A Cop’s Life (Through An Arbitrator’s Eyes)

Lt. Mike Denton of the Owasso Police Department in Oklahoma was a bad cop. Not because I say so, but because Owasso City Manager Rodney Ray says so, and fired him for it. Denton was fired for using excessive force following the arrest of Bryan Scott Spradlin,

Answering a call about a disturbance caused by an intoxicated man, numerous Owasso police officers came into contact with Spradlin during his arrest at a residence in the 11610 block of East 83rd Street North.

Spradlin refused to obey commands during a field sobriety test and resisted officers’ attempts to handcuff him, reports say. Officers Jonathan Foyil and Ben Wolery forced Spradlin to the ground, and as Wolery tried to gain control of Spradlin’s hands, he attempted to bite Foyil’s arm, the reports state.

After Foyil delivered a burst of pepper spray to Spradlin’s face, he was placed in handcuffs. A straight-blade knife with a taped handle was recovered from Spradlin’s shorts pocket, reports indicate.

Denton and Officer H.D. Pitt had to carry Spradlin into the police station because Spradlin refused to walk up the steps into the building, according to a police report.

Nothing unusual in Tulsa. Except Spradlin had these bloody wounds on his face that he didn’t have before.

Evidence showed that Spradlin went limp on the concrete steps leading to the ramp, causing him to fall face forward on the surface, records indicate.

And then there was the part where Denton’s elbow was assaulted by Spradlin’s face. While all of this should have been videotaped, since the officers wore body cams, they always seemed to be pointed in the wrong direction, except for this part.

Then there are two additional details that seem to get lost in the story, that when Spradlin was being walked up the ramp to the door, Denton stepped on his head. And after Spradlin fell, he was pulled up by his cuffed arms behind his back, his arms being hyperextended above his head from behind. Arms don’t tend to work that way.

Good enough for a firing?

In college, I was trained in labor arbitration. I read the bible, Elkouri & Elkouri, from cover to cover. I got it. And you aren’t going to like it.

In a 21-page report summarizing a March grievance hearing, arbitrator Edward B. Valverde wrote that while Lt. Mike Denton used “unreasonable and unnecessary force,” his actions did “not rise to the level of excessive force within the meaning of existing case law,” and the discipline imposed is “excessive under all the circumstances.”

The arbitrator found that Denton stepped on Spradlin’s head while carrying him up the ramp, records indicate. Valverde also determined that Denton pulled Spradlin’s handcuffed arms above and beyond his head as he was lying in the lobby and struck Spradlin’s face three times with an elbow in the sally port, documents indicate.

None of the three instances rose to the level of excessive force, and no clear evidence was presented that Denton injured Spradlin in any of the incidents, Valverde found.

It’s not that Denton didn’t do everything bad to Spradlin that was alleged. He did, Everyone says so. But in labor arbitration, that’s merely the starting point. It’s not the labor arbitrator’s job to protect the public and facilitate the police department’s ridding itself of violent, abusive cops. Not at all.

The labor arbitrator is charged with two tasks. First is to enforce the requirements of the union contract, which typically contain provisions that would make a mass murderer blush. While criminal laws are primary to all other contracts in this nation, so much so that they compelled judges to riddle the Constitution with exceptions to accommodate the need for convictions, a police contract is the only document that trumps all laws. It’s a policy thing, because they need it more than the rest of us. They’re our protectors, you know, and that entitles them to special dispensation.

The labor arbitrator’s second task is to determine that all discipline of police officers is fair. Fair is defined by the lowest common denominator, the bar of other police officer behavior. It could be a high bar. It could be a low bar. It could be a very low bar, and so it was here.

Valverde determined that Denton “is an above average employee who has demonstrated superior performance on more than one occasion in the past.” The arbitrator also found that “based on Denton’s quality work record and OPD’s demonstrated level of tolerance involving employee misconduct,” a written reprimand is the appropriate level of discipline.

While the man on the street doesn’t get his first three elbows to the face for free because he was otherwise a pretty good guy, a labor arbitrator is constrained to consider a police officer’s past performance and prior disciplinary record, in order to determine whether discipline is fair. The rule is that discipline should increase in severity, beginning with a warning, then reprimand (first oral and later written) and only working its way up to discharge after all levels of lesser discipline have been imposed and failed.

And there is a union lawyer, in this case Patrick Hunt, who handled the grievance through Fraternal Order of Police Lodge No. 149.

“The impression, I think, was that Mike beat this guy up and did all this damage to his face,” Hunt said. “What came out in the hearing is that his injuries to his face were caused because he did a face plant as he was taken into the station. He stopped at the steps. We call it ‘playing dead.’

“He crashed forward and smashed his face. Later, Mike smacked him with his elbow in what we call the sally port area” at the jail.

This was his defense, arguing how the perp was to blame for “playing dead,” making the injuries Spradlin’s fault as he chose to crash forward and smash his face on the concrete. The elbow in the face thing was just no big deal.

Sometimes conduct is so serious as to justify jumping ahead, bypassing the oral warning for example when they’ve left too much needless blood on the tracks. But there is no sanction more severe than discharge, and an arbitrator would be remiss in his duty if he allowed an employer, even a public one, to take such a huge leap forward when it wasn’t warranted.

And what makes discharge warranted? When similarly situated employees aren’t treated to lesser sanctions. And here is where it tends to fall apart. When the police tolerate abuse and misconduct of prisoners when it’s not on video, it becomes part of the argument to the arbitrator that the occasional beating of a defendant is nothing out of the ordinary. And the arbitrator feels constrained to limit sanctions in one case to the manner in which they are imposed in other cases. It has to be fair and consistent. And who better to know how other abuse by other cops is tolerated than a cop?

From the outside, it seems unimaginable that a labor arbitrator is so utterly lacking in understanding as to put a cop like Mike Denton back in uniform. But he’s just doing his job.

“We’re happy about it,” Hunt said. “Mike’s very happy about it.”

And why wouldn’t he be? The sanctity of public sector unionism remains untainted by the firing of a bad cop.

H/T Reddit’s Bad Cop, No Donut FitzMuffKnuckle

Book Review: Reading Law: The Interpretation of Legal Texts, by Scalia and Garner

It’s a scary book, in every conceivable way. It’s big. It’s heavy. It’s 567 pages. When it arrived on my doorstep, I was afraid to touch it. And it’s written by Supreme Court Justice Antonin Scalia and Black’s Law Dictionary editor Bryan Garner, with an introduction by Chief Judge Frank Easterbrook. It’s like inviting death into your home.

And yet it was good. Really good. Well, let’s qualify that by saying Reading Law, published by West (who begrudgingly sent me a free review copy) is made up of two writings, one a polemic arguing why textualism is the only legitimate approach to the interpretation of law (and why all other approaches are wrong, wrong, wrong) and a second providing a massive survey of the canons of construction, divided up into small bites and exceptionally well explained.

The philippic is called an “introduction,” consisting of 46 pages, duly footnoted, explaining why Scalia’s approach to the interpretation of laws is the only right one possible. While he’s often called an “originalist,” he obviously prefers to be characterized as a “textualist.” He defines his view:

Theories of legal interpretation have been discussed interminably, and often so obscurely as to leave even the most intelligent readers–or perhaps especially the most intelligent readers–befuddled. So why would we add to the number? In fact, we do not. Far from proposing yet another novel approach, we seek a return to the oldest and most commonsensical interpretive principle:

In their full context, words mean what they convey to reasonable people at the time they were written–with the understanding that general terms may embrace later technological innovations.
Hence a 2012 statute referring to aircraft, if still in effect in 2112, would embrace whatever inventions the label fairly embraces, even inventions that could not have been dreamed of in 2012. The exclusive reliance on text when interpreting text is known as textualism. We believe that this approach elicits both better drafting and better decision-making.

There you have it, in a nutshell. It covers the originalist implication, without appearing overly slavish, as if it’s just a matter of obvious necessity since it makes no sense at all to give meaning to words that didn’t exist when they were written.

The theory rejects some of our long-held sacred cows. For example, they ridicule the notion that legislative history should play any role whatsoever in interpretation, arguing that it’s a meaningless front for lawmakers to grandstand. They persuasively argue that every legislator who voted on a statute has his own reason, and no writing can possibly express the true “will” of the legislators as there is no such thing. Rather than consider the political marketing document that is used by bill sponsors (or the hearing commentary that is used by a bill’s opponents), stick to the words and ignore the fluff.

According to Scalia and Garner, their textualist approach has two primary virtues. The obvious is that they believe it makes for better judicial decisions, as the guys in the domed building get paid to write up laws, while the robed guys get paid to pass judgment on what they wrote. Not what they think, or what they think would have been a better idea. At least, that’s the argument.

The second purported benefit is that it forces legislators to write better laws, so that they can’t go off half-cocked, write up a piece of crap lacking meaning or viability, and toss it to the judiciary to make sense of it later, after Congress has adjourned and the good legislators are standing on street corners with their hands out, talking about the fabulous laws they enacted.

The fault in the argument seems readily apparent to me. What becomes of all those nice people who get swept up in the gap between the passage of a poorly drafted, grossly unconstitutional law, and the time the Supreme Court gets around to fully addressing what the text really means? It appears they’re just collateral damage under this theory, taking one for the team of principle.

Am I being alarmist when I raise this problem? Let’s see, Mistretta was decided in 1989, and a mere 16 years later, the Supreme Court decided Booker. How much damage could have been done during those 16 years? Well, tough nuggies. Nothing matters more than adherence to principle, and if a few bodies had to be laid to waste in the process, that’s just the price of intellectual integrity.

Except it’s not. As Scalia and Garner readily admit, it’s not so easy to decide which word in a text is the critical word that controls, or which canon of interpretation rules the day. They acknowledge that the canons, even their own beloved textualist rules, can conflict, but resolve the problem with the facile resort to the one which gives the text its fairest meaning. Aha! The dreaded judgment call that gives rise to a judge imposing his values over competing values. The very method they deride unmercifully throughout the introduction. Go figure.

Ultimately, balancing comes into play. No matter how one may try to divine the meaning of a word at the moment it was written, by whoever wrote it, and disregarding the possibility that it was merely a compromise word intended to skirt the problem of precision, there is no way to avoid the ultimate resort to judges choosing one preference over another. And so we’re back to the very evil this argument tries desperately to avoid.

Nonetheless, the introduction is a fascinating read, with Scalia (I presume) throwing in gratuitously snarky commentary. Hint: Never invite Scalia and Richard Posner to a dinner party unless you want a food fight.

As for the balance of the book, a lengthy recitation of canons on construction, it’s a master class. The book includes a glossary of terms, and an index that spends more times on names than on rules, which is unfortunate. Still, Reading Law has a place on the shelf for its rules alone, which will well serve every lawyer who needs to argue the meaning of a statute.

And as for a statute that regulates aircraft in 2112, the seats will likely still be too small, the drinks too expensive and the text of the law ridiculously inapplicable. And there remains a decent likelihood that the law passed today will still be on the books, as textually worthless then as it is now.

Do “Radical” Sex Crime Laws Backfire?

In an op-ed in the Philly Inquirer, Drexel lawprof Dan Filler raises a “radical” notion about “radical” sex crime laws. Have they gone so far off the deep end that they backfire, and dissuade the reporting of sex crimes? Using the case of Jerry Sandusky to raise the issue, Filler contends:

But there is another lesson to be learned from this horrible story, and it’s time we acknowledged it. Penn State’s administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it. Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime.

Penn State’s former athletic director, Tim Curley, reportedly sent an e-mail to peers recommending that they respond to reports of Sandusky’s crimes by telling him that his misconduct had been discovered, urging him to get treatment, notifying his charity, and prohibiting him from bringing his “guests” on campus. Former Penn State president Graham B. Spanier reportedly conceded the dangers of evading Pennsylvania’s mandatory reporting requirements but agreed to the strategy as a “humane and reasonable way to proceed.”

Though he raises the possibility, Dan’s recitation of events undermines his thesis in this particular instance, that choices made by the administration at Penn State weren’t dictated by concern for Sandusky, but the ramifications for the university. This was a scandal of monumental magnitude, both for Sandusky as well as Penn State. While Curley and Spanier appear to be somewhat concerned for one of their own, Sandusky, they were clearly concerned for the impact on their beloved institution.

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

All of this is certainly true, and those of you inclined to read blawgs such as this are no doubt painfully aware of the “radical” nature of the penalties imposed upon sex offenders, from those like Sandusky who are properly classified as sex offenders to those who urinate outdoors after too many beers.

But most people don’t know as much about this, and fewer still give it a great deal of thought. Most people, if thinking about sex offenders, think about raped children, and ideas like drawing and quartering come swiftly to mind. There is no punishment too harsh, as far as they’re concerned, and they’re not sufficiently concerned with how the “toxic” lattice of laws plays out for offenders they deem wholly undeserving of any sympathy whatsoever. They think of the victims. Thoughts of Sandusky have nothing to do with humane concern.

While the Sandusky is a natural choice for discussion, given its news profile of late, it’s likely a poor example of Dan’s point. Few cases receive such attention, and fewer still have such conflicting motives among those who could have, and should have, reported it. This was not your typical sex offender case.

There might have been some aspect of legitimate concern for what would become of Sandusky in light of the radical laws. Maybe the athletic director and administration saw Sandusky as a friend, a comrade, and didn’t want to saddle him with life as a sex offender. Maybe sweeping it under the carpet and getting him “therapy” was a product of a more humane approach. But when it comes to children being molested, concern for the victims comes well ahead of concern for the molester to most of us,

But I don’t buy it. Not with Sandusky. As for others, the question of whether the absurdly harsh consequences influence reporting requires the confluence of two things, that those in the position to report are sufficiently aware of the consequences, and that the sex offense involved isn’t so horrific that it doesn’t trump any concern about consequences to the perpetrator. How often do these two things come together?

Dan concludes that this concern must be taken into account when dumping consequences onto sex offenses.

There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective. Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws. The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won’t happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.

From the perspective of those of us who, disconnected from the emotional charge stemming from serious sex offenses, there is no doubt Dan is correct that when law becomes so radical it works against the protection of victims. Indeed, in time, as people become more aware of the consequences of a sex offense conviction, they may begin to make the choice not to report because of overkill, disproportionality, inherent lack of humanity.

But there is nothing humane about sexually molesting children. There is nothing humane about rape. When it comes to serious sex offenses, it’s essentially impossible to imagine that it doesn’t, and won’t continue to, trump any small concerns about the perpetrators of such crimes. Yet to the extent that any person decides not to report a sex offense because of a concern over radical laws, then that’s one too many. Dan may not raise a huge problem, but since the toxic lattice of laws is already way beyond anything justifiable, and may have the unintended consequence of leaving sex offenses unreported, then his conclusion still holds true.

Reservations at Club Fed

In a USA Today op-ed, my pal Josh King, general counsel of Avvo, argues against the zeal to hold individual corporate executives culpable for wrongs committed at corporations under their watch.

More prosecutions of corporate executives! It’s a reflexive call to make in the wake of the deepest economic slowdown since the 1930s, and a string of scandals in both the financial sector and industries beyond Wall Street. But while perp-walking executives offers an undeniable appeal to the retributive side of our nature, is it sound policy? Does it deliver the goods in making our marketplace sounder, safer and less corrupt?
The answer has to be almost certainly “no.” What lesson did law enforcement learn from the string of prosecutions after the financial sector meltdowns of a decade ago — WorldCom, Tyco, Enron, etc.? That aggressive pursuit of individual convictions comes at great cost.

While there’s no doubt that convictions come at great cost, it’s not entirely clear that the examples offered back up the assertion. There were identifiable individuals in those cases who made an active choice to engage in conduct that caused enormous economic harm to a great many unsuspecting victims. Being a corporate executive doesn’t absolve one from facing the consequences of the decision to engage in fraud.

But then, the outgrowth of the string of high profile debacles a decade ago changed our national perception of both corporate crime (I hate the phrase white collar, for reasons previously explained) both by causing Congress to press for enormously stiff penalties rivaling murder and by inserting young government lawyers with no business acumen into corporate decision making to the point of deciding how many pens to order and from whom.

Josh goes on to suggest that the public psyche as relaxed a bit since the Enron days, no longer demanding death to the executives.

The Justice Department has in recent years adopted a more nuanced approach to corporate wrongdoing. Through the use of deferred prosecution agreements and similar arrangement, Justice has been able to accelerate investigations and focus more on ameliorating problems at the root.
Corporate executives, no longer faced with a Hobson’s choice between a plea bargain and a bet-it-all criminal trial, are free to reach arrangements with the government that help ensure the enterprise is run more soundly — often accompanied by a hefty settlement payment.

This may be the way it looks from a distance, but tell it to the former CEOs and CFOs and SVPs enjoying a lengthy vacation in Club Fed. While the big news is the billion dollar penalties levied on the miscreant corporations who told us their laundry detergent is new and improved, there is often a human being or two named in the last paragraph who will be the face of corporate malfeasance when sentencing time rolls around.

While the Board of Directors makes the decision to agree to buy the corporation’s way out of the accusations, the warm bodies who were once their most beloved business stars are thrown under the bus in the process. Anything to keep the corporation viable. You can always find a new CEO. The problem, apparently, is that the corporation is the star of the investigation, so few know or care about the lives sacrificed so the corporation can live.

This is not to say that prosecution of corporate executives is never a good idea. But it is a tool of limited applicability. The threat of prosecution isn’t what makes the vast majority of executives want to do the right thing. It’s their integrity, their drive to succeed — and their fear that a misstep will cause the business they’ve worked so hard to build to be undone. Law enforcement should leverage this attitude and focus on those outcomes that result in better-run businesses — not more corporate executives behind bars.

Here’s where the lines gets drawn. There are cases where individual corporate executives make discrete decisions to engage in crime, usually a deliberate fraud or bribery. But these cases are exceedingly rare. The reason the threat of prosecution doesn’t work is because the executives aren’t committing crimes at all, and certainly not in their own minds. They are making business decisions which, when held under a microscope and viewed by a kid from Justice who can only see black and white, has no clue how businesses function and no history in an industry, scrutinizes their decisions as to whether they’re the decisions she would make. If not, then it’s a Crime!

The problem can stem from industry practices, developed decades ago of necessity to accommodate laws at the time together with other real world influences, like union contracts (a huge influence) and the public’s demand for the availability of the products they demand at a price they can afford. Everyone in the industry knows about the practices, and they were firmly in place long before corporate executives were given their corner offices.

Everyone knew about it. Everyone except the kid at DOJ, who was shocked to learn such horrible things were happening. By his account, the industry practice was fraudulent and evil, and the executives should have seen it his way and stopped it immediately. Their failure to do so made them criminals. Remember, this is the same government whose rules demanded they buy $640 toilet seats (actually, it was a toilet seat shroud, and it was later corrected to $100 after public outrage, but the Navy originally approved it at $640) .

The CEO is expected to know everything, every decision, every choice, every function performed by thousands of people under him. Trust your people to do right, to follow policy, to weave their way through a hundred obstacles and demands, and come out the other side with a product that works, is affordable and makes the corporation a profit, and suffer the consequences if any of them screw up. At least in the eyes of a Justice Department lawyer.

Of course, not everybody appreciates what corporations do. Max Kennerly offers the alternative view:

Let’s call GlaxoSmithKline what it is: a criminal enterprise. GSK didn’t miss the finer points of a couple red-tape regulations: the DOJ alleged they tampered with scientific studies, concealed safety data, then lied to doctors and patients and, if that didn’t work, outright bribed the doctors.

Evil corporate greed. A criminal enterprise (in ominous boldface). They must pay for their crimes, and he’s pissed that no one is going to prison…

Unless, of course, the defendant did the deed in service of a big corporation. No one at GlaxoSmithKline is under any threat of prosecution.
So actual prison time, even just the threat of prosecution, for selling people deadly snake oil is out the window. Even the $3 billion is less than it seems, too; calling it a “slap on the wrist” isn’t quite right, but it is by no means real punishment, perhaps more a whisternefet. The money is all being paid by GlaxoSmithKline, not by the employers, officers or directors involved, so it does nothing to deter future drug company employees from doing exactly the same thing — which we know they will…

Max points to no individual who committed a crime, but certainly someone, someone, in the generic evil corporation must be guilty of something, and so the absence of a warm body sent off for a decade at Club Fed proves that the fix is in.

He’s hardly alone it taking such a retributivist view, that someone must be punished even though they have no clue who or why. No consideration is given to the life-saving drugs the evil Big Pharma invented that wouldn’t exist but for their willingness to invest in research. Or that Big Pharma has drastically cut back research following the imposition of these massive fines.

Tell someone who would have lived because a cure was discovered by evil Big Pharma (and we’re not talking about restless legs syndrome) that his death was unavoidable because someone had to go to prison for overselling Paxil, and it turned out to be the guy who would have invented his drug.

The point isn’t that corporate executives should never be prosecuted, or convicted, or imprisoned (though not to the extent of an ax murderer). The point is that our national outrage toward corporate crime has gone overboard, and the aggressiveness of government investigations and prosecutions of conduct that hadn’t been considered criminal for decades can now put a corporate executive who did nothing more than effectively perform his job in a federal prison for a very long time.

And if you’re wondering where American jobs went, or why prices are out of control, or why products no longer work, or why there is no cure for your child’s disease, consider the implications of people screaming criminal enterprise at corporations that may be far from perfect, but also far from criminal.

Things That Require an Expert

Any criminal defense lawyer who’s tried a case knows the feeling of getting punched in the gut when the judge softly utters the word “denied” after you’ve tried to call an expert to testify on behalf of the defense. False confession expert. Eyewitness identification expert. Police procedure expert. Your defense may depend on it, but the judge won’t care. Denied.

Yet the lawyer for Edward Krawetz somehow managed to get an expert on the witness stand to opine that the defendant’s conduct was “objectively reasonable.” How could that be, you ask? Well, Krawetz was a Lincoln, Rhode Island cop and this was his conduct.

You saw that, right? You saw how the drunk, belligerent woman, sitting on the curb, hands cuffed behind her back, drunk, attacked the officer with her bare foot, swatting at his shin? Do you have any idea how much a barefooted swipe at a shin can hurt? Must not let it happen again, or the officer might be permanently disabled on full pension and not be there for us when rapes need to be stopped.

The other police officers present did not seem terribly concerned about Krawetz’s boot to the head of this woman, who had committed the heinous disorderly conduct. The suit who approaches the officer immediately after the boot struck head struck pavement, the one who appears to be wearing a press badge type cord around his neck and asking Officer Krawetz for directions to the nearest Dunkin’ Donuts.

On Thursday, the defendant’s fellow police officer at Twin River that evening testified that Officer Krawetz never expressed concern for his own safety, never said he feared serious bodily injury, never yelled out that he was in pain and never sought medical attention.

“Did he in anyway indicate to you, that he felt he was in danger of serious bodily injury?”

Patrolman Russell Enos replied, “No.”

Notice how Patrolman Enos wasn’t asked whether this young woman needed a damn good lesson in respecting police authority? Anybody want to guess what his answer to that question might be?

I recall something being said to me as a youngster about not hitting girls. I took it to heart, and even extended the message as far as not kicking women in the head with a heavy boot. This was true regardless of whether they were handcuffed, barefooted or seated on a curb, where there wasn’t a chance in the world they could do any actual harm.

And for this, the court permitted an expert, because the jury couldn’t possibly determine the ultimate fact without such thoughtful assistance as to whether the cop’s boot striking the head of this woman was “objectively reasonable.”

But you still won’t be able to get a false confession expert before the jury.

H/T Marc Randazza

Should Prosecutors Trust (And What About Us)?

Former criminal defense lawyer, television star and disco dance instructor, Ken Lammers, who went to the dark side as an assistant Virginia Commonwealth Attorney, offers a quick lesson to baby prosecutors: Figure out which defense attorneys are trustworthy.

Now, if you’re a sane person, how much you like a person probably has something to do with that person’s trustworthiness. However, the converse does not necessarily follow. There will be all sorts of defense attorneys whom you will find trustworthy and not be good buddies with because they are much older or much younger than you, have different interests, or you just aren’t similar types . Remember that the fact you aren’t buddies with someone does not establish that person as untrustworthy.

As marketers have long ago discovered, people trust people they like. It makes no sense, but still we do, and the corollary is that we don’t trust people we don’t like. But as Ken warns, allowing this gut instinct to filter through to professional judgment is unwise. Our willingness to let our personal judgment of trustworthiness influence professional trust can lead to grievous errors.

How then do you determine trustworthiness? Well, one of the advantages of criminal law is that we tend to deal with the same attorneys over and over. It is truly a local enterprise. The people in your office will be able to give you a heads up on pretty much everyone who walks into the courthouse. This is how you will sort out the most untrustworthy. When everybody in the office starts regaling you with stories of how John Smith and Pete Greene have messed people over time and time again you’ll know not to trust those individuals. After that it gets more difficult. Most of the time there’s no easily discernible line in the sand.

The first lesson is that a liar is a liar, and once a criminal defense lawyer has established himself as a liar, he can no longer be trusted. Period. Reputations earned, unlike brands manufactured, are impossible to ignore. A reputation for being dishonest is one that will haunt you. Lie to someone and they will tell everyone they see that you are a liar. The word will spread, and quickly, that you can’t be trusted. And once your name and liar are inextricably connected, it’s nearly impossible to break the link. You are a liar.

After you get past the defense attorneys who are absolutely untrustworthy you will find others who will be untrustworthy as to certain matters. A strange phenomenon which you’ll run into every once in a while is the lawyer who will be straight as an arrow in everything else, but will lie like a dog in order to get a continuance. Usually, you’ll get tipped about this lawyer by people in your office.

Some would call this a “white lie syndrome,” something as relatively innocuous as a continuance (in New York, we refer to it as an adjournment), where the true reason for seeking a continuance either isn’t the sort of thing one wants to say aloud, or would reveal a strategic problem or confidence, might be the subject of a little loose talk, but some people view a continuance as relatively harmless thing, and a bit of spin as hurting no one.

Beyond that you are going to have to start making calls on your own. Start out being somewhat conservative and loosen up some over time. Eventually, no matter what you do, you will get burnt by some defense attorney whom you trusted too much while you were in a hurry or not paying enough attention. Don’t let that sour your relations with other defense attorneys. Adjust your behavior toward that attorney accordingly and let others know about it.

Thought and discretion, always sound advice. And in part 2 of the lesson, Ken raises the stakes by noting that some things are sufficiently serious or important that a prosecutor simply cannot accept the word of the criminal defense lawyer, no matter how truthful he’s perceived”

Trust but verify. I know it’s a hackneyed phrase, but it does represent a certain reality. You must set a level below which you will not apply trust to anyone, even the defense attorneys whom you most trust.

Why?

Well, for a variety of reasons. Foremost among those is that even the most forthright defense attorney is often operating with limited knowledge – usually what her client has told her.

Again, sound advice, and quite true that the criminal defense lawyer wasn’t present for the crime, and relies on his source of information, which may be neither as honest nor accurate as the lawyer would otherwise be.

All good stuff, and quite thoughtful of Ken to impart his experience to baby prosecutors. But it strikes me that Ken hasn’t gone nearly far enough. Being a helpful sort of fellow, I will extend it a bit.

Prosecutors are just as susceptible to lying, and gaining a reputation as a liar, as anyone else. Lie and we will remember. And as an aside, not everyone travels the path that Ken Lammers traveled, from defense lawyer to prosecutor. Most go the other way, and when you leave the prosecutor’s office, your reputation as a liar (or a straight shooter) goes with you. As does your reputation for being a heartless prick. If you were hated as a prosecutor, you will not be embraced as a criminal defense lawyer.

Cops lie to you. For one thing, they lie because they believe it’s part of the game, just as some criminal defense lawyers may lie about the reason for needing an adjournment, except cops’ lies put people in prison. They rationalize it by justifying the outcome, the ends justify the means, the criminal goes to prison.

But (and this comes as a shock to baby prosecutors) they don’t trust you. You’ve been a lawyer all of twelve minutes and they’ve been on the street for 20 years. They know everything. You know nothing. Do you seriously believe they are awed by your vast education? Do you seriously believe they trust your discretion more than their own? Prosecutors come and go, but they will still be fighting the criminals, You’re just today’s flavor to them, and they will play you like a violin.

And you will love the cops for it. They’re cool, and daring, and macho. They have guns and war stories. They have saved humanity, while you sit in an office. You will want to hang with them, drink beer with them, ride along with them, be accepted by them. You will adore them, and be blinded by your adoration from the fact that they lie to you. Like criminal defense lawyers who are constrained to rely on defendants, you are constrained to rely on police officers. Neither has a monopoly on lying.

The difference between prosecutors and criminal defense lawyers is twofold. First, the former tends to have more of the same, and more different, experience than you, both in the real world and in court. Most criminal defense lawyers were once baby prosecutors or baby public defenders, scratching and sniffing their way through the system. They had successes and failure, been helped and burned. Turned jaded and worldly.

The second distinction is that you believe that your side stands for truth and justice. Accordingly, the other side does not. While it may be hard to put a cap on what it means to believe that you are the good guys, the ones who stand between polite society and chaos, you know that what you do protects others, and they depend on you to do it well.

And this is the biggest lie of all. Neither prosecutor nor defense lawyer sits at the right hand of God. Both are needed to bring anything remotely resembling fairness and accuracy to a deeply flawed system, and even when both sides do their job properly, it’s still haphazard at best. But to believe that one side owns righteousness is delusional. You are but a cog in the wheel, as are defense lawyers, and judges as well.

And anyone who tells you anything different is lying.

Incentive to Punish

Brendan Sullivan, who represented Alaska Senator Ted Stevens in his botched federal prosecution, asks in an op-ed in the Washington Post, where’s the punishment? The prosecutorial misconduct resulted in two reports, a 672 page tome by the Department of Justice and the independent report of Henry Schuelke, weighing in at a mere 500 pages, which concluded that

the prosecution was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witnesses.”

If you lie to a federal agents, you commit a crime. 18 U.S.C. §1001. Ask Martha Stewart if there is anything funny about it. But when an assistant United States attorney lies to a federal judge, whether by commission or omission, it’s different.

Specifically, the government failed to disclose that its chief witness obtained a false affidavit from a woman with whom he had sex when she was underage. This was of great significance to the defense, to show that the witness had suborned perjury on a prior occasion. Lies in a letter in which prosecutors purported to disclose information to which the defendant was entitled are characterized by the report as “poor judgment.” In any other situation, the department would call sending a false letter an “intentional” act.

And in this case, one of the worst known examples, heads would roll. Just not too far.

Two prosecutors engaged in “reckless professional misconduct.” One received a 40-day suspension without pay; the other, a 15-day suspension without pay — “punishment” that pales next to the misconduct.
One supervisor in the department’s Public Integrity Section was found to have “exercised poor judgment by failing to supervise certain aspects of the disclosure process.” There was no punishment at all for the most senior prosecutor in the case.

And what of Nicholas Marsh, the prosecutor who committed suicide during the course of the investigation?

The department made no effort to attribute fault to the prosecutor who committed suicide during the course of the investigation. On balance, leaving him out of the report is a decent thing to do. But it is hard to square with the public’s right to know all of the elements of a case in which prosecutors, not the defendant, were the wrongdoers.

Propriety demands that we not speak ill of the dead, though such decency isn’t always shown the deceased when, rather than work for the DOJ, the dead man lost his life in a hail of police bullets or the execution chamber.

Sullivan lays out the scene, with a couple of hands duly smacked for being wayward prosecutors, a bit too cowboy-ish in their zeal but not so evil as to warrant more than a very stern look and a few weeks off. The government’s fear is that they not suck the desire to imprison out of their people by forcing them to think harder about giving the defense half a chance. That would never work.

And, after all, didn’t Judge Emmet Sullivan dismiss the case? Isn’t that good enough for the defendant. Isn’t that sufficient for society?

No. No it’s not.

There are two paths by which a prosecutor will find himself adhering to the rules that bind his service. One is that he inherently believes in being fair and honest with the defense, not believing that his side alone sits at the right hand of god and anything he does to achieve the only righteous outcome, the conviction of the bad guy, is justified. These prosecutors exist. I’ve met them. They are good, honest people for no reason beyond the virtue of being good, honest people.

The other path is incentive driven, for those who might be inclined to fudge the details as far as they can get away with it. Or those whose will to do right is overcome by the zeal of a group in a high profile case to not lose and disgrace their office. They forget that getting caught dirty will also disgrace their office, but then, the chances of getting caught are small. Very small.

The latter path is littered with defendants who are either innocent or not as guilty as the government would have it, but rarely will you see the bodies. The less-than-honest-prosecutor knows this, and is emboldened by it. It’s an incentive to cheat the system, that the risk of being found out is so slim.

But there is another incentive as well. Forget about what happened to the prosecutors in the Ted Stevens case. Make no mistake, if the same thing happened to Joe Smith, there would not be two reports consisting of more than a thousand pages. There wouldn’t be one report consisting of a dozen pages. It would never be subject to real scrutiny.

The worst that would come of it is that the case would be dismissed, meaning the defendant doesn’t get convicted. That means, what would have happened anyway, happens. No harm, no foul. On the upside, a person whom the government thinks is a bad guy gets convicted because the government cheated the system. On the downside, the person gets what he should have gotten in the first place.

Where’s the punishment?

Not only do the prosecutors not receive punishment in some slightly proportionate way that anyone not in the employ of the Department of Justice would be punished, but at the absolute worst, a slap on the wrist and a wag of the finger. More importantly, the incentive system that moves the ill-motivated prosecutor to do wrong remains intact, so that prosecutors will continue to be emboldened to be dishonest and flout their duties under the law.

Dirty prosecutors must be punished, just like dirty cops and dirty judges. But even then, the system won’t block the road to perdition until the incentive system is changed so that it discourages the dirty prosecutor and encourages the virtues the Department of Justice claims to possess. Until then, it’s all a bunch of crap buried deep in many hundreds of pages of reports and even more bodies littering the path.

An Unappealing Waiver (Update x 2)

It’s hard to remember the first time it was in there, hidden within the boilerplate rhetoric of a federal plea offer, but the feeling was unforgettable. This stunk. As a part of a plea deal in federal court, the defendant was required to waive his right to appeal, with the exception of a sentence in excess of that anticipated by the deal. In other words, if you get the time you bargained for, the case was done.

On its surface, it seems like a fair trade. A defendant who cuts a deal to get a ten year sentence when he faced 20 after trial makes his choice and, in return, the government gets finality and frees up its resources to make other people’s lives miserable. But such a superficial understanding of federal plea deals leaves some ugly problems on the table.

First, the motivation for the deal is avoidance of outrageously draconian sentences under the United States Sentencing Guidelines, Just because the Guidelines provide for 367 months for jaywalking doesn’t make such a sentence reasonable. But the defendant, perhaps saddled with strong evidence against him and no defense, or a judge whose history shows he never met a Guideline sentence he didn’t love, has limited options. Go to trial. Lose. Get sentenced to forever and roll the dice on appeal? Sounds like a plan, right?

So when the government suggests it might consider a lower sentence (not an offer, of course, but rather a hint of a disposition which, if accepted, is technically characterized as the defendant’s idea rather than the government’s, the defendant has a choice. While there are negotiations that might make the deal more palatable, it;s usually still within the government’s paradigm of severity. The defendant can always turn it down and face oblivion. Or suck it up and take a deal rammed down his throat, reflecting an AUSA’s vision of fairness.

In the District of Colorado, Senior Judge John Kane has yet again broken ranks with the routine and said “no.” Not to the numbers, but to the inclusion of the waiver of appeal of the sentence, even within the numbers, for reasonableness. In other words, he would not accept the government’s determination of reasonableness to the exclusion of an appellate court’s review, a radical act.

From the Denver Post :

When Timothy Vanderwerff, who is accused of possessing child pornography, went to the federal courthouse in Denver this year to plead guilty to the crime, the deal he struck with prosecutors looked like many others.
Vanderwerff, who faces up to 20 years in prison for the most serious of the three charges against him, would plead guilty to one of those charges and face no more than 10 years in prison. He could receive as little as probation, though Vanderwerff agreed in the deal not to ask for a sentence of less than five years. Lastly, Vanderwerff agreed to waive his right to appeal, so long as the judge didn’t sentence him to more than the negotiated range.
It was that final detail that gave Senior U.S. District Judge John Kane pause. Writing in an unusually candid order rejecting the plea deal — a rare occurrence itself — Kane said such waivers can hurt the justice system. “Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions,” Kane wrote.

Before anyone applauds Judge Kane’s bold stance, consider the consequences. It does not mean that the defendant gets the rest of the deal without the waiver of appeal. It does not mean the government must now be more reasonable in its dealings. There is no duty to off a plea bargain, and the government can simply pull the deal off the table and tell the defendant to plead to the indictment or go to trial.

In a plea to the indictment, the defendant may get a two level adjustment for acceptance of responsibility, plus an additional one level adjustment for a timely plea. But even with a downward adjustment of three levels, he faces everything the government can throw against the wall to see what sticks. He can challenge it at a Fatico hearing, but then the same old problems with challenging evidence (as in the defendant testifying, having his 404(b), his prior bad acts, thrown in his face and getting into a pissing match with a dozen federal agents) come into play.

So rather than enter into a plea with some level of certainty as to what will happen, a defendant is left to make a decision with a huge hole in his future and the potential of being sentenced to life plus acne instead of life plus cancer. He just doesn’t know, yet he’s supposed to make a decision or go full monty to trial.

In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.
Vanderwerff’s attorney also urged Kane to accept the deal. “Both sides benefit from it,” Assistant Federal Public Defender Edward Harris wrote.
Kane, though, viewed the waiver dimly. “[S]acrificing constitutional rights at the altar of efficiency,” he wrote, “is of dubious legality.”

It’s hard to quibble with Judge Kane’s point. But it doesn’t offer a solution to the defendant’s dilemma. Had the practice of requiring an appeal waiver been held unconstitutional, and the government precluded from including it in plea agreements, the problem would be solved. But it didn’t, and the government loves them. Most courts likely love them as well, removing a huge number of appeals from their docket that had little chance of going anywhere. You might be surprised to learn that most federal courts prefer fewer cases to more. Go figure.

So while Judge Kane’s concern about the legality of government imposed appeal waivers may be well-founded, it leaves the defendant in an untenable position. As much as every criminal defendant becomes an overnight aficionado of conceptual constitutional rights, they are similarly a huge fan of shorter rather longer sentences. Something has got to give, and as if usually the case, it’s likely to be bad for the defendant.

Update: Judge Kane was kind enough to send over a copy of his opinion in United States v. Vanderwerff, together with a companion opinion relating to “fast track” dispositions in illegal re-entry cases, in United States v. Villanueva-Calderon. Yet again, I pine for the fact that John Kane’s concerns aren’t universally shared by the bench.

The pervasive waiver of individual rights has fundamentally altered the function of the courts. The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins. A defendant’s “guilt” is, more often than not, preordained by the grand jury’s indictment. To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence.
A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution. Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny.
In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment. See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012). Ethical and moral values inevitably infuse the decision making process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e.,the fundamental values widely accepted by society and identifiable as such.
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

Because of this, Judge Kane held that appeal waivers can only be permitted when the case-specific facts warrant. The key to appreciating where he was going doesn’t end with the rejection of the plea agreement for failure to provide an adequate justification for the appeal waiver, but with the Parsimony Clause, 18 U.S.C. §3553:

The parties also argue that the dismissal of charges 1 and 3 will result in a statutory sentencing range that better accommodates the interests of justice and the strictures of 18 U.S.C. § 3553. If found guilty of all charges, Mr. Vanderwerff would face a statutory sentencing range of five to twenty years of incarceration. This is clearly what Congress intended, yet his proposed plea bargain would result in a statutory sentencing range of probation to ten years. Although I could sentence Mr. Vanderwerff to any sentence within that range, as part of his proposed plea bargain Mr. Vanderwerff agrees not to actively seek a sentence of less than five years – the statutory minimum he would face if convicted of all charges. In effect, the parties seek to limit Mr. Vanderwerff’s sentence to a range of five to ten years of incarceration.
Although these sentencing consequences may have induced Mr. Vanderwerff to accept the government’s plea bargain, they do not justify including an appellate waiver. The interests of justice as I perceive them are best served by permitting the calm and deliberate review by the Court of Appeals of my decision and how it conforms to the requirements of 18 U.S.C. § 3553.

While the message here may be less clear than must defense lawyers would prefer, my take is that Judge Kane is telling the defendant that his solace isn’t in the plea agreement with the waiver of appeal, but rather the parsimony clause. In other words, he doesn’t need the prosecution’s approval to achieve a fair sentence in a post-Booker world, and the defendant doesn’t need to forego appellate review to get there.

From the court’s perspective, since the decisions approving appeal waivers were pre-Booker, and afterward the nature of review changed from abuse of discretion to reasonableness, the prosecution should not be allowed to unilateral eliminate the possibility of review of sentences for reasonableness by fiat, the length of imprisonment.

Yet that’s not the end of the inquiry. Knowing Judge Kane, his prior decisions and how they reflect on his views toward the Guidelines and sentencing, one might take comfort in the Parsimony Clause in his hands. That cannot be said for all judge. To go a step further, there are a great many judges who either adore the Guidelines, are less than empathetic toward defendants or are just not inclined to concern themselves with §3553 at all. Rather than find the Parsimony Clause in their hands, you’re more likely to find the executioner’s ax. And betting on reasonableness review at the Circuit may not be worth the risk.

Update 2: And the New York Times chimes in.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.
An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

All true, but until the appellate courts reject waivers per se, the only other option is trial, with the potential tax to be paid.

What Bill Marler Did

Before we get to what Bill Marler did, let’s dispense with the haters.

Point: He must have made a bundle off the case, an obscene amount of money, so it was no big deal.

So what? If he made a bundle, it’s because he earned a bundle, and in this nation, you are allowed to eat what you catch. We are a capitalist society and we do not frown upon profit. In fact, it’s no crime to take your profit and put it in your pocket, buy a Ferrari, or just lie naked in a bath tub filled with greenbacks. Welcome to America. But Bill chose not to do so.

Point: It’s great advertising, and this will come back to him in spades.

So what? Should it turn out that others think well of Bill for what he’s done, and that translates into more business and more money, is that somehow a reason to do otherwise? That our acts of kindness or good behavior or generosity happens to have the collateral benefit of making others appreciate us, it by no means diminishes the act itself.

And what did Bill Marler do that would give rise to such resentment? He did good, that’s what. From Food Safety News :

When Nevada’s Green Valley High School held its winter sports award banquet last week, Seattle-based food safety law firm Marler Clark was there to announce a donation of $100,000 to the Henderson-based school.

The donation was made in honor of Green Valley’s former teaching assistant, E. coli victim Linda Rivera, and her family.

Marler Clark managing partner Bill Marler, who represents Rivera, said the donation to the school will provide science scholarships and help fund the wrestling program and special education.

“I am extremely proud to be part of such an event and, even more so, honored to work with a family as courageous as the Riveras,” said Marler. “Linda’s battle with E. coli has certainly been one of the most devastating I’ve ever witnessed in my nearly 20 years of foodborne illness litigation and I know the Riveras are simply overjoyed to see something positive come from this experience.”

There is no reason in the world that Bill and his firm couldn’t have taken this $100 grand and plowed it into SEO, even a cool TV commercial with some unctuous actor looking doe-eyed into the camera and asking, “did your broccoli make you puke?” If this was about marketing and advertising, there would be no shortage of people claiming to be “professionals” who would have butchered the mother-tongue to prove how badly they wanted it.

But Bill chose instead to donate it to his client’s school, the place where people cared about her, where her children were comforted and where a small community stood behind his client in her time of need. What a terrible thing to do, help a family, a school and a community. Such a Machiavellian ploy.

Outside the world of foodborne illness litigation and a small town in Nevada, few will know of Bill’s donation. It’s not like that Facebook kid threw pocket change at Newark, New Jersey. He’s filthy rich. Bill Marler is just a working lawyer. You should know, however, about this.

Want to let your community know you exist? You could send a check to Bangalore for misspelled SEO juice, or some fast-talking snake oil salesman who will teach you how to become a twitter guru. If you really want to all in, get the full team, from graphic artist for your critically acclaimed logo which can then be plastered on informercials night after night. Is there a niche practice for the sleep-deprived?

Or you can use whatever money you would otherwise piss away on nonsense for the good of someone else. Fund a scholarship. Or a soup kitchen. There are no shortage of opportunities in every community to help. And if you happen to also get some gain for yourself out of it, whatever.

People have plenty of bad things to say about lawyers, most of them well-earned. Some may feel compelled to project their own evil thoughts onto Bill Marler. The point is that regardless of whether there was any thought of gain from an act of generosity in no way makes the gift of Marler Clark less beneficial to that school, to those children and to that community.

Think what you want. Bill Marler did good, and he deserves every bit of recognition he gets for this act of generosity. And if you’re jealous of the kind words, do something good yourself.

H/T Kevin O’Keefe

Guilding the Lily

At Library of Law and Liberty, three men I greatly admire have engaged in discussion of where the legal profession had been and where it’s heading. Jim Chen, Walter Olson and Brian Tamanaha address the lawyers’ guild. While the thrust of their debate focuses on legal education, Jim takes a path that first denies the existence of the Golden Age of Lawyers, with which Brian concurs.

I dissent.

Jim writes:

“Golden ages” figure prominently in history and in myth. Golden ages invariably take place in the past. Their very existence insults the present. To invoke the term golden age implicitly speaks ill of today, as though those misfortunate enough to be alive today lack the strength and the resolve to restore the virtues of their forerunners. The contemporary legal profession languishes in the memory of a golden age. Some time before the global economy collapsed, law in America was a profession. Success in law school translated directly into career success, whether in private practice, public service, or academia.

All that glitters is not gold. Hindsight warps our historical perspective. There never has been a golden age in the American legal profession. To the extent that lawyers and law schools ever enjoyed more professional room for error, that comfort arose from the sheltered place of the legal profession as a publicly sanctioned guild. The putative golden age of American law was never anything but a gilded age — or, if you will, a guilded age.

This critique of false memory is largely generic; we are all aware of how time and distance alters our perception of the good old days, leaving us only with the pleasant idealized thoughts of bountiful days and a respectful and appreciative society. It is, indeed, the stuff of myths.

But that doesn’t mean that there was never a Golden Age. Call it a myth no more makes it so than calling it a Golden Age. And it would help if Golden Age was defined so that we could be assured we’re talking about the same thing.

I learned what it meant to be a lawyer at the knee of my great uncle, David Schackner (1911-1990). He was kind enough to let me “work” at his law firm in Newark, New Jersey, during my high school years. I put work in quotes because I contributed little of value, short of the occasional coffee run, but Uncle Dave let me sit close to him as he worked. At the time I didn’t appreciate how much of an annoyance I must have been, but still he suffered my presence so that I could learn what it meant to be a lawyer.

When I became a lawyer, no one was more proud of me than Uncle Dave. When time came for my admission to the bar of the United States Supreme Court, Uncle Dave moved my admission. My certificate bears his name, an honor for me.

Uncle Dave was old school, even then. He was the sort of lawyer to wear a tie and waistcoat while mowing the lawn, because that was the way lawyers should comport themselves. He was a lawyer, every day, all day long. He believed with every fibre of his being that being a lawyer meant he held a trust, a duty, toward others, his clients, the court, his adversaries, the public. The dignity of the profession and his personal integrity was at stake with his every utterance, his every stroke of the pen, his every representation and bit of advice.

This sounds unbearably Pollyanna-ish today. So impossible to achieve or maintain that it likely causes some to emit chuckles, if not spew their coffee on their computer screen. But then, the nation wasn’t awash with lawyers. And the lawyers out there were instilled with a belief that they were truly given a gift, and that to be less than appreciative was a disgrace.

it’s not that there weren’t lousy lawyers. Or lying lawyers. There were scoundrels. But most were true to their oath, and took enormous personal pride in the esteem they were held by others because of it. And they would not shed their dignity for a fee. Indeed, my Uncle Dave refused to increase his hourly fee above $200,* even as fees began to rise well beyond that level, because he believed no lawyer was worthy of such an amount and no client should be constrained to pay more than was reasonable for the value of the service rendered.

Yes, there was a benefit to lawyers. Provided they conducted themselves with competence, honor and integrity, they were largely assured of a comfortable income. Their numbers were smaller, which served to make it unnecessary to fight for business or market their existence. On the other hand, there was far less business needed. We weren’t as litigious a society. There were far fewer criminal laws. Lawyers were more inclined to talk people out of suing than into it.

There were problems then, often couched in the same terms as problems now, but they weren’t the same. Older lawyers sniped at younger lawyers over minutiae in comparison to the problems being faced today. Wearing too loud a tie. Driving too flashy a car. Refusing to read the advance sheets daily, as if the synopsis in the Law Journal was sufficient. Slackers. Of course, it hardly seemed trivial at the time, and thus lawyers railed about their slovenly next generation.

So if this is the Golden Age Jim is talking about, when lawyers were honorable because that’s who they wanted to be, when they conducted themselves with dignity and responsibility toward society because they believed that to be the sine qua non of their position, when they were assured of a lifestyle befitting a well-educated and well-respected member of society, then it very much existed.

I saw it. I do not see it anymore.

The debate over how to “fix” law school should continue to rage, both within the Academy and without. But its validity requires that we no more engage in false denial about the past than we do about the present. It wasn’t easy to be a lawyer way back when, as the obligations of the profession weighed heavy on those who accepted the public trust. But if they did, they would drive a Cadillac. A black one, of course, but a Cadillac.

* In 1975 dollars, adjusted to $854.33 in 2012 dollars.