sometimes revisited. More often than not, the subjects of posts from back then remain issues, and ought to be evergreen.  Unfortunately, that’s not the nature of blawgs, and people who need to read old posts never do, and people who write blawgs don’t repeat themselves for the benefit of newcomers. 

This was all brought to mind when a young lawyer left a comment at a post by Houston criminal defense lawyer Mark Bennett at Defending People from December 1, 2007, nearly six years ago.  The post was entitled How to become a federal criminal defense lawyer.

Six years is forever on the interwebz, long before Joseph Rakofsky was retained to represent Dontrell Deaner. He was still a student at Touro Law School at the time. Had he read this post, perhaps he wouldn’t have taken on the case and set in motion the course of events that destroyed his career. Perhaps not.

The post offers some truisms about the practice of law.

So the first and most impor­tant thing for the aspir­ing fed­eral crim­i­nal lawyer to know is this: you don’t know squat. Accept that with calm humil­ity and good cheer. You may have edited the law review … and cap­tained the mock trial team … at Yale. You are not pre­pared in the slight­est to defend peo­ple accused of crimes any­where, let alone fed­eral court. Even if you spent years as a state pros­e­cu­tor, even if you spent years as a defense lawyer in state court, even if you served as a fed­eral pros­e­cu­tor, you are now offi­cially a fed­eral crim­i­nal defense new­bie, and a new­bie you will remain until you have tried sev­eral fed­eral crim­i­nal cases to juries as a defense lawyer. Plead­ing peo­ple guilty does not count. Only after you’ve tried some cases as defense coun­sel in fed­eral court will you know squat.

Strong words. They weren’t quite as controversial to the new lawyer then as they are today, as the dearth of jobs for new lawyers hadn’t yet sunk in, but still they were harsh to their ears.  Bright and shiny faces, ready to take the world by storm, being told they knew squat.

The lawyer who stumbled upon this post the other day, now years later and in the age when many new lawyers hang up their own shingles because they have no other choice, took this old post of Bennett’s and overlaid today’s sensibilities.

As a young attor­ney, with life expe­ri­ence, your com­men­tary is some what offen­sive. Accord­ing to your expert fig­ures, nearly 80 per­cent of cases set­tle. In that regard, we as lawyers, minimize expo­sure, tak­ing into account the facts of the case. It does not take years of expe­ri­ence to size up a case. With regard to defend­ing a crim­i­nal client. I sub­mit that a young hun­gry attorney, that excelled in mock trials, is absolutely ready to try a case. In fact, given the facts of your arti­cle, much more so than you were in your first bank rob­bery case.

I am a hum­ble lawyer and know that there is more to learn each and every day I prac­tice. I watch and lis­ten to sea­soned attor­neys and hope that I will be able to speak as elo­quently as them and grasp the law as they do. How­ever, if you pre­pare as a young lawyer, you can make up for lack of expe­ri­ence. [Broken into two paragraphs for readability.]

This self-proclaimed humble young lawyer, “that excelled in mock trials,” contends that he’s more than ready to do whatever he decides he’s ready to do. “It does not take years of expe­ri­ence to size up a case.” He can, he says, make up for his lack of experience by preparing. 

Perhaps he believes that experienced lawyers don’t prepare, plus have experience?  Perhaps this is just the rationalization of a child with nothing remotely resembling thought. That song, I believe I can fly, plays in my head.  Believe all you want, but don’t jump off the roof. You cant fly.

Worse than the self-serving delusion of inherent competence, however, was his schooling Bennett:

And at the end of the day, when you pull back the cur­tain on crim­i­nal law, the fact is the great wiz­ard of oz is just a man. You are not as impor­tant as you might think and you your­self should be more humble and will­ing to be a men­tor from a place of humil­ity rather than arrogance.

Forget the irony of the padawan telling the master how to teach, and note instead the irony of this young lawyer’s chastising Bennett for his lack of humility. Teach me as I demand to be taught, the grasshopper admonishes, as if he does a favor by allowing the mentor to bask in his youthful importance.

Bennett, a patient fellow, responds that in a decade or two, the young lawyer will read his words and recognize their foolishness. I was not so kind. I am not as patient as Bennett. But the young lawyer was compelled to finish his lesson:

This whole take your med­i­cine and leave the prac­tic­ing of law to sea­soned lawyer is somewhat amus­ing. I have the same three let­ters after my name as you. I fully under­stand my place as far as being some­what new to the pro­fes­sion, but believe in teach­ing and men­tor­ing from a place of encour­age­ment and empow­er­ment, not from a place of fear and doubt.

If I was hum­ble, I would not respond to the sea­soned defense attor­ney, telling me that he does not want to hold my hand, as I try and forge ahead just as he did years ago? I can say that I am hum­ble and will­ing to learn, just smart enough to know that In years to come I will teach from a dif­fer­ent place than your arti­cle sug­gests. That in and of itself would be considered by some to be wis­dom. [Again broken into two paragraphs for readability.]

So this is the new notion of wisdom? At least this young lawyer’s foolishness brought this old post of Bennett’s back onto the radar, and for that his comment was worthwhile. 

Maybe it’s time to recycle things written in the past that remain as appropriate today as they were when first posted. It’s a shame that good advice is lost to time on the interwebz. Clearly, the need for it remains as much today as it did then. Maybe moreso.

Emily Bazelon’s  New York Times op-ed about the ever-changing definition of bullying was reminiscent of a point made in 2009, a warning that a very dangerous word was becoming a trigger in the public’s mind even though nobody could really explain what it meant.

After offering the examples of 12-year-old  Bailey O’Neill and 15-year old Amanda Todd, Bazelon writes:

Were these instances of actual bullying? It’s hard to say. But what’s notable is that observers automatically assumed they were, even though we know that “bullying” isn’t the same as garden-variety teasing or a two-way conflict. The word is being overused — expanding, accordionlike, to encompass both appalling violence or harassment and a few mean words. State laws don’t help: a wave of recent anti-bullying legislation includes at least 10 different definitions, sowing confusion among parents and educators.

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

All the misdiagnosis of bullying is making the real but limited problem seem impossible to solve. If every act of aggression counts as bullying, how can we stop it? Down this road lies the old assumption that bullying is a rite of childhood passage. But that’s wrong.

Bullying is a particular form of harmful aggression, linked to real psychological damage, both short and long term . There are concrete strategies that can succeed in addressing it — and they all begin with shifting the social norm so that bullying moves from being shrugged off to being treated as unacceptable. But we can’t do that if we believe, and tell our children, that it’s everywhere.

bul·ly  

/ˈbo͝olē/

Noun A person who uses strength or power to harm or intimidate those who are weaker. Corned beef.

Crying wolf about bullying isn’t good for the children who play the victim, either. Those who hold onto that identity are less likely to recover from adversity. Bullying victims need sympathy; they also need help learning to be resilient.

Understanding what bullying means to children is integral to the success of every smart bullying prevention effort, because it harnesses the power of the majority. One effective strategy is for schools to survey their own students about bullying, and then broadcast the results to students. When they see evidence of what most of them know intuitively — that bullying is outlier behavior — they’re even less likely to engage in it.

A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.

It’s been a while. Not since some lawyer had his marketeer and SEO specialist create a blog in his name that finely honed to make a place of honor on the first page of Google for “lawyers who take cash,” but someone who brought new thought. It’s been too long.

Which is why I’m thrilled to welcome new blood to the blawgosphere.  The first is a 30-something public defender out of the left coast who posts under the pseudonym  Norm DeGuerre at his blawg, Chasing Truth, Catching Hell.  What’s his purpose?

Simply put – I want everyone who visits my blog to leave with a more informed opinion about the justice system and know the real effect it has on those that come into contact with it. It’s good for you. It’s good for me. It’s good for my clients. It’s good for our democracy. I am fully aware that these are my own subjective experiences and that they may or may not be proof of any larger “truth” beyond themselves, but I will always make sure that the stories you read here have truth in them. Truth is something we all chase, even if we never quite catch it. The chase alone is worthwhile.

WHEN A RELATIVE/FRIEND ASKS ME WHY
OF ALL CAREERS I DECIDED TO BE A PD

Hang on. No, I’m not retiring. Not riding off into the sunset. (Come back, Shane!) Instead, I’m finally getting around to doing something that, had life taken a slightly different turn, I’d have done years ago. I’m out of private practice (though I’m finishing up the cases I have). As of this morning, I’m an Assistant Public Defender in the appellate section of the Cuyahoga County Public Defender’s Office. (That’s Cleveland and environs for you folks who live where the river never caught fire – but that was a long time ago.)

WHEN YOU HAVE TO TELL THE COP YOU’RE DISMISSING
HIS CASE BECAUSE OF SOMETHING HE DID WRONG

As regular readers know, I have long had a deep concern for the intersection of police and special needs children, whether with physical or intellectual disability, as they are both enormously vulnerable to abuse and often incapable of processing or comprehending what cops are doing with/to them. While “do it for the children” is the mantra usually employed to subvert reason, these children are different. Easy pickin’s, and unable to defend themselves.

So it was for an autistic Temecula, California, high school student.  Via ABC :

[Father Doug] Snodgrass said his 17-year-old son, whose name has been withheld at the request of his parents, transferred to Chaparral High School, a public high school in Temecula, for his senior year. District discipline records from his previous school, Temecula Valley High School, “showed 10 discipline referrals”  between August 2011 and May 2012, according to court records, but Snodgrass said the reason for the transfer was the family’s move to a different section of Temecula.

 He was placed into an art class at Chaparral where he met Daniel, who befriended him.  Not having any friends, his father said, his son quickly latched on to Daniel.

Snodgrass’ son began texting round the clock with his new friend, which at first thrilled his parents, happy that their son had made a new friend, Snodgrass said.

What they didn’t know was that Daniel was an undercover police officer, who the family claims would pressure their son to procure drugs.

Before dealing with the guts of the problem, I can’t help but note how ABC was constrained (/sarcasm) to note how the unnamed autistic student had “10 discipline referrals” prior to coming to a new high school.  This smacks of the mandatory prior arrests/convictions used in every report of police involvement, even if it had absolutely nothing to do with the issue at hand.

In this case, however, it’s particularly absurd as autistic students typically have behavioral management issues, and hence a behavioral plan in their IEP.  Were the referrals for talking in class? Perhaps having shirt tails out? It’s unknown. But it’s also irrelevant, unless the student happened to be an autistic drug dealer in his old school, and given what happened, that seems remarkably unlikely.

So we have a lonely newcomer to a high school, who also happens to be autistic such that his social anxiety, a normal feature of autism, prevents him from making friends and being accepted, and the only guy in school who wants to play with him happened to be an undercover police officer?  What could possibly go wrong?

On the second day of school, Snodgrass said, Daniel asked the boy to buy drugs. “He asked my son if he could find marijuana for $20,” Snodgrass said. ”Three weeks later my son was able to bring back a half joint he received from a homeless guy.”

Wow, they hooked a big fish here. But the cops weren’t satisfied that they had plumbed the depths of this criminal’s heinousness.

Later, Snodgrass said, “he asked to purchase my son’s prescription medication, but our son refused.”

After all, why not add insult to injury by making efforts to undermine this young man’s health in their zeal to find a drug dealer?  It’s not like there was anything seriously wrong with this student that was more important than making a bust, right? Oh wait. There is:

Snodgrass said his son had been diagnosed with autism, bipolar disorder, Tourette’s syndrome  and various anxiety disorders.*

What a fabulous life he must have had, being a big time drug dealer who took three weeks to get a half joint from a homeless man to appease his one and only new friend. Except for all that he suffered from otherwise. And so the police made sure to put a stop to this fab drug dealing lifestyle:

“Our son went to school the morning of Dec. 11 and he didn’t show up at home after school, because he was arrested in his classroom,” Snodgrass said. “Police went into his classroom armed, and handcuffed our son. We were not notified by anyone, and he was held for two days, and we were not able to see him,” although he said they got his medication to him the first night he was in detention through a nurse.

After diversion in juvenile court on the charge, and a due process hearing where the school’s expulsion was reversed, “citing that the court knew my son was targeted and was special needs, and yet the district did nothing,” the parents filed suit, claiming the district administration continues to “harass and intimidate” their son.  After all, he is a drug dealer.

In response, the district offered a press release:

“The district continues to act lawfully and in furtherance of its mission to educate students and better prepare them for successful adulthood. Any and all claims filed with the district will be considered and processed in accordance with district policy and procedure, and the law. The district continues to research and consider its options for addressing the administrative law judge’s decision, but no appeal has been filed at this point.”

Well, of course the district “continues to act lawfully.” What else could it do?  But the claim that its acting in furtherance of “its mission to educate students” falls a bit flat in light of the consequences of what happened to this autistic young man befriended by an undercover.

Snodgrass said his son is now three months behind in school and will not graduate as originally planned.

The wages of sin?  More like the price of being a vulnerable disabled young man targeted by our heroic drug warriors and a school district that was only too happy to let the police have their way.

H/T Ed at Blawg Review, via Radley Balko

* Snarky Aside: Too bad that this young man didn’t have Asperger’s Syndrome, since the DSM-5 published May 18, 2013, has eliminated it. Cured! 

Okay, more seriously, Asperger’s has been swept into Autistic Spectrum Disorder in the latest version of the Diagnostic and Statistical Manual of Mental Disorders, the “bible” of its kind. But ask any Aspy and you will learn that despite the fact that it may be an ASD, the ignorance with which almost everyone approaches autism (duh, look at the retard) taints the crucial distinction that Aspy’s not only have intellectual and social deficits, but also extraordinary intellectual skills in specific areas. But hey, why maintain a meaningful distinction when it’s easier to save a page and throw everyone in the same hole?

The physician at the heart of the LIRR disability scandal, Peter Ajemian, is scheduled to be sentenced today in the Eastern District of New York, and chance to toy with the United States Sentencing Guidelines is too much for the government to ignore. From John Riley at Newsday :

Manhattan federal prosecutors revealed in a court filing this week that they have compiled a list of more than 800 “potential” unindicted co-conspirators in the Long Island Rail Road disability fraud scandal.

The number appeared in a sentencing memorandum on Dr. Peter Ajemian of Syosset, a doctor at the center of the scheme to collect on phony disability claims. Ajemian, who pleaded guilty, will be sentenced Friday. The government wants him to serve at least 10 years in prison.

So how do you crank up the number to reach 121 months? It’s all in the loss calculations, and the only way to get there from here is to manufacture 830 “unindicted co-conspirators” out of every Long Island Rail Road retiree on disability who was a patient of Dr. Ajemian.  So what if only 32 people were actually indicted. There are hundreds more where they came from, even though there is nothing behind the allegation but a sweeping, blanket accusation.

But it also told the defense that its trial theory was that, because Ajemian was known for approving phony disabilities, all of his patients were co-conspirators, and the 830 were nothing more than his known LIRR patients.

The list came up in arguments on sentencing because Ajemian disputed the government’s claim that his fraudulent disability certifications would have cost $100 million to $200 million. He said he did not certify some of the people listed.

The government on the other hand, contends that the list of patients wasn’t used to generate loss calculations, which leaves no explanation for the existence of the list. It’s pure kismet that this huge number of “unindicted co-conspirators” coincidentally provides the foundation for the government’s sentencing calculations. What are the chances?

Is it possible that some of the individuals on this list engaged in fraud with the assistance of Peter Ajemian? Certainly.  At the same time, there is no claim, nor anything remotely reflecting any factual basis, to suggest that everyone, or even the vast majority of these retirees, did not have fully legitimate disabilities. 

The government has yet to go anywhere near parsing the list for evidence of individual wrongdoing. That would be much too much work, when they can just offer a laundry list and engage in facile speculation that if a retiree was certified as disabled by Ajemian, he must be dirty.  The absence of logic is almost as astounding as the failure of proof. 

Having contacted Peter Riley and his editor, Monica Quintanilla, to find out whether Newsday planned to release the names on the list, no answer was forthcoming.  The next concern for the 830 sacrificial lambs is whether they will be publicly smeared, not for anything they’ve done but for their association with Ajemian. 

Following Ajemian’s guilty plea, the government took  its effort to scare the crap out of these disabled retirees a huge step further. A letter went out from the Rail Road Retirement Board, which manages the disability program, alerting them that every retiree whose disability was certified by Ajemian was being reviewed, but that Ajemian’s medical report which formed the basis for establishing the disability, would not be considered.  Why? Because Ajemian was a criminal, a fraudster as he admitted in court.

Of course, he was also a physician to whom the retirees were referred by the LIRR itself, not to mention the facilitators the LIRR urges its older employees to see.  So many went to Ajemian because that’s what they were urged to do.  And many had disabilities and just needed a physician who knew how to do the paperwork correctly, and Ajemian was the man. It would be crazy to do otherwise, not because there was any fraud involved but because knowing how to deal with government red tape is itself a virtue.

Two days after the RRB alerted retirees of the review, the other shoe dropped. Their disability was denied. Of course it was, since there was no basis for the disability when you eliminated all the supporting paperwork. It’s not as if they offered the retirees an opportunity to provide supporting documentation from a different physician, or their surgical records from their double hip replacement, or their decade of physical therapy. Nope, two days later, before there was any chance of responding, it was a done deal. DENIED.

The wholesale absence of due process, but substantive and procedural, in this scheme to oust a generation from disability is overwhelming.  Had this been done to a cop, you can bet the union would have had a cadre of lawyers beating down the courthouse doors with an action for this baseless deprivation of due process. But these were LIRR retirees, and they were left to dangle in the wind, as nobody wanted to stand up for them after they were collectively tarred and feathered in the media. So they are left to deal with a bureaucracy determined to deny them benefits on their own.

And now they learn that they’ve been made the pawns in the government’s chess game with Ajemian over sentence.  They have the fear of a public outing by Newsday hanging over their heads, despite the fact that no one has ever parsed their individual circumstances to determine whether there is even the slightest taint of wrongdoing on their part.  But it’s far easier to just label the bunch “unindicted co-conspirators” than actually ascertain whether any one of the 830 engaged in fraud or are men and women who gave decades of their life to work on the railroad, and now live in pain from the disabilities of a hard life on the tracks. 

Who cares if we just pile on to their suffering? What comes after their benefits being baselessly and absurdly cut off and they wake up every morning in fear of the potential for a public smearing?  After all, everybody hates the LIRR, so let’s take it out on every disabled retiree regardless of how honest and injured they are.

Lois Lerner, following her planted question and “leaked” response about the IRS’s targeting conservative political groups for special love, was hauled before a congressional committee because the politicians couldn’t bear a front page story that didn’t include their names.

Lerner, along with her counsel,  appeared before the House Oversight and Government Reform Committee, under chairman Darrell Issa (R-CA) and gave an opening statement that included these words:

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.

Oh boy. And so the storm began, with Issa and Trey Gowdy (R-SC) calling foul.

Republicans protested. “She just waived her Fifth Amendment right to privilege. You don’t get to tell your side of the story and then not be subject to cross-examination. That’s not the way it works, ” said Rep. Trey Gowdy, R-S.C. “She ought to stand here and answer our questions.”

But Chairman Darrell Issa, R-Calif., dismissed Lerner, saying she could be recalled if committee lawyers determine that she waived her rights by delivering an opening statement. At the end of the hearing, Issa said he is “considering” recalling Lerner because “she made assertions, under oath, in the form of testimony” in her opening. He struck the gavel saying the hearing was in recess, not closed.

As Orin Kerr explains the general rule at Volokh Conspiracy:

The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999) :

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

Unfortunately, the language is loose and provides little guidance, either for this circumstance or Lerner’s words.  No doubt her lawyer gave extremely careful thought to the language offered in her opening statement, concluding with her invocation of her Fifth Amendment privilege, but that doesn’t mean she didn’t tread too close to the line.

An assertion of innocence is not, in itself, an assertion of fact, but a conclusory assertion. For Lerner to have said “I violated no law” would certainly not have constituted a waiver of privilege.  But that’s not what she said, as she went a bit farther, getting closer to the nitty gritty by speaking to IRS rules and regs, and false information. 

Initially, a very important aspect to the invocation of the Fifth needs to be made crystal clear. It is not tantamount to an admission of guilt. Not even close. It is the invocation of a right not to say anything that could be used to incriminate you in a criminal prosecution.  The use of otherwise truthful statements of fact to convict otherwise innocent people happens, and by no means does any reasonably intelligent person think that innocent people have nothing to hide and should therefore have no reason to assert their rights.

But the assertion of the privilege is generally not acceptable in blanket form, instead being limited to a specific query.  Ask a person 100 questions and they will answer maybe 70 (just an arbitrary number), while refusing the remainder. That’s because most questions don’t evoke a response that has a good faith potential to incriminate.

Many are just basic background questions used to form the foundation for what happened.  Just because questions are asked that relate in some way to a matter of concern doesn’t mean that answers can be avoided by invocation of the Fifth. There must be a specific good faith basis for the assertion.

While the storm swirls around the media and blawgosphere, the question remains whether Lerner’s opening statement, where she gets in the part she wants people to hear but refuses to subject herself to unpleasant questions, constitutes a waiver of her Fifth Amendment privilege. Like so many such issues, people tend to find it “simple” to answer based upon their politics or perspective.  Simple it ain’t.

Had she merely proclaimed innocence of wrongdoing, it would be fairly clear that her words did not constitute a waiver.  But she went well beyond a mere conclusory assertion of innocence, and touched upon the specifics of the matter.  IRS rules and regs? False statements? Those go deeper than “I didn’t do nothin’ to no one.”

Much as I am of the view that the sweep of the Fifth should be broad in order to fulfill its purpose, I am also of the view that once a witness offers denials to particulars, she opens herself to being questioned on what particulars she’s denying.  Which rules and regs is she referring to? What about this statement? What about that? Isn’t it true that you said….  Well, that’s how examination happens sometimes.

No doubt her lawyer, William Taylor III, thought long and hard about her opening statement, how far it should go, how far it can go, before Lerner took one step too far.  It’s not an easy decision, given that there is no clear line.  Some might have counseled Lois Lerner not to step anywhere near the line so that there would be no question of waiver.  Some might push the envelope, allowing her to toe the line as closely as he thought possible.  And when the second option is chosen, maybe a toe goes over the line.

I fear Lois Lerner put a toe on the line. I write this with a small sense of shame, knowing that Dersh and I are in relative agreement for the first time in decades, but even a blind squirrel finds the occasional nut.  And the occasional nut can be found on the floor of Congress, if not Sutton Place.

When my son was young, he was fascinated by cooking. Alton Brown was still doing his cooking show, and he adored the chemistry element of food, a scientific approach to cuisine. It didn’t hurt that he also had a peculiar palate for a kid, preferring the French preparation of snails and organ meets to hot dogs.

Whenever Dr. SJ cooked something interesting, which was fairly regularly, my son would be her sous chef, learning how to cook from someone who knew. It was a paradigm: someone with skill and knowledge would teach someone with passion and interest, but who had yet to become accomplished. 

What happened to this paradigm? 

At the Puddle, a few recent posts have struck me as scary. It’s unclear whether they would be better characterized as crazy or stupid, or maybe just a reflection of a shift where the basic paradigm was turned on its head, but it was plainly wrong.  In the most recent post, a new lawyer, Sybil Dunlop posts A New Lawyer’s Guide to Teaching a CLE.

I’m teaching a CLE with a colleague today, and I’m excited about both the topic and the presentation. Teaching a CLE, however, can be a lot of work. I have heard  more senior attorneys wonder if the non-billable work (creating the materials, the powerpoint, and the presentation) is worth it. Will the CLE help their reputation? Their business? I have no idea, but I can speak first hand to benefits new attorneys can reap when they jump into the CLE-teaching arena.

Are you working on an excessive force case? Now is the time to sign up to teach a qualified immunity CLE. This method has the advantage of honing your skills in a necessary area as well as motivating you to create the best possible CLE materials (they can double as case research).

When we first opened our firm, we got a thrill every time the phone rang. But now that we’ve built up our client base, the phone rings a lot. Of course it’s not just clients. It’s opposing counsel, officers, and so forth. But the phone rings constantly.

At Techdirt, Tim Cushing does an excellent job of parsing the FBI’s no-recording-of-interrogations policy.  Tim always does an excellent job at spreading the word from the legal end of the internet to the geek side of life.  But what gives rise to this post isn’t Tim’s post, but the comments thereto.

In the past, I’ve explained the  proper response to police interrogation.  I’ve repeated the explanation in subsequent posts. Other lawyers have written similar things, though perhaps the  nuance is lost in translation. And yet, the message not only isn’t getting through, but non-lawyers are “instructing” other non-lawyers how to deal with police interrogations in a way that will likely fail miserably.

Why? Why do you not pay attention? Why must you, clueless non-lawyer who reads crap in the interwebz of varying quality, inform others about how to deal with things when you have no idea what you’re talking about?  Why do you listen to the other idiot who has no clue what he’s talking about? Why?

What am I talking about? This comment and this one.  And then there are the plethora of “just shut up” comments. Actually, they really aren’t so terrible, and there are some very good comments in there, but I’m exaggerating the problem in order to justify my repeating the stuff I’ve written in the past for those who weren’t around then and keep offering advice that is, how do I say this kindly, is less than precise.

The problem is that silence (as in, just shut up), is not an invocation of either the right to remain silent or the right to counsel. Silence is an invitation for the police to persist in the interrogation until, maybe, the silence ends.  Unfortunately, most people can’t “just shut up.”  Even if they can, it’s only for a brief period, after which the words of police interrogators cajoling them to help themselves, just clear a few things up so you can go home, whatever point in the Reid Technique they’re at, overcomes the three word warning and out comes the confession.

It’s not that just shut up isn’t good advice, but that it’s inadequate and takes your eye off the ball.

At the time police take you into custody, you have at least two (there are more, but that’s for another day) constitutional rights at risk.  You have the right to remain silent under the 5th Amendment, and the right to counsel under the 6th Amendment. These are separate rights, even though they are put at risk at the same time.

In order to invoke your constitutional rights, you are required to do something: invoke your rights.  What does that mean? You must make a clear and unequivocal statement to the police that you are exercising your rights under the Constitution.

Note that silence is no longer an invocation of rights, following the Supreme Court’s decision in Berghuis v. Thompkins.  There are so many things silence could mean, aside from, well, silence, and so just shutting up isn’t good enough anymore.  Besides, as the Berghuis case (and about a million others) have shown, even a fellow inclined to just shut up may eventually crack under pressure and cease his just shutting up. It happens. A lot.

Now for another nuanced detail that seems to confuse so many people. The police do not have to read you Miranda rights for you to be lawfully arrested, but you already know that. What may not be as clear is that the police do not have to read you Miranda rights until you are subject to a custodial interrogation. In other words, it doesn’t kick in until you are in custody. 

What does that mean? Custody means that a reasonable person would understand that he is not free to leave. To the Supreme Court, a reasonable person is one who has no fear of saying to police officers, “Gentlemen, as much as I enjoy your company and pleasant conversation, I no longer feel like engaging with you, so I will now be on my way,” without concern that they will thereupon be beaten, tased, tackled, kicked in the head a few times until their orbital socket is fractured beyond repair, or shot. I have yet to meet this reasonable person.

Nonetheless, you have these rights even if the police have failed to tell you so, whether because they will claim you weren’t yet in custody or they simply don’t want to. By realizing this up front, you will be empowered to assert your rights regardless of whether the police give you Miranda warnings. They are yours to use or lose.

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words that leave your mouth, that you are invoking your rights.  This is how you do so:

I do not want to answer questions.

I want to speak with my lawyer.

Do I have to answer questions?

Do I need a lawyer?

I don’t think I should answer your questions.

I think I should speak with a lawyer first.

<crickets>

He lied. He made stuff up about Claude Suggs, that he was selling pot out of his home, in order to get a search warrant.  He was so careless, so cavalier about it, that he didn’t even give the minimum effort to make it look good, cutting and pasting from old warrants, leaving in the “cocaine” language even though this was for marijuana.  Baltimore Sgt. Dennis Workley was a liar.

“It was like a SWAT team. They had the big shield and guns,” Mary Johnson said. “They had weapons drawn to animals, people, babies.”

[Reporter Jayne] Miller reported there were irregularities in the affidavit Workley signed to get the warrant. In one section, he said marijuana was sold from the house, Miller reported. In another section, he said the house was used to traffic cocaine.

Miller said the discrepancy suggested that Workley cut and pasted text from another case.

And some judge signed it, discrepancies and all, a detail that appears to have faded in the mist from all subsequent accounts.  Workley wound up finding two $10 bags of pot, which did not make him happy, so they took a sledgehammer and destroyed the family’s Christmas presents.  That will teach them to not be not drug dealers. Two under for the baggies, both dismissed. Hardly worth dragging out the bazookas.

Without explanation as to how exactly the lies made it onto someone’s radar, Sgt. Workley’s perjury brought him prosecution for misconduct, and he was convicted.

And he was sentenced.

Workley apologized, saying in court he got lazy and cut corners in writing the warrant.

He faced 10 years in jail, but a judge determined he couldn’t think of a jail safe enough to house Workley so he will serve a suspended sentence and supervised probation.

Is there a “jail safe enough”?  Cops in prison face tough times, whether from the possibility of meeting face to face with somebody who didn’t care for the way they were treated when the officer was god, or just not happy with police in general.  There are a few people like that in “jail.” Prison too.

Or is it that jails just aren’t safe places for much of anybody, but when it comes to people who never wore a shield, the judge just couldn’t work up enough empathy to concern himself with the risks he imposed.  After all, do criminals deserve to be coddled in jails where their safety is assured?  Prison too.

Other prisoners aren’t always treated with kindness and gentility. Child molesters are universally despised in jail. Rapists aren’t well received in jails. Effeminate prisoners, those with slight builds, those who are less than capable of defending themselves, often find jails to be an unforgiving place. Prisons too.

The idea is that jail, not to mention prisons, aren’t supposed to be death sentences for anyone. Defendants are sentenced to a term of years, not to rapes, beatings and murder. Among the many duties the state has, keeping those in its care safe from harm is one. One that isn’t always done very well. Is that the judge’s point, that the jails of Maryland are incapable of providing safety to its inmates?  Prisons too?

The judge’s concern, while speculative, is understandable.  What it is not is acceptable. Among the primary legitimate purposes of incarceration, general deterrence is big. Huge.  And it’s especially huge for police, a group largely inclined to believe that no matter what they do, what laws they break, what people they harm, they will receive special treatment.

No matter how bad a cop may be, he will still get the special courtesy reserved for a cop. And only a cop.

The explanation often used by judges for sentencing a convict to a term of years in prison, usually a lengthy term that will leave infants fatherless for the duration of their formative years, families destitute, even employees without jobs when their employer goes down, is that they must send a message. They must. It is so critical that the message be sent that it justifies the suffering of innocents this time so that others are not harmed another time.

So too was a message sent by the judge, Baltimore City Circuit Court Judge John Howard, that Dennis Workley, former sergeant of the Baltimore police, leader of the SWAT Team that smashed Christmas presents with a sledgehammer, liar, cannot be sent to jail because his safety might be compromised.  Prison too.

The argument, likely made by Workley’s lawyer, is a sound one.  Workley would likely be at grave risk of harm if he was sentenced to jail. Prison too. While it would be a similarly sound argument for many other defendants, it’s highly unlikely it would meet the same reception. Child molesters simply do not get nearly as much understanding from judges as dirty cops.

So Workley doesn’t go to jail for his crimes. Not even prison.

Ah, the ego validation that blawgers so crave.  The email just arrived, informing me that SJ has been selected as one of the Top 30 Law Blogs of 2013! Woo hoo!!!  I want to thank the Academy…oh, wait.  It’s not from the Academy. Not the Pulitzers. Not even the ABA Journal.

It’s from Best Degree Programs dot org, that deeply meaningful website that sends out the weekly inane infographics because they love us blawgers so very much and want to help us. Just please, please, include the backlink.  But the infographic scam can only work so many times before the flawgers figure out that it’s really not a matter of deep appreciation, but just your basic backlink scam. 

And so, every once in a while, they put together a “Best of” list. It’s brilliant, as it plays on the foremost issue in the minds of so many in the blawgosphere: Do they love me? Plus, they give you a really cool badge.

Impressive, right? And you have to work really hard to eliminate the code that installs the backlink no matter how often you delete it, because there is nothing more important to being the best than good backlink code.

Then comes the real question, how many blawgers will bite on this scam and post their deep appreciation for the important recognition on their blawgs? Ego much? Validation? Patsy?

Besides  Lat at ATL (who fell for it once but was inexplicably left off the list this time) and lawprofs, who are honored by an award given by Busy Bee Nursery School, who will bite? I have some suspicions, and will check tomorrow to see which “winners” are humbled by the great honor.

But since making fun of such a transparent ego play isn’t enough to fill me up, it’s time for dessert.

While In San Francisco to speak at the monthly San Francisco LMA luncheon on Website trends (with Barbara Abulafia, Keker & Van Nest, Jeff Yerkey, Right Hat and Per Casey, Tenrec), my colleague Keith Wewe, another couple and I were hosted by  Elizabeth Lampert for dinner at Twenty-Five Lusk. 

[I have no clue who all these LMA attendee types are, but they must be impressive in the legal marketing world since the post’s writer, Deborah McMurray, felt them worthy of some butt-kissing mention.]

Twenty-Five Lusk features a dessert called “Textures and Chaos” that lists only four ingredients on the menu, but clearly had several more (as you can see by the photo below).  This photo can’t begin to communicate the plated disaster that was proudly delivered to our table. 

 
Perhaps, in a desire to elevate the participation among his team (and create a sense of inclusion), the chef tried crowd-sourcing to create this dessert – where each member of the kitchen staff added a favorite ingredient – and, voila! – Textures and Chaos was born.  The result was so poorly conceived and executed that I was inspired to write about it.  It’s not only seriously ugly, but the tastes were as cacophonous as 5 p.m. rush hour in New York.

Why do I ask you to endure this nonsense? Stay with me. There’s a payoff. I promise.

What can lawyers learn from this? 

Not to order dessert at Lusk?

Firm strategy should start back in the kitchen-equivalent (not at the dinner table) and be a thoughtful consideration of audiences, markets, geographic reach, competition, threats and opportunities that are just cresting over the horizon.  This positioning stake in the ground informs what practice and industry teams could do, and what individual lawyers on those teams can do.  When well-intentioned, but overly independent lawyers go off and create their own Internet presence with no regard for their law firm, they miss the most important advantage available to them – leveraging the investments (strategy, time, reputation and money) made by the mother ship.

When many lawyers in a firm do their own thing without regard for the firm and practice group strategies, the result won’t be far away from “Textures and Chaos.”

True ’nuff. So instead of a result like “Textures and Chaos,” you can shoot for the focused, cohesive if untasty result achieved by Best Degree Programs.



Bon appétit!