When Robb Fickman was the president of the Harris County Criminal Lawyers Association, he did something that mattered.  He put his ass on the line by  taking a position that angered people in power, challenging a sitting judge who acted like a tyrant.  By doing so, he courted retaliation. Robb didn’t care.

The judge he grieved, Joan Campbell, is retiring,  Chron reporter Brian Rogers writes a glowing homage to this fine jurist for the time she wasn’t cruel and arbitrary, but instead did the job for which she was paid.  What a wonderful judge.  How good of her to be thoughtful in sentencing one defendant. When someone retires, graciousness dictates that we only remember the good, as if the bad never happened.

But Fickman chooses not to be gracious, just as he wasn’t afraid of the potential retaliation against him.   Mark Bennett questions whether Fickman’s strength and boldness has given way to a different perspective.

I say, “the criminal-defense bar’s view,” but of course there is more than one view represented in Harris County’s criminal-defense bar. Some criminal-defense lawyers—at least one of whom aspires to be the next president-elect of the Harris County Criminal Lawyers Association—would vocally disagree with Fickman telling the truth about Campbell. These lawyers take the position that “we should avoid making enemies” is a good excuse for not doing the right thing. They would rather give judges (metaphorical?) handjobs or kolaches than file judicial-conduct complaints.

You can catch more flies with honey than vinegar.

Robb Fickman is made of sterner stuff than the H&K crowd. He belongs to the criminal-defense wing of the criminal-defense bar. If something needs saying, Fickman is not going to be deterred by the fact that saying it will make him enemies.

Fickman is a real criminal-defense lawyer, and that’s what real criminal-defense lawyers do. By definition, the job requires bucking the opinion of the majority. When we are doing the job, we say the things that nobody wants to admit are true; we point out that the emperor has no clothes; we save Frankenstein’s monster from the mob. So the mob doesn’t much care for us.

After the first 36 hours following Aaron Swartz’s suicide, the internet was awash in commentary. While well-intended, perhaps, it was awful.  Simplistic, ignorant memes, fueled by confirmation bias and the burning desire to identify an easily digestible enemy and punish her, prevailed. It helped no one to assert, and spread, and persist in spreading, facile arguments neatly tied up in a black bow.

A few brave souls challenged the prevailing anger of the internet, of the Hacktivists, of the geek community, who demanded a villain who committed a singular act worthy of the rage.  That came in the views of former criminal defense lawyer, former federal judge, now Harvard Lawprof Nancy Gertner, and Agitator turned HuffPo writer Radley Balko. In contrast to the childish nonsense of Millhiser’s 10 Worse Crimes piece, these reflected not only a return to sanity, but thoughtfulness based on reality.

In the interim, Massachusetts United States Attorney Carmen Ortiz  issued a statement defending her office’s actions in the case, Silicon Valley Congresswoman Zoe Lofgren introduced an amendment to the CFAA, naturally called “Aaron’s Law” as the rule that every death requires a new law remains in full force and effect. 

In a bow to gestalt, the Hacktivists were certain that the persecution of Swartz was a product of Ortiz’s personal political ambitions. Similarly, they saw the law as criminalizing what they did every day, and thus needed changing. While there were kernels of truth to all of these beliefs, as there almost always are, it diverted attention from core problems that Aaron Swartz, and indeed, all criminal defendants, faced.  As I urged in my earlier post, this wasn’t just about Aaron. He was just one warm body in a system that sucked the life out of many.  That his body went cold made his case stand out.

Orin Kerr at Volokh Conspiracy wrote an initial post on the case about the  efficacy of the charges against Swartz.  No reasonably knowledgeable lawyer doubted the feds could stick the charges. Certainly, Aaron Swartz’s lawyers didn’t laugh them off as meritless. But given the breath of attention the charges were given by non-lawyers and lawyers unfamiliar with criminal law, it was necessary to spell it out.

In a second post, Orin attempts to deal with the far harder questions surrounding the  propriety of the charges as a matter of prosecutorial discretion.  The post is long and addresses some very difficult questions, and I can’t remember Orin ever treading so gingerly over tough issues.

I suspect he recognizes the volatility of the case, and respects the intelligence and integrity of those who will not be inclined to agree with him.  In a post like this, it is essentially impossible to not to have others disagree with at least some portion of his analysis. That he took this risk is worthy of respect, even though there will be no shortage of disagreement on points large and small. 

A few core themes have developed across the articles and posts of those who aren’t blinded by tears or anger, and these are the things that will hopefully transcend the ignorance spread to rally the troops whose concerns are limited to the prosecution of one person, the suicide of one person, and the enemy of one person.  Aside from the harping on half-truths and utter nonsense, there is a groundswell of recognition that the extant prosecutorial posture across this nation has seized too much power and that the system is rife with abuse. 

Yes, Carmen Ortiz had the authority to reign in her zealous prosecutors, and her failure to do so falls squarely on her shoulders.  Whether this was for any personal benefit or not is irrelevant, as prosecutors everywhere do exactly as she did every day, most of whom have no higher ambitions. It’s just they way they roll, even though it never interested the people before who now use laser-focus to find answers that make sense to them.

No, Aaron Swartz never really faced 35 years in prison. The stacking of counts happens in every case, and every federal crime has a statutory maximum, but that isn’t the way we calculate exposure. Ortiz says her office was going to recommend a sentence of six months upon a plea. Does that change a lot of minds about the risk? It should.

A fellow who was acquitted the other day spent a year in jail awaiting trial.  Near as I can tell, I’m the only who gives a damn. Is his life not as worthy as Aaron Swartz’s?  It’s an unfair question, of course. It’s not that his life is less important, but that he’s unknown and friendless. Aaron Swartz was well know and loved within his community. It’s only natural that his friends and admirers take notice. But notice without context creates a false impression, and that gives rise to mistaken assumptions about what happened to Swartz.  Such mistaken assumptions do no one any good and make no one any more knowledgeable.

The most controversial aspects of Orin’s post address the political nature of the case and the punishment.  There are two primary aspects that compel debate, whether Aaron Swartz’s open choice to engage in civil disobedience to further his beliefs was an invitation for punishment, and if so, what punishment was appropriate.  On the first, Orin contrasts the value of democratically enacted laws with individual political views, a paradigm that some (myself included) question because of a certain lack of faith in the concept of democratically enacted laws. Any attempt at further discussion of this point would go on at great length, so it will have to wait for another day.

However, Orin contends that those who engage in civil disobedience do so with the intention of being punished, the punishment being the means by which they protest the status quo and bring their issue to the attention of others. While I agree that they intentionally risk punishment, I can’t adopt the view that they seek it. The purpose is well-served by letting others know that they’ve bested their adversaries and challenged the status quo.  Imprisonment isn’t necessary to accomplish their purpose.

As to what purpose is served by punishment, which is a necessary precursor to what punishment would fulfill that purpose, I have no answer worthy of your time to read. That the discussion has moved beyond the nonsense is what matters, and that people are thinking about real questions with real information in an intelligent way is what makes this discussion worthwhile.

Aaron Swartz’s death is a tragedy, but not the only tragedy.  Honor him by doing what he did in his life. Think hard. Stand for something.  Act upon it.

Note: While many readers aren’t particularly interested in the problems facing new lawyers, I am, as I believe their problems to be integral to problems facing the profession as a whole.  For those unaware, a great many law students and new lawyers read Paul Campos’  Inside the Law School Scam and Above the Law . They don’t read SJ, and many who do find it less than hospitable or sympathetic.

Much as I may be critical of those perceived to be the “enemies” of young lawyers, I’m similarly critical of the young lawyers as well. They can’t handle criticism, and have no use for introspection. Yet, they matter, and so I persist even though many of you ask me to stop writing about the profession and write only about the practice of criminal defense or the evils of its hated enemies. Tough nuggies. I write about what I want. Get over it.

Campos  posts a letter received by a new lawyer who, apparently, has decided that the best place to cut his teeth is criminal defense. What a shock. This should strike fear in the hearts of many here:

Your comment about the 25-year-old nervous defense lawyer really struck home for me.

I wanted to suggest that you write a post about the result of the flood of new lawyers, especially in urban areas like New York City, with huge debt and growing desperation. I will admit that eight months ago, when I showed up to my first court date with my first client, I almost crapped myself. No amount of Mock Trial, Moot Court, public speaking, or internship shadowing can prepare a new lawyer for showing up to a simple court date without knowing a damn thing about what to do. I read an entire practice guide, just to show up and turn in a basic omnibus motion. When the judge asked me questions, I just nodded my head.

The judge and prosecutor knew that I was green. They both had a similar expression on their face: something between annoyance and pity.

What unmet need was filled here?  Nowhere is it mentioned that this young lawyer stood beside a person who thought he had a lawyer defending him. Heh. Silly person.  To his credit, the writer at least recognized that he was clueless. To his discredit, he “just nodded [his] head.” One can only wonder what rights he waived.

In response to the post about Judge Kane’s fix, a commenter asked, and pursued with vigor, the only question that seems to matter to young lawyers: What can you do for me? The thrust was to find an “answer” to the problem of young lawyers who are nowhere near client-safe but need to do something with their diploma.  The problem is that there are two flaws in the question.

The first flaw is that there is “an answer.” There are a thousand answers, none of which will necessary work for any individual and none of which will work for all. The notion of an answer, whether magic bullet that will make all their nightmares disappear, or even a long-term, hard-fought solution that will guarantee the future they so desperately desire, is misguided.

Even when times weren’t nearly as tough as they are now, there was no answer. Every law school graduate made choices, found the path he or she thought was right, and gave it a go. Some succeeded. Some didn’t. The idea that there was a time when every law school graduate achieved comfort and respectability is nonsense. The dead bodies of unsuccessful and miserable law school graduates have always littered the road. There are just more of them today.

The second flaw is that there should be an “answer” that addresses the needs of young lawyers, disconnected from the rest of the legal profession. The legal profession does not exist to provide law school graduates with something to do during the dan and enough money to pay off their loans and get a happy hour beer. It exists to serve clients. No matter how desperate young lawyers may be about their circumstances, their plight always remains secondary to the needs of clients. 

A  comment to Campos’ article also strikes a curious note:

I do not understand the vitriolic response to a solo practice. People in this forum make it seem like being a solo is deplorable. I started a solo practice about a year and a half ago after I was sick and tired of doing document review. I went to a T-30 law school. My first year of practice was grueling and I made a lot of mistakes. Lucky I did not try any major felonies until I got a lot more experience. However, I learned.

Well, it’s not like he tried any major felonies until he had a clue, right? But in fairness, he offers this astute clarification:

Judges could tell I was brand new and helped me along. My first few clients understood I was new and they were taking a chance on me.

There is a place for clients to take risks with their lives by entrusting them to rookies, provided they understand the risks they are taking. Mind you, the kindness of judges isn’t exactly a substitute for the competency of counsel, and while clients may understand that a lawyer is new, they may not appreciate the implications of that fact.  After all, new lawyers pass the bar exam, and are thus declared competent by the state, right? Right?!?

But then, the commenter goes and blows it with this assertion:

Young Solos need the experience so they will get it at the expense of their client, but how is that any different from a first year associate getting their experience at the expense of a large corporate client’s war chess.

The inability to understand the distinction, that the experience of a young solo is nothing at all like the experience of a first year associate in a big firm, is disconcerting enough.  The assertion that a baby lawyer’s need for experience properly comes at the expense of a client, however, is the stuff of nightmares.

How to become client-safe is a damn good question, for which there is no simple answer.  I am a strong believer in mentoring, where young lawyers develop close relationships with more experienced lawyers to help guide and mold them so that they are not a walking, talking, head-nodding fiasco. But even that won’t work for everybody. There is no sure-fire answer.

But that never means that it’s acceptable that a young lawyer’s desire for experience comes at the expense of clients.  Nothing about what we do comes at the expense of clients, or there is no reason for lawyers to exist at all. Does that mean you waste your money on law school tuition? If you don’t care to be client-safe, then it does.

It wasn’t a big story, buried on page A25 of  Newsday’s dead tree version, but it still spoke volumes. Ann Givens writes:

A Nassau jury has acquitted a Lynbrook man on charges that he raped a woman during a home invasion and robbery last year, lawyers said.

Wiseallah Hightower-Castro, 25, of Starks Place, was acquitted of all the charges against him, including first-degree rape, committing a criminal sexual act, robbery, burglary, criminal use of a firearm, assault and criminal possession of a weapon, his lawyer and a spokesman for the Nassau district attorney said.

He has been in the Nassau County jail for a year.

Defense lawyer Joseph Hanshe, of Sayville, told jurors that police had falsified a written confession by his client. Hanshe also said that the victim in the case had failed to properly identify Hightower-Castro as the man who attacked her.

Aside from these four graphs, the rest of the story came almost straight from  the original story about the arrest of the defendant.  Even within the second paragraph, the recitation of each charge emits the same stink of accusation, tying Hightower-Castro to the rape, as if he was convicted.  Name + Charges = Taint

But the inherent bias is palpable when Givens later writes:

Hightower-Castro was arrested in January 2012 after police said he and two other men forced their way into a Grove Street home while a 22-year-old man was visiting his godmother there.

The other two men were never found.

No, no, no. The three men were never found, because the one man they did find was the wrong man.  He was acquitted, Ann. Acquitted. That means he was not the man, and hence there can be no “other two men,” but only all three men.

And why recount the police accusations or Hightower-Castro’s arrest?  Why recount the details of what the defendant was alleged to do in a story about his acquittal?  Instead of a story about a false confession and bad identification, this was a story repeating all the ugliness of the crime connected to the criminal who got away with it.

Granted, Wiseallah Hightower-Castro has a name that many of the readers of Newsday will find troubling, almost criminal in their prejudiced views toward anything relating to Allah.  Sure, he looks pretty darned criminal-like, being a young black man, more than sufficient for many readers of Newsday to convict on that basis alone.

Mind you, this happened in Nassau County, Long Island, not a place where acquittals come often or easy.  The fact that a jury acquitted someone alone is pretty big news. The fact that a jury acquitted on the basis of a false confession should be huge. That it was a false confession combined with a mistaken identification should be monumental. 

At the very least, Newsday should have run a quarter page photo of criminal defense lawyer Joseph Hanshe for his work on this case. He deserves no less.

But what I suspect happened is that Ann Givens was told to write up the story in ten minutes, with a line or two of information about the acquittal.  And so, she cribbed from the original story to fill the allotted space, and gave it no more thought than she would if she had to pick off the fast food dollar menu.  Maybe less.

So Wiseallah Hightower-Castro is no O.J.Simpson? That’s true. But he is a human being who was accused of a heinous crime and, after trial by jury, found not guilty.  He is a human being who spent a year in jail awaiting trial, after which he was found not guilty. He is a human being who was arrested, charged and held because of a false confession and a mistaken identification, and found not guilty.

That’s pretty big news. It’s big to the defendant. It’s big to all of us.  Even when the defendant isn’t a celebrity, or a well-known member of the community, or a politician, or white.

No one can give him back the year he lost in jail. No one can give him back a reputation untainted by allegations of rape and robbery.  But someone could have given him the dignity of a public acknowledgement that he endured the legal system and prevailed, with sufficient emphasis on how the defendant was the victim of a false confession and mistaken identification.  Ann Givens could have done that. But she didn’t. Not even close.

And no, it is not accurate that the other two men were not found, Ann. That’s the whole point of an acquittal. Sure, the crime and arrest are far more salacious than the acquittal, and pander to the passion and prejudices of Newsday readers. But the acquittal would have made a damn fine story too, if only anyone put in the time to make it so.

But then, take a look at Hightower-Castro’s mugshot. Who cares about this guy. After all, if they didn’t convict him this time, they’ll get him next time, right? Isn’t that the assumption about all young black men?

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.

The blawgosphere was agog with the news that Associate Justice Clarence Thomas spoke during oral argument in Boyer v. Louisiana.  The  Washington Post said so. So did the Los Angeles Times. It was a story in the  New Yorker and it provoked the most thought seen in years from Adam Liptak at the New York Times. I even got emails from non-lawyers about it. This was beyond huge, as it’s been seven years since Thomas uttered a word during argument.

But the importance was made clear by the Favorite Philosopher of 1 First Street, Tom Goldstein :

Wow, slow news day. On the Supreme Court front, the chatter has been over the sentence Justice Thomas interjected during today’s oral argument in Boyer v. Louisiana.  Some of the commentary has devolved into psychoanalysis of the Justice’s supposed hostility towards Yale Law School.  The real question to be asked is:  can you take a joke?

You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.

The Supremes decided.

Actually, they decided not to decide.  Which is, of course, a decision.

Which means it’s over.  The feds get Pleau.  To keep him.  To try to kill him.

You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day.

Still, the utterance set off a small quake among those who closely follow the Supreme Court. It quickly lit up Twitter, and parts of official Washington waited for a transcript of the proceedings or a scrubbing of the tape of oral arguments. It prompted the kind of intense analysis that usually accompanies one of the court’s important decisions.

TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.

And that’s what matters on a slow news day.

In the first part, District of Colorado Senior Judge John Kane  offered his assessment of the state of law schools, and thus new lawyers. Though one might think that young lawyers and law students would appreciate that an Article III judge cared enough about their plight to speak out, instead some castigated Judge Kane for not providing a quick and easy solution to their problems.

In the process, one commenter engaged in an attack that has become sadly and pathetically common among his peers, the attribution of baseless characteristics to diminish the worthiness of his enemy.  Not only is it a low-rent logical fallacy, but its pervasive use by baby lawyers suggests that they neither appreciate sound argument nor have the competence to respond with anything better than such puerile crap.

In anticipation of the reactions to Judge Kane’s fix, let’s dispel a few of the stupider retorts. He is hardly an effete Ivy League patrician, born with a silver spoon in his mouth.  John Kane had to work for a living, just like the rest of us.

I worked throughout law school tending bar in a blue collar neighborhood, didn’t get help from mommy and daddy and I practiced as a public defender and as a partner in a civil rights, criminal defense practice in the ‘hood with an African American (The only integrated firm in Colorado at that time.).

I think judges qua judges need to stay out of individual circumstances because litigation is pending and one can anticipate more to come.  

Essentially this is a matter for the organized bar — if it ever decides to stop acting as a marketing association figuring out more sophistries to avoid the discipline of not having conflicts of interest.  The ABA needs to grasp the nettle of law school profligacy and reject the apparent catechism that the mythical free market is the sole source of virtue and freedom.  

However formal or informal it might be, the law as a profession is a guild with an obligation to provide pupillage, apprenticeship and journeyman status to its members.  Thus, there is a reason for law schools and for bar examinations.  There is a dire need for better apprenticeship and by that I mean mentoring whether through employment or monitoring.  Law schools cannot be justified solely on the basis of providing a haven for a few scholars and spewing out graduates to support the enterprise.  Law firms cannot be justified solely on the basis of being profit centers or business enterprises.  I don’t wish to be misunderstood as asserting that making money, even lots of it, is a bad thing; I wish to be understood as insisting that such is not and cannot morally be the raison d’etre  of any profession.  If law is merely a business and not a means of providing valuable service and benefits to others and to society at large, it is deserving of all the contempt and scorn presently heaped on it and even more.

I have a modest suggestion that all law school alumni associations and all bar associations stop giving money to law schools and instead direct their largesse to assisting law graduates with student loan repayments and otherwise repair the damage being caused by the law school glut.  Modesty alone would suggest an end to having buildings and chairs named after the largest contributors.  

Asking law profs to resolve the law school problems of hyperenrollment and superfluous courses, of misleading statistics, etc., is quixotic at best.  The ABA and the ALSA could, however, insist that all law schools in order to maintain accreditation require all faculty and staff  to be admitted to practice in the jurisdiction in which the law school is located, be required to maintain active membership in state and local bar associations and be required to meet all continuing legal education requirements.  In sum, rather than fighting the law profs efforts to keep noncompliant lawyers’ noses out of their business, law profs should be required to participate fully in meeting the professional obligations implicit in the functioning and governance of the profession.

There are a few changes that are inevitable and the product of the inexorable forces of evolution:  The billable hour is on its way out, so is academic tenure.  One hopes that multiple choice, computer graded examinations for both entrance to law schools and the bar are ill-fated.  One also hopes that if a law degree is to be a doctorate, that a thesis or dissertation will be required.  As for pro bono work, such needs to be a matter of the heart and that, in sum, is what is lacking in the present lamentable circumstances.  Without the formation of character, the rest is futile.

Without the formation of character, the rest is futile.

In an op-ed in the New York Times, Sheila Weller writes of the loss of her cousin, Ellen Hover, in 1977.

ON a hot July day in 1977, one of New York’s ugliest summers, my 23-year-old cousin, Ellen Hover, left her Third Avenue apartment. She had an appointment with a young photographer who had asked to take pictures of her. His name, he’d told her, was John Berger.

She never returned. Posters of Ellen’s face went up all over Midtown Manhattan. Private detectives were hired. I was racked with guilt: because of a family argument, I hadn’t seen my cousin in years. Now I never would. Eleven months later, her bones were found on the grounds of the Rockefeller estate in Westchester County.

Certainly a horrible crime and a terrible loss. Eventually, the family came to learn that the man was named Rodney Alcala, who left a trail of death across the country, and was eventually captured and prosecuted in California.

It was not until July of 1979 that he was arrested in California on charges of murdering a 12-year-old girl named Robin Samsoe. He was tried, convicted, sentenced to death and remanded to death row in San Quentin State Prison in California the following year.

Over the years Rodney Alcala’s lawyers managed to twice overturn, on technicalities, his conviction for the murder of Robin Samsoe. He aggressively fought the use of DNA evidence against him, but ultimately lost. Finally, in February 2010, a jury re-re-convicted him of the murder of Robin Samsoe, along with the other four California women. He has not stopped fighting his execution sentence and suing the state for things like failing to provide him with a low-fat diet.

Assuming, for the sake of argument, that Alcala is precisely as evil as claimed, and unquestionably guilty of the death of Ellen Hover as well as Robin Samsoe, despite his lawyers using “technicalities” to compel his guilt being proven according to law, since it couldn’t be anyone else’s fault for causing “technical” flaws that exposed the conviction to being reversed twice, he’s been re-re-convicted and re-re-sentenced to death.

Not good enough, is Weller’s point. Her cousin’s murder remained a cold case, open and unresolved as far as New York was concerned, even though they were certain of her killer and he was facing execution.

For two years investigators worked to turn Ellen’s cold case warm. Despite the fact that her killer was already sentenced to death and would never be released, despite the time and the resources and the terrible memories involved, they didn’t give up. Eventually, their painstakingly obtained evidence built a timeline of Rodney Alcala’s whereabouts, his route before and after murdering Ellen. It seemed to me like a devotional act.

A devotional act is an apt description, as it bore far more similarity to religion than law. The case was ancient, such that witnesses were long dead and evidence was gone or decayed.  The resources needed to warm this case would come at the expense of current unsolved crimes, and there remained no way to execute the murderer twice, if not more. But that didn’t matter.

Every victim deserves her own day in court, no matter what else the culprit has been arrested for, no matter how long ago the crime: this is the pure integrity of opening a cold case.

When the claim is framed in terms of what a victim “deserves,” it’s a blatant appeal to emotion. Most people find this compelling, despite its being irrelevant to the existence of a criminal justice system. This isn’t to be unsympathetic to the loss of a human life, or the pain suffered by the survivors of tragedy, but that it deflects from the purpose of the system: to prevent people from engaging in conduct civilized society deems unacceptable and punish those who do. In the case of capital murder (which exists in California though not in New York), there is no rehabilitative purpose, and so it need not be considered.

It’s not about what victims deserve.  It’s not even about what the survivors of victims feel they deserve, which masks their own desire for closure and retribution. Such emotional-laden assertions lead us away from a system that serves society, one that is concerned with making certain that the person convicted was the person who committed the crime. 

When all of our angst and anger is focused on making certain that someone pays for the tragedy, concern for the reliability of evidence, the adherence to constitutional rights are cast as “technicalities.” Who cares about the rights of the murderer when we focus on what the victim deserves?

It’s disturbing to argue against the tide of emotion flowing from the survivor of a terrible tragedy. It feels wrong to be unsympathetic to such pain.  But the system isn’t about personal vindication of whatever emotional needs remain unsatisfied in the aftermath of a crime.  As terrible as that might sound, particularly since it often brings such accurate reactions like “you wouldn’t feel that way if it was your child who was murdered,” and this is true for most of us, it’s not the point.

The victim does not deserve anything of the criminal justice system. Society has gotten its pound of flesh from this convicted murderer, and it will exact its revenge with his execution. That is all the system is meant to do, and perhaps more so.  The survivors of the victim do not get to spit on the dead body of the killer, kick it, throw garbage into his grave, even if that would make them feel better.

In a Manhattan courtroom last month, Rodney Alcala, now 69, pleaded guilty to Ellen’s and Cornelia Crilley’s murders. After 35 and 41 years — much longer than the young women lived — he pleaded out, just like that. It was the first time in his long criminal history that he had ever confessed to a killing. The collapse of his resistance seemed taunting to all of us: Sure I killed them. What took you guys so long?

And yet it failed to satisfy the need within Weller for, what? Justice?  Weller concludes by again asserting that every victim deserves “singular justice, as late as it may be in coming, as much a formality as may be the punishment.”  But it will be as unfulfilling as Alcala’s plea, because the system doesn’t exist to fill the emotional void that crime leaves behind, and can never be driven by the claim of what a victim deserves. It serves no one.

Edit: Jeff Gamso offers his thoughts on Weller’s op-ed.

It would be outrageously presumptuous for me to suggest anything about why Hacktivist Aaron Swartz too his life, but  others who knew him, including his family, have  offered insight, and it would be wrong to ignore it. 

His  family explains the pressures that drove him to this final act:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

By no stretch of the imagination do I believe that Swartz’s attempt to download the JSTOR content was acceptable or lawful.  He’s no Robin Hood, and the ideologue’s belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR’s agnostic, at worst, stance toward Swartz.  They worked it out and the story should have been over.  It’s just that the government can’t let it go, given that they finally have a case against a targeted individual.  Vindictive prosecution, no matter what the underlying wrong, is a due process violation.

In the spirit of the MIT ethos, the Institute runs this open, unmonitored and unrestricted network on purpose. Their head of network security admitted as much in an interview Aaron’s attorneys and I conducted in December. MIT is aware of the controls they could put in place to prevent what they consider abuse, such as downloading too many PDFs from one website or utilizing too much bandwidth, but they choose not to.

I asked the lawyers “Suppose that the government’s case is completely frivolous and Swartz is guaranteed to be acquitted. What would he expect to spend in legal fees to defend the case?” They didn’t want to reveal anything particular to Aaron’s case but said “Generally the minimum cost to defend a federal criminal lawsuit is $1.5 million.”

A daunting prospect for anyone. Apparently too daunting for a 26-year-old.

Bad cases make bad law, and it seems that any case involving  Crystal Cox is, almost by definition, bad.  Bad, bad, bad.  Which is why it’s painful to see the newest issue raised in one of the most bizarre cases around, Obsidian Finance Group, LLC v. Cox . 

Having obtained a judgment against Cox, and Cox having slightly less blood than a rock with which to satisfy the judgment or post a bond to stay execution pending appeal, the plaintiffs have moved forward to execution while Cox pursues, though her pro bono counsel, Eugene Volokh, an appeal. 

It’s worth noting that Eugene’s involvement reflects a true dedication to the underlying First Amendment cause, rather than any particular love of the individual.  That said, I can’t help but wonder whether there are any regrets, given that his client is the one no experienced lawyer would allow near his office, and the significance of the free speech issues at stake are not, upon reflection, nearly as important as they first appeared. Indeed, the issues are fact-bound, and the facts are awfully ugly.

Yet, this bad case begets another bad issue, as Eugene explains :

1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.


2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.


3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.

Yet if plaintiffs’ end run around the Rules were accepted, then poor defendants in civil cases would routinely lose their rights to appeal. Defendants would not be able to afford to get a bond for the amount of the judgment. Plaintiffs would then be able to get sheriffs to levy on the defendants’ right to pursue the appeal. Plaintiffs would buy the right cheaply at the sheriff’s sale, since nobody would be competing with them at the auction. And they would then use the newly acquired right to drop the appeal against them.

The appeal bond requirement that the Federal Rules rejected would thus come in through the back door. Poor defendants would be unable to effectively challenge the judgments against them. And the development of the law would be distorted because appellate courts would be unable to hear the defendants’ appeals. This is not consistent with the system that the Rules strive to create.