In the Pacific Standard, “crime author” Sue Russell attempts to explain the psychological phenomenon giving rise to the inability of police to admit that they’re wrong.  She begins by recounting the story of Michael Crowe, who was charged and ultimately exonerated for the murder of his sister, noting each of the red flags along the way:

Michael was told – falsely – that his 12-year-old sister’s blood was found in his room, that his hair was discovered between her fingers and that his voice stress analyzer test showed deception. Eventually, Michael cracked. He told detectives he had no memory of the crime, but he would be willing to make something up for them.

The desperate teenager’s taped confession is now infamous, heavily interspersed with red flags like: “OK, here is the part where I’ll stop lying.” At one point, veteran detective Ralph Claytor asked him, “How many times did you stab her?” “It’s going to be a lie,” Michael responded. “Three times.” “How many?” Claytor repeated. “Three,” said Michael. “It’s a lie.”

Blood or no blood, Claytor remained steadfast that the boys were responsible. In a deposition he gave five years after the murder as the Crowe family sued the city of Escondido over Michael’s ordeal, he said “Joshua Treadway and Michael Crowe said they did it,” said Claytor. “So I’d have to say that, since they’re the ones who told me they did it, they’re the ones who did it.”

According to psychologists, the intransigence on the part of the lead detective and others in the Crowe case was, as it was in the Marty Tankleff case both predictable and understandable. No matter if science can debunk old “evidence” used to win a conviction, no matter if overwhelming information is uncovered to prove an innocent was wrongfully imprisoned, some key players – detectives, prosecutors, fire marshals, et al – will cling to their long-held certainty about a suspect’s guilt.

“It’s always easier to recognize the mistakes of others,” cognitive neuroscientist Itiel Dror says of these often mystifying denials. “The problem we face,” says social psychologist Carol Tavris, “is not from bad people covering up their mistakes and not wanting to face the truth. It’s from good people who deny the evidence in order to preserve their belief that they’re good people.”

“It’s a mechanism that allows us to maintain a consistency between our beliefs about ourselves, which are usually positive – ‘I’m a good, kind, competent, ethical person’ – and the cognitive dissonance that is aroused when I, a good, kind, ethical person, am confronted with evidence that I did something incompetent, unethical, immoral, hurtful, or cruel.”

Cognitive dissonance, says Tavris, is unconscious mental conflict that arises when two attitudes, or an attitude and a behavior, or an attitude and new information, are incongruous with one another. We quash any contradictory or conflicting thoughts that pop up, she explains, because accepting them would mean accepting that the initial decision was wrong – something which makes humans, from detectives to doctors, uncomfortable.

Dror believes there are also reasons why criminal justice professionals’ intractability may be heightened. One factor: the more time, effort and money invested in an investigation, the more crucial it becomes to justify past choices. While that might seem equally applicable to those in business or public office, criminal justice professionals get a different kind of feedback.

“When they make errors it is not clear that they do because the actual truth is not known,” says Dror, “When a doctor amputates the wrong leg, then it is clear a mistake has happened. No way out! However, in the criminal justice system, the court gives a verdict but we never do know if it is correct or not.” Working in our adversarial justice system also plays a part, says Dror. “It makes admitting to error very hard – not only in the specific case, but the implication for future cases.”

Want readers for your blog?  Want twitter followers? Want to be a social media rock star?  Isn’t that the way to fame and glory?

As marketers construct a laundry list of simple “do’s” and “don’t’s,” usually in “top ten” format under the assumption that none of their target audience has an attention span capable of anything more, new lawyers are entering the social media universe daily.  They don’t want to be those pathetic people who nobody notices, who have no existence online. That won’t do at all. And so they seize hold of the bandwagon with both hands a get on board, hoping to accumulate rock star numbers overnight and, well, be somebody.

Welcome to the Amway Effect on social media.  Via Jure Klepic at HuffPo :

Has social media influence become nothing more than a giant multi-level marketing plan, much like Amway? …The one thing that has always been questionable about their business model is that the definition of success at Amway, and other companies like them, is not just being able to sell tons of products or building a great one-on-one personal business; it’s the ability to get others to sell products so you make money off of them.

The same thing is happening in social media influence. The definition of success is not just being able to influence others to take a certain action or to have others follow you because they believe in what you are saying. Success in social media has now become defined as having massive amounts of people following you. This is true no matter what steps you took to get those people to jump on your bandwagon.

This multi-level approach to building influence has gone to such an extreme that social media itself may now be at a crossroads, where one path leads to obsolescence and the other leads to relevancy. Unfortunately, many forces are already at work to make social media marketing become deflated. One example of this is the so-called “social media certification program.” Most industries have a trade organization where representatives from multiple companies get together and jointly develop industry standards that lead to a certification process. In social media apparently you just have to put together a program and say you are bestowing a certification for the low price of only $1198. No governing board, no statement of qualifications for those developing the program, and no actual perceived industry benefit for actually achieving this certification…just an opportunity to spend your time “learning” instead of doing, and to give your money to someone else.

Where do “instructors” for these “certification programs” come from? The link-building lists that propel people to the head of the instructor / speaker line can be manipulated as easily as a Klout score, simply by linking with each other. You, too, can become a leading expert simply by finding a group of like-minded people and inserting yourself on their list all the time. Google and SEO will take care of the rest when someone is looking for an “expert” source for their next certification program or conference.

Yet all of these serendipitous experiences flow from Eric’s blog, where incidentally, he breaks every “rule” about blogging written by the marketers. Eric doesn’t just limit himself to topics related to New York personal injury law or 200 fifty word posts that basically string keywords together.  He doesn’t outsource  his blog writing to ghostwriters or professional content providers.  He doesn’t tweet incessantly about every word that he puts up at his blog, or even blog every day like clockwork when there’s nothing to say. He doesn’t avoid expressing strong views that may potentially be unpopular with potential clients.

And guess what? Precisely because Eric breaks the blogging rules is why he’s found visibility beyond any marketer’s dreams. 

Remember the good old days before there were television commercials touting a cure for restless legs syndrome, a malady that never before existed?  Meet the Taser version, excited delirium syndrome, coming to a courtroom near you.

The Diagnostic and Statistical Manual of Mental Disorders, however, does not recognize excited delirium as a condition. Consequently, neither does the American Psychiatric Association. The association referred questions about excited delirium to Dr. Howard Zonana, a psychiatrist at Yale University.

“At the moment, I don’t see a lot of support for it,” Zonana said. “It’s usually an exclusionary diagnosis. If you can’t find anything else, then you say that.”

But if someone dies following being tased, expect excited delirium syndrome to be the cause of death.

Whether excited delirium, by itself, can kill someone is controversial. Taser International says it can. Whenever the manufacturer catches wind of an arrest-related death involving a Taser, the company reaches out to the investigating medical examiner and suggests he or she consider the condition as a possible cause of death.

In the 1990s, when Tasers use spread across police departments nationwide, so did research into the cause of death by Taser.

During that same decade, neurology professor Deborah Mash began researching excited delirium at the University of Miami.

[Taser spokesman Steve] Tuttle has suggested medical examiners contact Mash when conducting an autopsy on someone who died after being shocked by a Taser, for information on excited delirium. In an email to the Vermont State Police regarding Mason’s death, Tuttle referred to Mash as “the lead researcher on this matter.”

While Marsh has served as Taser’s paid expert, she says her research was not funded by Taser. Rather, her claim is that she invented a cause of death that no one before believed existed.

Mash also says excited delirium can kill. She has provided paid expert testimony on the condition in lawsuits against Taser International, but says the manufacturer has never funded her research at the University of Miami’s Brain Endowment Bank.

“Back at the beginning, when I was called in as an expert, people did not believe in the condition of excited delirium,” Mash said in a phone interview this week. “Now they do.”

The problem is that excited delirium syndrome is purportedly a psychiatric condition. One of the curious aspects of mental illness is that it can’t be determined post-mortem. Even among those who accept its existence as a condition, its use as Taser’s go-to cause of death can’t be explained.

[Psychiatrist Terry] Rabinowitz, while recognizing excited delirium as psychiatric condition, questioned its lethality.

“What you’re likely to be dying from is whatever is causing the delirium itself,” Rabinowitz said. “Do people die from depression? No. They die from the consequences of depression.”

He also questioned how a doctor would go about diagnosing someone with excited delirium, postmortem, in an arrest-related death involving a Taser.

“I don’t have those skills,” he said.

Marsh, who defends her disease, argues that it’s not her fault that it isn’t susceptible to proof by scientific method.

Asked whether the act of subduing someone experiencing excited delirium might contribute to his or her death, Mash responded: “You can’t do the experiment. … You can’t put people into states of excited delirium.”

So how does excited delirium, on its own, kill?

“The trigger is in the brain,” Mash said: A chemical defect causes the nervous system to crash.

“That’s what kills,” she said. “These feedback loops that regulate and normalize the brain and the heart fail. … The heart just shuts down.”

Nor can you induce anyone to die as a result of being tased in order to show it’s real, because that would result in the death. Any volunteers for the experiment?  So rhetoric substitutes for science, nothing new to the courtroom, and bingo, a new cause of death is born and explains why it’s not Taser’s fault.

The rationale tends to be based on police accounts of their victims being in an agitated state prior to the tasing, which suffers from the fact that it relies on the shooter’s assessment of events and an exculpatory bias.  The very justification for using the Taser in the first place serves to simultaneously explain away the connection between tasing and death.

Ironically, even if it’s true, a very dubious assertion given its birth alongside the Taser industry and lack of medical evidence for its existence, it doesn’t alter the fact that Tasers trigger death in agitated people.  After all, there is no shortage of people being tased who aren’t agitated, and the whole less-than-lethal notion of using a Taser as the weapon of first resort so an officer doesn’t have to spend too much time on the call or risk getting his uniform soiled flies out the window when the likelihood of death as a result increases.

But don’t expect Taser to shoulder the blame for dead people at the end of its prongs.  If it can be chalked up to excited delirium syndrome, then the victim has no one to blame but himself.  And isn’t that really the core explanation of all harm suffered at the hands of the police?

H/T FritzMuffKnuckle

GUILTY!   GUILTY!   GUILTY!

DO YOU BELIEVE HIM?

“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.

The prosecution, on the other hand, didn’t see why this was a problem.

Prosecutor Mark Lindquist said he thought the majority made a bad call.

“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.

“This was unnecessarily melodramatic, but did not affect the outcome.”

They remain confident given what they characterize as overwhelming evidence against the defendant that they will obtain a conviction on retrial, and they may well be right.  But that’s hardly the point.

There is fair argument, grounded in the admissible evidence in the case, and the prosecution and defense are entitled to present that argument to the jury.  They may argue for a conviction or acquittal based upon the evidence. They may ask the jury to return the verdict they seek.  What they can’t do, however, is put on a donkey show having no bearing on the evidence and reflecting nothing more than an “unnecessarily melodramatic” personal opinions.

Oh yeah. And they can’t use an image to shift the burden of proof to the defendant by making it appear that it’s his duty to persuade the jury of his innocence.  That too.

“A prosecutor could never shout in closing argument that ‘Glasmann is guilty, guilty, guilty!’ and it would be highly prejudicial to do so,” Madsen wrote. “Doing this visually through use of slides showing Glasmann’s battered face and superimposing red capital letters (red, the color of blood and the color used to denote losses) is even more prejudicial.”

The dissent didn’t adopt the prosecution’s use of technology, but rather found the evidence so overwhelming that the error was harmless.

Justice Charles Wiggins wrote the dissent.

He agreed Hillman “improperly expressed a personal opinion about Edward Glasmann’s guilt” but said he would have only overturned the defendant’s second-degree assault conviction, letting the other three stand.

The evidence was so overwhelming on the other counts that Hillman’s PowerPoint likely played no part in the jury’s decision to convict Glasmann of those crimes, Wiggins wrote.

Harmless error analysis is the bane of the defense, as its perspective is circular and the ends justify the means.  The court takes the view that since the evidence against the defendant which is derived out of an unfair or improper trial is so strong that, in the court’s view, the absence of error wouldn’t change the outcome, why bother to put everyone through the trouble to get it right? 

The failure of harmless error analysis is that if the trial was conducted properly in the first place, perhaps the evidence would have come in differently, or not at all, or subject to doubt, and not been as damning to the appellate judge as it is after an unfair trial.  It may not always be the case, but as a matter of doctrine, harmless error is about as fundamentally unjustifiable a basis to sweep impropriety under the rug as there can be.

In order to overcome the hurdle of harmless error analysis, the majority held that the egregious conduct in the closing argument precluded their having confidence in the verdict. That they were constrained to hold this is a reflection of the inanity of harmless error. It’s not enough that the defendant was denied a fair trial. It’s not enough that the prosecutor engaged in “flagrant, ill intentioned” impropriety.  It’s not enough that the trial judge allowed this to happen. 

The notion that due process requires that a defendant be afforded a fair trial, without regard to whether the evidence against him is overwhelming (according to some appellate judges), should be more than good reason to reverse a conviction where it just didn’t happen.  It’s disingenuous to pretend that trials are glorious things where every defendant has the right to challenge the prosecution to prove him guilty, but after being denied a fair trial, be constrained not merely to demand that his constitutional rights be honored but that he’s otherwise worthy of a fair trial.

Of course, nothing in the decision says that the defense can’t put together a really cool powerpoint with the words “liar, liar, liar” superimposed over the cop’s photo.  Food for thought.

H/T WSJ Law Blog

Some youthful anarchists bashed the door of the federal appellate courthouse in Seattle on May Day.  There were  protests, demonstrations and smashed bank windows. The government doesn’t like its doors bashed, and likes anarchists even less, causing a substantial investigation into the identities of the bashers, including an  early morning SWAT raid on a house that might have contained “anarchist and anti-government materials.” 

Early on the morning of July 25, residents of a neighborhood in northeast Portland, Ore., were awakened by the sound of a battering ram plowing through the front door of a small house. Inside, the sleepy young occupants stumbled out of bed as FBI agents rushed in with assault rifles.

Leah-Lynn Plante, a thin, tattooed woman who volunteers at a bookstore that specializes in anarchist literature, shivered in her underwear in the backyard as a SWAT team hauled out computers, clothing, books and artwork — looking, the agents said, for evidence of who participated in this year’s May Day demonstrations in Seattle that saw smashed windows at banks and clashes with the police.

Last week, Portland resident Leah-Lynn Plante spent the first of what could be more than 500 nights in prison for refusing to testify before a federal grand jury about people she might know who might have been involved with the political vandalism in Seattle on May Day.

Plante has not been charged with a crime. In fact, the court granted her immunity, meaning she could not invoke her Fifth Amendment right against self-incrimination. Lawyers for two other grand-jury resisters—Matt Duran and Katherine Olejnik—have argued that the jury’s questions about their acquaintances and housemates violate the First and Fourth Amendments. The court has decided that their silence is not protected by the First, Fourth, or Fifth Amendments.

As federal marshals prepared to take her away, Judge Jones reminded Plante that “you hold the keys to your freedom” and that she could be released at any time if she chose to “exercise your right to provide testimony.”

It was an odd turn of phrase—the same judge who, that morning, legally blocked her from exercising her right to remain silent was sending her to federal detention for not exercising a “right.”

Minutes before Plante’s hearing, her attorney, Peter Mair sat, brow furrowed, in the courthouse lobby. Mair worked for years as a federal prosecutor—he’s indicted the Speaker of the House of Representatives, has prosecuted mobsters, and is familiar with how grand juries work.

But given the way government attorneys are using grand juries now, he said, “you could indict a ham sandwich. Defense attorneys are not allowed in, other witnesses are not allowed in… They’re going to send this poor girl off to prison for a year and a half. And the great irony is that the one guy who pleaded guilty to the crime served—what? Forty days?”

One of the anarchists protesters was identified and prosecuted at the outset, and received a sentence of about a month.  Like it or not, this was pretty light weight as federal crimes go.  Not that a month or so in jail is fun, or that it’s of no consequence to be saddled with a federal record when you’re young and full of vigor, but it’s the price one pays for anarchy. 

Plante, on the other hand, can be held for up to 18 months for her contumacious conduct.  Bashing a door is one thing; refusing to be a forced snitch is far more serious.  If courts don’t enforce their orders with brutal abandon, then people won’t do as they command.  That would never do.

It’s not that the judge is wrong on the law here. It’s pretty basic stuff. But regardless of whether you approve of her politics, you’ve got to admire the fortitude of a young woman sitting in a federal detention facility rather than be forced to snitch on her friends. Especially when so many macho men are tripping all over each other to rat out their brothers at the first opportunity, desperately trying to exercise their “right to provide testimony.”

Sorry, but that’s the law. And the law is the law.  From the Chronicle of Higher Education :

The state’s Office of Higher Education has informed the popular provider of massive open online courses, or MOOC’s, that Coursera is unwelcome in the state because it never got permission to operate there. It’s unclear how the law could be enforced when the content is freely available on the Web, but Coursera updated its Terms of Service to include the following caution:

Notice for Minnesota Users:

Coursera has been informed by the Minnesota Office of Higher Education that under Minnesota Statutes (136A.61 to 136A.71), a university cannot offer online courses to Minnesota residents unless the university has received authorization from the State of Minnesota to do so. If you are a resident of Minnesota, you agree that either (1) you will not take courses on Coursera, or (2) for each class that you take, the majority of work you do for the class will be done from outside the State of Minnesota.

But [Minnesota Office of Higher Education policy analyst] Ms.[Tricia] Grimes said the law the letters refer to isn’t new. “This has been a longtime requirement in Minnesota (at least 20 years) and applies to online and brick-and-mortar postsecondary institutions that offer instruction to Minnesota residents as part of our overall responsibility to provide consumer protection for students,” she wrote in an e-mail.

Not to beat the dead horse that judges and legislators aren’t on the cutting edge of technology, but when they try to “fix” perceived real world problems, they occasionally fall a tad shy of anything remotely resembling real life.  To his enormous credit, Judge Richard Kopf of the District of Nebraska knew better.

Via David Post at Volokh Conspiracy, who humbly notes that he served as the expert witness for the plaintiffs and (self-promoting lawyers, take note) exercised the sound discretion not to post about it until after the decision issued, explains how Nebraska law sought to essentially deprive a laundry list of “sex offenders” access to what is the world today. 

The statute made it a  crime –  ”unlawful use of the Internet by a prohibited sex offender” — for any person who was required to register with the federal Sex Offender Registry because of a prior conviction for one of a series of enumerated sex offenses (e.g., sexual assault of a child, “pandering” of a minor, child pornography, or criminal child enticement)  to:

“knowingly and intentionally [use] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use [it].”

The argument in favor of keeping sex offenders as far away from children as possible certainly has widespread appeal,  Frankly, there aren’t many folks who would lose sleep if anyone remotely tainted by sex offender status was shipped off to an island in the middle of the ocean and left there to rot. Don’t bother to argue the point that these aren’t all horrible monsters; they just don’t care.

Judge Kopf, on the other hand, got it.

Whatever else the words of  Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as  MySpace, Facebook, Skype, Twitter, Windows Live Messenger,  and Google+  together with a large number of other utilities.   In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet.  This ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.  The risk posited by the statute is far too speculative when judged against the  First Amendment. The broad scope of the ban is a fatal deficiency.

Is it possible that while roaming the internet, a despicable person will come across a vulnerable child and engage in conduct that makes good people wretch?  Well, yeah, it’s possible, and to those who elevate their own safety at the expense of the rights of others, this law likely seems eminently reasonable.  After all, these are sex offenders. Who cares what happens to them if it means my babies will be safer.

But in the process of achieving speculative safety, the loss to a person who has completed his sentence, paid his debt to society, and returned in the hope (and with the expectation) of leading a law-abiding life, can’t make it an impossibility. David explains:

To tell someone, as Nebraska had done here, that because of your prior conviction you will  never be permitted, in effect, to use the Internet for just about anything — because virtually every social networking site or chat room service out there, however you define them, “allows persons under the age of 18 to access or use [it],” and is therefore off-limits to you — is a crushing blow for someone who might — just might — be trying to put his life back together, and it virtually guarantees that he will not be able to do so.  It has no purpose other than to punish those who have already been punished.

No doubt there will be many who just couldn’t care less about those horrible sex offenders. That’s pretty much been the reaction to every burden placed on them, even to the point of forcing them to live under a bridge because there is no place in a town that’s sufficiently far away from a school or park to allow them to comply with absurd local laws.  They are chased out of town, to the applause of parents who only want to be rid of them.

Notwithstanding Judge Kopf’s slightly embarrassing inclusion of MySpace in his list of really cool places on the interwebz (bear in mind it is Nebraska, and it takes a while for the internet to reach there), the decision recognizes that the internet today is as integral to life as breathing.  It is our world, for better or worse, and to prohibit anyone from access to the web is akin to ordering them to suffocate.

No doubt there are many who will find both the decision, and this post, patently offensive, believing that there is no harm that can be done to a sex offender that compares to the harm they do to others.  But this isn’t about comparing harms, about which there’s no reason to fight. Once a person has served his sentence, he must be allowed back into society or his sentence is never served and he will be left with no option but to engage in crime to survive.  You just can’t order a person to live a law-abiding life but not breath.

One of the basic dirty little secrets of the criminal justice system is the plea of convenience, the defendant accepting a plea to a crime that never happened because the burden of fighting is too difficult to pursue.  Much as we all know it to happen, particularly in cases of incarcerated defendants who will walk free if they cop out but sit in jail for months, maybe years, awaiting a trial where they may well lose despite their innocence, it’s not supposed to happen.

The judge is supposed to be the gatekeeper of pleas, allowing only those of actually guilty defendants and rejecting those of people who are not.  Of course, the judge often has no real clue whether the allocution, the detailed description of the defendant’s conduct that comprises the crime, is true, but the defendant is put under oath, mouths the words he needs to say and the plea moves forward.

On occasion, getting the right words out  can be difficult.  Inexplicably, some defendants take the oath to tell the truth seriously and this throws a huge wrench into the works.  The defendants may want the plea, ending the nightmare for themselves and their families, but find themselves unable to say they committed a crime when they didn’t.  There is, of course, the Alford plea, where a defendant accepts a plea without admission of guilt, but many jurisdictions or prosecutors refuse to accept it.  They demand the defendant admit his guilt.

All of which makes the guilty plea of New York Police Officer Admir Kacamakovic very wrong.

Kacamakovic  was accused of breaking up a fight at his cousin’s bar in Bensonhurst, Brooklyn. He was in uniform and on duty when he handcuffed one of the fighters and pepper sprayed him. There was also a charge of his illegally running plates in the NYPD computer.

Much as he might have liked being a cop, Kacamakovic was not cut out to be a defendant.  As he told EDNY Judge William Kuntz,

There is one immutable fact about the third year of law school: it means that the law school gets a third year of tuition.  Apparently, beyond that, it doesn’t mean much else at New York University Law School,  Via Peter Lattman at Dealbook :

The usefulness of the third year of study ranks high among the growing chorus of complaints — which includes soaring tuition and a glutted job market — about law schools.

New York University School of Law is now trying to address those questions about the utility of the third year. On Wednesday, the school is expected to announce an overhaul of its curriculum, with an emphasis on the final two semesters.

N.Y.U. Law’s changes are built around several themes, including a focus on foreign study and specialized concentrations. Some students could spend their final semester studying in Shanghai or Buenos Aires. Others might work at the Environmental Protection Agency in Washington, or the Federal Trade Commission. Another group, perhaps, will complete a rigorous one-year concentration in patent law, or focused course work in tax.

If you get the sense that students at NYU Law can pretty much do whatever they want in their third year, you’re not alone. Stay here and work. Go abroad. Get an internship or take focused course work.  Or just stick with the standard third year curriculum.

There has been much debate in the legal academy over the necessity of a third year. Many students take advantage of clinical course work, but the traditional third year of study is largely filled by elective courses. While classes like “Nietzsche and the Law” and “Voting, Game Theory and the Law” might be intellectually broadening, law schools and their students are beginning to question whether, at $51,150 a year, a hodgepodge of electives provides sufficient value.

You never know when “Nietzsche and the Law” will come in handy. No, really.

On the bright side, a top tier law school like NYU has the coin to modify its approach, thereby opening the door to lesser law schools to follow suit.  After all, if this happened at a T4 school, ridicule would ensue. But not with a school as admired as NYU.

On the other hand, the variability of the curriculum available suggests that there really isn’t any necessity for a third year at all, the tuition of $51,150 notwithstanding.  If it’s unnecessary to take standard elective courses rather than a trip to Buenos Aires, then the standard courses aren’t needed. And if its equally unnecessary to take the trip to Buenos Aires, then that’s not needed either.

Which results in only one possible conclusion: the third year of law school must not be needed by anyone except the bursar.

Of course, there are certainly arguable benefits to a third year of legal education, assuming a law student chooses education over the grand tour.  There’s even benefits to taking the grand tour, as one can eat unusual foods, perhaps learn a few phrases in another tongue, and certainly be better prepared to select vacation spots after they make partner.  But it isn’t needed.

The issue raised by this modification of the third year curriculum is whether a third year of tuition brings a sufficient return on investment for the student.  It seems that $51,150 could bring an awful lot of fun travel with some pocket change to spare if these students just took the year off and did the grand tour on their own.

But then, the school would be deprived of its much needed tuition money to fund lawprof scholarship on important academic issues like “Nietzsche and the Law.”  Would we not be a poorer profession without such scholarship?

While utilization of a third year of law school presents a huge issue, and one clearly worthy of scrutiny from both the bar and academia, the NYU approach doesn’t address the problems at all.  If there is nothing that students need to learn in that third year, then there is no legitimate reason to hold them for a third year and charge them for the pleasure.  Either it matters or it doesn’t.  And if it matters, make it count.

Hasta luego, 3Ls.  Come back as lawyers, please.

That night in 2010 will be remembered for University of Maryland beating Duke in basketball, and Prince George’s County police officers Reginald Baker and James J. Harrison beating John McKenna.



Baker and Harrison are on trial for the misdemeanor beating, Judge Beverly Woodward having dismissed first degree assault charges, the only felonies, after the close of the prosecutions case based upon the lack of evidence to prove “serious physical injury.”  Sadly, this appears to be the correct ruling,

The remaining charges, second degree assault, are misdemeanors.  Try getting a few of your friends together and beating the crap out of someone with clubs, and see whether you’re only charged with misdemeanors. But I digress.

The defense of the officers is bold, to say the least. From the Washington Post :

Attorneys for the officers called the gathering an unruly riot that threatened to get out of control and characterized McKenna, then a 21-year-old student, as an aggressor who ran toward police with fists clenched, ignoring warnings to stand back.

On the night of the incident, police alleged in charging documents that McKenna and another student had struck officers and their horses and that the students had been injured when they were kicked by the horses. Maryland-National Capital Park Police later said that the students did not attack, and prosecutors dropped those charges.

In the video, McKenna skips along the sidewalk and then stops feet from officers on horseback. He is slammed against a wall by Baker’s shield and then crumples to the ground as Harrison rushes over and strikes him with a baton, the video shows.

In his opening statement, Brennan suggested that McKenna tried to punch Baker over his shield. But a fellow student, Nathan Cole, testified Monday that McKenna had his fists clenched in celebration, “not in a threatening manner,” and sang the Notre Dame fight song as he skipped. Cole said McKenna did not attempt to punch the officer.

Prosecutors showed jurors photos of McKenna’s head injury, bruises and swollen hand. He suffered a concussion and needed eight staples to close the head wound.

Uniformed police officers crowded the courtroom Monday. County Police Chief Mark A. Magaw, who was not in charge of the department at the time of the incident, was also in the gallery.