The problem with smart kids is that they’re, well, smart. They come to realize that words are merely a means to convey a message, and otherwise neither good nor bad.  And so, as Prague, Oklahoma Valedictorian Kaitlin Nootbaar gave her inspirational speech to her classmates and their teary eyed parents, the word “hell” slipped from her lips.  And apparently all hell broke loose, at least in Prague High School principal Rickey Martin’s (I didn’t even know he got a legit job)  mind.

From KFOR :

Kaitlin Nootbaar graduated from Prague High School, the Red Devils, in May and was named valedictorian.

When tasked with writing the graduation speech, her dad said she got her inspiration from the movie “Eclipse: The Twilight Saga.”

Nootbaar said, “Her quote was, ‘When she first started school she wanted to be a nurse, then a veterinarian and now that she was getting closer to graduation, people would ask her, what do you want to do and she said how the hell do I know? I’ve changed my mind so many times.’”

He said in the written script she gave to the school she wrote “heck,” but in the moment she said “hell” instead. 

“We went to the office and asked for the diploma and the principal said, ‘Your diploma is right here but you’re not getting it. Close the door; we have a problem,’” Nootbaar said.

He said the principal told Kaitlin she would have to write an apology letter before he would release the diploma.

The demand that Kaitlin write a letter of apology is fascinating, given that it comes at the critical juncture where she is no longer subject to the principal’s control.  The diploma is a piece of paper, documenting the fact of graduation, just as the ceremony is where the magic words are spoken confirming that a student has met the requirements for graduation.  What it’s not is an opportunity to assert one final demand of control over a student’s thoughts and speech.  Tough luck, bro, but she’s no longer under your thumb.

Patrick at Popehat, sneaking into  Balko’s Agitator for an impromptu guest post, had this to say:

You pig-fucking coward. You shit-eating child born from a buggered arsehole. You piss-colored pile of carrion. You dung-fly. You prickless and ball-lacking catamite. You son of a street-walking widow who never had a man except for money. You cock-sucking arse-licking defiler of sacred shrines, you brainless heartless gutless cockless offspring of an imbecile and a deformed cow, you flea-bitten child-robber who poisoned your father and raped your mother and sold your sisters to the Dutch and carved up your brothers for sale in a butcher’s shop, you gutter-hugging trader in second-hand excrement, why won’t you give this girl her high school diploma?

Some might view this as painful to sensitive eyes, and indeed, I know mine twitched a bit, particularly at the use of catamite.  But you survived. I survived. And so too will the fine people of Prague, Doc Martin included.

In Tinker v. Des Moines School District, Abe Fortas wrote that free speech doesn’t stop at the schoolhouse gate.  Of course, he also wrote:

But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Does the use of a minor curse, “hell,” involve substantial disorder or invade the rights of others? Since it was uttered at graduation, it clearly couldn’t have disrupted classwork.  Perhaps the principal felt that her fresh mouth invaded the rights of others to attend a high school graduation and hear only sweet words of deep meaning inspired by The Twilight Saga?

Nootbaar said the audience laughed, she finished her speech to warm applause and didn’t know there was a problem.

It’s troubling that the audience laughed.  Because she said “hell?”  Was it that shocking? People laugh when something is funny. They also laugh when they’re nervous, because something said has gone a bit beyond their comfort level.  That the audience applauded at the end of a valedictory speech isn’t quite novel, and whether the applause was warm or perfunctory is a matter of subjective interpretation.  Polite applause sounds a lot like warm applause.

It is not, however, the reception of the audience that controls.  No doubt there were some who thought nothing of Kaitlin’s curse, while there were others, prissy folks who believe that no foul language should mar the sanctity of a high school graduation, who were deeply offended by the word.  One can only wonder what happens when they watch television, or perhaps the occasional porno flick in aid of their boring marriages (this is sheer speculation on my part).

Under almost any other circumstances, the utterance of a word as inconsequential as “hell” would have not raised an eyelash. That the principal (or perhaps some other person of significance among those charged with maintaining school purity) either found it so offensive, or “inappropriate” raises it to the level of concern that makes this a story worthy of consideration.

It’s just a word, and barely a bad one if words could be bad.  At least Kaitlin didn’t use her opportunity to express her views to inform Rick Martin that her first thought as she entered the hallowed halls of Prague High School every school day for the past four years was that he was a blithering asshole. But even if she had, so what?  It was graduation, and there was no classwork left to disrupt.


 

There was video showing the crime, a guy walking up to a truck and taking a shotgun out through the window. The jury saw it. Prosecution witnesses testified to it. Yet the defendant took the position that it wasn’t him because he didn’t walk that way, and wanted to demonstrate for the jury how he walked.

The problem was that the defendant also sought to exercise his right not to testify at trial. 

The trial judge refused to let the defendant walk if he wasn’t going to testify, but the Oregon Court of Appeals reversed.

The black and white video showed a man walk up to the driver’s side of the van, quickly reach inside the window, take the shotgun and towel, and walk away. Berge could tell from watching the video, based on the man’s behavior and the  short timeframe, that the man who took the gun knew that the gun was in the van. Berge then separately showed the video to Officers Braun and Sharpe, who were familiar with many of the people who frequented the area around the bar. Braun and Sharpe both identified defendant as the man in the video based on his appearance and mannerisms, particularly his “twitchy walk” and jerky movements. Defendant was arrested and charged with felon in possession of a firearm.

When the identifying factors include one’s “twitchy walk,” the question of whether one’s walk is “twitchy” is certainly something to challenge. But whether that’s testimonial is another story.  Of course, if the defendant was to demonstrate his walk which turned out to not be “twitchy,” would that not give rise to a very strong interest in examining him about whether he was faking his walk in front of the jury in order to disprove the testimony and appearance on video?  On the other hand, his walk is nothing more than his walk, not reflecting any workings of his mind, just as his face remains his face as the jury sits and looks at the defendant throughout the trial.

The court rejected the trial judge’s refusal to allow the defendant to demonstrate his walk without otherwise subjecting himself to examination, holding that walking is not a testimonial act.

We agree with defendant that demonstrating a walk is not testimonial. For purposes of the right against self-incrimination, “testimonial” evidence is not limited to in-court testimony under oath. Rather, the label “testimonial” is simply shorthand for the type of evidence that is subject to the right against compelled self-incrimination. Testimonial evidence is evidence that communicates by words or conduct an individual’s beliefs, knowledge, or state of mind. In contrast, evidence of physical characteristics such as identity, appearance, and physical conditions are not testimonial.

The court offered examples, such as tattoos and handwriting, or merely having the defendant stand in the courtroom so the jury could get a full height view.  The examples, however, fall short of addressing the differences between an immutable characteristic and something that can be altered to present to the jury. 

Whether the defendant deliberately walks in an unusual manner, undergoes some gait training to make his walk less twitchy, can be at issue.  This doesn’t mean that the defendant isn’t offering his real walk, unmodified for the purpose of trial, but doesn’t preclude the OJ Simpson question of whether he deliberately “made” the glove not fit. One can’t make tattoos magically appear or disappear. One can slouch or stretch to make his height appear slightly different, but not likely to a material degree. Walking, on the other hand, can be made to appear significantly different than they way it happens when no thought or effort is put into the demonstration.

It appears that the Court of Appeals did two things in reaching the right decision. First, it would not impute a deliberately false purpose to the defendant in offering the demonstration.  This is significant, as few courts would credit the defendant with honesty, whether in testimony or in a demonstration that could be subject to thoughtful modification.

The second is that the demonstration was one of the few things the defense could offer to refute the prosecution’s identification that wouldn’t compel the defendant to undergo cross-examination.  This is a huge, and deeply problematic, element in a trial, where the defense seeks to undermine testimony it claims is false but is incapable of doing so because it opens the door to the prosecution getting their hands around the defendant’s throat. 

Like it or not, few defendants make good witnesses, and once a defendant puts his butt in the witness chair, he’s exposed to every bad thing he’s ever done, the potential for confusion and inarticulate testimony that is often used to destroy him in front of the jury.  While defendant would often love to testify about one or two specific things raised by prosecution witnesses, the downside of opening up his life to the jury can’t be avoided.  While being unlikeable or ignorant doesn’t make a person guilty, it also doesn’t endear him to a jury.  The risk is huge.

By this ruling, the Oregon court enabled the defense to proffer what is, on the surface, nothing more than physical evidence in order to counter the twitchy testimony, without putting the defendant in the position of risking self-incrimination or just general coming off poorly to the jury.  While the decision could have easily gone the other way, it seems to best accommodate both the distinction between testimonial evidence and non-testimonial evidence, while allowing the defendant the opportunity to challenge claims against him without exposing himself to full cross-examination. 

At My Shingle, Carolyn Elefant copies an email on one of her listservs (which I would guess comes from the ABA’s Solosez listserv), which she describes as “one of the best and most objective post-mortem analyses of a solo practice that didn’t quite make it to the finish line.” The first clue that failure was inevitable was that he was engaged with the Solosez listserv, the mother lode of self-perpetuated ignorance about how to achieve success in the law.

The unnamed author started explains how he came to go solo:

I came to solo practice through a wholly voluntary decision to leave a partnership-track position at one of the most prestigious and high-paying  ”white-shoe” firms.  I had a significant pool of savings to draw on as start-up capital and to cover living expenses during the early going.

The reasons for leaving my position were two-fold:  no interest in practicing high-stakes business litigation, and a desire to have more time to spend on family and personal interests. 

Apparently, no one told him times were tough out there. He had a good job, and chose to walk away for personal reasons.  I’m sure the many young unemployed lawyers suffering crushing debt can empathize with his reasons. Who doesn’t want work that fascinates you and plenty of free time?

So the author conducted “market research” and decided to go out on his own.

I planned to practice criminal defense, immigration, civil rights (police and corrections misconduct), and consumer law (debt defense and FDCPA).  My essential plan was to finance contingency civil rights work with revenue from flat-fee criminal, immigration, and consumer work and contingency FDCPA work.  My market research told me that criminal defense would be very competitive and hard to generate business in; however, I had always wanted to do it.  Immigration also appeared competitive based solely on the number of lawyers practicing it; however, because one of [state immigration courts is in smaller city], I anticipated generating business representing individuals from a broader area and so felt the demographics overstated the competitiveness.  My research showed very little competition and a lot of need for civil rights representation and for certain aspects of consumer law (debt defense) but other areas very competitive (FDCPA).

He clearly thought this through, having chosen a variety of interesting practice areas where competent practitioners with experience and well-earned reputations die daily.  The ace in the hole was consumer law, where there is no shortage of need, and no money with which to pay a lawyer.

The transitory solo eventually connected up with a lawprof who hooked him up with a job. But his “insights” from his failed venture make this worthy of discussion.

In retrospect what I would have done differently:  not rented my office ($18,000 in unnecessary rental expenses over 2 years, plus probably $4,000 in gas); turned down a couple clients and required a couple others to pay expenses; done more revision of my web marketing earlier (started to generate lots of leads when it was basically too late to do anything with them as I was already in discussions over this new job).

I have somewhat mixed feelings about leaving the solo life.  It may be that had I stuck it out, somehow, for six months or so, I would have gotten over this hump and begun making ends meet.  It’s also possible I would have been totally insolvent within that same time frame.  My marketing was just starting to work a lot better and I was starting to be appropriately discriminating in what civil rights cases I would consider accepting.

Naturally, the focus immediately shifted to this tale of woe being a clarion call for social media marketing.  Just as every inmate in prison for 20 years knows every trick about winning a case, so too does the failed solo show the path to success. Yet, my takeaway is somewhat different.

First, in an economy where the business of law is in the toilet, the idea of giving up a stable, well-paid job is borderline idiotic.  Did he hate it that much that he was willing to trade poverty for the drudgery of doing work that didn’t interest him? Was more time with his family worth feeding his family?  It smacks of entitlement, a theme that carries over to his next poor choice.

So market research suggests that criminal law is “competitive,” but you “always wanted to do it?”  Practicing law isn’t a game that you want to play, but a responsibility to clients. Did anyone on the Solosez listserv suggest you might want to gain competence before holding yourself out as prepared to take someone’s life into your hands? It’s not about what you want to try, but what you are capable of doing without screwing up someone else’s life.  The good news is that a young lawyer’s interest in being a criminal defense lawyer isn’t much of a reason for anyone to retain him, thus saving poor defendants from a poor lawyer.

In Part II of the story, Carolyn includes what this intrepid solo was doing to market himself as the pall of death descended on his budding solo practice.  The gist is that, had he marketed himself this way from the outset, he wouldn’t be moribund now.

I started a blog on blogger, which I promoted on Twitter, Facebook, and LinkedIn.  I wrote substantive content at a rate of 2-3 articles per week.  I also systematically used Twitter to tweet or retweet updates and news relevant to my practice areas.  I targeted local people and attorneys in similar or related practice areas as followers, and went from 200 to over 500 followers.  I also reviewed my presence in various online yellow-pages type sites and found that with respect to many that I had thought I was listed in, I either was not or the information was sparse and not up to date.  I submitted to dozens of listing sites and submitted updated information to others. I created a JDSupra profile and Justia profile, answered Justia and AVVO questions, and linked together my website, online listings (where possible), Q&As, JDSupra profile, and blog.

The saddest, most astounding aspect is the shockingly absurd leap from the silent telephone to the belief that had he “revised” his web marketing earlier, his solo practice might not have failed, as it “started to generate lots of leads.” 

Leads?  You mean people calling and emailing for free advice, to find out how soon you can jump on their case pro bono, to inquire about whether you could do their murder case for $1,000?  Kid, it’s easy to get leads. Any idiot can get people with no money, bad attitudes and lousy cases to call.  That’s what they do after the first ten lawyers whose name they got through personal referrals sent them away. 

I know all about the calls and emails you received. I’ve gotten them for years, and expect that I probably get ten times the number you do.  These aren’t clients. This isn’t the basis of a successful practice. These are the multitudes of sad, angry, poor people who need a lawyer for grievances real or imagined and, just as you think you’re entitled to get what you want, believe themselves entitled to a lawyer, free and easy.

The problem with this leap of expectation is that you weren’t anywhere near having a successful practice with social media marketing.  You got all excited that the phone rang, and misunderstood a live voice on the other side of the line to be a potential basis for a thriving law practice. What you failed to perceive is that the sound you heard was poverty, misery and aggravation, not cha-ching. 

The interest that suddenly came your way was the annoyance that everyone else turned away. And what in the world made you think you would get anything else?  Because you’re the best lawyer in town, without reputation, experience or competence?  Clients would fling themselves at you because you are special?  Get a grip.

Of all the misunderstandings that are reflected in this solo’s post-mortem, the one that demands correction is his expectation that he would not only be able to create a viable practice out of nothing, but that it would allow him work/life balance.  The practice of law is hard. Its demands are unrelenting.  If anybody on Solosez told you that being a successful solo meant having more time to spend with your family, they either have no clue what they’re talking about or lied to you.

Best of luck in your new job. Working for someone else is what you were meant to do.

The  New York Times reports that a  new poll shows that a majority of New Yorkers believe that the police favor whites over blacks.

A significant majority of New Yorkers say the Police Department favors whites over blacks, according to a new poll by The New York Times.

That view, as widespread now as it was in 2001 during the administration of Mayor Rudolph W. Giuliani, is particularly prevalent among black New Yorkers, 80 percent of whom say the police favor one race over the other. A plurality of white residents — 48 percent — agree.

There’s only one problem. Whites don’t seem to have any real problem with it.

The poll found that a majority of black residents said the stop-and-frisk tactic had led to the harassment of innocent people, but most white residents viewed the practice as an acceptable way to improve urban safety.

This dichotomy is at the heart of the perpetual question of why Americans go to work everyday, come home and plop their fat butts down in front of the TV and watch the Kardashians or unattractive New Jersey women, and don’t furrow their wrinkly brow over problems with the criminal justice system, police misconduct and abuse or, for that matter, people who get to vote on the laws of this nation who possess strange views of the human reproductive system.

It’s not that they necessarily like what’s going on, but it doesn’t touch them.  People don’t care enough to get off the couch when the problem isn’t theirs. 

If white people were being stopped and frisked, thrown against the wall or forced to kiss pavement, in either the numbers or with the degree of force experienced routinely by black New Yorkers, you can bet your butt that they would be screaming for blood.  That would be Ray Kelly’s blood. That would be Mike Bloomberg’s blood.  Suddenly, the adage that you have to break a few eggs to make a safe omelet wouldn’t be enough to make the pain and humiliation go away.

My old buddy Mike, with whom I rode the train into the city every morning, and who was a classmate of Nino Scalia’s at La Salle Military Academy, spelled it out to me pretty clearly :

People don’t get too concerned over abstractions, unless it happens to hit them where they live.  As my good buddy Mike from the train tells me, “Hey, somebody has to take one for the team, as long as it isn’t one of mine.”  I suspect most people feel that way in their hearts.

This survey confirms my suspicions, though it’s hardly a new idea. Pastor Martin Niemöller  made the point back in World War II.  It remains as true today, in New York, as ever.

At its conceptual core, much of what’ written here is the elevation of law over order, the protection of civil rights and personal freedom at the sacrifice of safety.  I would like to believe that most people generally agree with the notion, provided that the safety at risk isn’t theirs.  When it is, they line up right behind my buddy, Mike, and are fully prepared to sacrifice rights and freedoms to regain that sense of personal security, particularly when someone else has to take the bullet for the team.

But some New Yorkers, while conceding that the police show favoritism for one race over another, said the stop-and-frisk tactic’s ends justified the means.

“If that’s what it takes, I find it acceptable,” said Jani Kipness, 58, a special-education teacher from Brooklyn who is white. She said that she thought that officers “single out minority groups,” but that “if you look at the crime in New York, it’s less white people; that’s just the way it is.”

“I wouldn’t want to be stopped and frisked,” she added. “But if you look at cities like Detroit and other cities that have a way higher crime rate than New York, I think New York has to be doing something right.”

Kinda makes you feel proud to be a New Yorker, doesn’t it? But don’t be angry with Jani. She’s hardly alone.

“In the Bronx, Brooklyn, Queens, they will stop and frisk blacks and Hispanics more,” said Kevon Geanus, 20, a construction worker who is black and lives in the Bronx. “The way they talk to you, and curse at you, when you’re just walking, for example, and say: ‘Why are you walking? What are you doing out here at night?’ ”

The irony is that this practice doesn’t necessarily make anyone safer, given the  negligible results produced by stop and frisk. but it goes a long way in giving the appearance of order, the sense of security, that lets people sleep better at night.  That would be white people, of course.  Who aren’t asked to take one for the team.

While it remains questionable whether the truth will set you free, at least the Minnesota Court of Appeals has held that it won’t cost $60,000.  That was the award given by a jury against blogger Johnny “Northside” Hoff for telling the truth with bad intent.

Eugene Volokh has been following this case since the beginning, providing a link to the Minnesota Star Tribune :

Controversial north Minneapolis blogger John Hoff must pay $60,000 in damages to a former Jordan Area Community Council executive director Jerry Moore, a jury in the civil case concluded Friday.

The Hennepin County District Court jury found that an “Adventures of Johnny Northside” blog post in June 2009 resulted in Moore’s firing from the University of Minnesota….

The jury ruled that although Hoff’s post … was true, he intentionally interfered with Moore’ employment contract with the University of Minnesota Urban Outreach and Outreach/Engagement Center….

Moore argues that Hoff is not shielded from tort liability simply because Moore could not prove the falsity of Hoff’s statement. Rather, Moore urges us to rely instead on Hoff’s motivation for making the allegedly defamatory statements. Moore asserts that because Hoff had an ulterior motive of getting Moore fired, he can be liable for the tortious-interference claims. We disagree.

When a person conveys unflattering and possibly damaging information to another person’s employer, it is unlikely that the motivation for conveying that information is borne out of affection. It is much more likely that the intent is for the employer to take responsive action — up to and including termination — based on the content of that information. Regardless of the motivation of the messenger, if the information conveyed is true, it is not appropriate for liability to attach. See Restatement (Second) of Torts § 772 cmt. b. (noting that conveying truthful information is not “improper” interference “even though the facts are marshaled in such a way that … the person to whom the information is given immediately recognizes them as a reason for breaking his contract”).

Hoff’s blog post is the kind of speech that the First Amendment is designed to protect. He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern. Attaching liability to this speech would infringe on Hoff’s First Amendment rights.

At the New York Times, another in their tepid series of Room for Debate appears, stemming from Colorado Senior Judge John Kane’s  refusal to accept a plea bargain that included an appeal waiver.  The question posed was whether prosecutors have too much power.

Of the five “debaters,”  two lawprofs took the answer as a given,  one arguing that the cure is the elimination of mandatory minimums.  A  former prosecutor argued that prosecutors need power because, well, they just do, and some collateral damage has to happen if we expect them to clean up all the bad things criminals do.

Former criminal defense lawyer and federal judge. turned Harvard lawprof, Nancy Gertner, limits her thrust to appeal waivers, agreeing with Judge Kane that they shouldn’t be on the table, employing an odd economic theory approach to show it’s not really arm’s length negotiations. 

Former prosecutor and federal judge, turned Utah lawprof, Paul Cassel,  ignores the question entirely and harps on how prosecutors exercise their discretion to nullify federal law at the expense of crime victims, and how Congress should hold hearings whenever the DOJ doesn’t bring charges for the “ultimate accountability in the court of public opinion.”

And while the issue is significant, the dilemma real and the problem one that is confronted daily in every court in America, the New York Times has managed to reduce it to an abstraction, if not a tangent as participants huck their personal agendas without regard to its relation to the question posed. 

Notice anything missing from the “debate”?  That’s right. There’s no criminal defense lawyer.  The Times, like almost all media, adores official titles, whether professor, prosecutor or judge. Put a few official titles together and it’s a grand slam.  Criminal defense lawyer, sadly, is not a title. Lawyer is not a title. What could the people who actually deal with the reality of the subject have to add to the debate?

It’s not that worthwhile things weren’t written that reflected life in the trenches.   Rachel Barkow from NYU wrote:

By almost any measure, federal prosecutors wield too much power. Because many federal laws govern similar behavior and are written broadly, prosecutors commonly have multiple charges from which to choose. This means they typically have many sentencing ranges to choose from as well. Thus, they can – and do – threaten defendants who want to exercise their trial rights with charges that will carry longer sentences (sometimes decades longer) than the charges they will file if defendants plead guilty.

On average, federal defendants who refuse to waive their right to a jury trial receive a sentence three times longer than those who plead. And with the prevalence of mandatory minimum laws, a prosecutor’s charging decision often dictates a sentence that a judge is powerless to avoid. It is no wonder 97 percent of federal convictions are the result of guilty pleas.

Absolutely true.  Similarly,  Angela Davis of American University wrote:

Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those crucial decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges. When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers.

Equally problematic is the fact that the charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone. If a prosecutor treats two similarly situated defendants differently — charging one but not the other or offering a better plea offer to one — it is almost impossible to challenge such differential treatment. The lack of transparency in the prosecution function also leads to misconduct, like the failure to turn over exculpatory evidence — a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.

These are solid, strong points that need to be made. And yet, they remain a bit too sanitary to reflect the ugliness and nastiness of the system from the ground floor. 

The irony is that Judge Kane’s decision to refuse to approve of a plea bargain that included a waiver of appeal, aside from the conundrum caused by its practical application which was subsequently resolved when the plea was offered without the appeal waiver, was an act of revolution.  As Nancy Gertner wrote,

Procedural protections are inadequate; the playing field, unequal. Still, every appeals court has found appeal waivers to be constitutional. They did not have to; the Constitution, after all, doesn’t even mention plea bargaining. It is an issue of fairness. Rather than being protective of a defendant as they should, the appeals courts have permitted an already well-armed government to demand even more.

Yet, the pleas offered today will include the same waiver of appeal unless they happen to go before Judge Kane, because no other judge has yet adopted his position.  And the same is true of judges who sit quietly by as defendants are overcharged, or threatened with a superseding indictment if they don’t take the plea, or the defendant whose choice is to take thirty years instead of life after trial, when the evidence, if it wasn’t trumped up by lying cops, would justify only ten.

Do prosecutors wield too much power? There is no real question here to debate. We know why Congress criminalizes everything it can, and why it incorporates mandatory minimums so that there’s something new to offer every two years in a stump speech. 

Rather, the debate is why other judges don’t have the guts of a Judge Kane to say “enough” with the evisceration of rights in the quest to create the Utopian crimeless society. And after appeal waivers, how about lying agents and cheating prosecutors? 

Of course prosecutors have too much power, and power corrupts. This isn’t a new concept. Ironically, former prosecutor Samuel Buell, now lawprof at Duke, offers an honest defense of the prosecutor function, that collateral damage and abuse is inevitable if you want the government to take down the bad guys. You have to take the bad with the good if you want prosecutors to be effective.

But then, that’s why there are judges, to temper the bad and rein in the corrupting power.  What this debate shows, to the extent it shows anything, is that federal judges, save one old man in Colorado, have the ability to do something about a system gone insane, but lack the fortitude to make it happen.  They have power too.  And power still corrupts.

In a couple of days, Dr. SJ and I will pack up the Prius and head north.  In the back seat, my youngest child, my son, will sit quietly,  The trip will take about four hours, but it will feel like the blink of an eye. It all feels like a blink of an eye at the moment.

While it’s just the next step down a path that began 18 years ago, it’s a different one. I remember most of it, though a lot has blended into an amorphous mass.  There were the afternoon naps when he fell asleep on my chest. The times we watched TV together, poking and kicking each other.  The look he gave me when he needed to know I was there for him in Dallas, after a stunning loss at a fencing competition when he was used to winning.  All along, I knew he was coming home with me. In the morning, I would find him asleep in his bed.  They all look like angels when they’re asleep.

When we drove our daughter to college, it was the culmination of months of drama. Her emotional highs and lows grew like the pile of stuff she needed to bring with her. It was exhausting, the latest test of parenthood endurance. On the ride down, she informed us that this was a bad idea, and we should turn around and go home.  We get her ice cream instead, and she survived.

The pile is about half the size this time. His needs are few. While I can tell he’s nervous, he would never admit it. But he’s exhilarated at the idea of independence, which both pleases me and breaks my heart.  I raised him to be ready for this day, and yet there is a part of a dad that knows that he will be the victim of his own success. 

When you’re young, 18 years seems like forever.  As you slide past the middle of your life, you are acutely aware of how fiendish time is. It sucks you in when you’re most vulnerable and then rips your heart out after you’re hooked.  New parents think the birth of their child is the first time the miracle ever happened. Later, you know that you are just like every other parent, not at all unique.

The ride will be ordinary, complaining about traffic and lousy drivers.  Pointing out interesting cars along the way. Singing along with the radio, only to be told how awful my voice is.  We’ll try to make conversation, and get a grunt in return.  Things will pop into our head that we forgot to do, and my son will tell us it doesn’t matter or he doesn’t care.  And he doesn’t. 

We’ll find a place somewhere in Connecticut to stop for breakfast, and he’ll want bacon with his pancakes.  He’ll make bacon jokes, just as he always does.  It will be nothing out of the ordinary for him. 

It’s not like I won’t see him soon enough, as hotel reservations are already made for parent’s visiting day in October.  But it won’t be the same.  He already has plans to go to Cern next summer for an internship, and it’s where he belongs.  The place on the couch where he watched Saturday morning cartoons will be empty, though it still bears the scars of food that missed his mouth.

My plan of action is to carry his things to his room and help him set things up in whatever way makes him feel at home.  We’ll be busy doing busy work, hashing out insignificant details as if they’re matters of life and death.  In a few days, he’ll change everything anyway, as he creates his own world.  Eventually, we will run out of things to put away.  Dr. SJ will go through lists of things for him to remember to do, to which he will nod and ignore.

Then time will come to let go.  Every parent who has dropped off his youngest child knows what will happen, and my experience will be no different. But this time it will be my turn. I will tell him I love him and that I’m so proud of him. I will look him in the eyes and remind him that if he needs anything, I’m here for him. He’ll tell me he knows. 

He will let me hug him because he knows I won’t leave until he does. Then he will say “bye” and turn away, rushing off to the new, exciting things out there for him.  I will watch for a moment, then turn away. Dr. SJ and I will walk back to the car slowly, knowing that we’ve done all we can to make him ready for the day and that we have no place else to go.  It’s time for us to take the long drive home, and for him to start his own life.  And I will join all the other fathers whose son has left home get on with his future.

I was quite surprised when my pal Eric Mayer, the  Unwashed Advocate (a title that still gives me the willies) informed me of a very important study. I was less surprised to learn that it came out of MIT, since I expect all the really important scientific work to come from there.

What makes this study so critical is the meteoric rise in readers of blogs in the internet who share a certain fashion trend, not only considered highly attractive in some circles but also deemed quite utilitarian.  That’s right, it’s those who wear the tin foil hat. This information is not only valuable to readers of SJ, but to many of the blogs I regularly read, like Balko’s Agitator, Popehat, Turley, Berman’s  Sentencing Law and even the Volokh Conspiracy, which has lately become a hotbed of shiny chapeaus.

Among a fringe community of paranoids, aluminum helmets serve as the protective measure of choice against invasive radio signals. We investigate the efficacy of three aluminum helmet designs on a sample group of four individuals. Using a $250,000 network analyser, we find that although on average all helmets attenuate invasive radio frequencies in either directions (either emanating from an outside source, or emanating from the cranium of the subject), certain frequencies are in fact greatly amplified. These amplified frequencies coincide with radio bands reserved for government use according to the Federal Communication Commission (FCC). Statistical evidence suggests the use of helmets may in fact enhance the government’s invasive abilities. We speculate that the government may in fact have started the helmet craze for this reason.

You read that correctly.  And no, it’s not a matter of style, as testing was done on three of the most common, and dare I say attractive, styles.

The three helmet types tested

The Classical	The Fez
The Centurion

Personally, I think the Centurion is a bit pretentious for daytime wear, and suggest that it would be best used only in the evening or for formal occasions.

And what, you are no doubt dying to know, was the outcome?

Conclusion

The helmets amplify frequency bands that coincide with those allocated to the US government between 1.2 Ghz and 1.4 Ghz. According to the FCC, These bands are supposedly reserved for ”radio location” (ie, GPS), and other communications with satellites. The 2.6 Ghz band coincides with mobile phone technology. Though not affiliated by government, these bands are at the hands of multinational corporations.
It requires no stretch of the imagination to conclude that the current helmet craze is likely to have been propagated by the Government, possibly with the involvement of the FCC. We hope this report will encourage the paranoid community to develop improved helmet designs to avoid falling prey to these shortcomings.

No doubt the same two things that struck me in the conclusion struck you as well.  Mobile phone technology?  GPS?  Coincidence?  If you think it’s possible, then you are not a true paranoid and might as well just go about your daily life as if the government isn’t shooting gamma rays directly at you. Heh.

As I anticipate that you will certainly want to show your deep appreciation for this critical study by sending a substantial check to MIT, please note on the check that it is being sent because of this PSA and include my name in crayon, so that it will be applied to any outstanding tuition bills due.  It’s the least you can do to thank me for this fashion advice.

It’s not just that Charles Daum sold himself. It’s that he sold himself for a mere $6,000, proving Churchill’s quip to be too true.  Once you’ve established what you are, everything else is just negotiating the fee.  Daum was a criminal defense lawyer who “made a living by defending people accused of run-of-the-mill crimes.”  And now he’s convicted of his own.

Via NPR, by way of a twit from Mark Bennett :

The accused drug dealer, Delante White, turned the tables and helped convict his own defense lawyer of manufacturing evidence and putting on false testimony to help the drug dealer’s case.

Assistant Attorney General Lanny Breuer said the Justice Department pursued the unusual case because Daum crossed the line. “You do not get to manufacture evidence,” Breuer said. “You do not get to suborn perjury. You do not get to have people purposefully lie and mislead.

No, you don’t get to step on Lanny’s turf. The government is a jealous mistress.  And your client doesn’t really love you, no matter how strong his protestations to the contrary.

At his own trial this year, Daum argued that the plot was cooked up by White himself, because White was facing a mandatory 20-year prison sentence and the only way to reduce it was to cooperate with the Justice Department.

But a judge didn’t buy that argument, and convicted Daum.

Daum appears to have mounted a defense based upon his being the dupe of his client, where he was apparently set up and had no involvement in the planning or execution of the scheme.  Only a very sophisticated client could pull it off.  Only a very dopey lawyer could get caught in its clutches. 

In her opinion, U.S. District Judge Gladys Kessler said White “lied often and well” and called his girlfriend, Candice, “a total disaster” as a witness. But the judge ruled that despite their serious credibility problems, there was “simply no way” White could have orchestrated the whole plot from inside a jail cell.

Not sufficiently brutal that he lost at trial, then comes the truly humiliating part:

The Justice Department never offered a motive or reason that Daum and his private investigators might have crossed the line. The judge said Daum was getting only $6,000 to defend White and $6,000 more if the case needed to be appealed.

That is the value Daum placed on his career, his life. To put it into Churchillian context, if you’re going to be a prostitute, at least be a high priced one.  But as with all prosecutions and convictions involving criminal defense lawyers, there has to be a moral to this story.  This was offered by Bernie Grimm, who represented an investigator, Daum’s co-defendant.

“It’s very dangerous when … you’re representing somebody and you actually think the government’s involved in listening to those conversations or the government’s going to turn your client one day against you,” said Grimm, who defended one of the private investigators in the case. “So what that engenders is a lot of distrust between the lawyer and the client right off the bat.”

As much as I hate to be contrary, I beg to differ. While I would be beyond outraged to learn that the government had intercepted my confidential communications with a client, there would be nothing whatsoever dangerous to me in their doing so. I’m a lawyer. My communications reflect that. Never do I say anything that could be construed at being party to a crime, whether subornation of perjury, manufacturing of evidence or anything else. It’s not difficult at all to remain professional, and no distrust would arise because there would never be fear of being caught saying something wrong.

I tend to agree more with NACDL president Steve Benjamin:

“Of course, you never see or hear of prosecutors being prosecuted if there’s an instance where they have knowingly used perjured testimony,” Benjamin said. “And that’s one thing that is troubling to the defense bar, is what sometimes appears as a double standard.”

But Benjamin said he agreed with the Justice Department on one key point.

“It would make no sense whatsoever to present false testimony,” he said. “If you do that you’re a fool; if you do that, you’re relying on a cheap trick to try to subvert the truth.”

Still, that there is a double standard for prosecutors doesn’t excuse criminal conduct by defense lawyers.  It’s wrong, and it sucks, but the solution is that no one should be permitted to suborn perjury or manufacture evidence, not that should be okay for everyone.  As for using a “cheap trick to subvert the truth,” as long as it’s not illegal or unethical, that’s a different matter, but not one to be addressed in this post.

The practice of criminal defense is replete with temptation.  We are often offered choices that lead to the road to perdition, and sometimes a choice that is lawful in itself will take us to a dark place where we don’t want to be and can’t find our way back.  Don’t go there. Think of the consequences, the ramifications, of every choice. 

To believe that you can play the game dirty is to beg for disaster, and the government will be only too happy to take you down.  But the best reason to be honorable, to maintain your integrity despite the opportunity to do otherwise, is that you will not only do your best to fulfill your obligation to your client, but you can sleep at night.

It’s a tough job being a criminal defense lawyer. The double standard is real, the opportunity is available and the threat of being in the government’s crosshairs is omnipresent.  Choose wisely. 

It was one thing for Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association, to raise the “outrageous” claim that prosecutors were being taught to hide Brady material.  This provokes a flurry of letters to the editor at the New York Law Journal from local district attorneys about how deeply they loved the Constitution and how they would never, ever, do anything wrong. Never.

But if Marvin’s column didn’t make their heads explode before, they’re exploding now.  First in line is Nassau County District Attorney Kathleen Rice, who not only played the caboose in this soap opera by offering  her letter to the editor long after everyone else had already spewed, but offering this unfortunate argument:

In a recent opinion piece authored by New York State Bar Criminal Justice Section Chair Marvin Schechter, the author recklessly opined that hiding Brady material is a “learned and taught” practice by district attorneys. This outrageous statement does not comport with the facts, nor do his comments honestly and accurately describe the professionalism and integrity of New York prosecutors.

The evidence Schechter uses to support his sweeping indictment of an entire profession is a single case involving one prosecutor. To reach his offensive and inaccurate conclusion, Schechter not only chose to rely on an insufficient body of evidence, but also to ignore ample evidence that district attorneys in New York take nothing more seriously than their responsibility to promote and protect the integrity of our criminal justice system.

One case? Just one? The hope of a short public memory might have salvaged this point, but for some very bad timing, as the  New York Times (which Rice may not get since she exists in Newsday territory) published yet another outrageous story of deliberate, flagrant Brady concealment in the case of Petros Bedi

During Mr. Bedi’s trial, a defense lawyer blasted away at the credibility of this witness and tried to prove he had incentive to lie. Didn’t the Queens district attorney foot the hotel bill to put up you and your girlfriend for eight months? Weren’t you paid handsomely for your testimony?

No, the witness insisted. I paid my own bill. Nobody paid me anything.

This was not true, and the prosecutors who sat in that courtroom and vouched for the honesty and truthfulness of this witness knew it.

Newly disclosed witness protection records show that the district attorney’s office in fact paid the witness, Seraphim Koumpouras, $16,640 for hotel bills. Prosecutors also gave him about $3,000 in cash; he received the last payment six days before he testified.

Maybe two cases, Kath?  Bedi’s lawyer, Joel Rudin, had no qualms about wailing on the Queens District Attorney’s office for this outrageous abuse, which responded that “it intends to contest the case vigorously.” Because, well, maybe the prosecutor forgot he handed the witness $100 on his way out the door? It can happen, right?

But Rudin didn’t shy away from the fight.  Instead, he offered the inside view of how, in the midst of this Brady war, where  Brown too sent his own “harrumph” letter proclaiming his office’s “remaining at all times committed to doing justice.”  Except, maybe, this time:

In the Petros Bedi case, I brought to the attention of the leaders of the Queens District Attorney’s Office what appears to be an open-and-shut case of intentional Brady violations. Before filing our motion to vacate the conviction, I provided the office with a draft, and was invited to a meeting at their office. Ironically, in light of the office’s present statement, it was agreed that the substance of our conversation would be kept confidential. In the face of irrefutable, documentary evidence that the prosecutor in Bedi’s case had withheld 16 written statements, signed by their key cooperating witness, acknowledging his personal receipt of nearly $3,000 in cash payments that his testimony had falsely denied, they declined to consider consenting to vacate the conviction so that a new trial could be held.

And so the Queens DA’s office was outraged by one of its own flagrantly violating Brady?  Well, not quite:

Instead, they suggested I bring in two new defense witnesses so that they could interview them and decide whether they were convinced of Bedi’s innocence. I declined, observing that if they were not willing to vacate the conviction based upon the demonstrated Rosario and Brady violations, as well as the evidence that their office had knowingly relied upon false testimony, they certainly would never do so based upon the statements of two defense witnesses.

Because the undeniable 16 payments that were concealed wasn’t a strong enough showing, which brings us back to Marvin’s point.

The public should know that, at the same time the leaders of the Queens D.A.’s office deny the allegation that they “teach” Brady violations, they defend the conduct of assistant district attorneys in presenting and failing to correct false testimony and withholding Brady material that would reveal the truth.

This is “teaching” by example. Under federal civil rights principles, it is “ratification,” and establishes unlawful policy. How many Brady violations inspired by such “teaching” go undetected?