The New York Times says so? Huff Post? Me? Neither stories in the mainstream media nor the blawgosphere, and SJ in particular, tell it all. They can’t because of space and limited comprehension. I can’t because I don’t know anymore than what they say, unless I have the source materials.  This point was driven home  after my post about Jack McCullough, convicted 55 years after the murder of 7-year-old Maria Ridulph.

After checking to see where people came from who read my post, two sources sent a few people by, and I decided to check them out. 

Aside: For those of you who want other blawgers to know that you exist or have written something relating to what others are writing, links are an excellent method of letting others know. Most of us are curious to see where people come from, and are interested in learning about new neighbors in the blawgosphere. This is a great way to make that happen.

How do we know the NYTimes and Fox News are telling the whole story?  We don’t. We only know what they’re telling us.

As recently noted, the new diagnosis whenever someone dies following a tazing is “excited delirium,” which Steve Tuttle from Taser International advised me was not their invention, even if they seized upon it as an awfully facile excuse. But there is another word in the lexicon of force to note: superhuman.

Who doesn’t think it sounds pretty darned cool to be described as a “man of steel”?  Except the word gets trotted out not as a compliment, but a rationalization. From Work Without Dread :

Bartholomew Williams, the unarmed African-American graduate student shot dead on Sunday night by Cal State San Bernardino campus police, showed “superhuman strength” as he struggled with them, according to police. If that sounds familiar, that’s because superhumanity is a lot more common than has been thought. Roberto Laudisio-Curdi, an unarmed student killed by police in Sydney in October, also had “superhuman strength.” A man on a stolen motorcycle who resisted arrest in South Carolina last September had “superhuman strength” too, although it seems to me that it was more to his advantage that he had a gun, which the deputy through superhuman strength of his own got control of. Last summer in Maryland, a guy in a shootout with police “held on to his gun” after being hit by a bullet, which led a police spokesperson to remark, “The PCP just provokes superhuman strength.” And at about the same time, police in Georgia said that a delirious man that they arrested “had superhuman strength and admitted being high on bath salts.” (See also State of North Carolina v. Jonathan Howard Norton, No. COA10–1544, June 2011.)

The post goes on to argue that the use of the characterization “superhuman” is the new means of dehumanizing the target of police violence.

You don’t have to be Foucault to see that superhumanity functions as subhumanity; it allows the nonhuman to be eliminated while releasing the perceiver from having to answer for seeing someone as nonhuman. Like last spring’s “bath salts” hysteria itself, the phrase “superhuman strength” reflects police discomfort with mental illness–or even just “irrationality”–on the one hand, and with the unaccountable phenomenon of resisting arrest on the other.

While this explanation delves deeply into the police psychology of viewing non-cops, the us-and-them mentality, as lesser humans unworthy of concern or compassion, my sense is that the description isn’t so much a tacit reflection of their dehumanization as it is another in the long list of convenient words that can provide a ready excuse for the use of force. It’s easy, quick and immediately explains why they had to shoot, taze, beat a person whose conduct otherwise compelled no need for force.

As is often the case, the word is used in conjunction with the underlying criminal accusation, such as the use of PCP or bath salts, playing upon public hysteria and ignorance. After all, how many people are going to rush to the aid of the dead man claiming they use PCP all the time and never had superhuman strength?  On the other side, the mythology surrounding crazy, wild things that happen to people who do demon drugs plays right into a claim like this.  As Judy Tenuta liked to say, “it can happen.”

While police are frequently uncomfortable with mental illness or irrationality, though the latter usually reflects the peculiar police perspective that failure to immediately comply with their commands constitutes irrationality per se, the use of force isn’t limited by any stretch to those who suffer from some mental impairment.  With increasing frequency, it’s just a matter of time and convenience, where they have the means to end an incident now, and use it, or don’t feel much like chasing down a perp and just shoot instead.  It’s quick and easy, the only thing needed is an excuse. 

The beauty of characterizing a person as having “superhuman” strength is that it not only provides a justification for the use of force that would otherwise be inexcusable, but it can’t be tested later for veracity.  Much like the beloved “furtive gesture,” it happened only because the police officer said so, and then it’s gone.  In the case of furtive gesture, the result is a search. In the case of superhuman strength, there’s usually a dead body.

Does anybody actually have this “superhuman” strength? No and yes.  No, there is no such thing as Superman, and no one suddenly manifests abilities beyond those of mere mortals, regardless of whether they’re wearing a cape.  But drugs do cause disinhibition, where a person will exert his very human strength to its fullest, without any reluctance, despite doing so in the face of police force.  The fact is that a person on PCP may well beat a cop in fight; cops don’t necessarily have secret cop-fu that allows them to come out on top in hand-to-hand combat.  They can be beaten. They can be hurt. They are not inclined to let that happen.

At the same time, use of such shorthands as “superhuman” strength build a mythology that’s hard to resist. It becomes a mantra, where just saying the magic words makes whatever comes afterward perfectly understandable. What could the cop do in the face of this drugged up guy with superhuman strength? He had no choice but to shoot.  And another unarmed person lies dead on the street, and there is no way to dispute it.  Except it isn’t real.

H/T FritzMuffKnuckle

For a long time, the three most important letters to lawyers on the internet were SEO.  But now that everybody on the internet is an SEO expert New York criminal defense lawyer, and page 1 of Google hasn’t gotten any longer, the cool word has changed to branding. 

Establishing yourself as a skilled, hard-working lawyer based on what you do is, well, really hard. It takes not only effort, but time. Nobody can be bothered with the first or can wait for the second. The car payment is due, the kids are hungry and we need money now. So rather than make the long, hard, uphill climb to success, why not just create a brand that will make clients want you more than any other lawyer around?

Yes, yes, you say?  Marketing guru  Seth Godin explains how:

Apple’s naming approach is inconsistent, it begs for lawsuits (offensive and defensive) and it shouldn’t be the model for your organization. iPhone is a phone, iPad is a pad, iPod is a … (and owning a letter of the alphabet is i-mpossible).

Procter and Gamble, on the other hand, has been doing it beautifully for a hundred years. Crisco, Tide, Pringles, Bounty, Duracell–these are fanciful names that turn the generic product (and the story we believe about it) into something distinct.

No, you dope. You don’t want to rename your practice The Crisco Law Firm. You completely misunderstood Godin.  Plus, it carries some unfortunate implications for lock-up that may not entice new clients to come to you.

So many lawyers are striving to find a way to distinguish themselves from all the other lawyers who have carefully crafted their online personas to bring in the clients, and frankly, it’s damn hard. We’re all pretty much the same on paper. Sure, some have been around longer than others, but an old fool is worse than a young fool, so that doesn’t tell the full story.  Some of us have higher Avvo ratings, but that just means you haven’t figured out how to put inconsequential nonsense into your profile to fool the algorithm. 

In some jurisdictions, lawyers aren’t allowed to practice under a trade name.  Those old men just don’t get it. They are branding idiots, determined to make life miserable for anyone with a flair for the cool and enticing.  They wouldn’t know cutting edge if it bit them in the butt. 

But even such archaic rules can be played. After all, hasn’t Morrison Foerster become MoFo? 

Worse still, if you’ve got the terrible misfortune of having an Anglo name like Smith, following in the footsteps of your father and grandfather, the naming options will kill you. Smith, Smith, Jones & Smith?  You’ve got to be kidding. Google is going to slaughter you. Page 37 at best, and nobody will ever know you exist on the web.

At this point, you probably wonder how someone like me, avant-garde and all, plans to rebrand himself to take advantage of this vital and cutting edge marketing concept.  While I’ve considered some of my options, like Curmudgeon Law, Scott “If you have to ask, you can’t afford me” Greenfield and The Law Office of the Guy Who Writes Simple Justice, they’ve gotten a lukewarm reception.  Apparently, my knowledge of the concept of branding is far better than my execution.  I am so ashamed.

But just because I suck at branding doesn’t mean you will. Go for it. Remake yourself into something far, far cooler than you are. One fanciful name will do the trick, and the next thing you know, you’ll be rolling in dough.  Brand, baby, brand!

If it works for laundry detergent, you know it will work for you.

A man asks a woman if she would be willing to sleep with him if he pays her an exorbitant sum of money. She replies affirmatively. He then names a paltry amount and asks if she would still be willing to sleep with him for the revised fee. The woman is greatly offended and replies as follows:

She: What kind of woman do you think I am?

He: We’ve already established that. Now we’re just dickering over the price.

The old joke, attributed to George Bernard Shaw, Winston Churchill and others, has been given new life.  The amount has now been conclusively established: $1.92 billion.  Via the New York Times :

Federal and state authorities have chosen not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system. They also have not charged any top HSBC banker in the case, though it boggles the mind that a bank could launder money as HSBC did without anyone in a position of authority making culpable decisions.

The reason is that HSBC is too big to fail. If indicted or convicted of money laundering for drug cartels and terrorists, as alleged, London based HongKong Shanghai Banking Corporation could have toppled the banking system, with devastating consequences.  It would have been a disaster for the economy, both ours and the worlds.  Too big to fail.

So the government decided, in an exercise of discretion, to take whatever spare change they had in their pocket and call it even. 

The New York Times editorial, while recognizing the impact such a prosecution would have on the global economy, argues that this decision has eliminated any deterrent effect laws have on “too big to fail” multinationals, and converted them into another cost of doing business.  True.

But HSBC can take care of itself. What about you? What about your business? What about the bank down the street?  Need I say it? Not too big to fail. Your family, your employees, your customers? They will suffer, but the economy will survive. And really, isn’t that what criminal law is all about?

The cynical will mention “equal protection,” that phrase in the Constitution that says the government can’t treat you any differently than anyone else, even if the other guy is too big to fail. It’s often chiseled into the lintel over courthouse doorways. But as we now know, that’s only for us little guys. 

Prosecutors will scoff at you if you mention the HSBC settlement. You’re no HSBC, they will say. And indeed, you’re not.  Judges will impose sentence with a straight face, perhaps expressing righteous indignation at the things you’ve done and the harm you’ve caused, as they mumble triple digit numbers that are crucial to the preservation of society.  You must be imprisoned so others will know that you cannot do such evil things and get away with it.

The criminal justice system, like every system relied upon by government to keep its vision of the wheels of society greased, has both a pragmatic as well as principled component.  The problem is that it’s principled only when the government is willing to pay the price.  Whether that means releasing prisoners when the cost of keeping them incarcerated exceeds what they are willing to pay, or cutting a multinational bank a break when the economy is too fragile to take a major hit, they trade off otherwise inflexible principle that drops on the head of lesser defendants like a ton of bricks.

No one suggests that what HSBC did, or its scope or pervasiveness, was inconsequential. Just the opposite.

There is no doubt that the wrongdoing at HSBC was serious and pervasive. Several foreign banks have been fined in recent years for flouting United States sanctions against transferring money through American subsidiaries on behalf of clients in countries like Iran, Sudan and Cuba. HSBC’s actions were even more egregious. According to several law enforcement officials with knowledge of the inquiry, prosecutors found that, for years, HSBC had also moved tainted money from Mexican drug cartels and Saudi banks with ties to terrorist groups.

This is serious stuff. Whether it’s true is another matter, but that will never be tested because they found the government’s tipping point at $1.92 billion.  So what if the government takes every penny you or your company ever made, and levies fines and forfeitures for a million times what you could ever make under their facile way of calculating what it’s due.  You don’t have $1.92 billion to give, so you get prosecuted.

It sucks to be the little guy in a world where “justice” carries a high price tag.  But at least there is one thing no one need endure any longer, after this choice by our government.  No longer can any government official, any judge, any prosecutor, opine with righteous indignation about how a crime demands punishment.  Even if they can do it with a straight face, they surely can’t be angry with you for laughing at their joke.

Now that we’ve established what kind of system of justice we have, the rest is just dickering over price.

When Trekkie Terrance Huff  posted the video of his stop by Collinsville cop Michael Reichert, it caused a bit of angst for the locals. You see, Collinsville made money off two things, its cops and its hotel rooms, used by passers-through as a place to stop before going to anywhere else in the world that was a better place to be than Collinsville.  It was a good plan, until Huff screwed it all up.

After posting his nerd video, Huff posted a video of Reichert’s deposition, where he explained how he tested his drug-sniffing dog by rubbing drug scent on cars parked in motel parking lots.  That could be used to follow the previously parked cars on the highway, run the dog around them and get a hit.  Of course, Reichert would be the guy who put the scent on the car, but a hit is a hit, and that means a search.  And one never knows what a search will turn up.

It was this type of ingenuity that made Reichert a local hero.  Via Pro Libertate :

In January 2011, Reichert was given a commendation by Collinsville Police Chief Scott Williams.  In April, Reichert was named “Officer of the Month.” This was a reward for what was described as exemplifying “the proactive and innovative philosophy of law enforcement prescribed to [sic] by the Collinsville Police Department. He has demonstrated this by his aggressive approach to drug trafficking in the area.”

“Officer Reichert had 166 total incidents with 6 arrests and 7 citations in 13 working days,” explained the department’s report. “In addition to this he had 3 self initiated significant incidents that is very worthy of praise [sic.]”

Reichert’s initiative, however. was not universally admired.

This routine was described by Federal Judge Michael J. Reagan in a 2005 ruling that described the officer as a “polished performer” and revealed him to be someone from whom lies flow as easily as bile from a ruptured liver.

“By simply adding up `suspicious’ factors while ignoring non-suspicious or mitigating factors [in the Zambrana traffic stop], Reichert misused the `totality of circumstances’ principle as a sword to unjustly pierce Zambrana’s cloak of Fourth Amendment protection,” concluded Judge Reagan.

“I just got an e-mail from the city attorney asking to have the [Lodging in Collinsville] video taken down by the end of the day,” attorney Louis Meyer informed Pro Libertate in a December 4 phone interview. “He didn’t explain why he thought Mr. Huff had to do this. It is a publicly available document attached to our motion for summary judgment. There was nothing placed under seal, and all of this information – including the video of the deposition – was available to anybody willing to go into the clerk’s office and ask for it.”

As if turned out, Huff wasn’t the only out-of-state driver to fall prey to Reichert, and the bit of notoriety his video caused brought out others who, like Huff, fell victim to what Huff’s attorney, Dan Kiss, called “pirates in police uniforms.”

Much as courts embrace the War on Drugs in terms of saving society from the ravages of this blight, compelling judges to endorse pretext stops and imbue cute doggies with magical powers to justify warrantless searches, few take notice of the banality of cops like Reichert and towns like Collinsville just feeding off the drug trough.  No hotbed of gangs or crazed hippy addicts, but a sleepy town that makes a living off unsuspecting travelers.

Until Terrance Huff made a video.  But for his videos, you couldn’t get a room at the Collinsville Red Roof Inn. 

Update: The Collinsville city attorney sought relief in federal court to force the removal of Huff’s video from Youtube. The court refused.

H/T  FritzMuffKnuckle
 

The New York Board of Bar Examiners  released the passage rate numbers by law school for the July, 2012, bar exam.  While discussion of what becomes of debt-laden students when there are no jobs to be had are left to the lions of the legal academy, who are busily arguing about edge tweaks, the chart reveals something far more disturbing and real.

When nearly a third of a law school class fails to pass the bar exam, it can’t be chalked up to first time jitters or a few students having a real bad day (or two).  An alarm has to go off that the school, and more precisely, its professoriate, has failed.  Somehow, these students attended, and paid for, three years of law school and were incapable of passing the bar in massive numbers.

Law professors, you failed. The students may not have shined, but this isn’t their fault. It’s yours. It is impossible to have such a large percentage of a law school class failing without it being the fault of the faculty.  And lest we point fingers at NYLS alone, there are plenty of exceptionally crappy numbers here.

Frankly, I’m appalled that the first three schools on the list, admired by all, didn’t have 99% pass rates. The bar exam just isn’t that hard to pass.  I’d cut Columbia a break at five students failing the exam just because their brains froze. When the number is three times that, it’s shocking. That the state average is 85% is alarming, given all these students having spent all this time, all this money, with the single-minded goal of passing the bar exam, and yet 15% failed.

Where are the mea culpas?  Are lawprofs rending their hairshirts in penitence?  Get real.

At PrawfsBlawg, Dan Rodriguez supports the creation of the “baby bar,”

Declaration against interest from an institutional standpoint as dean, but I am strongly drawn to Sam Estreicher’s “back to the future” suggestion of an option for students sitting for the bar after two years.  Such a system, if adopted, would respond in some meaningful way to student debt issues, allowing the financially burdened student to postpone — or, in some instances, avoid entirely — the third year and the corresponding tuition costs.

A fabulous idea, with but one little kink. If they can’t pass the bar after three years of law school, how will they pass after two? Of course, most law students take a bar exam prep course (by a private provider, paid for separately) because they can’t remember enough to pass based on law school alone.

Some will argue that the bar exam is meaningless anyway, reflecting little of the actual practice of law and expecting students intent on practicing in a specific niche to know obscure details of the law from A to Z which can be easily looked up if needed. 

There is a little bit of merit to this, but the fact is that having completed three years of law school, students ought to possess a sufficiently broad swath of legal knowledge to breeze through the exam. It’s not that hard, and more importantly, we are licensed as generalists and expected to have a basic knowledge of the law. All the law, even when basic courses like evidence are no longer required.  It’s just not that much to expect of lawyers.

But it requires lawprofs to teach students. Teaching. It’s a dirty word in the Academy, denigrated by association with trade schools that offer refrigeration repair. Except it’s needed to pass the bar exam. Scholar, unfortunately, consider the notion quaint and beneath their dignity.  They exist to think big thoughts, and show up in class only because someone puts a gun to their heads.

In a response to Brian Tamanaha’s book, Failing Law Schools, which lawprof Jay Sterling Silver cleverly describes as the “Motel 6 Model of Legal Education,” he offers his view of society’s need for legal scholars:

As a wise colleague pointed out to me not long ago, “The legal professoriate develops suggestions for law in the common interest that are not produced by the powerful lobbies generating laws today. If we are reduced to teaching automatons, we would leave the field to those who buy their spokespersons.” Stripping law faculties of the time to contemplate the weaknesses of the law and the injustices of the legal system, and discarding the tenure necessary to instill meaning in the words “academic freedom,” reduces a vital social resource to a cog in the current structures of power. Under the guise of fiscal management, law professors willing to take on the wielders of power in the public and private sectors would be silenced.

Obviously, no scholar wants to be reduced to a “teaching automaton,” especially given how society so desperately needs their brilliance to “contemplate the weaknesses of the law and the injustices of the legal system.”   Orin Kerr wasn’t impressed with the argument, that maintaining “the status quo is the best possible world requires more than just patting ourselves on the back about how society is very lucky to have us.”  I think Orin was far too kind.

Think big thoughts on your own time, if that’s what you think you’re doing. Society isn’t paying you to ponder the legal universe, but law students are paying you to teach them how to be lawyers.  You’re failing. And, much as I hate to be mean, your big thoughts about injustice are, with rare exceptions, puny and worthless.

Much of the focus is on the dearth of jobs for law school graduates, and it’s a monumental problem.  But if the grads can’t even get in the game because they can’t pass the bar exam after law school in such huge numbers, then this failing falls on the legal academy. Not a third. Not a fifth. Frankly, even a tenth of a class is far too much. If the students don’t have the chops, then hand them a dime and stop taking their government-backed tuition payment, but do not spew them out the back of your law school incapable of passing the bar.

No amount of self-congratulatory scholarly baloney can conceal the inability to produce students capable of jumping the first hurdle of becoming a lawyer.  This cannot happen, and I blame the law professors.

When  Ken White and  Ron Coleman stepped in to defend conservative blogger and Los Angeles County prosecutor Patrick Frey of Patterico’s Pontifications from a frivolous and censorious attack on free speech, it was a mitzvah, especially since no conservative lawyers were willing to take up pro bono arms on behalf of their good buddy. 

But as Ken reveals, his earlier words came back to bite him:

A Note About Sarcasm

I’m only going to address one minor issue in the briefs and the tentative ruling, because it involves me and this blog. In March, well before Ms. Naffe sued and I appeared in this case, I wrote a post about Ms. Naffe’s threats against Mr. Frey. In that post, referring to Mr. Frey’s point-by-point questioning of Ms. Naffe’s accusations against James O’Keefe, I dropped this line:

The defense attorney in me is tempted to say that this is the most thorough consideration of exculpatory evidence that I have ever seen from a Los Angeles County Deputy District Attorney, but that would be uncouth, so I will not, and you should definitely forget that I brought it up.

I thought that this was self-evidently a joke, a friendly swipe by a snarky criminal defense lawyer talking about a prosecutor. I was rather surprised to see both Ms. Naffe’s counsel and — in response – the judge seem to take it literally. Such are the hazards of sarcasm. Or maybe I should say, as I always do to my wife, kids, law partners, and anyone who will sit still, that nobody understands me.

As 73-year-old Jack McCullough has now  been sentenced to spend the rest of his “natural life” in prison for the murder of 7-year-old Maria Ridulph, one question has never been answered.  What changed between 1957, when the crime occurred, and 2011 when he was arrested for it?  No DNA connected him to the crime. No witness came out of hiding who was previously unknown. But one thing was different.

Had McCullough’s case been tried 55 years ago, the court would have required that the evidence against him comport with the evidentiary rules requiring reliability and confrontation.  Instead, he was tried by the testimony of ghosts. From Fox News :

“He is as evil as prosecutors painted — and some,” said Janet Tessier, McCullough’s half-sister, after he was convicted in September. Her decision to tell police about incriminating comments McCullough’s and Tessier’s mother made just before she died in 1994 played a crucial role in McCullough’s 2011 arrest and subsequent conviction.

The claim is about hearsay from 1994.  At the time of the murder, McCullough was considered, and rejected, as a suspect:

McCullough was one of more than 100 people who were briefly suspects, but he had what seemed like a solid alibi. On the day of the girl vanished, he told investigators, he’d been traveling to Chicago for a medical exam before joining the Air Force.

McCullough ultimately settled in Seattle and was a Washington state police officer.

No cop jokes here, regardless of whether they are well deserved. It’s irrelevant to what came afterward.

Once a new investigation was launched, authorities went to Chapman and showed her an old photograph of McCullough. She told them the picture showed the teenager who came up to her and Maria that snowy day and identified himself as “Johnny.”

That’s Kathy Chapman, who was playing with 7-year-old Maria Ridulph on her last day of life. She’s now 63-years-old.  If identifications are suspect immediately after a crime has occurred, they don’t improve with age.

This isn’t to say that McCullough is innocent, but that the course of his prosecution made it impossible to defend against the charges.  He wasn’t confronted by the witnesses against him, but by stories told by witnesses that came from the now-dead witnesses against him.

A funny thing happens 55 years later. All the rules that limit evidence to the stuff that’s reasonably reliable evaporate. As the quality of the prosecution’s evidence diminishes, the rigor of the rules diminish as well.  When a witness testifies as to hearsay, it’s impossible to challenge the underlying statement, either for accuracy or veracity.  The witness just shrugs and says, “I don’t know, that’s what I was told.”  There is no comeback to that, other than the witness is a liar.

When the case involves murder, witnesses say they will never forget what happened.  That resonates with a jury, as we all want to believe that tragedies aren’t forgotten.  But they are.  Worst still, they aren’t, and in the place of real memories are the imaginings that grow over decades of thinking about such terrible events. Memories once real become enhanced with words we imagine were said, thoughts we imagine we had, but never really happened.  The mind isn’t nearly as fine as we want to believe it is, and memories play awful tricks over time.

There is no statute of limitations on the crime of murder.  It’s not because the compelling arguments in favor of a statute of limitations don’t apply with the same force as any other crime, but because it is considered such a terrible crime that the law has chosen to push the problems aside and let the wheel spin.  But how is a defendant to  prove his alibi 55 years later?

A deathbed accusation by McCullough’s mother in 1994 – passed on to police by his half-sister in 2008 – led to a chain of events that brought about his conviction.

His mother, Eileen Tessier, had lied to police canvassing the neighborhood in 1957 about her son’s whereabouts, buttressing his alibi, prosecutor Julie Trevartchen said Friday.

“She knew what she did and she didn’t want to die with that on her conscience,” she said.

McCullough’s girlfriend in the 1950s also contacted police with evidence that called his alibi into question. She had found his unused train ticket from Rockford to Chicago for the day Maria disappeared.

This all came via his half-sister, who learned of it in 1994 but sat on her mother’s lie for 17 years?  In 1957, there would have been evidence that he was given his Air Force physical in Chicago on the day after the murder, supporting if not proving his alibi.  Try to get that evidence now.

Had the prosecution in 1957 sought to introduce testimony by the defendant’s half-sister as to his mother’s  accusation that he committed the murder, it would have been summarily refused. You can’t put in such blatant hearsay.  But with the mother dead, that’s all they have. Somehow, hearsay evidence that is woefully unacceptable is magically turned into perfectly competent evidence by necessity.  And for the very reasons no judge would permit such unreliable testimony into evidence way back when, it is immune from challenge today while being every bit as unreliable.

While the McCullough conviction raises questions as to the propriety of sentence for a man who has lived the vast majority of his life without harming anyone, and who, arrested from his retirement home, presents no threat, sentence only comes after guilt is found.

Had this ice cold case been reopened because of some scientific discovery that provided substantial evidence that couldn’t have been know before, or had Jack McCullough confessed because he didn’t want to go to his grave bearing the weight of his crime, the 55 years between the murder of 7-year-old Maria Ridulph and the conviction of McCullough would have disappeared.

But that didn’t happen, and instead he was convicted on the accusations of ghosts. No judge should have allowed this prosecution to proceed, but then, few judges would have had the guts to toss it out. No one can defend themselves against ghosts. McCullough, whether guilty or innocent, never had a chance.

Via the Trial Warrior , Antonin Pribetic, Brit Alex Aldridge’s  Legal Cheek flattens the world just a little bit more:

At a seminar last week, one of the most senior judges in India courted controversy by suggesting that “90% of Indians were idiots” . But Justice Markandey Katju hadn’t bargained for the enthusiasm of a pair of “deeply hurt” law students in the audience to put their legal education into practice…

This morning it was reported that Tanaya Thakur and Aditya Thakur have initiated legal proceedings against the judge.

It’s heartwarming to know that there are special little snowflakes, fragile flowers, the Slackoisie, wherever young lawyers can be found. 

“We are deeply hurt and humiliated by Justice Katju’s words,” said the duo, adding that the judge’s jibe “would depreciate the reputation of India and its citizens”.

Is Justice Katju right?  Beats me, but then, I certainly have no basis to quibble. Regardless, the fact that his words are deeply hurtful and humiliating seems to be the issue, because reality doesn’t matter. Even young Indian lawyers are entitled to hear only words of warmth and support, lest their ears burn and self-esteem crumble.

American lawyers tend to think that this is just a local phenomenon, a by-product of our culture of giving every millennial a trophy for participating, where the child who came in last was merely the 37th winner. Nobody is a loser in America.

Apparently, not in India either.

One of the great unspoken fears of new lawyers here is that while they whine about the misery of their unemployed lives, the lack of recognition of their brilliance or appreciation of their total awesomeness, even the crap legal jobs are being shipped overseas to foreign lawyers. It’s not that they want these jobs. They don’t. But when they get hungry enough, they would take them begrudingly.

The belief is that while the work is beneath the dignity of our newest colleagues, there are millions of young lawyers in India who are thrilled to have the work and will work awfully hard to do the best job possible.  Unlike our little darlings, Indian lawyers are happy to labor long and hard, put in their best efforts and would never be so sensitive as cry when their self-esteem is bruised. 

Good news! It’s just a myth. They, or at least some of them just as it’s only some of our own who share their entitlement, are just as whiny.

The bad news is that this doesn’t mean they won’t work for a pittance compared to what young American lawyers need to service their debt or the price of a bag of Cheetos. Or that they won’t take the responsibilities seriously and perform the work with vigor and diligence.  But at least they demand the same validation as do our own.

This, of course, presents a grand opportunity for young lawyers here, now that we know their counterparts in Bangalore are prepared to sue if they don’t get a red balloon.  Fill the gap. As lawyers in other countries become more like us, become less like us and embrace the work ethic, the quest for excellence, that comes with winning the race rather than demanding a trophy for being the 37th winner.

And don’t sue anybody because they hurt your feelings.

At Concurring Opinions, Danielle Citron is hosting a symposium on Virginia lawprof Brandon Garrett’s  Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press 2011).  Coming on the timely heels of a  60 Minutes segment about Chicago being the mother lode of false confessions, it’s certainly a timely topic.

Added to the mix are some other recent books by academics.

Along with Garrett’s book, we will be discussing three new books that intersect well with the problems he tackles in Convicting the Innocent: Stephanos Bibas’s  The Machinery of Criminal Justice (Oxford University Press 2012), Daniel S. Medwed’s  Prosecution Complex: America’s Race to Convict and its Impact on the Innocent (New York University Press 2012), and Dan Simon’s  In Doubt (Harvard University Press 2012).  

In short, our criminal justice system is a broken machine running almost on auto-pilot. It needs to be more transparent and democratically accountable for its failures. We cannot abolish plea bargaining, as we need its ability to handle staggering caseloads. But we can hope that the exposure of factual and moral injustices can prompt rethinking, forcing us to slow down the assembly line, to increase the quality of convictions and punishments even if that means reducing the quantity and doing more triage. Books like Brandon’s, Dan’s, and Dan’s can, I hope, prompt more oversight and public involvement to ensure both factual and moral justice.

In reading Garrett’s book, it was hard for me to shake my own memories of the Central Park Jogger trial in 1990-91.  I was a trial preparation assistant at the Manhattan District Attorney’s Office for the bureau next to the one in charge of prosecuting the case.  In the mornings when delivering files to the various courtrooms, we’d witness the march to the courthouse: prosecutor Liz Lederer’s team, the defendants’ family members, their lawyers, activist Al Sharpton, and Bill Tatum, editor of the New York Amsterdam News. Public conversation was divisive.  The mainstream media cast the defendants as a “wilding” mob of black teenagers who descended on the petite white jogger; the Amsterdam News decried the arrest and prosecution as racial injustice.  Even though forensic evidence exonerated the defendants (the FBI lab conclusively ruled out the semen found on the victim’s sock did not belong to any of the defendants), the jury convicted them.  The justice system failed us: we convicted the innocent.