In the course of stumbling through my dashboard yesterday, I realized that I had published the 5,000th post at Simple Justice.  If was the first post yesterday, A PD and a Private Lawyer Walk Into a Bar, though it doesn’t really matter which post it was.

That’s a lot of posts.  That’s a lot of words.

It’s probably saved me a small fortune in therapy.  Over the years I’ve been writing SJ, the one word that’s been used most to describe me is “prolific.”  It’s not my favorite word, as it implies that the aspect of my writing that predominates is quantity rather than quality.  Every time someone calls me “prolific,” I cringe.

But as I ponder the fact that I’ve published 5,000 posts (and written more, though some never saw the light of day),  I hate to admit it but prolific is an accurate description.  For better or worse, I’ve written a lot.

And my posts aren’t cheap shots, the sort of stuff that “curators” post that throw some bit of news or article someone else has written against the wall to see if readers are interested.  When I started SJ, there were only a couple of people whose blogs were directed toward curation.   Howard Bashman was the king back then, though his lack of growth with the rest of the blawgosphere has left his curation limited and moldy.

Today, there are more curators than anything else.  Some mix it up, like  Radley Balko,  Walter Olson and occasionally Doug Berman, I enjoy the benefits of their efforts, as they find stories, decisions and cases that spark my interest and compel me to write something.  As they focus their curation in a narrow range, it’s closer to things that I want to know about.  Given the time constraints under which I write, having others do some legwork for me is a huge boon.

Some of my favorite posts involved the back and forth with other blawgers, where we would debate the merits of a decision or some narrow aspect of practice.  There hasn’t been nearly as much of that in the past couple of years as there were before, but that’s the ebb and flow of the blawgosphere. People come. People go. People get tired. People realize that blawging hasn’t brought them wealth and prestige, and decide it isn’t worth their time.  They move on.

One of the most troubling aspects of writing so many posts is that new readers see the post that day, but not the dozens of posts on the same or similar subjects that came before it. To me, this blawg is an accumulation of thoughts, and I hate repeating myself.  Each new post builds on what I’ve written before, at least in my mind. 

The new reader sees only the latest post, and castigates me for not mentioning something she thinks is critically important, not realizing that I’ve been down that path many times before. I get a bit snippy explaining this, and tell the reader to go look in the archives. It doesn’t happen too often.

The thought that brings a smile to my face is that if Chuck Schumer finally comes to his senses and nominates me to the Supreme Court (call me, Chuck), I’ve written far too much for anyone on the Senate Judiciary Committee to bother reading, so my ideas are buried like the needle in the haystack. They’ll never know what to do with me, and I can pull off the umpire analogy even though it’s utter nonsense.

Whether it means something or not, hitting the 5,000 mark is a milestone of sorts.  I tried to retire at the 5 year mark, but couldn’t break the addiction.  I do not plan to retire (again) today.  Writing is fun. It’s therapeutic. It makes me think and provides an opportunity for me to test my thoughts with my peers. I’ve made some friends and a ton of enemies.  What a long, strange trip it’s been. 

This is post 5,002, a number of no consequence whatsoever. And still my crippled fingers bang the keyboard.

Among the many risks one takes in Chicago, aside from well-coiffed hair being blown askew, is the laundry list of reasons why the police can seize your car, charge you for the pleasure, then forfeit it.  Drugs?  Weapon? Sex with someone other than your spouse who happens to require payment in cash?  This is why Chicagoans can’t have nice things.

In the case of Ivy Jackson, a couple of guys smoking a blunt in the front seat of her Mitsubishi was enough to do the trick, via Forfeiture Reform.  Officer FNU Ugarte nailed the perps, and poof, the car was gone.  The city has a killer administrative ordinance on the subject.

(a) The owner of record of any motor vehicle that contains any controlled substance or cannabis, as defined in the Controlled Substances Act, 720 ILCS 570/100, et seq., and the Cannabis Control Act, 720 ILCS 550/1, et seq., or that is used in the purchase, attempt to purchase, sale or attempt to sell such controlled substances or cannabis shall be liable to the city for an administrative penalty of $1,000.00 plus any applicable towing and storage fees. Any such vehicle shall be subject to seizure and impoundment pursuant to this section. This subsection shall not apply: (1) if the vehicle used in the violation was stolen at the time and the theft was reported to the appropriate police authorities within 24 hours after the theft was discovered ***; (2) if the vehicle is operating as a common carrier and the violation occurs
without the knowledge of the person in control of the vehicle; or (3) if the owner proves that the presence of the controlled substance or cannabis was authorized under the Controlled Substances Act or the Cannabis Control Act.

The best part is that not only do you lose your car, but you suffer an additional $1,000 “administrative penalty” plus the cost of the cops taking and storing (as if they were doing you a favor). In Jackson’s case, that came to more than $2,000.

Jackson challenged the seizure as a violation of substantive and procedural due process, based upon the absence of an “innocent owner” defense to forfeiture.  The 1st District Court of Appeals was unpersuaded.  The court swiftly dispensed with the rational relationship test:

Generally, “[l]egislation does not violate substantive due process protections if it bears a rational relationship to a legitimate governmental purpose and is neither arbitrary nor discriminatory.”

In the case at bar, regulating the possession of controlled substances and cannabis within a vehicle is a legitimate governmental purpose, and section 7-24-225 of the Municipal Code bears a rational relationship to that purpose, since it removes the vehicle used for an illegal purpose from further use for that purpose.

Don’t let the word “arbitrary” fool you. If the ordinance permitted forfeiture of shoes, it would pass muster as it would regulate walking from a residence to a car to prevent an illegal use.  Any string of words, no matter how laughable, would suffice.

But what about the innocent owner, the person whose property is lost but did nothing wrong?  While that might matter in a criminal proceeding, where the person sentenced to the loss of her car would have to first be convicted of a crime, it’s no impediment to administrative forfeiture at all.  It’s our old friend, the legal fiction of forfeiture in rem.  This isn’t a criminal punishment, which would be wrong.  Oh no, this is merely an administrative penalty, which is perfectly fine.

In reading the ordinance, Jackson asks us to consider “societal costs” and the fundamental notion that the innocent should not pay when they have done nothing wrong. However, as noted, we have upheld impoundment ordinances without innocent owner defenses because they “ ‘may still have the desirable effect of inducing [innocent owners] to exercise greater care in transferring possession of their property.’ ”

And doesn’t society want owners of cars to exercise greater care?  Who wouldn’t, right?  After all, an owner is liable for the negligence of the person to whom they lend a car and then harms someone else in an accident.  Of course, this isn’t a forfeiture, and reflects a choice between the victim of the accident suffering as opposed to the driver, who is primarily liable and the owner, who is secondarily liable and, by law, must carry insurance for the benefit of the victim.  But hey, the owner still suffers for her choices?

And yet, the decision is fundamentally an exercise in deferring to precedent, as there is indeed a long history of upholding forfeiture laws that reflect no proportionality, essentially no meaningful procedural due process and is, at its core, plain, old unfair. 

While the decision reads like a Scalia dissent, in that it upholds the constitutionality of the ordinance while leaving the absence of an “innocent owner” defense to the policy call of the legislative body, it still falls short.  It is not rational, except by the rending of rhetoric, to forfeit the property of an innocent owner, who neither knew nor had reason to know that her property would be used in an unlawful manner.  By definition, if the owner exercised due care and didn’t know, then there was nothing she could have done to prevent it and absolutely no “desirable effect” could be achieved.

What the court’s rationale does is place the owner in the position of being an absolute guarantor of every person who enters her vehicle, whether with her direct permission or by extension. Indeed, how much “greater care” can be demanded of a person when there is no way of knowing what another person may ultimately do?  Even if junior has never smoked dope in his life, there could be a first time. And if may well be in the car.  And if not junior, what about his girlfriend’s second cousin in the way to church doesn’t have a leftover seed in her purse?  The attenuation is easy enough to write about, but does this court suggest that the owner, the exercise of the greatest care ever, could prevent every possibility? 

Of course, the owner could do so, but only by never allowing anyone else in her car. Ever. Under any circumstances. Because, well, you never know. And that’s what they call rational in Chicago.

While private criminal defense lawyers and public defenders share a great many attitudes toward the system, there is one hole, big enough to drive a stretch limo though, that separates what we do and how we look at our respective roles.   Mark Bennett talks about a post by a public defender at Preaching to the Choir that began as a rant against Jose Baez.

It seems that Baez was writing a book about his successful representation of one of the most notorious cases of the decade, Casey Anthony.  It raises some very real questions as to the propriety of a lawyer writing about a client, which seems impossible to accomplish without breaching confidence.  It may be that Anthony approved it, and that she owes Jose Baez enough to let him have a free hand in writing a book and making some money off the case.

But the aspect of the rant that caught Bennett’s eye, was this:

I don’t begrudge my colleagues in private practice from earning a living and charging a fair fee for their work. But it makes me angry to see clients forced to sell cars, homes, land, or whatever else they can to pay lawyers who then join country clubs and buy BMWs.

Had the intrepid PD stopped at her anger about seeing clients forced to sell cars, homes or land, there probably wouldn’t be enough reason to write.  We share the pain of watching the accused forced to divest themselves of assets, accumulated from years of hard work, to fight false or spurious accusations.  Only a horrible system would compel such a thing.  Of course, not all accusations are false or spurious, but that’s a story for another day.

It’s the second  part of the sentence, that the money is used to pay lawyers who then join country clubs and BMWs.  This is a recurring theme in the interrelationship between public defenders, who perceive their duty as not merely defending the accused, but doing so at no cost to the accused, so that they don’t exacerbate their client’s misery.  Bennett addresses this:

As a lawyer who has prospered by defending people (doing well by doing good), I disagree. I suspect that it’s really easy for someone who’s getting a government paycheck plus benefits to say, “I would represent all my clients for nothing (or next to it),” but that’s not what she is in fact doing, and it’s a position divorced from the reality shared by the rest of the criminal-defense world.

Imagine that I represented everyone for next-to-nothing. I would be choosing a working-poor existence for myself and my family. What good would come of that? I might feel smug and sanctimonious, but I couldn’t help more people: even with my substantial fees I have about as many clients as I can effectively represent.

While our intrepid PD may not be getting rich off her job, she does get a regular paycheck and health insurance, something few private lawyers are familiar with. And most private criminal defense lawyers aren’t pulling down much more, if as much, as the PD these days.  Don’t let the BMW fool you. It’s leased.

Where the concern goes astray is that criminal defense lawyers are not priests of the law. We may take an oath of loyalty to our clients, and if we stretch it a bit, an oath of loyalty to the Constitution, but we surely take no oath of poverty. 

When times are tough, no one pays our rent or puts food on our table.  When times are good, we are absolutely entitled to enjoy the fruits of our labor, just like anyone else.  As recently discussed, there is no shame in getting paid for our services.  As a corollary, there is no virtue in getting screwed out of a fee.  Any PD want to shed a tear for the private lawyer who takes on a paying client only to get burned?

This is not to say that private criminal defense lawyers should deceive clients who are otherwise incapable of retaining counsel that they will lose if they stay with the public defender and win if they go with a private lawyer.  As we all know, there are excellent PDs and awful private lawyers; the manner of getting paid has no bearing on the ability of the lawyer, and PDs often have an internal support system that dwarfs what private lawyers can provide.

On the other hand, PDs carry ridiculous caseloads, and can’t provide the level of access and personal attention that private lawyers (who aren’t doing a volume practice) can offer.  Given the neediness of defendants and their families in such unfamiliar terrain, the ability to speak to someone who knows your name can be enormously important and a great comfort.

As Bennett made clear, to the extent the system sucks the working poor, or even the working not-quite-poor-but-doesn’t-have-a-spare-$50k-lying-around, dry, it is not the criminal defense lawyer who caused this problem or who is responsible for shouldering its burden.  It’s not that we take joy in our client’s being forced to sell a house to pay for counsel, but that we work for a living too.  There is nothing wrong with working for a living, and charging for our work.

The final clause of the public defender’s rant, the legal fees are squandered on such frivolities as country clubs and BMWs, making it anger-worthy that we render defendants destitute so we can enjoy a life of luxury. is a well-worn arrow in the socialist quiver.  What the money is spent on isn’t relevant. If it’s shoes for the kids or a tip for the caddy, the new rims for the M5, so what?  It’s not up to anyone to approve of how earned income is spent provided the spender isn’t otherwise on the dole. 

There may be some element of envy in this screed, or the sanctimony of the closet communist, but it feeds the misperception that a lawyer who has fulfilled his obligation to his client, who has reached an arms length agreement as to his fee, and who has been paid for his services, is still under the obligation of living a sufficiently austere life to justify earning a living.  It just ain’t so. 

No one is owed an apology for earning a living and, if it happens to work out that way, being successful at it. This is America, and we are allowed to be successful.  And there’s no shame in success, either.

As every dog lover knows, they are happy, playful creatures.  Their tales wag. They may drool and lick.  And sometimes, they jump into places they shouldn’t, like the interior of a car through an open driver side window in the midst of sniffing for drugs while under the control of their police handler.  It can happen, as Judy Tenuta might say.

And so, in United States v. Sharp, the 6th Circuit joins the third, eighth and tenth in holding that dogs will be dogs, thus removing their playful leap into a vehicle not a search under the Fourth Amendment.

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement.

This follows distinctions made by others courts:

The Tenth Circuit was the first court to conclude that even though a drug detection dog jumped into a car through an open hatchback, the “dog’s instinctive actions d[o] not violate the Fourth Amendment” because the police did not ask the defendant to open the hatchback nor did the police encourage the dog to jump into the car. Stone, 866 F.2d at 364. In contrast, a dog sniff from the inside of a vehicle becomes a search that violates the Fourth Amendment when “the officers themselves opened the door” and “facilitate[d] a dog sniff of the van’s interior.” United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998).

The line drawn was some affirmative act by police to facilitate the dog’s entry into the car, whereas here, the window just happened to be open (though that may have been because the defendant opened it when the police first approached his car, and was never given an opportunity to close it before being removed from the car) and the dog just happened to decide to jump in. Dogs. Sheesh.

It makes for a nice, bright line test, and doesn’t everybody love a bright line test almost as much as they love dogs?  Yet, there’s something remarkably unfulfilling about where the line’s been drawn.

For example, the dog has a handler, a canine officer who lives with, loves and, theoretically trains this dog.  Normally, the dog is supposed to be under the handler’s control, whether by tether or Vulcan mind meld, as is asserted when handlers explain how they know precisely why a dog has drooled on an object. 

Of course, the dogs themselves are highly trained machines, who can be trusted to behave with sufficient precision that the lives of humans are dependent on their “alert,” whatever that might mean (see Vulcan mind meld, above). It’s one thing to be frisky when they’re playing with the kids, but on the job, it’s another matter. The adequacy of their training is one of the foundational underpinnings of their acceptability as a trigger of probable cause.  And yet they aren’t trained to not go where the handler doesn’t want them to go? 

And finally, even if the cute doggy leaps unexpectedly into the car through a window open by no fault of police, was there some impediment to having the handler get the cute doggy out of the car?  Perhaps a stern “get the heck out of the car, Fido,” would do.  If not, maybe actual physical intervention.  But since it was well known that the dog had no place sniffing within the vehicle, was the handler incapable of getting the dog out?  Was the handler obliged to remove the dog from a place he had no right to be? Or does kismet dictate?

This suggests that there is a very real element of human intervention in the cute doggy’s actions. While the handler may not have facilitated his entry into the vehicle, an assertion which isn’t as clear to me as it is to the court, his failure to stop his dog from leaping through the window, or remove the dog from the car, is certainly a volitional act on the part of the police. 

But then, if the only purpose of suppression is to prevent police misconduct (as opposed to create a duty by police not to allow fortuitous entry to happen by their very own doggy), then why let the criminal go free because the dog was frisky?

And as long as we’re talking about dogs, Penn State lawprof  Erica Goldberg makes a very good point in her law review article, Getting Beyond Intuition in the Probable Cause Inquiry . 

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability of such practices can and should be quantified, but the vagueness of the probable cause standard renders it impossible for judges to determine which error rates are inconsistent with probable cause.

Unlike cops, who by definition aren’t susceptible to either empirical analysis or rational thought, drug sniffing dogs are peculiarly easy to quantify.  Even the cops know it.  While it may be fine with the Supremes to cling to  Brinegar rather than give words, like probable, their accepted meaning, the vagaries of human rhetoric offers no excuse for the failure to quantify that which demands it. 

Or in the alternative, who cares if a drug sniffing dog is right only 12% of the time if he’s cute?

And you wonder why he’s laughing?

H/T Jonathan Adler at  Volokh Conspiracy
 

A few days after I reviewed the Scalia/Garner book, Reading Law, an email arrived from a Washington, D.C., lawyer named Neal Goldfarb.  He wrote:

Hi Scott. In light of your review of the new book by Scalia & Garner, I thought you might be interested in seeing (and possibly linking to) the series of posts that I’m doing about the book at LAWnLinguistics, I’m examining the parts of the book that deal with linguistic issues. So far I’ve done four posts, with more to come.

I don’t know Neal Goldfarb. I’ve never heard of him or from him before. But I’m always curious about new blogs, and I have more than a passing interest in linguistics, despite what you might think, so I took a look.

It’s a seriously nerdy linguistics blog, and it struck me as pretty interesting and quite solid on its merits.  One other thing struck me, however.  Nowhere in Goldfarb’s posts about Reading Law was there a link to my review. Nowhere in his blogroll did Simple Justice appear.

And so I responded to the email:

A call came in the other day from a lawyer who was asked by an acquaintance to represent her kid who got himself into a jam.  The lawyer asked what I thought he should do, as the acquaintance, over the next few days, became overbearing about the situation, from explaining how this trivial offense would ruin her son’s life, to asking for a ride home.

My suggestion was to do the case for free, make sure you beat it and not find yourself in the situation where you’re beholding to the acquaintance over a few bucks. “She’ll make your life miserable,” I told him, “but if you do it for free, she’ll be beholden to you and you can control her.”  His thought was exactly the opposite, that if she was going to make him miserable, he wanted to be paid well for the privilege. Why, he wondered, should he endure her for free?

Rob Fickman  wrote in a comment to a post by  Mark Bennett that criminal defense lawyers probably do far more pro bono work than any other type of lawyer.

I am always amused by the big civil firms giving Themselves a nice pat on the back for their pro bono work. They have a plaque up in each court house here congratulating themselves. Maybe the average diligent civil lawyer does 100 hours a year of pro bono work. The Bar thinks we should keep records of our pro bono time. The civil can keep track because it’s a relatively small amount of time.

The average diligent Criminal defense lawyer easily does 250 hours of pro bono work a year. We do not need to keep track or give ourselves bowling trophies.

It’s largely true, but there is an element to it that concerns me. We see something wrong and want to help right it. It tends to be our nature, and gives rise to much of the frustration we feel toward the system and its players. But it’s an impulse, a desire, that needs to be tempered and controlled, as Bennett explains:

When I take a pro bono case, it’s not because the client wants me but because I see a likely payoff in it for me—never money nor publicity, but a good story or entertainment or education or just the satisfaction of demonstrating that not all lawyers suck and making a difference that nobody else would make in a human being’s life.

No, I’m no hero. I’m just like any other junkie, except that my drug often makes other people’s lives better.

We don’t get a lot of satisfaction in this line of work, and take it where we can.  At the same time, reach into the wrong case and it can suck the life out of you, ultimately ending in misery.

Most blawgers get unsolicited emails from people who seek our pro bono assistance. Most of the time, the emails are incomprehensible pleas with unreasonable requests that fail to persuade us that there is either a grave injustice or that anything can be done to help.  Defendants have a tendency to view grave injustices differently than lawyers, and their request that we fly across the country to meet with them in prison to hear their story asks too much. 

There are instances, such as the story related by Bruce Godfrey in this comment, that reflect how a lawyer helped someone at the cost of five minutes of his life. I suspect every half-decent criminal defense lawyer has a similar story, and (thankfully) chose not to tell it. We don’t do it for the kudos, but because it was staring us in the face and, well, cost us nothing to fix.

But a phrase haunts me from my wayward youth.  No one will buy the cow if you give the milk away for free. The context was different, but the message remains the same. The culture is shifting toward the belief that we do this for love, for “justice,” rather than for a living.  When I go the grocery store, they charge me for the gallon of milk and bag of barbecue Doritos. I’ve yet to have a cashier say, “Oh no, you’re a criminal defense lawyer, so we want you to have these groceries for free as a ‘thank you’ for all you’ve done.”

This is a discussion I’ve had of late with Ken at Popehat, who has taken up arms against the “censorious asshats” who threaten free speech online.  He sends out the  Popehat signal seeking pro bono counsel for maligned bloggers. He writes letters. He does this because he feels it’s the right thing to do. He does this for free.  Ken is a mensch.

But in a number of these situations, there was ample opportunity for others to contribute to the cause. In one instance, Ken’s largesse was woven into an abusive political narrative to show how conservatives were the righteous victims of liberals. In another, there were two million claimed supporters of the cause.  There was nothing to stop the two million from each contributing $1 to the cause that was so dear to them, and yet they heaped only praise.

There are for-profit websites like Avvo whose business model is based on creating the belief that lawyers exist to give free (and often wrong) advise to anyone who asks. The purported give-back is that if you give enough free advise, someone will hire you when they really need a lawyer.

One of the recurring themes at  the Lawyerist is that there is no shame in asking to be paid for your services. That lawyers will jump in to help by providing pro bono services when they feel it’s appropriate, when they feel they can help, when the circumstances warrant, will never change. It was that way long before there was an internet to tell the world about it, and will continue because that’s who we are. 

But no, dear potential pro bono client. Lawyers are not a special breed of aesthetic ascetic who have taken an oath of poverty and dedicated their lives to your cause without compensation. To the extent all this talk promotes a different notion, it’s wrong.  Just like you, we work for a living. Just like you, we have bills to pay and mouths to feed.  We may be singularly charitable by nature, but that doesn’t mean we exist at your beck and call.  And if kindness is a two-way street, then don’t try to exploit our charitable nature when you have as much ability to carry the weight as we do. 

If you’re dying of thirst, we may give you free milk. But we make our living off of selling cows. Please don’t forget that.

Most of the time, the complaint amongst lawyers is that they can’t find anyone to help them out in a difficult case, whether it’s because they’ve overreached or because they just can handle the scope of work.  So you would think that an offer to help from someone as well-regarded as the Texas Tornado, Mark Bennett, would be well received.  You would think.

Instead, Bennett was reminded of the adage that no good deed goes unpunished.

A couple of weeks ago I wrote about this British guy who has (as of today) been sitting in the Harris County Jail for more than three weeks, charged by complaint with the class C misdemeanor of aiding suicide.

The 351st District Court, where his case is pending, has no jurisdiction over a class C misdemeanor case. The maximum penalty for a class C misdemeanor is a $500 fine. The guy discharged that fine with his first ten days in jail.

Mind you, the British guy isn’t Bennett’s client, and he’s not getting paid to spend valuable thinking time pondering the fact that a man sits in jail, and sits in jail, after the maximum sentence possible after a conviction would have been completed.  And yet still sits in jail.

Being a helpful sort of fellow, Bennett offers a hand.

So I go to see the guy in jail and offer him my pro bono help. I don’t want money, and I don’t want publicity. I just want to try to get him out from under these charges and back to his life, and I think I can bring more resources to bear on the problem than his court-appointed lawyer can or will.

Led to water, the horse didn’t drink. That’s okay. I emailed Dionne Press to offer her my help in filing a writ of habeas corpus to extricate the guy from jail. That horse wasn’t thirsty either. I wasn’t surprised—like I say, I have dealt with her before.

At this point, news of the situation began to spread a bit, the question being why Press had no interest in a little help in freeing her client.  The first impression was that Dionne Press might be enjoying  her moment in the sun a bit too much, and didn’t want to share the tan.

What makes this curious is that Press is assigned to the case rather than retained.  It’s one thing for the defendant to have made a choice of counsel, bearing the consequence of a poor decision, but when counsel is assigned, the defendant has little choice in the manner in which the lawyer handles their case.  This makes a defendant’s sitting in jail awaiting someone to do something to free him a significantly different issue: he’s paying a price for an omission by something thrust upon him rather than chosen by him.  This isn’t quite what Gideon had in mind.

Yet, Bennett’s offer to help was rebuffed. Well, actually, rebuffed doesn’t quite tell the story.

Today I learned that Dionne Press had complained to the DA’s Office, trying to get them to file criminal charges or a bar complaint against me.

Nice.  A defendant sits in jail because his assigned lawyer, who has plenty of time to talk to the media, can’t be bothered to get her client out of jail.  And still sits in jail while she’s busy pressing the District Attorney to charge Bennett with Offering to Help in the First Degree.  Even in Texas, this isn’t a crime.

My visit to her client passes muster under both the Texas Disciplinary Rules of Professional Conduct and the Texas Penal Code—solicitation of pro bono work doesn’t violate either (in fact, it’s in the best traditions of the bar). But Dionne Press is not the sort of lawyer whom I would expect to have more than the sketchiest familiarity with the rules or the law. So I was not shocked.

While Press may not be any more familiar with with ethical obligations relating to an offer of pro bono representation than she is with that habeas corpus thingy, what is shocking is that the irony of her tangential efforts on her own behalf don’t seem to phase her while the defendant remains in a cell. 

Pissed that some hotshot lawyer has offered a hand and might take the spotlight off you?  Then get the defendant out, after which you can be as big a hero as you want to be, and complain about others if that’s what floats your boat.

But with the British guy sitting in a jail cell, and you smacking the hand offered to help your client, it seems like a bit of shaming is in order.  This isn’t the way to get a sweet profile in the Chronicle and a TV show of your very own.

It comes as no surprise to learn that James Holmes, the Aurora shooter, had psychological problems, as reported by Fox News.

In a surprisingly risky move, ‘Bama lawprof Paul Horwitz offered a draft of his law review article, “What Ails the Law Schools?” for comment at PrawfsBlawg.  To his credit, Horwitz goes well down the road taken by  Brian Tamanaha and Bill Henderson, and even goes so far as admitting to reading Paul Campos’  Inside the Law School Scam blog, though only those parts written by lawprofs.

This is a bold move on Paul Horwitz’s part, particularly when viewed through the prism of the Rick Hills Test (things the old guard would never be caught dead doing, like wearing black socks with shorts). And indeed, the content, aside from the irony that it’s in the form of a law review article (thus guaranteeing that no one outside of the Academy and a handful of us curmudgeons will read it), is supportive of needed change. 

That said, it has two glaring flaws.  The first is that Horwitz incorporates Walter Olson’s Schools for Misrule largely to use it as a foil for Tamanaha’s more scholarly approach, which is just rude.  The second is that Horwitz completely ignores any thought that doesn’t derive from the mouths of babes academics. 

This is what I’ve been complaining about.  The faction of the legal academy that seeks to lead the charge for change is gaining some momentum, but it remains bent on isolating itself from practicing lawyers.  They may be willing to have a discussion amongst themselves, but they will be damned if they let the barbarians through the gates.

Guess what, guys?  You were left in charge of the academy for the last generation and screwed it all up.  How did that tuition increase work out?  What about preparing students to practice law?  And your emphasis on publishing scholarly works about  critical issues in the law in exchange for tenure?  Who’s got a unibrow now, huh?

One of the more risqué moves that Horwitz  subsequently brought to the party was to question the compulsion of law schools to seek elite status and, relatedly, to embrace the use of adjunct professors, meaning lawyers who actually practice law teaching law students who hope to practice law.  Horwitz sets it up with a quote:

Chemerinsky writes:

Cutting a law faculty in half would require relying far more on relatively low-cost adjunct faculty. Tamanaha’s assumption is that relying on practitioners rather than professors to teach more classes won’t compromise the quality of the education students receive. Here I think he is just wrong. There are certainly some spectacular adjunct professors at every law school, and they play a vital role. But as I see each year when I read the student evaluations at my school, overall the evaluations for the full-time faculty are substantially better than they are for the adjuncts. It is easy to understand why. Teaching is a skill, and most people get better the more they do it. Moreover, full-time faculty generally have more time to prepare than adjunct professors who usually have busy practices. 

Adjunct faculty are available far less for students than full-time faculty. Tamanaha gives no weight to the substantial learning that occurs outside of the classroom. I think he tremendously underestimates the amount that most faculty are around the school and available to students. 

In the comments, an anonymous dean agrees, but for different reasons:

As an academic dean, it’s part of my job to hire adjuncts, orient and train them, observe their classes (or review observation reports of full-time colleagues who do so), read their evaluations, and intervene when problems arise. We have well over 100 adjunct faculty. Here’s what I find. We have a very small number of “star” adjuncts who teach core classes year after year. They were hired on the hunch that they would be natural teachers, and that has largely turned out to be true – some of them are as highly rated by students – and as good (not always the same thing) – as our best full-time faculty. However, the teaching of most of our adjunct faculty is inferior to that of full-timers. Many of their classes resemble extended CLE courses. Often they don’t really “teach” in the sense of engaging the students, diagnosing their problems, and working flexibly to respond to what they see before them. No doubt this is partly because they are too busy, partly because they lack the same professional incentives as full-timers, and partly because some of them just aren’t very talented as teachers, whatever their skills as practitioners. My experience has made me a big believer in the value of full-time, professional teachers.

Horwitz, however, proudly strokes his tweedy unibrow:

I also support the more vigorous use of adjuncts. More to the point, I think we already do it at many or most law schools but haven’t fully acknowledged it, and the more we do the more likely we are to fully integrate adjuncts into our community and erect quality controls. But I would like to know the sense of readers, whether professors or students, out there. Is Chemerinsky right that full-time faculty are better teachers than adjuncts, or that adjuncts are far less available to students than full-time faculty? What are your own impressions of adjunct versus full-time faculty, both the positives and the negatives? And how, apart from evaluations, can we get the most and highest use out of adjuncts? 

A fascinating discussion, but for one thing. Where the heck are the practicing lawyer.  You know, the guys who might actually be the adjuncts?  The lawyers who might be in a position to teach law students how to get their sorry butts into court and, you know, win something?  The practitioners who could explain why the Supreme Court’s understanding of how police encounters on the streets don’t always happen in such a sanitary or professional manner?

Who are these stars Chemerinsky talks about?  Are these former solicitor generals, because it’s highly likely that every student in his n00b law school is heading straight for the Supreme Court within a week or two of graduation.  And remind me again of how many lawprofs, after fulfilling their commitment at the Department of Justice or getting a boil on their butt from sitting on a Bank of England chair in the library of Biglaw, gets their teacher training at Trenton State?  When did they become experts at pedagogy?  More practiced, perhaps, but trained? Who are you kidding?

That said, I suspect most practicing lawyers won’t fit smoothly into the academic mold.  We tend not to be very good at tummy-rubbing, which adversely impacts student evaluations.  We don’t readily hand out red balloons for stupid answers.  We lecture, like we open and close to a jury, as a matter of pragmatics.  Some even tell war stories, the bane of CLEs.

But what’s lacking is any imaginative change, such as the hybrid approach of academics coupled with adjuncts to provide both theory and practice in tandem, or maybe in contrast.  There is a world of possibilities once one is opened to the need for improvement, and yet the discussion remains amongst those whose vision is limited to the handful of folks within their circled wagons.

When will the legal academy come to the understanding that it exists to produce lawyers, as a feeder to a profession of people who do the things they only talk about?  Lawyers may be a dumb bunch of neanderthals to you scholars, but those are our replacements you’re training.  And without our input, you’re just going to screw it all up again. 

As painful as it may be to have to engage in a discussion with low brow lawyers, vulgar and banal as we are, we are the future of your students.  There is no plan for the future of law school that doesn’t involve us.

There are some virtues that come with having a billionaire mayor. He’s not easy to bribe, for example, so you know whatever comes out of his mouth does so honestly.  And therein lies the downside when he says something like this :