The latest gimmick to make law school relevant is to recreate the third year curriculum so that students graduate with some basic skills in the practice of law.  While prawfs and deans swirl adjectives around their innovations, Eric Mayer at  Unwashed Advocate provides some hard core practical advice in Client Intake 101.

Here is the syllabus for the first four classes:

1. Introduction. Title: “No Kids, We Don’t Make This Shit Up”

2. What the hell is a “consultation?” How your definition is not the same as that of the potential client.

3. Practical Exercise: Controlling the initial consultation. Theme: It’s not for them; it’s for you.

4. Getting to the Bottom Line 1. Theme: Your mortgage cannot be paid in thank-you-so-much-for-your-time and you-gave-me-a-lot-to-think-about currency.

Read the rest, as it’s not only hysterically funny, but spot on accurate.  Coincidentally, Mark Bennett (who is a  guest-lecturer in Eric’s course based upon his expertise in dealing with nutjobs) posts about why some potential clients have extreme difficulty finding their perfect lawyer.

Finding a second lawyer to replace the first lawyer on a case is difficult and expensive—the second lawyer, if she is at all competent, is going to look closely both at what the first lawyer did (to determine what was screwed up, and whether it can be fixed) and why the client and the first lawyer parted ways (to determine if there is something wrong with the case or with the client).

Finding a lawyer to replace a pro se party on a case is even more difficult and expensive—the pro se has, almost by definition, screwed up the case; and there is likely something wrong with both case and client that no lawyer took it the case in the first place. While not every pro se lawsuit is filed by a madman, enough of them are that pro se filing might raise a reasonable presumption of madness. “Mad” doesn’t mean “wrong,” but lawyers often will decline to invite more madness into their lives, even for a case that is a potential winner.

In the case at hand, Bennett notes that the pro se complaint (primarily against the TSA) not only covers the party who perpetrated the alleged wrong, but

Defendant Mary Frances Prevost (hereinafter “PREVOST”) was Plaintiff’s second criminal attorney. Plaintiff appreciates the fact that the criminal charges were finally dismissed and gives credit to PREVOST for helping to see that accomplished. Plaintiff is suing PREVOST at this time, however, for her unethical practices and for her failure to comply with Court orders. Plaintiff is willing to remove PREVOST as a defendant if she will apologize for her wrongs and simply speak honestly with Plaintiff so Plaintiff can properly prepare for her Federal lawsuit trial.

Mary Frances Prevost, by the way, was the lawyer who won the criminal case. Apparently, a simple thank you wasn’t enough.  So who wants to hop on this case?

What are the chances that the lessons Eric and Mark offer will find their way into some law school’s third-year curriculum?  By show of hands, how many lawprofs and deans are suitably versed in solo or small firm practice?  How many read either of these posts so they would have a clue? Never mind. We know the answer.

But wait, you say.  There are always adjuncts, real lawyers offering real world experience in the practice of law, to mold these minds of blob into practicing lawyers.  Well, that’s true. But based upon my highly scientific empirical analysis of law students, there is a problem.

By my estimates, about 60% of the students will be capable of accepting that real life isn’t unicorns and rainbows. They will understand that the law deals with real people, from the wonderful to the venal, the thoughtful to the batty.  That leaves 40% who will prove themselves not merely incapable of embracing life as it exists in the trenches, but offended by it.  How dare these nasty trench lawyers say mean things about clients, judges, Avvo, technology and each other.  They are passionate.  They are certain. They are a danger to themselves and others.  And they can’t bear to hear it.



Forty percent of law students being taught the practice of law are now crying, preparing their list of things that offend their sensibilities and running to the administration to demand that their world be cleansed of the nastiness of reality so they can graduate without ever hearing words that make their delicate ears hurt.

And they won’t like this post much either.

At Above The Law, fellow curmudgeon turned Anglophile, Mark Herrmann, raises the inside baseball problem of who feeds appellate judges the bench memos upon which they rely in familiarizing themselves with a case before them.

Back when God was young, I clerked for a federal appellate judge. I saw how things operated in my circuit, and my friends clerking elsewhere told me how things worked in other circuits. One operating procedure differed between circuits; the procedure affected litigants (without their knowledge), and one system was plainly better than the other.

Back in 1983, at least, some circuits asked clerks to prepare only a single bench memo for the entire three-judge appellate panel. That is: A three-judge appellate panel learned that it would be hearing, say, 21 cases on the May docket. The clerks in the three chambers then negotiated among themselves to decide which chambers would take the lead preparing the bench memo for each case.

Before argument, the chambers would swap bench memos. In a circuit that worked this way, we would ship my bench memos about the Juliet and Romeo cases off to the other chambers, and we would receive in return their bench memos about the Ariel and Caliban cases they’d been assigned. All of the judges read only my bench memo about my cases, and all of the judges read only the other guy’s bench memo about his cases: One bench memo for the entire appellate panel.

The alternative procedure was that each judge would have his clerks prepare bench memos for each case, so that each of the three judges on a panel would have three different bench memos as prepped by their own clerks. The practice of one bench memo per case persists in some circuits today.

Mark is certainly correct in his complaint, that feeding all judges on a panel one memo, so that there is no diversity of views and the judge is left with the quality of comprehension of a clerk selected by someone else, is the least beneficial practice.  And thus, three judges with three bench memos prepared by their own chambers is better than one.

But that’s not likely much comfort to most of us.

When preparing an appellate brief, an enormous amount of thought and effort goes into every aspect of the argument.  It may be highly nuanced, requiring both a deep understanding of law and practice, as well as an appreciation of humanity and the ugly reality in which it exists.  Every word is parsed for precision. Every sentence vetted for tone. Every aspect of the brief undergoes scrutiny over and over, to be sure that it expresses the argument as clearly and persuasively as possible. 

And then, it’s butchered in the hands of some snot-nosed kid whose greatest achievement was being a law review editor, who has never experienced life and who is far more concerned about bluebook citations than how much a child will suffer for adherence to a beloved rubric. 

The underlying chambers explanation is that appellate judges are too busy to do their own work, such as reading briefs. After all, they have articles to write, speeches to practice and the occasional snarky retorts to Supreme Court judges who don’t care for their book reviews.  Then there’s time needed for looking at pictures on the computer. Who could possibly fit brief-reading into this busy schedule?

Plus, they get a gaggle of baby lawyers, fresh-faced and desperate to let their important opinions be known, who can brief cases like no get-out, explaining their law school GPA and authority to pass judgment on lawprof articles.  These are smart people, even if only book smart.  Certainly they can reduce a 50 page appellate brief into a few salient sentences, and it would be shame to waste them.

Of course it’s better to have a panel with bench memos reflecting three takes rather than one.  When the judges are working off one kid’s rewrite, his bias and naivete infects the panel.  Bear in mind these are appellate judges, who are unlikely to have any personal experience at the far counsel table and may have never tried a case, either as advocate or jurist, in their lives. Chances are even better that they never held the hand of a sobbing mother or child; you don’t get many of them when representing Fortune 100 companies.  And so, the significance of the bench memo is magnified. Greatly magnified.

In those circuits where the judges feel so horribly overburdened by their workload that they not only can’t take a few minutes to read the pages that took a lawyer a hundred hours to prepare, the least they can do is consider more than one wholly inexperienced view of the case.  The very least, as this falls far short of anything remotely resembling a fair hearing and understanding of the case.  To be so incomprehensibly lazy as to rely on one kid’s work reflects utter disrespect for the lawyers and the lives of the people who mistakenly believe that meaningful review exists.

Granted, the use of clerks to prepare bench memos is a time-honored tradition, and the clerks who do so believe their work is excellent and fair.  And perhaps it is, at times. But the depth of understanding and experience they lack prevents them from appreciating where they fall short, miss ideas, mischaracterize points and fail to appreciate what is obvious to any experienced lawyer.

And given how much stock we all put into appellate decisions, their precedential value and the affect they can have on so many lives, it’s just not good enough to leave it in the hands of children,  Certainly not one.  Not even three.  And if judges are too busy to do their core job, then they shouldn’t wear robes.  And now you know the dirty, little circuit secret.

While his op-ed in the New York Times didn’t go very well, Case Western Reserve Law School Dean Lawrence Mitchell wasn’t to be denied.  Maybe a bit of live explanation would help?  So Bloomberg Law’s Lee Pacchia interviewed the good dean.



While there is so much worthy of discussion packed into those incredibly monotonous 15 minutes of your life lost, the foremost takeaway is the good dean’s assertion that one of the core problems perceived by lesser minds may not, in fact, be real.

Paul Carron at  TaxProf noted:

The U.S. Bureau of Labor Statistics projects there will be 74,000 new lawyer jobs this decade, while American law schools will produce more than 400,000 graduates.

With so many legal needs of the poor going unmet, “finding different paths for people who truly want to be lawyers opens up all sorts of possibilities” for law graduates to find jobs, he maintains.

I really don’t even know where to start. I fall on the optimistic end of the spectrum when looking at the law school disaster and I can’t even begin to understand or justify Dean Mitchell’s statement. Flat out, full stop, there is an oversupply of lawyers. To even begin to claim otherwise, especially when you’re a law school dean with intimate knowledge of the industry, is lying.

Not being disingenuous, or mistaken, or having a difference of opinion. L-Y-I-N-G.

There was no reason lawyers couldn’t issue press releases before the internet. The problem then was that no one cared, and so their press releases never saw the light of day. Let’s face it, there wasn’t much a lawyer had to say that was worthy of print space.

But now that the internet has provided infinite room, lawyers can use the marketing tool with abandon and hope that someone notices. Fort Lauderdale criminal defense lawyer Gary Ostrow did, and abandoned any hope of coming out of it unscathed.

SOURCE: Gary Ostrow Criminal Defense Attorney

Gary Ostrow Lawyer Announces He Is Taking on All Celebrity Criminal Cases in Florida

FORT LAUDERDALE, FL–(Marketwire – Dec 21, 2012) – Criminal Defense Attorney Gary Ostrow has recently announced his intention to take on all celebrity criminal cases in the state of Florida, effective immediately. Recognizing that star-studded actors and athletes often face an unfair bias in the courtroom, Ostrow a Fort Lauderdale, Florida lawyer seeks to acquit any and all celebrities wrongfully charged of serious crimes.

He wanted to be noticed, and it worked. South Florida Lawyers noticed.  Mark Bennett noticed. Some of his local brethren noticed. I did too. What was noticed was that Gary Ostrow marked himself as a social media goofball. While the question of who came up with this idiotic idea, and who actually executed it, remains unanswered, there is no question about who will pay for it: Gary Ostrow.

And as long as Ostrow decided to scream “look at me” at the top of his lungs, people are reminiscing about Ostrow’s other, older, faux pas, like his aborted run as a Republican for Broward County Public Defender, cut short after his  arrest for cocaine possession as he tried to enter an airport. That he had a drug problem isn’t the sort of thing that most of us would raise against a fellow, but when you put out a press release like this, everything becomes fair game.

Bennett has already deciphered the secret hidden message of this marketing bonanza:

Celebrities generally choose the lawyers their agents or managers recommend, and agents and managers, while they often choose unwisely, aren’t likely to choose a lawyer based on a self-serving press release.

Ostrow knows, though, that there is a special class of potential clients who want to believe their cases are high-profile, because they want them to be high-profile. These potential clients want to be celebrities, because they believe that celebrities get the best of everything.
We call these potential clients “narcissists.”

And if these narcissists have the money to pay for representation, then they get it just like celebrities. It’s been my experience, however, based on the thousands of telephone calls I’ve received via Avvo, that there is a huge number of shoplifters, genital exposers, public pee-ers and drunk drivers who fancy themselves celebrities but lack the wherewithal to pay for a lawyer. They are likely able to pay, but don’t feel any particular inclination to do so. Their gift is to allow a lawyer to bask in their reflected, if somewhat dim, celebrity.

Unlike phony claims of greatness, such as  America’s Leading Trial Lawyer and Ranked #1 of 94,377 Law Firms in New York, Ostrow’s cry for attention isn’t exactly false. No doubt he would be quite happy to take on “all celebrity criminal cases in the state of Florida, effective immediately.” He probably would have been happy to do so even before the press release, despite the “effective immediately” language. But ridiculous puffery isn’t the only way a lawyer can bring ridicule upon himself.  Indeed, there is probably no limit to the ways to make oneself a joke on the internet.

Ironically, Gary Ostrow promoted his “notoriety” (his word) in his press release, and notoriety is what he got. Perhaps he bought into the  marketeer’s mantra, “you are what Google says you are,” and sought to manufacture an online persona as the defense lawyer to the stars. Perhaps he just wanted to snag a few nobodies who suffered from narcissistic delusions. Perhaps his practice is dying and, in a moment of desperation, handed over his reputation and ethics to a “social media professional” who came up with the brain storm of issuing this press release.

It’s not going to work. Indeed, it’s already backfired, as Ostrow’s foray into celebrity representation availability has brought some attention to him that will not only make people think he’s not really a celebrity lawyer, but a total buffoon. And the attention is likely to show up higher in a Google search of his name than his press release. I suspect this wasn’t what he was aiming for when he closed his eyes and pulled the trigger.

The message here isn’t that Gary Ostrow is a sucky criminal defense lawyer. Whether or not that’s so is beyond my pay grade, and I leave it to others with actual knowledge of his skills to make that assessment. The message is that the internet offers infinite opportunity to make desperate lawyers into total asses, and provide other lawyers with the means to call them out on it.

Gary Ostrow isn’t the first lawyer to pretend to be something he’s not on the internet, and isn’t the first lawyer to have his cover blown. It’s not that the internet doesn’t provide ample opportunity to screw up. It most assuredly does. It’s that most lawyers aren’t so fundamentally narcissistic and, well, stupid, as to walk down the boulevard in hotpants screaming look at me, look at me, and think nobody will say anything.

There are a few of us who will say something, and it won’t be flattering. Don’t sell your dignity and integrity so cheaply. Chances are far greater that it will backfire than make you something you’re not. If you’ve got an important announcement to make, there is an internet on which to do it. Don’t be surprised, however, if it doesn’t go exactly as planned.

Among the many and varied excuses that usually defy response, “I forgot” is usually the best.  After all, it’s an admission of wrongdoing without any moral culpability. People forget things. It happens. It’s the nature of the beast, right?

Except when what was forgotten was five teenagers left locked in a police van for 15 hours in the freezing cold.  Via NorthJersey.com :

One of the five teenagers locked inside a police van for about 15 hours without food or water in March 2011 is suing the borough, the Police Department and more than a dozen officers.

According to the complaint, [Adam] Kim, then 17, was one of about a dozen minors transported to police headquarters after officers broke up a loud house party on Arcadian Way in March 2011. The minors were not advised of their Miranda rights or told why they were being arrested, the complaint stated.

The plaintiff alleges that the officers “displayed a pattern of racial bias and/or indifference” by using a racial slur to reference Asian-Americans.

The cops claim that there was no racial animus.  They just forgot that they had put the five teens in the van. Oops.  And Internal Affairs agreed.

But the internal-affairs investigation found no evidence of “malicious or discriminatory intent” by the officers, the head of the department’s internal-affairs unit wrote in his findings.

Somehow, it must have slipped through the crack investigator’s fingers that not only were the teens left in the van in the first place, but remained there, without food, water or toilet facilities, and after having their cellphones seized, while cops returned to the van and went for a ride.

Upon arriving at police headquarters, some of the teens were led inside the building. The remaining handful — mostly of Asian descent, and all of whom had their cellphones confiscated — were kept locked in the van and weren’t acknowledged when two officers returned to the vehicle later to respond to a couple of calls before they took the van back to police headquarters, the suit said.

Not until 3 p.m.. the next day, when some passers-by noticed the teens in the van and called the police, were they let out of the van.

Not to attribute excessive insight or attentiveness to the Ft. Lee police, but the idea that they simply forgot about the five teens held inside the van is utter nonsense. They were teaching these kids a lesson, cop-style, and there is no way they forgot about them.  None.

Whether this reflects racial bias against Asians, or perhaps something about rowdy boys, isn’t clear.  That cops used a racial slur doesn’t necessarily prove the point, as most hate all citizens and merely slip unconsciously into the use of slurs without putting enough thought into it to make it count.  That’s not a good thing, by the way, and reflects the hostility toward all citizens that cops seem to show when serving and protecting.

But regardless of their motivations, this is something that police can neither do, nor excuse.  These were teenagers.  So they were too loud at a house party?  Read them the riot act and remind them that their conduct impacts others.  Not tough enough?  Then arrest them lawfully for disturbing whoever. But under no circumstances do you execute sentence by leaving them locked in a van. 

And claiming that they were merely forgotten is utter baloney. compounding the wrong of doing so with the wrong of lying about it.  This time, “I forgot” won’t work, and the fact that the Ft. Lee Internal Affairs put its seal of approval on this obvious lie adds to the disgrace.

H/T FitzMuffKnuckle

Note: What follows is not a suggestion that you go out today and provoke a cop by doing what John Swartz did to Richard Insogna, a St. Johnsville, New York, police officer. But you have the right to do so.

The Second Circuit, in an opinion by Judge Jon Newman in Swartz v. Insogna, includes a history lesson in footnote 1 to its first sentence:

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,¹ to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.

¹ See Bad Frog Brewery, Inc. v. New York State Liquor Authority,134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).

In contrast to the perspective of an ordinary police officer, who conflates respect for the law with respect for him personally, the time honored insult of “giving the finger” is a right.  We have the right to express the view that we do not care for a cop, or what a cop does, and if we do so by use of Digitus Impudicus, that does not give rise to a justification for seizure or arrest.

John Swartz say P.O. Insogna working a radar trap and, for whatever reason, thought it worth his while to express his disdain for Insogna’s assignment.  This ultimately resulted in his arrest and prosecution, though the case was dismissed after three appeances and a year delay on speedy trial grounds.  Insogna’s attempt to justify the arrest is an excellent example of how, with a bit of twisty testimony, a cop can try to turn a right into a wrong.

In his deposition, Insogna said that after he saw John give him the finger, he decided to follow the car “to initiate a stop on it.” As reasons he stated: (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and (3) “I was concerned for the female driver, if there was a domestic dispute.”

You’ve got to give Insogna credit for a vivid imagination, as he dreamed up not just one, but three, utterly nonsensical excuses for his conduct, all benign if not benevolent.  After all, who could fault the officer for his deep, abiding concern for the welfare of the female driver, “if there was a domestic dispute”?

Lest one laugh off the cop’s claims to swiftly, note that this decision comes from the Circuit, which means that things didn’t go well at the district court.

The District Court, accepting Insogna’s third reason for the automobile stop, ruled that the stop was legal because Swartz’s “odd and aggressive behavior directed at a police officer created a reasonable suspicion that Swartz was either engaged in or about to be engaged in criminal activity, such as violence against the driver of the vehicle.”

It wasn’t the finger, per se, but what the finger represented, “odd and aggressive behavior,” that gave rise to reasonable suspicion.  After all, giving the finger is a gateway to crime.  Or not.  When it comes to giving the finger, the Second Circuit knows what’s up:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.

This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Before you get any ideas, bear in mind that Swartz may have beat the rap, but hardly beat the ride. And though he’s now overcome the defense motion to dismiss, it was on appeal.  He’s still got a long way to go before resolution, and whether the resolution will eventually satisfy the cost and burden has yet to be seen.

Those concerned with the right of free expession, even if it manifests itself in vulgar gestures, should also bear in mind that domestic abuse advocates might consider giving Officer Insogna a medal, embracing his excuse in the belief that violating free speech is perfectly acceptable “if it save just one woman from domestic abuse.”  For some, there is no right sufficient to overcome even the slightest hint of harm, no matter how unreasonable.

Yet, the Circuit’s recognition that giving a cop the finger is a time-honored insult, a right retained by the people, is worthy of our admiration.  And so, I offer this video as an homage to Judge Newman, who has clearly heard that the bird is the word:

Kevin O’Keefe was  kind enough to post about “early blogger” Dave Winer’s Blogger of the Year — 2012.  No, it wasn’t a lawyer. Not even a political pundit, regardless of flavor.  Instead, Winer chose Philip Greenspun.  Kevin offered this explanation:

He was a blogger before there were blogs, writing his own web CMS so he could tell the stories of his photography, flying, his beautiful dog, teaching at MIT, and his startup. It was when he wrote about the startup that he caught my attention. I remember reading the story of the people, his mistakes with investors, what he learned. Oh man, this guy is a blogger, for sure!

This is what I meant by the unedited voice of a person. That’s what a blog is. That’s all you have to do to be a blogger. But to be a great blogger, you must have something to say. That’s Greenspun, for sure.

I’m not sure how much time these three guys had ever spent with engineers. Chuck Vest, the president of MIT, in a private communication to some faculty, once described MIT as “a no-praise zone”. My first week as an electrical engineering and computer science graduate student I asked a professor for help with a problem. He talked to me for a bit and then said “You’re having trouble with this problem because you don’t know anything and you’re not working very hard.”

My friend, the late John Barry, lived well off the royalties of the James Bond theme, as well as the many other brilliant scores he wrote. They were an integral part of a fantasy loved by Americans about a British spy who bore the code numbers 007. The numbers meant he had a license to kill, yet no one refused to watch the movies or protested Cubby Broccoli’s productions or picketed Ian Fleming’s home.

In real life, the concept was so easily embraced. When it was learned that the government used drones to kill people suspected of terrorist ties, including American citizens, away from any battlefield, there was a demand to know what basis the government claimed to take such action.  How could our government justify killing people this way?

The New York Times and the ACLU sought answers via the Freedom of Information Act.  The government refused to provide them, and a suit followed.  The consolidated actions ended up in the hands of Southern District of New York Judge Colleen McMahon, who issued a remarkable decision. 

Plaintiffs in these consolidated actions have filed Freedom of Information Act (“FOIA”) requests with the federal Government in order to obtain disclosure of information relating to a particular tactic that is admittedly being employed in the so-called “War on Terror” – the targeted killing of persons deemed to have ties to terrorism, some of whom may be American citizens.

Broadly speaking, they seek disclosure of the precise legal justification for the Administration’s conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorist groups.

It wasn’t long ago when the American public learned how the government rationalized the torture of human beings, based upon the DOJ’s  John Yoo memo to then Attorney General Alberto Gonzalez advising that the use of torture by the CIA was perfectly lawful under an expansive view of presidential authority.  Few outside of government shared this expansive view or found Yoo’s explanation availing. But it served its purpose, despite its inability to withstand scrutiny.

Once the memo became public, however, nearly universal condemnation followed. Once burned, the government wasn’t about to let that happen again.

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.

Clearly, Judge McMahon appreciated the magnitude of the issue before her, the legality of the America government targeting and killing people, citizens included, because it decided to do so. Clearly, she appreciated that “intelligent discussion and assessment of a tactic” such as this demanded public understanding of the government’s claim of authority. Clearly, this conduct came at “great cost.”  Judge McMahon got it.

And yet, she held there was nothing she could do.

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. But under the law as I understand it to have developed, the Government’s motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied…

The opinion sends two messages, maybe more.  The first is that the government has chosen to conceal from the American people its rationale for this monumental grab of power to kill at will.  Project all you want. Complain all you want. Argue the legitimacy of a government of laws, not men. The invocation of executive privilege ends the discussion. The government of the United States of America has told it citizens that they cannot be trusted with the knowledge, and so it shall remain a secret.  It’s enough that the government says it’s “perfectly lawful.” Now get back to work and mind your own business.

The second message is that to the extent the government revealed information to a United States District Court Judge, who may or may not be sufficiently patriotic to be trusted with government confidences, Judge McMahon was not overwhelmed by the merit of the government’s justification.  The language she used to express the paradoxical situation in which she found herself, coupled with the clarity of her view of the importance of this issue, leaves little doubt that she was unimpressed.

Judge McMahon could have issued an opinion that, without spilling any beans, left us with the clear impression that firm grounds existed for the government’s assertion of power. She didn’t. She did just the opposite, leaving us with the clear impression that one of the most dubious claims of lawful justification ever employed by the government should have been made public but was instead concealed, thus precluding any intelligent debate over its propriety.

And that is where it will die.  But what the heck, there’s a new James Bond movie out and I hear it’s doing gangbusters at the box office. Go enjoy.

H/T Brian Tannebaum

The joys of computer assisted research and eDiscovery have a new member of the family: forfeiture.  Via David Axe at  War is Boring :

“FOR IMMEDIATE RELEASE”

Dec 20, 2012

Artist’s Advance for Graphic Novel Seized by Office of Foreign Assets Control — OFAC

Brooklyn, NY — Tim Hamilton, artist of the Eisner-nominated adaptation of Ray Bradbury’s Fahrenheit 451, had his advance payment for the upcoming graphic novel ARMY OF GOD, a non-fiction telling of Joseph Kony’s activities in the Congo, seized by the OFAC under suspicion that the money was being laundering for a terrorist organization.

***

The federal banking authority, which monitors every wire, foreign and domestic, apparently seized the funds due to the title of the book, ARMY OF GOD, which threw up a red flag.

Stercus Accidit. Hurricane Sandy swept through Red Hook, and contrary to the neocon pundits on twitter, it wasn’t Obama’s fault. Or Police Commissioner Ray Kelly’s. Or District Attorney Cy Vance’s. Sure, they might have chosen a more protected location than Red Hook, right on the water in Brooklyn, but it was a great choice but for Sandy.  The days of keeping evidence in a hermetically sealed mayonnaise jar are over.

And so the evidence is ruined or otherwise unavailable.

Perched on a narrow crook of land jutting into New York Harbor, the Erie Basin auto pound and evidence warehouse seems a logical place to store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material.

As Hurricane Sandy lashed the city, the surge breached the warehouse’s roll-top doors and hurtled hundreds — perhaps thousands — of its barrels into the wet muck. The storm wreaked similar havoc at another Police Department warehouse by the water, along Kingsland Avenue in Greenpoint, Brooklyn.

In at least six criminal trials in recent weeks, a police official has had to testify that evidence was inaccessible, but still existed, said Paul J. Browne, the chief spokesman for the Police Department.

Evidence for a coming rape trial in Manhattan — the so-called rape kit — had been stored at the Greenpoint location, the defense lawyer in the case said. The lawyer, Edward V. Sapone, said prosecutors told him that the kit might have been damaged in the storm.

Mr. Sapone said he had been concerned because he believed the evidence stored inside would help prove his client’s innocence.

It turned out that one element in the kit — a pubic hair — had not been at the warehouse during the storm because it was being tested.

Mounds of waterlogged evidence bags continue to cause headaches in New Orleans more than seven years after Hurricane Katrina, pointing to the difficulty of preserving DNA evidence after flooding.

“If you don’t keep it properly stored, you’re affecting somebody’s life,” said Robbie Keen, who directs a federally financed DNA project in New Orleans that is still trying to recover evidence.

Ms. Keen said some of the damaged biological evidence from Hurricane Katrina had been successfully tested, but some had been lost.

This doesn’t appear to offer much by way of answers, though it raises some interesting questions: Are formerly waterlogged DNA samples really still viable, or are they making do with samples that would otherwise be deemed useless or tainted?  Worse still, as it’s seven years later, what of the defendants who are hanging out awaiting word of their evidence?  And this is where New York is getting its wisdom?

Steven Banks, attorney in charge of the Legal Aid Society called this a “recipe for wrongful convictions” and plans to appeal the admission of testimony about lost evidence in the Castro case.  But it’s just one of potentially thousands, and that’s an awful lot of room for bad things to happen.  Banks notes that pleas are being offered in cases where the evidence is gone.

In New York State, evidence in criminal cases is not presented until a trial begins. And if a plea bargain is offered and accepted beforehand, it is not presented at all.

“The government may well be fashioning plea deals based upon the lack of underlying evidence,” Mr. Banks, of Legal Aid, said. “We can ask if it’s there, but they don’t have to tell.”

It’s unclear why Banks says this, but it strikes me that Brady requires the prosecution to inform the defense that it cannot produce physical evidence at trial, and that failure to do so would render a plea involuntary, unintelligent and unknowledgeable.  But then, if courts are willing to admit testimony about evidence in lieu of the evidence itself, it’s hard to imagine any judge will get any more worked up about Brady violations than they did before.