When the State of Florida is mentioned on a law blog, it’s usually because something monumentally stupid happened there, and we can all take comfort in knowing that wherever we are, it’s not Florida. Yet, the Supreme Court of Florida has unanimously approved changes to their jury instruction on eyewitness identifications that’s not only worthy of note, but remarkably progressive for a state where its citizens can’t figure how to vote for the candidate of their choice.
Trial judges are being required by the Florida Supreme Court to instruct jurors on factors such as race and familiarity that should be considered when evaluating the accuracy of eyewitness identifications, the leading cause of wrongful convictions.
Judges will be required to tell jurors to consider whether witnesses are of the same race or ethnic group as those they are identifying, how familiar they are with people they are identifying and whether they relied solely on their own recollection or have been influenced in some way.
Another factor is the capacity and opportunity of a witness to observe a suspect including length of time, lighting and distance. Jurors also will be told to consider how much time has gone by since an event before identifications are made and any inconsistencies by witnesses.
Despite my less-than-Herculean efforts, I was unable to find the actual pattern jury instruction that the court approved. The good news, according to the story, is that prosecutors opposed the changes, arguing that the court shouldn’t be doing the defense lawyer’s job by telling the jury that their very best evidence isn’t absolutely reliable, as most jurors believe. Whenever prosecutors oppose something, it’s generally a good sign.
The bad news is that, while changing from the old regimen which plays to the “common sense” understanding that eyewitness identification is about as good as it gets, the new instructions fall far short of what they should be.
The Innocence Project of Florida, which has helped free wrongly convicted inmates through DNA testing, contended in comments filed with the high court that the instruction fails to reflect scientific understanding of how to properly asses the reliability of eyewitness identifications. It had urged the justices to ask for a more robust rule or appoint a special master to hear evidence on how it could be strengthened.
The group wrote that the instruction neither warns “the jury of the dangers inherent in eyewitness evidence” nor does it “provide any comprehensive guidance on how jurors weigh certain factors.”
In a curious response to this criticism, the justices wrote that they weren’t “expressing an opinion on the instruction’s correctness.” One would think that before changing jury instructions, that’s exactly what they would do, assure that the instructions are correct. Why would a court change jury instructions from the old incorrect one to a new incorrect one? Oops, I forgot. This is Florida.
It’s long been known, and empirically proven, that eyewitness identifications are not only overwhelming persuasive to jurors, but fraught with error. That nothing has been done to bring the law in line with the science of identifications is a scandal. It’s not good enough to argue that the law moves slowly, methodically, as it adapts to change in our grasp of how the human mind works, or the limits of scientific certainty. Judges have a nasty habit of accepting the validity of methods used to prove guilt despite a shocking lack of evidence sufficient to satisfy scientific method, and once accepted, it moves from courtroom to courtroom around the nation with a speed that makes one’s head spin. Dog sniff, anyone?
Yet, when science (real science, like that stuff they do at the National Academies of it, as opposed to the American Society of Duct Tape Identifiers, a wholly-owned subsidiary of the United State Association of Dog Handlers) disproves the validity of a method that has been found instrumental in achieving convictions, it takes decades before anyone acknowledges they may have put thousands of nice people in prison for crimes they didn’t commit.
Some reformers will applaud the fact that Florida has modified its jury instructions to recognize that maybe, just maybe, eyewitness IDs aren’t as perfect as we’ve been led to believe. Others will note that once a change occurs, another change is often decades away, so that a modest change, perhaps an inadequate change, will be a little better than what existed perviously, but fail to adequately address the problem. And lawyers will be faced with these modest, inadequate changes, when other states finally get off the dime and modify their jury instructions to conform with scientific reality. They’re a bit ahead for the moment, but quickly fall behind later.
While there are other initiatives being made to correct pattern jury instructions, there remains a disturbing lack of concern for those innocent defendants who will be convicted by misidentification while committees of judges and lawyers fight over the language, battle over whether it’s too favorable to the prosecution or the defense and try to figure out what exactly the empirical studies show. Lawyers and judges are notoriously bad at understanding scientific method, which explains a lot about what goes wrong with the law.
So is it better than Florida moves forward to change its instructions, even if they fall significantly short of what good eyewitness ID instructions should be? Or would it be better to spend a couple more years arguing over each word, while innocent people continue to get convicted under the old, failed instructions?
It’s a tough question to answer, though if I was a defendant headed to prison because of misidentification, I know where I would come out. This may fall far short of a cure for the disease of misidentificsation, but at the least it’s move toward correcting it, and an opportunity for lawyers to argue the point in summation, where before they were precluded for lack of evidence. But it’s hard to say when, or if, the law will ever get this right.
Marketing. For those of you who regularly read SJ, you might think it’s a dirty word, given how often I have bad things to say about legal and social media marketers. But it’s not. The question revolves around definitions, and marketing isn’t that easily defined. Legally, it’s the promotion of the quality or availability of goods or services, a simple enough definition to distinguish commercial from non-commercial speech.
But it’s not a particularly viable definition for discussion about marketing. As has been pointed out to me many times, everything we do “markets” us, to a greater or lesser extent. But that’s a subterfuge used by marketers to make us believe that we can’t avoid the need for marketing, and since we’re doing it anyway, we ought to pay them to do it for us or do it better than us.
As games go, marketing is a tough one. We most assuredly market ourselves every time we speak to someone, answer a phone call, write something that another person will read or argue in a courtroom. What we do will cause someone else to notice us or not, think well of us or not, consider using us or not. Bearing this in mind, it’s a great reason to do your best work all the time; you never know who’s watching.
But what I’m talking about isn’t the generic concept of marketing, but the specific marketing done by social media “professionals.” Much as I would be happy to discuss what they do, it invariably starts with a problem as they introduce themselves with a false premise. There is no such thing as a social media professional.
A “professional” is someone who has endured a requisite course of study, who has passed a rigorous test required for licensure. A “professional” is required to adhere to a fixed ethical code, and who could lose his license for failure to do so. A “professional” has an obligation, and is subject to liability for the failure to fulfill that obligation.
No, there is no such thing as a social media “professional,” and I find it impossible to have a serious talk with anyone who begins by informing me that they are a social media professional. When a lawyer repeats this fib, it disturbs me, as it just feeds the lie.
As Kevin O’Keefe said in response to my concern, calling people who sell their marketing services for a fee “marketers” sounds “demeaning.” Interesting that it should, but telling. Some call them marketeers, which is meant to be demeaning, but why does a name that matches perfectly with what they do sound demeaning?
Ironically, I have some friends who provide marketing services to lawyers. They don’t often come out to support the things I write about, as that would put them at odds with others in their occupation (see what I did there?) and they see little benefit in becoming embroiled in a beef by siding with someone who is considered by most marketers to be the devil. The things I say make many marketers feel very angry, and not want to be my friend.
Aside: Another irony is that I’ve been contacted a number of times by legal marketers, the ones who claim to have a stable filled with fabulous lawyers paying them tons of money, who have found themselves in a legal jam. When they’re in trouble, they call me, not their clients or the lawyers who adore them, but the mean old curmudgeon marketer-hater. They tell me it’s because they know I’m a straight shooter, and that I will tell them the truth. Maybe being truthful is better than a homepage that proclaims you’re aggressive, caring and experienced, like every other lawyers’ home page.
There are people out there who are pretty darned good a helping lawyers market their services, but they aren’t usually the ones whose twits you read or whose blogs repeat the Ten Rules For Whatever, in varying permutations every few weeks. These are the ones who are fully knowledgeable about the Code of Professional Responsibility, and believe in it. These are the ones who understand that lawyers who conduct themselves with integrity and dignity get clients willing to pay well because they want excellence. They appeal to the needs and wants of a higher order of clientele, and they leave the goundlings to the simpletons and charlatans. Their clients aren’t looking for 100 new leads a week, asking for free legal advice in the hope of finding a pro bono lawyer to handle their shoplifting case in Peoria.
One would suspect lawyers, of all people, to appreciate the distinction, since words are our lives and qualifications, like definitions, matter. But still, the word marketing is tossed about mindlessly. When Carolyn Elefant wrote about how she still has to market, she described how she becomes involved in the legal world, networks with other lawyers doing worthwhile things.
Yet the comments to her post struck me as chilling. Or perhaps perfectly fine. It was impossible to figure out, because they were directed toward rationalizing why all lawyers need to market. Though a false premise, it struck me that the reactions were disconnected to Carolyn’s point, that she markets by engagement in good, lawyerly causes, while the commenters seek to justify using nasty social media marketer’s gimmicks. Or maybe each commenter was talking about something different, since no one defined the term, marketing. Except for this fellow, whose handle seems to answer the question as to his definition. (Protip: Calling yourself “legal elite” doesn’t make you so; it does, however, make people laugh at you for being sad and pathetic.)
I had a nice chat with one of the good legal marketers. She told me that it’s embarrassing, how anyone can read a few insipid marketing blogs, get a copy of Seth Godin’s books, and open up shop as a marketer. It’s hard to speak at conferences, she said, when the audience is made up of former legal secretaries, disbarred lawyers or laundry detergent sellers. When they come up to you afterward and shower her with empty compliments, they don’t realize the appreciation of someone dumber than dirt, whose entire schtick consists of the most rudimentary grasp of marketing and a few well-worn gimmicks, doesn’t brighten her world, but rather makes her question why she wasted her time coming.
There are some good legal marketers out there. They won’t promise you what the marketeers will, as they know it doesn’t happen that way. Their efforts are neither easy nor quick. They aren’t cheap. And they don’t like the schemers and scammers, the scoundrels who pop up everywhere offering a magic bullet if only a lawyer doesn’t mind walking the boulevard in hotpants, any more than I do.
The good legal marketers don’t “put on airs” calling themselves marketing “professionals.” They are marketers, and damn proud of what they do. And the absolute last thing a good legal marketer will ever tell their client to do is demean themselves for a quick buck.
What they are not, and will never be, is a social media professional. This is a social media professional.
Most readers will be busy today, spending time with the mundane tasks needed to make Thanksgiving the holiday it was intended to be: watching Dallas lose to the Redskins, saying nice things about a turkey, marveling at the cylindrical nature of cranberry sauce in its natural state.
While many are offended by family values as a political plank, not only because they’re the values cherished by someone else’s family to be imposed on other people’s families, but because we have family values of our own. We do not eschew family values as a voluntary exercise. We love family values, and today is a day to honor them. Often with pie.
We do so by sharing our good fortune in having such a wonderful family and such abundance in our lives with those less fortunate. We do not do so because a judge in Stark County, Ohio, well known for the disgusting stripsearch of Hope Steffey, thinks that would be a “poetic” sentence.
In Ohio, Stark County Common Pleas Judge Frank Forchione has sentenced Valerie Rodgers, 46, to making Thanksgiving dinner for three police officers on leave or unable to work. In addition to the dinner, she will be on one-year probation for felony assault and three misdemeanors. This follows another judge who sentenced a teen to ten years of church.
Rodgers pleaded guilty to knocking over a police officer while he was directing traffic.
Judges know that this type of punishment is hugely popular with the public. It is a trend that is erasing the line between entertainment and the law. She has been a continuing and growing trend of this type of abuse by judges…These judges make a mockery out of our court system and sit like little Caesars in meting out their own idiosyncratic forms of justice — often to the thrill of citizens. They degrade not just their courts in such novel sentencing but the legal system as a whole. This judge appears to relish his reputation as the gavel of God — sending felons to embrace faith.
It’s good to embrace faith, but it’s not something that can be imposed by judicial fiat. If there is poetic justice, Valerie Rodgers will be a lousy cook. And Forchione will find himself alone today, eating the microwave version of turkey.
But Thanksgiving is one of the uniquely secular holidays, an America invention remembering how Native Americans, called Indians for hundreds of years until someone decided that it was hurtful, gave us help and comfort before we destroyed the fabric of their world to make it more suitable to our desires. That means that there will be no cranberry sauce today in the real India, where the denizens are properly called Indians, even though they have no personal relationships with tomahawks.
Yet, despite their tryptophan deficiency, it appears they are far more like us than we realize. Via Bill Henderson, a letter to graduating Indian students from Mohit Chandra, a KPMG partner, that first appeared in the New York Times, and which I post in full, as it captures the spirit of the day:
Dear Graduates and Post-Graduates,
This is your new employer. We are an Indian company, a bank, a consulting firm, a multinational corporation, a public sector utility and everything in between. We are the givers of your paycheck, of the brand name you covet, of the references you will rely on for years to come and of the training that will shape your professional path.
Millions of you have recently graduated or will graduate over the next few weeks. Many of you are probably feeling quite proud – you’ve landed your first job, discussions around salaries and job titles are over, and you’re ready to contribute.
Life is good – except that it’s not. Not for us, your employers, at least. Most of your contributions will be substandard and lack ambition, frustrating and of limited productivity. We are gearing ourselves up for broken promises and unmet expectations. Sorry to be the messenger of bad news.
Today, we regret to inform you that you are spoiled. You are spoiled by the “India growth story”; by an illusion that the Indian education system is capable of producing the talent that we, your companies, most crave; by the imbalance of demand and supply for real talent; by the deceleration of economic growth in the mature West; and by the law of large numbers in India, which creates pockets of highly skilled people who are justly feted but ultimately make up less than 10 percent of all of you.
So why this letter, and why should you read on? Well, because based on collective experience of hiring and developing young people like you over the years, some truths have become apparent. This is a guide for you and the 15- to 20-year-olds following in your footsteps – the next productive generation of our country. Read on to understand what your employers really want and how your ability to match these wants can enrich you professionally.
There are five key attributes employers typically seek and, in fact, will value more and more in the future. Unfortunately, these are often lacking in you and your colleagues.
1.You speak and write English fluently: We know this is rarely the case. Even graduates from better-known institutions can be hard to understand.
Exhibit No. 1: Below is an actual excerpt from a résumé we received from a “highly qualified and educated” person. This is the applicant’s “objective statement:”
“To be a part of an organization wherein I could cherish my erudite dexterity to learn the nitigrities of consulting”
Huh? Anyone know what that means? We certainly don’t.
And in spoken English, the outcomes are no better. Whether it is a strong mother tongue influence, or a belief (mistakenly) that the faster one speaks the more mastery one has, there is much room for improvement. Well over half of the pre-screened résumés lack the English ability to effectively communicate in business.
So the onus, dear reader, is on you – to develop comprehensive English skills, both written and oral.
2. You are good at problem solving, thinking outside the box, seeking new ways of doing things: Hard to find. Too often, there is a tendency to simply wait for detailed instructions and then execute the tasks – not come up with creative suggestions or alternatives.
Exhibit No. 2: I was speaking with a colleague of mine who is a chartered accountant from Britain and a senior professional. I asked him why the pass percentage in the Indian chartered accountant exam was so low and why it was perceived as such a difficult exam.
Interestingly (and he hires dozens of Indian chartered accountants each year), his take is as follows: the Indian exam is no harder than the British exam. Both focus on the application of concepts, but since the Indian education system is so rote-memorization oriented, Indian students have a much more difficult time passing it than their British counterparts.
Problem-solving abilities, which are rarely taught in our schooling system, are understandably weak among India’s graduates, even though India is the home of the famous “jugadu,” the inveterate problem solver who uses what’s on hand to find a solution. Let’s translate this intrinsic ability to the workforce.
3. You ask questions, engage deeply and question hierarchy: How we wish!
Exhibit No. 3: Consistently, managers say that newly graduated hires are too passive, that they are order-takers and that they are too hesitant to ask questions. “Why can’t they pick up the phone and call when they do not understand something?” is a commonly asked question. You are also unduly impressed by titles and perceived hierarchy. While there is a strong cultural bias of deference and subservience to titles in India, it is as much your responsibility as it is ours to challenge this view.
4. You take responsibility for your career and for your learning and invest in new skills: Many of you feel that once you have got the requisite degree, you can go into cruise control. The desire to learn new tools and techniques and new sector knowledge disappears. And we are talking about you 25- to 30-year-olds – typically the age when inquisitiveness and hunger for knowledge in the workplace is at its peak.
Exhibit No. 4: Recently, our new hires were clamoring for training. Much effort went into creating a learning path, outlining specific courses (online, self-study) for each team. With much fanfare, an e-mail was sent to the entire team outlining the courses.
How many took the trainings? Less than 15 percent. How many actually read the e-mail? Less than 20 percent.
The desire to be spoon-fed, to be directed down a straight and narrow path with each career step neatly laid out, is leading you toward extinction, just like the dinosaurs. Your career starts and ends with you. Our role, as your employer, is to ensure you have the tools, resources and opportunities you need to be successful. The rest is up to you.
5. You are professional and ethical: Everyone loves to be considered a professional. But when you exhibit behavior like job hopping every year, demanding double-digit pay increases for no increase in ability, accepting job offers and not appearing on the first day, taking one company’s offer letter to shop around to another company for more money — well, don’t expect to be treated like a professional. Similarly, stretching yourself to work longer hours when needed, feeling vested in the success of your employer, being ethical about expense claims and leaves and vacation time are all part of being a consummate professional. Such behavior is not ingrained in new graduates, we have found, and has to be developed.
So what can we conclude, young graduates?
My message is a call to action: Be aware of these five attributes, don’t expect the gravy train to run forever, and don’t assume your education will take care of you. Rather, invest in yourself – in language skills, in thirst for knowledge, in true professionalism and, finally, in thinking creatively and non-hierarchically. This will hold you in good stead in our knowledge economy and help lay a strong foundation for the next productive generation that follows you.
Together, I hope we, your employer, and you, the employee, can forge an enduring partnership.
The world may be flatter than anyone thought. The Slackoisie can take comfort in knowing they’re part of a universal movement, as well as the existence of curmudgeons (like moi) in Delhi.
For the most part, my posts end up with a cohesive theme, a point. This one is random, as are the things for which we are thankful. Both my children slept under my roof last night, in a home that had heat. For this, I am thankful. We will eat Dr. SJ’s fabulous pies after a dry turkey dinner, for which I am thankful. Maybe Jack and I will go for a ride in the Healey between games today, and if it starts up like a champ in the cold New York weather as it always does, I will be thankful, as I always am.
Perhaps some of you will persist in reading to this point, for which I am extremely thankful given its length. I write without knowing whether anyone will read, and without knowing whether it will be embraced by anyone or reviled as stupid and dangerous. Though I don’t write for your sake, I do appreciate that you spend your time reading what I write, that so many think it’s worth their time to read what I write. Thank you.
If there is any message to be had in this post, honor your own family values, whatever they may be, and try to find something to be thankful for. It’s a mean, nasty world out there. Someone will be harmed today, whether in the name of the law or to sate some narcissist’s vision of justice. Even on Thanksgiving, someone will suffer. It’s okay to take a moment to do what you can to right the wrong, and then have some pie.
Do you ever wonder whether the TSA reads about such things? I certainly do. And courtesy of TSA’s “Blogger Bob,” whose real name is Bob Burns and who feeds his family on the public teat, we now know that they do. Burns commented to Amy’s post, and wrote a post of his own based on the same comment:
Here we go again… TSA seems to be a frequent and a convenient subject on Amy Alkon’s blog. The writer’s language characterization towards TSA and our employees is offensive to say the least. Name calling, insults, the whole gamut…
In her latest screening incident, she’s angry because a supervisor wouldn’t give her the name of an officer who had just screened her. An officer who – by the way – by all accounts other than Ms. Alkon’s, did her job by the book. It is more likely that she wanted this information so she could post the officer’s name on her blog as she’s done before with other incidents. In fact, she named and publicly accused one of our officers of rape after a routine pat-down in an earlier allegation.
The old Reagan ploy, “here we go again.” That mean Amy Alkon, calling us mean names and saying mean things about what we do. “Offensive to say the least.” Why won’t she be nice to us? Why must she offend us? Why?
Blogger Bob acknowledges that a supervisor refused to give Amy the name of an “officer” who works for the government and, in the course of his her “duty,” touched her. Though in Burns’ world, his people say it was by the book, and only the one person who doesn’t get a TSA paycheck disagrees. Since that makes it the TSA’s word against Amy’s, where popular vote seems to carry the TSA day, Amy loses. But what of the refusal of the officer whose name couldn’t be read, or the supervisor who refused to give it up?
Blogger Bob, despite his lengthy rant against the evils of mean Amy, never gets back to that detail.
Instead, Burns goes on to point out all the things Amy does that darken his TSA heart.
Ms. Alkon says all sorts of things in this post, but what Ms. Alkon doesn’t tell you is that from the moment she entered our checkpoint, she began making statements such as “TSA gets paid to molest passengers and touch their private areas.” Does that sound like somebody who wants to get through the checkpoint smoothly? No, it sounds like somebody who makes a living by agitating situations and writing about them.
Does Amy sound like an Agitator? Maybe, if agitator is someone who questions and challenges things that government functionaries do to her that they shouldn’t. To claim she makes a living at it is a bit peculiar, but given that Bob feeds off the tax rolls, his concept of how people who work for a living earn an income is probably a bit skewed. Government employees assume nobody would lift a finger unless they were getting money out of it, since that’s how they roll. Kinda makes them sound like marketeers, now that I think about it.
But Burns, still never returning to the concealment of the identity of the TSA guy whose fingers found Amy’s private parts, decides to provide a civics lesson rather than explain why it’s cool with the TSA that their people hide in the shadows.
We understand that not everybody likes or agrees with TSA’s policies and procedures. Part of what makes this country great is that we can openly complain on blogs such as this one, but I think it’s only fair that the blogger in question should be fair and accurate about what they write about and also consider the privacy of the individuals involved. After all, these individuals are doing the job the way they’ve been trained to do it. They show up to work daily with the intent of protecting our Nation’s transportation network.
Hidden within this flag waving is this little gem: “These individuals are doing the job the way they’ve been trained to do it.” So Bob, you train your “officers” to conceal their identities? You train your supervisors to conceal identities too? Is there a class on it in TSA school, Concealing Identities 101?
Rather than put Amy Alkon in her place, Burns’ embarrassing effort gives her the chance to directly respond :
“TSA gets paid to molest passengers and touch their private areas.” Does that sound like somebody who wants to get through the checkpoint smoothly?
No, it sounds like someone who wants to defend our constitutional rights.
You, Bob Burns, are terrible person. You take money in order to support the violation of our rights. Being a prostitute would be a far more noble profession. In that case, consenting adults remove their clothes in a consenting exchange.
Got a problem with that constitutional thingy Bob? Well, you asked. But then, Amy unloads.
Caught one single terrorist, Bob?
Ouch. That must hurt. After all, nobody wants to have their nemesis point out that at the end of the day, they’re just a cog in the wheel of such a worthless failure. So many touchings. So many Americans offended. So many constitutional rights sacrificed, and not a single terrorist caught.
The efficacy of the TSA’s efforts isn’t much in debate. Millions of Americans have removed their shoes, been exposed to radiation, had parts of their children’s bodies touched that no one is ever supposed to touch, all so that they can catch a terrorist. But they haven’t. And no, the argument that these methods have kept the bad guys away doesn’t fly any more than it proves the existence of space aliens, who similarly haven’t been caught.
But Bob, what about your people concealing their names? A thousand words murdered to tell us how mean Amy Alkon is, but you never tell us why it’s okay with the TSA that their nametag wearing officers are allowed, taught, to conceal their identities? Is it really because they’re scared that Amy Alkon will write something mean about them?
It does make America great that we can openly complain on blogs about the TSA, Bob. America would be greater still if functionaries like you didn’t work so darn hard to whine about how mean those complaints can be, and instead explained why your people hide their identities from the public to prevent their being held accountable for misconduct. It’s only fair, Bob.
Everyone thinks they know what the People want. It’s the arrogance of assuming what they want reflects what all normal people want, indulging in the fantasy that they’re normal, or at the very least, in the majority. They forget those election nights when their favorite candidate lost, crashed and burned, when no reasonable person could vote for the other guy.
But there are manifestations of what the People want. Hard, irrefutable proof of the Will of the People. It happens when a referendum is placed on a ballot and the People put their hand to paper, to switch, to digital button, and vote. By their vote, they make their will clear.
This happened a couple of weeks ago in the states of Washington and Colorado. The issue on the table was whether to legalize the recreational use of marijuana. It’s a controversial issue, and one that has sound arguments on both sides. In both Washington and Colorado, the People spoke. The Will of the People was to legalize marijuana.
But that’s not the end of the story. The federal government has persisted in keeping marijuana as a Schedule 1 drug, which means it’s a drug with a high level of abuse and no medicinal purpose. It’s irrational and scientifically unjustifiable, but it remains on Schedule 1 because of rhetoric rather than reality. And because it does, it remains a focus of investigation and prosecution under federal law, even if state law says otherwise.
Federal law reflects the will of politicians and government officials. It doesn’t mean they don’t think their will reflects what’s best for the people, and they may well wrap themselves up in the same arrogance we all do, that they know better. The same arguments made for and against marijuana legalization are well known in Washington, and officials have tacitly voted against it.
Most elected officials believe that by dint of their office, they embody the Will of the People. It’s hard to maintain this self-serving fiction, however, when an actual vote declares they do not. They can attribute the vote to ignorance, or misleading information, but then, the same can be said of an electorate that put them in office. The choice is to either honor the vote or ignore it. To ignore it is to disavow the Will of the People.
How this plays out in Washington and Colorado is now in the hands of the Department of Justice and the Attorney General, Eric Holder. He has federal laws that inform him that marijuana is illegal. He has state laws that inform him that the People no longer want it to be. Which takes precedence? And if he honors state laws legalizing marijuana, how does he send his armed troops across an imaginary border to arrest people for a crime that can put them in prison for decades that is perfectly lawful a few feet away?
The Texas Tornado, Mark Bennett, writes about the significance of hiding in the shadows, a problem with which he’s taken issue for a very long time.
I don’t, as a general principle, allow anonymous comments here. Chief among the reasons is that the more anonymous people are, the worse they behave. People do things behind tinted glass on the freeway that they would never do on the sidewalk. They say things from the cover of darkness that they would never say in the light of day.
Despite the fact that he’s right, I’ve chosen to allow anonymous comments. But like hearsay at a suppression hearing, the assertions of anonymous commenters, whether thoughts, feelings or beliefs, aren’t given the credit that goes with putting your name and reputation behind them. You want to hide? Okay, but then don’t complain that you aren’t treated with the respect you think you deserve. That’s the price.
Anonymity on a blog is relatively benign. Sure, it can offer misleading, even dangerous “advice,” but I trust that others reading it understand that if the person lacks the guts to put his name to his words, his advice is worth no more than his reputation.
But the same concerns that Bennett has about commenters hiding in the shadows apply to others who, though you know what they’re wearing, are similarly anonymous.
Why do TSA goons steal? They steal because they can. They steal from your checked luggage because when you get to Chicago and your cufflinks are missing, there is no way for you to track down the guy in the Atlanta airport who stole them. If TSA wanted to stop its employees stealing from checked luggage, there’d be a simple solution: any TSA employee who opens a bag puts his name in it.
But that would create accountability, and the security state cannot operate if its functionaries are accountable. If screeners knew that their mothers were likely to read on the internet about what they were doing on the job, they would be on much better behavior, which would not aid in the government’s avowed program of unquestioning compliance.
The argument against this is one heard frequently, and used a blanket excuse for any wrong that occurs as an unfortunate by-product of a safe society. If the functionaries of government could be put in fear for the performance of the job the government demands of them, then we risk their hesitation, their failure to act as the government tells them, and we will all be put at risk and suffer for their fear. We can’t have that, the government says.
The argument is valid, with the caveat that the government imputes good will to the people it pays to do a job. If no TSA agent ever pulled out a pair of cufflinks from a bag he was checking for bombs that have never been found, then it wouldn’t be an issue. The government assumes that no agent in its service will do wrong, because they aren’t supposed to do wrong, and makes rules based on its assumption.
They are sound rules if the assumption proved accurate. It never does, completely. There are always some who violate the authority and trust, and on the rare occasions that they’re revealed, the isolated-incident trope is pulled out of safekeeping.
But Bennett’s point is not only that it’s not an isolated incident (provided you agree that when something happens constantly, isolated isn’t a proper characterization), but that if the assumption was true, it need not happen at all. Why, if our government functionaries are so honorable and trustworthy, should they live in mortal fear? If they steal nothing from your bag, touch nothing on your body, that would give rise to anger, hatred, fear of publicly outing them to their mother, should they need to conceal their identities?
Thoughts immediately flashed back to the Oakland police preparing to put an end to Occupy Oakland, when the first thing they did after strapping on their battle gear was cover their nameplates in black tape. In a bit of total irony, my post about this included a video posted by Carlos Miller, which has since been removed because, according to the Youtube message:
The You Tube account associated with this video has been terminated due to multiple third-party notifications of copyright infringement.
If you’re not aware, Carlos has been at the forefront of recording police, making sure the light (if not sun, then klieg) shines on their conduct, and they absolutely hate him for it. Copyright infringement? Not likely.
The black tape didn’t appear on their shields by magic. It didn’t sneak into their closets at night and affix itself to their nametags. The Oakland cops made an affirmative decision to conceal their identities, since the only description anyone could provide about them aside from their names is that they looked like Federation Storm Troopers in black. And the only answer back would be, “we would love to help, but without knowing whose club broke your skull open, there’s nothing we can do.”
Anonymity is the refuge of coward and scoundrels. It’s where evil can have its way. It’s the means by which the psychological forces that prevent our worst angels from taking control of our thoughts and actions are swept away, and we devolve into our most vicious, malevolent selves.
You want to be anonymous when you comment on a blog? Big deal. Say something stupid and that’s how you’ll be treated. Ideas can be dangerous, but by hiding in the shadows, everyone knows you aren’t to be taken seriously. You render yourself worthless by choice, and your cries that you don’t want to suffer the consequences of your spewing are a joke for the rest of us to laugh at.
But this can’t be said for agents of the government, who bask in anonymity to avoid accountability. The excuse that they can’t do their job if they’re afraid is a lie, no matter what court, agency or official perpetuates it. Their attempt to conceal themselves is, alone, a wrong perpetrated by an agent of the government on the public, as clearly as the Oakland cops who put tape over their names. And it is incumbent on good people to get the names of those who hide in the shadows and utter them so they don’t get away with it.
A mechanism that usually helps to reach consensus is to start out with things upon which “we can all agree.” There aren’t many of them, and even what we perceived as being wholly uncontroversial can give rise to disputes. They may be minor, even trivial, but still, it’s hard to find real common ground.
But one would have to think that this proposition is shared by all: A person who everyone (and by that, I mean everyone) agrees is innocent and committed no crime, but was wrongfully convicted and imprisoned, should be immediately released. Whether he should be given a deep apology and a subway token can be the subject of vicious argument, but release? No argument there.
And yet, there is.
Disagreement didn’t come from some crazy outlier hate group. It didn’t come from some fringe pundit. It didn’t come from some man-hating absolutist advocacy group. No, it came from the Attorney General of the State of Virginia, Ken Cuccinelli. From the Washington Post :
The man is Jonathan Montgomery, age 26. In 2007, a then-teenage girl named Elizabeth Paige Coast accused Mr. Montgomery of having molested her six years earlier, when she was 10 and he was 14. It wasn’t true.
Despite the flagrant miscarriage of justice in Mr. Montgomery’s case — a stain on Virginia’s criminal justice system — no one in a position of authority has moved to set him free. The trial judge who convicted Mr. Montgomery vacated the verdict and the sentence and ordered him released. But the release was blocked over the weekend by Virginia Attorney General Ken Cuccinelli II’s office, which said the state’s Court of Appeals must first declare him innocent. That could take weeks, even months.
Jeff Gamso explains the rules that Cuccinelli found so compelling that he had to, he just had to, step in to stop this grave miscarriage of justice refusal to follow the rules:
The problem is that it’s been more than 21 days since Montgomery was convicted. Which means he has to stay in prison even though he’s innocent, even though there was no crime.
“Virginia law will not allow the immediate release of Mr. Montgomery, and the attorney general is obligated to follow the law,” said Brian Gottstein, the attorney general’s director of communication. “Our research shows that the order from the trial court to vacate the three and a half year-old conviction appears void on its face, as the trial court does not have jurisdiction to enter the order according to Virginia’s 21-day rule. Authority to get around the rule — to pardon or commute the sentence — does not rest with the attorney general.”
Rules, after all, are rules. I mean, think what might happen if Virginia started letting innocent people out of prison right and left just because they’re innocent?
Divestiture of jurisdiction after a conviction is final is certainly a rule. So too are rules about trial readiness, about disclosure of exculpatory information, being forthright with the court. We are system filled with rules, drowning in rules, each of which exists to serve a purpose. And on occasion, a rule exists which applies even when it serves no purpose, or serves to undermine a greater purpose.
There is a little game we play in the courtroom. We play it all the time. We agree to waive rules. We stipulate. We rid ourselves of the yoke of a rule that serves neither party’s interest and move forward to the things that matter, the issues in dispute.
Sometimes we do this as a courtesy to our adversary. Sometimes we use it as a bargaining chip. Sometimes we do it just to avoid a waste of time that the rule would impose when neither side feels any compulsion to let the formalities swallow our lives. In fact, some rules exist and are never used. There is a rule that at the time of arraignment, the charges must be read publicly so that the defendant is assured of knowing the allegations against him. In 30 years, I remember this being one a grand total of once. Everybody waives the reading.
So what makes this rule, the one keeping an innocent 26-year-old Jonathan Montgomery imprisoned, so much more important than any other rule in the legal system?
The chief prosecutor in the city of Hampton, Anton Bell, agreed with Mr. Montgomery’s request that his conviction and sentence be thrown out. Hampton Circuit Court Judge Randolph T. West, who presided over Mr. Montgomery’s trial in 2008, said he was mortified to learn of Ms. Coast’s deception. “You will never forget this, and God knows, I will never forget it,” the judge told Mr. Montgomery in a hearing last week.
Clearly, the prosecutor on the case didn’t demand adherence to the rule. The judge ignored the rule and did what he had to do to right this unquestionable wrong. Both did precisely what one would hope they would do upon learning that there was no crime, never a crime, committed by a young man in prison. Both did what any human being would do, would want to do, upon learning of this terrible wrong.
But Cuccinelli would hear nothing of it.
There has been no statement by the Attorney General explaining why, why, this had to be done. In some cases, prosecutors who learned of exoneration by DNA persisted in their belief that the defendant was guilty, despite scientific evidence to the contrary. In other cases, they argued that despite his not having committed this crime, he was a bad and evil man who deserved to be in prison, if not for this crime then for something else.
In this case, however, the only rationale offered is the rule. One can almost hear Cuccinelli saying, “well, I would sure like to let him free, and he sure deserves to be free, but I just can’t let it happen because, well, we got rules, and without rules, it would just be an awful rule-free society. We can’t let that happen. Rules are all the distinguish us from the beasts, and we must honor our rules.” Rules.
Weird how the adoration of rules pops up its ugly head only when they serve to work against the individual, even when, as here, they don’t do a damn thing to serve the state. Had Cuccinelli turned his head the other way, let Montgomery walk free as was agreed by the prosecutor, judge and defense attorney, no one would have thought ill of him for letting this violation of the rules slide.
No state interest would have been jeopardized, nor any precedent set that would come back later to bite him in the butt. Nothing bad would have happened at all. And yet, some sick compulsion made him step forward to stop the freeing of an innocent man. Because of a rule?
When Eastern District Judge Dora Irizarry granted Jabbar Collins’ habeas petition, she slammed the prosecutor, Michael Vecchione, as well as Kings County District Attorney Joe Hynes.
Judge Irizarry called the office’s lack of contrition “sad,” “shameful” and “beyond disappointing.”
“I didn’t hear any kind of acknowledgment that things were done that should not have been done,” Irizarry said.
Joe Hynes, feeling particularly distressed by such a verbal whipping, backed up the guy he promoted to chief of rackets:
“Anyone who knows Mike Vecchione, who has ever seen him in action, knows that he is a very, very principled lawyer,” Hynes said.
Anyone? Maybe not anyone. But this is all old news. Nothing to see here.
This, however, is brand new, stemming from Jabbar Collins’ action for damages for the 16 years he spent in prison because of the very, very principled Vecchione. From the New York Times :
Judge Frederic Block made the comments during pretrial proceedings over a lawsuit filed by Jabbar Collins, who was exonerated of murder charges in June 2010 after a judge found that Mr. Hynes’s office relied on false testimony, coerced witnesses and suppressed evidence in the case. One prosecutor, Michael Vecchione, was found to be the driving force behind the case.
“I’m disturbed that Hynes praises Vecchione after what happened,” Judge Block said Friday in Federal District Court in Brooklyn. “Hynes hasn’t treated this seriously, has he?” the judge asked a lawyer for the city. “Name one thing that he has done in light of Mr. Vecchione’s aberration,” the judge continued.
While Judge Block “rebukes” Hynes and Vecchione, it’s troubling that he attributed Collins’ 34 years to life sentence to Vecchione’s “aberration.” According to the evidence amassed by Joel Rudin, Collins’ lawyer, this is anything but an aberration.
In the complaint, Mr. Rudin said the district attorney’s office regularly brought witnesses picked up on warrants to their office for interrogation, rather than directly to court.
The complaint also accused Mr. Vecchione of allowing subordinates to sign his name for him, and it cited a report from a handwriting expert who found that Mr. Vecchione’s signature on sworn affidavits in multiple cases did not match his actual signature.
And
Mr. Vecchione has been accused by defense lawyers and former colleagues of overstepping the bounds of legal propriety. One of his notable failures was the case against Roy Lindley DeVecchio, a former F.B.I. agent whose murder prosecution fell apart after it became apparent that Mr. Vecchione withheld information that seriously questioned the credibility of his star witness.
While it’s commendable that Judge Block, like Judge Irizarry before him, finds what happened here is disturbing, and DA Hynes’ failure to either acknowledge or deal with the monumental misconduct produced by his office, this suggests nonetheless that the standard judicial caveat, the one-bad-apple, isolated-incident excuse, remains in full force and effect.
To the extent that Hynes could try to cover up what happened here with a few well-placed words about his “very, very principled” prosecutor, the fact that a second federal judge has spoken out publicly about the egregious wrongdoing is important.
As every criminal defense lawyer who practices in federal court is painfully well aware, the reluctance of federal judges to think ill, no less speak ill, of prosecutors is legend. When faced with obvious impropriety, they will almost invariably chalk it up to some momentary lapse of judgment, an accident perhaps, that absolves the prosecutor of any malevolent intent. There he stands, an angel protecting an appreciative public, who made a silly mistake. Let’s just fix this little bitty problem and all is well. It’s like it never happened.
Should the defense lawyer question the court’s trivialization of the wrong, or absolution of the prosecutor, anticipate a facial challenge to the prove it, beyond any doubt whatsoever. You do not question a prosecutor’s honesty or integrity unless you’ve got video, plus the Pope as an eyewitness. Do so and expect payback, hard and swift. And that’s from the judge. Forget what the government will do to find some damn fine reason to make your life as miserable as possible.
And so prosecutors walk away, their halo intact.
Here, Vecchione got nailed and nailed good. Here the proof of wrongdoing is not only solid, but accepted by the court, now two federal judges. So Vecchione’s boss wants to pretend it never happened? Nobody pays Joe Hynes much heed anyway. He’s a bit, oh, political. While he ought to do a little something to back up the efficacy of his offices protection of rights, just so he isn’t embarrassed the next time he gets caught dead to rights on a Brady violation (since he doesn’t want to look particularly awful), Vecchione’s too high up on the food chain to throw under a bus.
So we’re left to federal judges to speak truth about what the Kings County District Attorneys office did to Jabbar Collins. And others.
This is not an abberation. And more importantly, there was no need to throw in the standard judicial caveat when ripping Hynes a new one for his failure to do anything to address what stinks in his office. Why offer this gratuitous backdoor? Why, in the face of systemic impropriety, make nice with the Brooklyn DA by tossing in the one-bad-apple excuse? Why?
Is there any real concern lurking behind the robes that Brady is a game to be played to test whether anybody’s watching, anybody cares? Does it bother anyone to have prosecutors sending out phony subpoenas and material witness warrants to harass, coerce and manipulate witnesses so that they won’t testify truthfully for the defense at trial. Doesn’t it concern a judge who spouts the “search for the truth” platitude that the government side, the ones whose job it is to “do justice” as opposed to win, are testing their mettle to see how much they can get away with?
This was no aberration, and as much as I applaud Judge Block’s confirming that the prosecutor did wrong and the DA did nothing about it, it’s never going to stop as long as each and every systemic instance of impropriety isn’t excused as an aberration. In a system that works, aberrations don’t happen. And when they happen over and over, they’re not aberrations. This was no aberration.
Search Google. Look in a legal directory. Find a “prequalified” lawyer near you who is waiting by the phone to answer your questions. Select a lawyer who provides free answers to your legal question on the internet. These are not the way to find a lawyer.
In discussing the methodologies used by legal marketers to fake out methodologies used by search engines to prevent people from gaming the system, one of the reactions came from a legal marketer who saw this as an opportunity to smear his competition (sure, the others are lying scum) while promoting himself (but not me, I’m the real thing and make people fabulously wealthy!!!) My tolerance for such shenanigans is very limited.
While I’ve written quite a bit in the past about unethical or deceptive marketing by lawyers, directed toward lawyers not putting on hotpants and strutting the boulevard to score a buck, and about what potential clients should do to find the right lawyer for their case, I haven’t written as much about what’s wrong with the dreck cottage industry of legal marketing that seeks to deceive potential clients through slimy lies.
Mind you, individual lawyers who use marketing services aren’t necessarily bad lawyers. In fact, some lawyers who engage in awful marketing schemes are quite good, D.C.’s David Benowitz coming immediately to mind. The point is that a lawyer who markets isn’t necessarily a bad lawyer, but the marketing effort is a red flag that tells the potential client to think twice. And probably, stay away.
There are dozens of “lawyer directories” on the internet, most proclaiming themselves to be the foremost. They’re lying. They use vague words like “Number One!!!” or “Premier,” which mean nothing and are mere puffery. But that’s just the start.
These are nothing more than “coop advertising” schemes, where lawyers pay a monthly fee to advertise their availability. The website owner puts in as much puffery as he can fit, with a disclaimer in tiny print somewhere off the screen that everything it says on the website is a lie and he guarantees absolutely nothing. Look around, It’s there somewhere, if you can find it.
The scheme is to deceive potential clients into believing that the lawyers are “prequalified,” suggesting that these are at minimum competent lawyers, at best fabulous lawyers. Prequalified means that they are in fact license to practice law somewhere, and paid their monthly fee. It doesn’t mean they actually practice what they claim to practice or are any good at it. It’s just a scam.
Marketers will not only deny this with their dying breath, but use every marketing trick in the book to conceal the truth. They have to, as they make their living off lying to you. If they can’t produce potential clients, lawyers won’t pay them money.
They anticipate that most potential clients are too naive, stupid or desperate to see through their meaningless marketing jargon, and they’re mostly right. People still have this bone in their head that makes them think that if someone says something in writing, it must be true. It’s not, but more important, it doesn’t really say what you think it says.
But it takes a fairly sophisticated understanding of language and law to appreciate the nuance that allows them to lie with relative impunity. You might think that if this just a big old scam, lawyers wouldn’t participate in it. Sadly, there are many lawyers who will do anything to make a buck. And in a lousy economic environment, lawyers tend to close their eyes and ears whenever it’s convenient, just like anyone else.
And then there’s the loss leader, the websites that offer free answers from real lawyers to your legal questions. This is a come on. The answers are almost invariably worthless, not because the lawyers who answer are necessarily incompetent or failing to try to be helpful, though that happens regularly, but because your questions suck. In order to provide a response to a legal question that’s even modestly worthwhile, a great deal of information, details, specifics, is required.
Your question tend to be awful, failing to provide anything remotely close to the level of specific, accurate, complete info necessary for an even remotely useful answer. It’s not that you don’t try, but you don’t know what’s needed for a valid response. And the responses you get are based on the information you’ve provided, making them utterly worthless, perhaps even dangerously wrong. Yet, everybody loves the idea of getting free legal advice. Free is better than good. Heck, for free, people are willing to accept awful. Think about it: do you really want dangerously wrong legal advice, even if the price is right? That’s what you’re getting.
So what are the things you should look for to not find a lawyer?
Any website that says it can find you a lawyer in your area.
Any website that says its lawyers are “prequalified.”
Any website that offers free answers to your legal questions.
Any lawyer who claims to have won a non-existent award (unless it’s obviously a joke), belong to a nonexistent group or be on a sham list of 100 best lawyers, blawgers, whatever.
Any lawyer who promotes that he’s a SuperLawyer, Best Lawyer, Super-de-duper Lawyer, or any variation on this theme.
Any lawyer who provides a partial resume, including the details that he thinks will impress you while concealing the ones that won’t.
Any lawyer who posts client testimonials on his website.
Any lawyer who uses bogus “guest posts” on his blog.
Any lawyer who uses a ghostwriter to produce content.
Any lawyer who uses stock photos of others on his website.
Any lawyer who uses stock content/language on his website.
Any lawyer who claims to specialize in every practice area there is.
Any lawyer who claims to be an “expert.”
Any lawyer whose physical location is not in the jurisdiction where he’s admitted to practice.
Any lawyer who doesn’t tell you where he’s physically located.
Any lawyer who writes about his fabulous wins, unless he also writes about horrible defeats.
Any lawyer who uses language to suggest he’s the “best,” “number 1,” “foremost,” “premier,” “leading,” in his field.
No doubt there are other things that should be included on this list, and perhaps others will add to it in the comments, but there is one overarching theme here. Don’t be taken in by marketing schemes that are carefully crafted to deceive. It’s bad enough that lawyers are willing to put on their hotpants for a case. Don’t be fooled by pretty legs.
And fair warning to anyone who wants to argue in favor of their marketing scheme. Anticipate that I will be happy to explain why each is wrong, deceptive, unethical or a scam, and you may well end up very unhappy with my response. But if you still want to try, use your real name. Anonymous attempts to spin your marketing won’t fly on this post. If you want to argue that your marketing scheme is legit, then have the guts to put your name to it.
And while I’ve often used the adage, “on the internet, nobody knows you’re a dog,” I add to the pantheon of truisms this new comic, via Jamison Koehler, to give you pause.
And that’s who could be sitting on the other end of the computer. Nice bunny slippers, right?
Here’s the bottom line: the internet allows anyone and everyone to manufacture a persona designed to entice you to give them your money and trust them with your life, fortune and rights. It’s a great source of information, particularly for verification of claims, but so filled with lies and deception that there is no way for you to distinguish truth from fiction. Granted, we’ve allowed it to become a cesspool. but that doesn’t mean you have to wallow in it.
Know the red flags of deception. Look for the red flags. Cross those lawyers who engage in deceptive marketing off your list. Once deceptive marketing efforts fail to produce “leads,” “pigeons” and “prospects,” even the most unethical or ignorant lawyer will figure out he’s throwing good money after bad and clean up his act. If lawyers can’t manage to conduct themselves honorably on their own, then let the market do so for them. Do not patronize lawyers who engage in deceptive marketing practices. For your own sake, not theirs.
Update: Shortly after posting this, Brian Tannebaum emailed me about the fact that I include on my website my Martindale-Hubbel and Avvo ratings. He questioned whether this was hypocritical of me, and it’s a fair question.
To the extent there is any legitimate external rating of lawyers, these two ratings are the extant industry standard. In other words, these are the best we have, to the extent they mean anything at all, to provide a verifiable claim of what others think of us.
Are they valid indicators of anything? Probably not. Are they legitimate? They claim to be, and the profession has long accepted M-H ratings, and is adapting to Avvo ratings to some extent. And so, I put them on my website because they are as legitimate as rating get, for better or worse, and they reflect what someone else says about me, not what I claim about myself.
That said, I noticed something else on my website that made me cringe. When I created my website five years ago, I included a line that said, “nationally recognized for excellence.” I know what I intended at the time, and what the basis for the statement was. However, in looking at it now, my intentions are irrelevant and it’s unacceptable hype. I have deleted it. I am ashamed that I included it. The only saving grace is that no one has evern retained me because of it.
All of which leads to two important points: I appreciate that Tannebaum called me out. He was right to do so, and that’s what friends do for each other, tell them when their fly is down. Second, I was wrong to include what appeared to be puffery on my website, and when I realized my mistake, I took it down. You can too.
Today is going to be a very tough day for me. You will be fencing in your first conference meet, MIT against five other schools, UMass, BU, UNH, Brandeis and Sacred Heart. It’s going to be a long day. I’m sure the epee squad will do well, as there is some real talent there, as reflected by the fact that MIT epees took first, second and third place at The Big One at Smith College. You did really well, but this is a tough crowd and some of them will want revenge on you today.
But you probably aren’t thinking about this the same way I am. You see, I remember your first competition, the Peanut Butter Cup, back in 2006. You were 12-years-old, and wanted desperately to win. You got your butt kicked. It was better after we went out for an ice cream sundae, but that was a rude awakening. You could have run away from fencing that day, but you didn’t.
You clawed your way up from there. If there was a mistake to be made, a bad thing to happen, it happened. From equipment failures to bad calls to mental errors, it happened. But you learned from each and it rarely happened twice. You have so many medals hanging on the sconce in your room that I’m afraid it’s going to fall off the wall from the weight. And you have a few medals, plaques and the silver trophy that really mean something to you, that you accomplished things that counted. Nobody gave you these for showing up. You earned them, just as you suffered the bad days when someone wiped the piste with you.
Remember how we traveled around the country, to such fabulous places as Memphis, Des Moines and Milwaukee, to fence in the North American Cup? Remember that nasty looking barbecue place that had the best ribs ever? We were afraid to go inside, it was so creepy, but had the best time there. I can’t remember how you fenced the next day, but I’ll never forget that rib joint.
Today will be the first time you compete and I won’t be there. I asked you if you wanted me to come up to Cambridge, and you told me “no.” I asked again, and you told me not to bother. I asked a third time and you finally came clean. You told me, “Dad, don’t come.”
I get it. You’re not 12 anymore. You don’t need me to fix your weapons, to make sure you drink water, to calm you down when you’re too hot and to remind you of your mistakes when you’re overconfident. You’ve grown up, and don’t need daddy to hold your hand anymore. I understand. It was exactly what I hoped you would get out of fencing. You can take a beating and still maintain focus and push through for the win.
Don’t think I didn’t notice how you pulled your nuts out of the fire when you were down 14 to 10 in that direct elimination bout two weeks ago (15 touches wins). Most fencers would give up. Nobody comes back from a deficit like that. But you did. It wasn’t that you won the bout, but that you didn’t give up. You showed remarkable fortitude, a toughness far beyond your years. I saw it. Your coach saw it. I couldn’t have been prouder of you, regardless of whether you ultimately won the bout.
And the final touch, a call disputed by your opponent, where you refused to gloat over the win because you understood why he challenged the touch. Your integrity kicked in, and you never shrugged off a touch when a bad call went your way. You were the first to tell the ref that he was wrong, that you didn’t deserve the touch. Your opponents were often shocked that you gave away a touch, but you didn’t want anything you didn’t earn. This was the way you rolled.
You see, it was never about fencing. Fencing just gave you the tools to mature, to develop that fortitude, that toughness, the ability to stare adversity in the eye and push through it. To suffer a loss and keep fighting. To face an opponent bigger, stronger, better, and refuse to back down. You never disappointed me. In fact, I always wondered what I did right in my life to deserve a son like you.
So today will be a very hard day. Not so much for you, but for me. You will fence and do your best, pushing yourself to win in bout after bout. Maybe you will have a great day and win all your bouts, but maybe you will fight your hardest and still lose a few. That’s the nature of competition, and you will be fine with it as long as you know you’ve done your best.
But I won’t be there to watch you do it. And I can’t tell you how much I’m going to miss being there today, to share in the wins, commiserate in the losses and just be damned proud of you. Fence well today, Jack. But more importantly, have a great time. And call me when it’s over and let me know how it went. Give me that much, please.
The MIT men’s fencing team defeated UMass Amherst (23-4), University of New Hampshire (25-2), Brandeis University (16-11), and Boston University (22-5) but fell to Sacred Heart University (15-12).
Jack went 12-2 for the day. I know it because I read it in the recap.
