What people just don’t get about red light cameras is that they make money.  It’s not personal. It’s just business.  Cities need money, and who better to get it from then faceless people who cameras say broke the law? 

It’s not that anyone denies this to be the core motivation. In fact, while the rhetoric of making streets safer was originally part of the sales pitch by camera companies, repeated with approval by local politicians, everybody involved now conceded that it actually does the opposite. But it’s money, and you have to break a few eggs to finance an omelet.

Given this motivation, it’s completely understandable that anything the siphons money away is, well, unhelpful.  Like some guy named Kevin Schmadeka in Tacoma, Washington, who got a red light camera ticket and decided he wasn’t going to pay it, but wanted a trial that included a living, breathing witness against him.  That’s when he got the bill.

Red light camera ticket recipients in Tacoma, Washington are being told they need to buy $30 meals and $114 hotel rooms for employees of an Australian company if they want to exercise their rights under the Sixth Amendment. Motorist Kevin Schmadeka had gone to the courthouse to gather information to use to defend himself found out he was supposed to pay a total of $670 in travel expenses for an employee of Redflex Traffic Systems if he wanted to confront the witnesses against him.

“When I was at the clerk’s office inquiring about chain-of-custody information, the employee at the counter mentioned that if I wanted to subpoena a camera company representative that there was a fee,” Schmadeka told TheNewspaper. “Later on I thought about that some more and made another inquiry by phone, also requesting documentation about how such a charge was authorized. The clerk I spoke to at that time had no explanations to offer, but did send me the request form.”

Photo ticketing firms have been facing increased pressure since the 2009 US Supreme Court ruling in the case Melendez-Diaz v. Massachusetts, which dealt with laboratory analysis of drug evidence. A defendant argued that he had a right to question the lab worker who signed a piece of paper that certified the substance he had been carrying was cocaine. The majority agreed that despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that such questioning of the evidence be allowed.

Tacoma sought to avoid the inconvenience by forcing defendants to pay for the cost of confronting the witnesses against them. Schmadeka added this to a long list of constitutional concerns he brought before a judge.

“If the city considers it too expensive and burdensome to fly a camera company representative to Washington every time a defendant wishes to cross-examine them, the city should consider this obligation when making their decision to outsource local law enforcement duties to privately-owned, for-profit out-of-state companies,” Schmadeka said.

The judge singled out the Sixth Amendment issue and dismissed the charges against Schmadeka.

It happened in Kentucky, which was the first in a long line of legal mistakes.  The human mistakes happened much earlier.  Benny Lee Hodges was a horrible human being, though he didn’t start out that way.

Mr. Hodge was convicted of murder, robbery and burglary. He and two others posed as F.B.I. agents to get into a doctor’s home; stole guns, jewelry and around $2 million of cash; strangled the doctor until he was unconscious, though he did not die; and stabbed his daughter to death. Mr. Hodge’s childhood was not as brutal as the murders he attempted or perpetrated, but it was horrible by any measure.

When Benny Lee Hodge tried to defend his sisters and mother, his stepfather kicked the boy, beat him with a belt and made him watch as he killed the boy’s dog. This relentless abuse, two psychologists said, was “ruinous” to the boy’s development.

But it offers virtually no rationale for the premeditated, cold-blooded murder and attempted murder of two innocent victims who were complete strangers to Hodge. Many, if not most, malefactors committing terribly violent and cruel murders are the subjects of terrible childhoods. Even if the sentencing jury had this mitigation evidence before it, we do not believe, in light of the particularly depraved and brutal nature of these crimes, that it would have spared Hodge the death penalty.

The Kentucky Supreme Court’s opinion is plainly contrary to these precedents. The evidence of Hodge’s brutal upbringing need not have offered any “rationale” for the murder he committed in order for the jury to have considered it as weighty mitigation. It would be enough if there were a “reasonable probability” that, because of Hodge’s tragic past, the jury’s “reasoned moral response” would instead have been to spare his life and sentence him to life imprisonment instead.

More fundamentally, the Kentucky Supreme Court appears to believe that in cases involving “violent and cruel murders,” it does not matter that the “malefacto[r]”had a “terrible childhoo[d]”; the jury would return a death sentence regardless.

Perhaps if the court had afforded proper consideration to the mitigation evidence, it still would have reached the same result; it might have found no”reasonable probability” that the jury would have weighed Hodge’s difficult past more heavily in its moral calculation than the callous nature of the crime and Hodge’s history of imprisonment and escape. But, giving full effect to the mitigation evidence, the court may well have concluded that the story of Hodge’s childhood was so extraordinary,”there is a reasonable probability that at least one juror would have struck a different balance” had the jury known. A “reasonable probability” is only “a probability sufficient to undermine confidence in the outcome.”

Perhaps it was a fit of over exuberance, but when the states of Washington and Colorado approved referendums legalizing the use of marijuana, it struck me as a pretty good time for a second-term, Democratic president, who sought to trademark the word audacious, to embrace the will of the people.  I went so far as to muse how legalization in some places would affect the pursuit of prosecution elsewhere.

What was I thinking?

From the New York Times :

Senior White House and Justice Department officials are considering plans for legal action against Colorado and Washington that could undermine voter-approved initiatives to legalize the recreational use of marijuana in those states, according to several people familiar with the deliberations.

Even as marijuana legalization supporters are celebrating their victories in the two states, the Obama administration has been holding high-level meetings since the election to debate the response of federal law enforcement agencies to the decriminalization efforts.

To put it a bit more clearly, the Obama Department of Justice has no intention of either honoring the laws of the states of Washington or Colorado, and plans to grasp the old Schedule 1 crime until it’s pried from its cold, dead fingers.  The feds are not going to stop the War on Demon Marijuana. No way. No how.

Why?  Why would such an enlightened president, who neo-cons place just to the left of Trotsky, reject the will of the people?

“In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance,” {Seattle United States Attorney Jenny A. Durkan] said. “Regardless of any changes in state law, including the change that will go into effect on December 6 in Washington State, growing, selling or possessing any amount of marijuana remains illegal under federal law.”

Well, yeah. We know that the feds have yet to come to grips with the fact that the citizens of some states think that laws passed after a showing of Reefer Madness on the big screen in the house chamber, but what about the fact that Schedule I, meaning that a drug is highly abused and has no medicinal benefit, is total nonsense?  The only people in Congress who still believe that also believe that women’s vaginas can magically reject the sperm of rapists. 

The Times runs through the various responses available to the feds, to sue the states to prevent the law from going into effect, to take up the slack of arrest and prosecution in state courts by overloading federal courts, or, the most painful and effective tool in the federal arsenal, to cut off federal funding.

While supporters of President Obama may not have switched their votes to Mitt Romney in light of this reaction, I bet they wish they could vote for Ronald Reagan.  His script writers would have understood.

That the federal government isn’t going to accept that fact that the citizens of two of these United States have decided that they want to control their own lives, to exercise those rights that were supposed to be assured by the Constitution under basic notions of federalism, not to mention the 10th Amendment, really comes as no surprise. 

As Congress, with the acquiescence of the courts, have usurped control over criminal laws far beyond Jefferson’s wildest imagination, it was all fine and dandy as long as everybody was on the same page.  Who cared whether the Drug War was fought in state courts or federal, by local cops or DEA agents?  They were all on the same team, and that’s what really mattered.

But now that a split has arisen, where suddenly citizens have chosen to hop off the drug war train and want to run their states their own way, we have a crisis abrewing.

That marijuana remains a schedule I drug isn’t likely to change a lot of minds about where the law should be, and the feds reliance on this archaic law to tell citizens that their votes don’t matter nearly as much as Congress, isn’t likely to change any minds.  President Obama probably hates the fact that he’s been thrust into the middle of this, even though I suspect he’s got no greater beef with marijuana than he did with gay marriage.  He was against it until he caught a whiff of public opinion being overwhelmingly for it, and being a man of integrity, he flip-flopped.  Marijuana is likely no different.

But two states don’t make a tidal wave, and he isn’t prepared to suffer the wrath of the people for being the liberal president who turned America into a druggie state with a side of munchies.  So instead, he’s prepared to be the president who refused to accept the will of the voters of Colorado and Washington, just as he was when it came to medicinal marijuana in California, and openly admitted that the federal government will use any method it can to dictate to the states what will be a crime.

It will be interesting to see which legacy the president picks. And it will be equally interesting to see what the States of Colorado and Washington, and their respective federal district courts, have to say about it.  This may well be the start of a constitutional crisis on unwarranted federal expansion on crime, and if so, it’s about time.

At Above the Law, Brian Tannebaum offered the apparently controversial notion that

the internet and those that “sell” the internet to lawyers, as well as this notion of “branding” and spending your day reading self-fulfilling predictions on “the future of law” from the losers of our profession is, well, maybe not the be-all and end-all in the practice of law.

I agree with Tannebaum that success requires far more than “being able to obtain a volume of calls from a fake presence, a creation of a ‘brand,’ and trying very, very hard to get our hand to the top of the baseball bat of the internet.” But I also think that success doesn’t come just from doing good legal work. In my experience, the most talented lawyers often are not the most successful, at least by traditional definitions. Nor are the most successful lawyers the best lawyers.

A law practice is, fundamentally, like many other businesses that sell their services. Success comes from controlling your expenses, managing your employees, properly setting your prices, and attracting sufficient customers. Of these, generating business is the most important factor governing success in both in Biglaw and in running your own firm.

It’s true that a law practice, particularly a solo practice, must be thoughtfully run in order to maximize financial success.  Such questions as whether it’s sufficiently crucial to have your name embossed in gold on your legal pads to make the extra expense worthwhile, or which firm credit card to get if you want the most cash back. 

If you ponder such questions, as well as the million other bits of minituae that comprise any enterprise, the answer is no one cares if your name is embossed on your yellow pads, and go to NerdWallet and find whatever credit card floats your boat.  But none of this amounts to anything if you don’t have paying clients to begin with.  Run the best managed shop in town, but without revenues, you won’t eat. Do you really need someone to tell you not to piss away revenues on worthless vanity items? A penny saved is a penny earned, and in small law, every penny comes straight from your pocket.

But while Wallerstein concedes it’s better to be a skilled lawyer than not, he suggests that it’s the show pony who wins the day.

The disconnect between being a talented attorney, on the one hand, and a successful one, on the other, isn’t necessarily a terrible thing. If you are not the most naturally skilled lawyer, you can take heart that you can still be successful.

There are, and have always been, lawyers who are remarkably mediocre in the courtroom but have an incredible knack of getting business. They are usually quite extroverted, fabulous raconteurs and wonderfully engaging human beings around whom other seem to naturally want to flock.  If you’re one of these fortunate lawyers, then you don’t need to worry about any of this, and certainly have no use for creating a false internet persona to compensate for your worthless off-line reality. 

Even so, there is a pretty good chance that if your skills as a lawyer are inadequate, people may want to hang out with you at the bar, but choose someone else to stand next to them in the courtroom.  People are funny that way, not willing to spend an extra decade in prison because their lawyer is a cool, fun and incompetent guy.  

As a coda to Wallerstein’s post, the cool kid who becomes a Biglaw partner, or even a partner in a ten person firm, has an advantage that we do not.  The cool kid rainmaker partner can eat, drink and schmooze clients, and then hand off their work to the local grunt, often referred to as associates, who may have mad lawyer skills to make the magic happen.  We have only ourselves to do the work. If we can’t do it, and do it right, then no amount of schmoozing is going to make up for lousy lawyering.

While Wallerstein’s curious need to undermine Tannebaum’s call for competency added nothing substantive to the mix,  Mark Bennett highlights the distinction in his homage to Jimi Hendrix and exposé of one of the most pervasive marketing shams in criminal defense.

I never saw a criminal-defense lawyer advertising himself as “never a prosecutor” before I started doing so; when I would point out to a potential client that he was more likely to suffer than benefit as a result of the long-term relationships between a former prosecutor and him (if he has to choose between maintaining those relationships and burning bridges on your behalf, which do you think he’ll pick?) his eyes would get wide. His checkbook would come out.

Jason H. Howard has no reason to remember the practice of law in those days because he was a freshman in high school, fighting acne and maybe hoping to get to second base.

For this former prosecutor, the benefit he provides his clients is E-X-P-E-R-I-E-N-C-E. 

Perhaps Jason wasn’t one of the cool kids, to whom clients are attracted like Wallerstein’s successful lawyers or moths to a flame.  So he was left with a few choices, to develop and hone his skills as a criminal defense lawyer or use the old former prosecutor claim to suggest he knows the secret handshake that will set his clients free.

It’s true that good-looking, likeable, engaging people have a leg up on success, in the law as well as in any other endeavor.  But anything that suggests it’s enough to be successful as a solo lawyer, especially a criminal defense lawyer, is not only wrong, but dangerous.

Maybe Wallerstein is right that Biglaw partners can fake it to make it, but not us. We must be competent, and no fake claims or false internet personas will do the trick.  The glaring omission is that our success isn’t measured only by our ability to score the new case, but our ability to fulfill our duty to zealously represent our client.  Too bad Wallerstein never mentioned that aspect of success.

Via  Leo Mulvihill out of Fishtown, Philadelphia, a team of six narcotics cops has been broken up and  transferred to lower profile assignments by Philly Police Commissioner Charles H. Ramsey.  And the Fraternal Order of Police (Lodge 5, to be exact) isn’t pleased.

John McNesby, president of the Fraternal Order of Police Lodge 5, said that the transfers were based on “unfounded accusations” by the District Attorney’s Office and that the allegations should have been investigated first.

“When you’ve got an aggressive group of officers, you’re going to have people who aren’t happy,” McNesby said. “These guys took a lot of guns off the streets, took a lot of drugs off the streets. They did a lot of good work for the city.”

The people who weren’t happy turned out to be the district attorney and judges who didn’t think nearly as well of these officers as their union president.  As Leo (irony duly noted) explains it:

Besides, it’s not like they ever threatened anyone’s life while in the line of duty, right?

When the officers caught up to him, Conolly said, he got out of the car with hands raised, but [the officers] threw him to the ground and choked, kicked, and punched him as he yelled for help. [Officer] Liciardello, he said, put a gun to the back of [Connolly’s] head and told him, “We are the cops. If you don’t shut up, I will put a . . . bullet in your head.”

The article finishes with this gem:

McNesby has maintained the innocence of those officers.”It’s a sad day,” he said, “when you have the criminals in the city dictating where cops are going to be working.”

No, John. It’s a sad day when police feel and act like they’re above the law they’re sworn to uphold.

Ah, kids. So trusting. So believing. Aren’t they cute as the dickens?  On the one hand, you have police officers who take guns and drugs off the streets. So they  sometimes put a little something in their own pocket for a rainy day? So they get a little rough with the bad guys on the street? It’s a hard world out there when you’re saving society from the criminals, you know.



Sure, back-benchers see it all neat and clean, platitudes and oaths galore, but somebody has to do the dirty work to keep us safe at night.  And that’s why they have the FOP.

McNesby’s comments reflect the basic question that’s been posed forever. Either we believe our beloved cops or we believe the criminals. Which side are you on? 

While we now have the occasional video which shows cops gone bad, where for decades before it was the perps word against the cops, and the perps rarely won a pissing match because few judges wanted to be in McNesby’s crosshairs for being on the wrong side of the question, not every bust offers a Youtube moment.  And when there is no video, we go right back to the old ways, playing the odds and awaiting the union president’s retort, next time you’re in trouble, call a criminal. Hah! That’ll show ’em.

But, you say, that’s not what happened this time.  The district attorney and police commissioner didn’t side with the cops, didn’t sweep it under the rug, didn’t squint their eyes and conclude the accusations were unfounded.  Well, yeah. Kinda. Maybe.

You see, these six cops didn’t get canned. They didn’t get prosecuted. They didn’t get booted off the force and lose their pensions.  They were transferred.

Bradley S. Bridge, a veteran lawyer in the Philadelphia Public Defender’s Office, said the officers were “among the most troubled in the department.”

“Transferring them out of a place where they have intense, high-profile interactions with people, and where there is little oversight of their actions, is an important and significant move,” Bridge said. “We have had numerous clients who have complained about their interactions with these officers, who have maintained that these officers have testified falsely against them. And this is a recognition that those complaints are valid. This reflects that the problems are so significant that the department had to do something.”

Ouch. Harsh. They made the cowboys change horses. That’ll learn ’em for lying and beating folks and kicking ’em in the head.

And John McNesby goes full bore, because that’s his job as union president, covering his people when they get fired prosecuted transferred for being tough cops in a tough world.  Time to break out the champagne in Philly.  No, not the citizens who applaud the firm action by the police chief and district attorney, but the guys in the party room at FOP Lodge 5.  They got away with it again, and nobody noticed.

In a surprisingly frank post. Tom Goldstein of  SCOTUSBlog™ , who has done more than his share of arguments before the Supreme Court, offers some inside baseball concerns about the gay marriage cases awaiting the Court’s blessing.

The upshot is that the parties and lawyers driving the gay-marriage cases have cornered the Justices. They brought and won cases striking down a federal law, a California initiative, and an Arizona statute.

In fact, these are test cases. On day one, the lawyers knew that persuading the lower courts just meant they would end up here. They wanted to force the Justices’ hands.

It worked. Even if the Court wants to stay out, it cannot.

In other words, you got what you asked for. Now are you sure you really want it?

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy – the decisive vote – is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy. Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

The issue must be addressed, but are these the Nine we want deciding it? On the one hand, we don’t get to pick the judges who will decide the test cases. On the other, we don’t want to wait another generation or two for a court majority that has caught up with the rest of the nation.  On the third hand, who knows when we will get a Supreme Court comprised of justices who aren’t so deeply embedded in the past, or religion, or politics, that they feel the nature of cultural shifts that allow for foundational change?  And do we want to condemn the next generation or two to living under the thumb of old law based on out-of-date cultural norms until most of the judges get it?

Without the time to adapt, this Court is unpredictable.  Take Bush v. Gore and Obamacare.  The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court.  And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different.  The NAACP controlled race discrimination litigation.  It built a body of lower court and Supreme Court decisions over years.  The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court.  You cannot point to many liberal test cases that won in recent decades.  Conservatives have won on guns and affirmative action; they lost on property rights.  But for pretty good reasons, the left does not even try.  Progressive groups spend all their energy keeping cases away from this Court.

As wonderful as it may appear to have an issue before the court of the historic, foundational nature as Brown v. Board of Education, imagine what our world would look like if the Court had ruled the other way. It’s inconceivable now, but it wasn’t then. And the NAACP spent much time and effort free lessons at Arthur Murray before taking it to the big dance.  It was not going to blow its one big chance at changing the world.

Ohio State lawprof Doug Berman, in a rare commentary, reacts.

[T]his post has a flourish concerning the conservative leanings of the court Supreme Court that reflects what I see as a persistent and problematic myopia concerning criminal justice issues now reflected in the view of many (if not most) of the elites who follow and discussion the work of the Roberts court.  Here is the passage that got under my skin:

You cannot point to many liberal test cases that won in recent decades. 

Berman gives a list of decisions, ranging from Crawford in 2004 to Miller in 2012, to show that the Supreme Court has hardly been as conservative as Goldstein claims, and has in fact been pretty progressive.

I am a bit frustrated that Tom Goldstein does not in this context acknowledge that the Supreme Court right now is, in fact, acting in quite progressive ways on behalf of criminal defendants (which is, of course, one huge way in which the Warren Court established its liberal reputation).  But the myopia in his recent post strikes me as symptomatic of a broader failing among SCOTUS elites and (too) many progressive elites who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems.

Apparently, anyone who thinks the Supreme aren’t up to warp speed are dismissed as myopic “elites,” a rather disturbing resort to ad hominem characterization. At least Berman’s commentary received the applause Bill Otis, who has never met a sentence that was too harsh.

While Berman’s laundry list of criminal defense wins before the Supreme Court has some merit, though not all were as progressive as some seem to think, it misses a critical distinction in Goldstein’s argument. There are big cases and small cases, big shifts and small shifts. Heller, for example, was a big decision.  As it turned out, so was Booker in 2005, but it took the Supremes until 2007 in Kimbrough/Gall before anyone took it seriously.

But as much as those of us engaged in criminal law focus on cases that impact our practice and our clients, almost all of these decisions are, in the grand scheme of things, nibbling around the edges of the law. Fighting over whether sentences are imposed by judges or accountants is big to us, but hardly a seismic shift for society. 

Brown v. Board of Education was a cultural shift in American society, affecting everyone and everything that would follow.  Gay marriage is an issue of nearly that magnitude.  Telling non-citizens of immigration consequences of conviction, per Padilla in 2010, isn’t in the same ball park.

Look at a bug under a microscope and it’s going to appear much bigger than it really is. We all suffer the conceit of myopia to some degree, focusing as we do on the issues that matter most to us. We believe them to be more important, more significant, to society than they turn out to be. It’s not that they’re insignificant, but they aren’t earth-shattering. Truly foundational decisions come along very rarely.

Goldstein speaks to a cultural shift that has already happened in America, with only nine people who live cloistered lives left to decide whether it meets their sensibilities.  Berman compares it to bugs under his personal microscope because his own myopia precludes him from realizing that gay marriage reflects a cultural shift of a fundamentally greater magnitude. 

Like Berman, I spend a lot of time parsing the details of decisions affecting criminal law. Unlike Berman, I recognize that Goldstein is talking about something bigger than the issues that fascinate me.

Somebody, maybe everybody if there is an everybody, at the  Sky Valley Chronicle is very upset about what they (he/she?) claims is either cyberstalker or cabal who is attacking them (it?) for something. The Washington State local paper has made its story news, though unlikely for the reasons it might prefer.

Via Popehat, the SVC  published a story that purported to tell of its own sad tale of victimization.

SkyValleyChronicle.com and it’s [sic] parent company are preparing to file at the earliest possible date documents and evidence designed to result in federal, or at the very least state cyberstalking charges being filed against at least one and possibly more individuals in Washington State that operate a rumor and accusation filled Internet blog and Twitter account, both of which are maintained almost exclusively, according to those who have monitored them over time, as vicious cyber-attack platforms against individuals, companies and institutions.

Well, that certainly clears things up, provided paranoid delusions are one’s norm.  Whether there is truth to the claims or not is unknown. Certainly, there are people on the interwebz, be they bloggers or twitterers, who are vicious and nuts. Anyone with a keyboard and internet access can post any insane screed they like, and it can give rise to some horribly false and vicious, and quite scary, claims.

It would be a whole lot easier to be sympathetic to the SVC’s claims if they posted anything, anything, to support their assertion, but being a local newspaper and all, why would they be expected to provide support or substance?  But I digress.

After a slew of vague accusations of instability toward their unknown attackers, the SVC makes the point that is supposed to strike fear in the heart of it’s (their?) nemesis.  They are going to file a federal prosecution against not only the primary disturbed individual cyberstalking, but the many accomplices. it urges the accomplices to come forward to rat out the evil mastermind and thus avoid the consequences:

Should you be a person who was duped into helping the cyberstalker, not understating the full ramifications of what you were getting into or the risks you were assuming – meaning possible criminal prosecution and a conviction that may follow you forever and harm your future employment prospects and the potential of civil action which could place your marital assets at risk – we urge you to contact us with what information you have in this matter as we have no desire to file charges or seek civil remedies against persons who were duped into helping another engage in cyberstalking, not fully understanding what they were getting themselves into.

In an update, they double down on the efforts (despite claims of getting evidence, help and support from people across the country) to turn accomplices into snitches:

THE PERP WILL TAKE YOU DOWN WHEN RUBBER HITS THE ROAD

Because we are serious as a heart attack when we say we will do everything in our power on behalf of all the victims of this person to have every single person who was in consort with the cyberstalker over the years, helping that stalker do damage to many innocent people, to be charged with as many criminal counts as we can possibly help obtain.

And have you priced quality, criminal defense attorneys lately? You’ll want to be able to qualify for a very large loan and 2nd mortgage the house to boot.

It’s always the lawyer’s fault. Ken at Popehat, bemusement at the poor writing and journalistic standards of the SVC notwithstanding, sent them an email to find out what they were talking about.

Dear Sky Valley Chronicle Staff,

I am an attorney, a member of the First Amendment Lawyers Association, and a blogger on issues including free speech, defamation threats, internet culture, and online misbehavior.

I read with interest your November 30, 2012 post “Sky Valley Chronicle Prepares To File Federal Cyberstalking Charges.” As a writer on free speech and legal threat issues — and as a former federal prosecutor — it interested me. I am preparing to write a post about it.

Is anyone at your paper willing to answer some questions about the situation discussed in the article?

What is interesting is that I suspect Ken could have gone either way (about the underlying conduct) at that point.  He, as have we all, knows the reality of the nutjobs on the internet as well as the thugs who make wild accusations to stifle free speech. It’s not always easy to pick sides, even if a local newspaper writes an absurd story, compensating for its lack of substance with an abundance of crazy.  Ken received this response to his email in an initial update to the story:

And to the former federal prosecutor who contacted us and indicated a willingness to help put this perp behind bars, we appreciate the contact.

We’ll be getting back in touch with you.

A “willingness to help” isn’t quite what was suggested, and Ken went on to write a post about the SVC that was neither flattering nor particularly supportive.  That’s just the sort of thing that makes paranoids go, well, paranoid.

Update 12/4/12: Hey “former federal prosecutor popehat.” We knew you were a tank town shill as soon as your message hit the loading dock. Why do you think no one ever contacted you? Why do think the line above was even slipped in?

Where did you toe pickers and yam heads learn to do intelligence work, amateurville? Be sure and tell cyberpunk the legal walls are slowly closing in and it is hellfire serious business that’s on the way. Oh, And say hi for us to the “sister,” hear? Oh. And did we mention the FBI is about to be contacted regarding an issue that has to do with this case? Ya’all have a nice day now, hear?

I’m informed that the names “toe pickers” and “yam heads” are considered very harsh and hurtful around Snohomish, Washington.  As for the rest of it, no one seems to have the slightest clue what they’re talking about.

Does the fact that whoever has their fingers on the keyboard at the Sky Valley Chronicle is batshit crazy and a poor writer mean they aren’t the victim(s) of cyberstalking? Not at all.  But it surely means that whatever passes for journalism around Snohomish has issues, and that the efforts to sway public sentiment toward their plight, as well as convince their nemesis’ accomplices (if they exist anywhere outside the haze of a paranoid delusion) to cooperate, with their (its?) hysterical threats of filing a federal charges makes for fun reading.

To the extent there are fears that the recent Washington referendum legalizing the recreational use of marijuana may have a notable impact on the locals’ ability to think, this seems to put that point to rest.  At least for whoever writes the Sky Valley Chronicle, the horse has left the barn.

Whether you agree with Inside the Law School Scam, by Colorado Lawprof Paul Campos, in whole or part, it is undeniable that he’s caught the attention of others in the legal Academy.  In the same vein, he’s become the voice of, cult hero to, a great many law students and new lawyers who are deeply dissatisfied with their choice of education, their alma maters and the concept of law school altogether.

It wasn’t long ago that he was brand new, a mystery lawprof revealing the ugly inside secrets of the legal Academy.  When he came out, he was reviled and ridiculed by his peers.  While a great many still despise what he writes, he has become a force to be reckoned with and, despite the facially dismissive reaction of many scholars with deeply vested interests in the status quo, he has moved the conversation sufficiently that even Case Western Reserve Law Dean Lawrence Mitchell, in his  ode to rainbows and law school felt constrained to acknowledge that it was, at least in part, in response to the success Campos has had in opening students’ and lawyers’ eyes.

Campos is no longer the new kid on the block, having written “421 posts, consisting of 317,489 words, supplemented by 37,480 comments.”  Of course, the vast majority of the comments were written by the same person, Anonymous, reflecting the law students’ conundrum, how to express every critical thought without having to bear any responsibility for it.  After all, life is tough enough as an inchoate lawyer without having to suffer for ones beliefs.

In honor of his 421 posts (round numbers are for kids), Campos has written an Executive Summary, an ironic title indeed.

It is difficult to get a man to understand something when his salary depends on his not understanding it.  — Upton Sinclair —

This is why your law school charges what it charges.  This is why your professors believe sincerely in the “value proposition” of what they have to offer.  This is why nothing ever changes, until it does.

If something cannot go on forever, it will stop.  — Herbert Stein —

When the price of something increases and its value decreases, at some point people will not pay for that thing any longer.

Debts that can’t be repaid won’t be.  — Michael Hudson —

That someone lends you money does not mean there is a reasonable probability that you will be able to repay that money.  It only means that someone is making money from loaning you money.

In a peculiar post, Carolyn Elefant at  My Shingle questions whether lawyer ratings can ethically co-exist with “lead generation”

Public demand for lawyer ratings is on the rise.  As the above graph from Google Trends  shows, searches for the terms “attorney reviews” have increased five-fold in the past five years.

The push for lawyer reviews is hardly surprising.  Today’s consumers routinely check ratings before reserving hotels, buying books or selecting a roadside diner.

As I’ve been saying  for years, like it or not, lawyers  can’t stop this ratings train.

This reflects what may be the most pervasively misunderstood aspect of social media marketing, As marketeers have come to realize, the page of a lawyer’s website that gets the most view is invariably his bio, which they’ve misconstrued to believe to be a critical force in gaining potential clients off the internet.  Dopes.

People aren’t finding lawyers on the internet, but verifying them, trying to ascertain whether they’re any good. They already have a name, and they go to the lawyer’s bio to check them out, just as they look to reviews and ratings as a means of distinguishing between ten different loaves of white bread.

But what happens when the same entity that purports to rate lawyers makes its money off “lead generation”?

Consumers want ratings, that much is clear.  But pay-per-lead systems can’t give consumers ratings or recommendations if they want to remain ethically compliant – because a rating or referral transform the ethically permissible pay-per-lead into a  pay-for-recommendation/referral.

No, it can’t.  This is where  Avvo’s initial effort on selling the legal profession on the legitimacy of its ratings fell off the cliff. No one who pays any attention at all believes that Avvo ratings are real, though they claim it’s all some magical algorithm and they would never tweak the numbers. Much. But the public thinks Avvo is real. They want to think Avvo is real, because it enables them to do what would otherwise be too hard to do on their own, decide which loaf of white bread to buy.

After reading Carolyn’s post, I spent a few minutes listening to my buddy Josh King, Avvo’s general counsel and, oddly, webinar ethics guru, explain why it’s completely ethical to buy whatever Avvo sells. No conflict there, right?  I couldn’t help but wonder, given Carolyn’s correct assertion that ratings services and pay-per-lead services cannot ethically co-exist in the same entity, why she didn’t go the next step.

It’s not just Avvo, but its much older and uglier brother, Martindale-Hubbell (with its horrible system of rating lawyers AV, to assure that no member of the public has a clue what they’re talking about) who has sought to bootstrap its rating system into a money machine.  They are the Lexis-Nexis, Lawyer.com, marketeers, headed up by Larry  We-Don’t-Need-No-Stinkin’-Ethics Bodine.

At some point, we need to recognize that we can either lead or follow.  People love lawyer ratings, flawed though they may be?  You bet.  But as these rating services have succumbed to a directly conflicted business model, and the only basis upon which they can claim something remotely resembling ethics is to plead “trust us,” we would never put money ahead of integrity, it’s time to come to terms with reality. This is all utter nonsense, and we, lawyers, have embraced a massive fraud upon the public in the name of getting some potential client to hire one of us over another of us.

That’s all there is to it. 

Interestingly, there was a very unusual comment to Carolyn’s post (ironically immediately preceding a flagrant spam comment).  For the most part, commenters at My Shingle  unapologetically applaud anything they can use to rationalize their marketing, ethics be damned. Not this comment :

You assume that this ratings juggernaut simply can’t be stopped.  Why can’t it?  If lawyers stand up as a group  for the profession and make clear at every opportunity they get with clients and the public that (1) ratings are nonsense, mostly because they aren’t reliable, and (2) ratings are sleazy, so lawyers shouldn’t engage in it, and that those who do are sleazy and aren’t to be trusted with a client’s life, then maybe the issue would go away.  

We don’t have lawyers soliciting business from mass disaster sites because we came to the conclusion as a profession that the practice is sleazy and leads to a race to the bottom.  These things can be stopped if we want them to be.  So, when a prospective client comes to you and mentions ratings, e.g., why you don’t have ratings and your competition does, tell the prospective client that he or she should not go to any lawyer that uses ratings systems; and that the use of ratings is a sign of a sleazy lawyer. 

Don’t want to be party to the race to the bottom? Don’t want to spend your nights thinking up excuses for lying to your “leads”?  You’re not alone.  Nor am I.  Nor is Brian Tannebaum. Nor is Mark Bennett.  Even if  the ABA and  state bar associations have given up hope.

And for the wag who will feel compelled to ask the question, “but if we can’t use these schemes, how are we supposed to get business?”, how about web 3.0, doing good work and conducting yourself with integrity?  Just because sleaze is out there doesn’t mean we have to embrace it or accept it. We can fight it. After all, fighting bad things is what lawyers are supposed to do.

The black letter rule is clear, that when you cross a national border, you and your possessions are subject to search without regard to cause.  What has been forgotten is why this is the rule, and reflects another instance of remembering the rubric while forgetting the rationale. 

The rule was meant to stop the introduction of dangerous items, like plants or animals that could carry diseases or had no natural enemies in our environment to stem their spread. Then there was the need to collect taxes on items purchases elsewhere, justifying a search to make sure no one was sneaking anything in without giving Uncle Sam his cut.  And finally, there was the smuggling of contraband. At the time, these rationales were accepted as a sound basis for the rule, and so the rule was born.

But when they seize your computer at the border, they aren’t looking for invasive species.  Maybe their looking to see what nasty images you have on your hard drive, which may fall outside the rationale as a means of law enforcement, but many people wouldn’t be too troubled by that.  Or maybe they are looking for seditious people who think thoughts and spread ideas that the government doesn’t like. Maybe border seizures of electronics are an opportune method of identifying, harassing or controlling people who are a thought threat.

From the New York Times :

A laptop belonging to Lisa M. Wayne, a criminal defense lawyer, was searched after she returned from a trip to Mexico.

Ms. Wayne said her main concern was the information about clients’ cases stored on her laptop: she is a past president of the National Association of Criminal Defense Lawyers, which is a co-plaintiff in the Abidor suit, along with the National Press Photographers Association. But at the time of the search, she was unaware of her rights and felt pressured to hand over her computer.

“It was very clear to me that the longer I objected or interrogated them, the longer I was going to be detained, and I had a connecting flight,” she said. “It’s an intimidating experience. It was not consensual other than, you comply with the rules.”

There are numerous suits pending against the government challenging the seizure of electronics, like laptops, cameras and cellphones, without any suspicion of criminal activity.

A decision in one of those suits, Abidor v. Napolitano, is expected soon, according to the case manager for Judge Edward R. Korman, who is writing the opinion for the Federal District Court for the Eastern District of New York.

In that case, Pascal Abidor, who is studying for his doctorate in Islamic studies, sued the government after he was handcuffed and detained at the border during an Amtrak trip from Montreal to New York. He was questioned and placed in a cell for several hours. His laptop was searched and kept for 11 days.

The contention is that while the right to be free of baseless searches ends at the border, the First Amendment does not, and these seizures impair the right to freedom of expression by seizing based on thought, ideas, images, writings, content. The 4th Circuit ruled against this argument in United States v. Ickes, 2005, but that was a child porn case, rather than political expression. But even the Times has drank the government issued cool-aid:

Courts have long held that Fourth Amendment protections against unreasonable searches do not apply at the border, based on the government’s interest in combating crime and terrorism. But Mr. Pascal’s lawsuit and similar cases question whether confiscating a laptop for days or weeks and analyzing its data at another site goes beyond the typical border searches. They also depart from the justification used in other digital searches, possession of child pornography.

See what they did there? Warrantless border searches weren’t allowed to combat crime or terrorism (particularly noting that nobody thought much about terrorism until 9/11).  Same with kiddie porn, a new claim for old law, one that had absolutely nothing to do with the birth of border searches. 

Yet if a reporter was to only consider the government’s press releases and court decisions over the past decade, it would be understandable why they would be unaware of the original rationale for warrantless border searches and accept revisionist history.

Curiously, caselaw has essentially ignored the genesis of warrantless border searches in favor of such facile assertions as “well-settled law.”  And indeed, it is extremely well-settled :

Authorized by the First Congress, [Act of July 31, 1789, ch.5 §§23-24, 1 Stat. 29, 43 (current version at 19 U.S.C. §§482, 1582)] the border search exception has a history as old as the Fourth Amendment and obtains its broad power from Congress’s authority to regulate commerce with foreign nations and to enforce immigration laws. 

However, reliance on trite phrases has allowed courts to divorce the justification from the rule, and thus used a rule to sweep in newfound justifications where they were never part of the original basis. It may well be that the Supreme Court, if it was to consider the rationale for warrantless border searches today with a blank slate, would happily conclude that the 4th Amendment’s warrant requirement was just too much trouble, but the rule hasn’t been revisited since the invention of computers, where people now carry their lives and most intimate secrets with them wherever they go.  They aren’t search for infected coconuts anymore.

The search of laptops crossing borders changes everything, and creates a compelling need to rethink whether warrantless border searches in the age of electronics changes the balance.  Long-settled rules no longer cut it, and it’s remarkable that so few recognize the seismic shift in intrusiveness that’s happened with barely a whimper.