There’s little purpose in  repeating my issues with the caselaw that has elevated the beloved dog hit to unquestionable probable cause.  It’s untrue. It’s unreliable, It’s the law. It sucks.  Have you ever tried cross-examining a dog? They just stare at you with those adorable eyes, occasionally wag their tail, and let out a nonresponsive woof. A collective “awwww” fills the courtroom.

Yet the Nevada State Troopers don’t think it’s particularly funny, a bunch having  sued their superiors in federal court for racketeering by their converting the K9 program into a huge scam.  A report  8NewsNow says:

The complaint alleges that the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.

The dogs were being trained to alert their handlers by cues, instead of by picking up a drug’s scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.

The nose of a drug-sniffing police dog is not so sharp, but it’s good enough to support cocaine charges against Herbert Green.

That was the opinion of federal Judge Glen Conrad, who denied a motion this week to suppress the drugs found in Green’s sport utility vehicle with the help of a police dog named Bono.

Green’s lawyer had argued that Bono’s track record — drugs were found just 22 times out of 85 “alerts” by the dog — was so poor that police lacked probable cause to search Green’s SUV.

Bono “may not be a model of canine accuracy,” Conrad wrote in an opinion filed Thursday in U.S. District Court in Roanoke.

However, the judge ruled that other factors, including the dog’s training and flawless performance during re-certification sessions, were enough to overcome a challenge raised by Green’s attorney, public defender Randy Cargill.

In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect, Neese said.

Taking those cases into account, Conrad found that Bono’s accuracy rate was at least 50 percent.

In his recap of the 2012 Supreme Court term,  Adam Liptak writes something that should strike fear in the hearts of all good people.

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Several of the cases in which Justice Kennedy joined the liberal bloc involved the rights of people accused and convicted of crimes. This year, the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice, in which plea bargains are the norm and harsh sentences commonplace.

While no one will be surprised to read that plea bargains are the norm and harsh sentences commonplace, the relationship with the realization that criminal trials are vanishingly rare, mentioned almost in passing, cannot be ignored.

The law has rendered the trial a deadly exercise for most criminal defendants.  Not because they are guilty, or as guilty as the government says, but because the mechanics of assessing guilt, with crimes like conspiracy, so overwhelmingly favor the government that it’s tantamount to suicide to challenge the charges head on at trial. 

The tools available to the government, wiretaps, warrants, snitches and law enforcement personnel with feigned “expertise” in every aspect of human experience that conveniently serves the government’s purposes, combined with judges fresh from the United States Attorneys office, schooled and indoctrinated in the evils of criminal defendants and the relative integrity and valor of federal agents, makes for a tough time.

Add to that defendants who might choose to testify, except for the use of irrelevant prior bad acts against them that couldn’t be used against any other witness and their lack of adequate training in the art and science of testifying persuasively on the witness stand, as is provided every agent , combined with poor education and, often, lousy attitude. 

And even the non-defendant witnesses for the defense, who will be investigated and confronted by government agents in advance of testimony, and told (but not threatened, the agents tell the court) that if they lie (in the government’s eyes), they can bank on being the next sacrificial lamb in the defendant’s chair.  And we’re shocked when the witness disappears on us, or won’t take our calls or appear in response to the subpoena.  Better we get angry with them than the government.

As discretion becomes the better part of valor, defendants decide that the pittance offered by the government to plead guilty and not put them through their paces is a pittance shaved off the back end of a sentence.  The few months or years is that much more time to spend with their children before they reach majority, or grandparenthood, as the case may be.  The punishment for exercising the constitutional right to trial is brutal.

This situation didn’t come about by accident.  It’s been part of a design developed over many years to expedite the speedy resolution of criminal prosecutions.  And, naturally, to end cases with the “proper” result.  It’s been done with the cooperation of the joint task force, comprised of member of the legislative, executive and judicial branches.  And they are pleased with their work, until someone occasionally breaks ranks and admits to the damages they’ve wrought, invariably after they  no longer have any power to fix things.

Not surprisingly, the trial of a criminal cause has become “vanishingly rare,” one case at a time, repeated over and over across the land.

New lawyers offer their expert opinions on every matter of law on the internet, but few have ever tried a serious felony to verdict before a jury.  Fewer still have 20 trials 100 trials, under the belt.  Their knowledge of cross-examination comes from books and CLEs, where they hear of things they will never actually experience. They will take copious notes on their iPad just in case they ever had to use them someday.

A decent plea bargain comes from a relative balance of power. The government must fear that they might lose at trial, while the defendant fears everything about the prosecution. This requires a defendant to negotiate from a position of strength. When the defendant’s chance of prevailing falls below slim and approaches none, it’s no longer a bargain but a unilateral imposition of government might. The prosecutor dictates the offer, based on the government’s view of provable fact. That the defense disputes it means nothing. He can take it. He can leave it. He doesn’t have to like it or agree with it.

As the ability to sustain a challenge fades into distant memory, so too does the defendant’s bargaining position.  The vanishingly rare trial means the government will impose the plea it deems appropriate.  No amount of bluff and swagger by defense counsel makes the prosecutor shudder with fear. He knows you won’t try the case.  Pretty soon, he will know that you can’t. You’ve never tried a case. You’re shooting blanks.  And he can smugly offer three points off his best case scenario, secure in the knowledge that there isn’t a damn thing you can do about it.

And the defense will ultimately take it, because there isn’t a damn thing they can do about it.

This the future (and for many, the present) of a legal system in which a trial is vanishingly rare, because the legislative and executive branches have done everything in their power to make sure you have as little chance to fight as possible. 

And now the judicial branch, which hasn’t demonstrated much concern for the fact that not everyone lassoed into mass prosecutions or targeted in individual prosecutions, is guilty, no longer sees the vanishingly rare trial as worthy of its very important time and effort, because “plea bargains are the norm and harsh sentences commonplace.”  Mission accomplished.

As a normal person trying to conduct an everyday transaction, it likely wouldn’t strike you as particularly onerous to expect to be able to engage in basic communication with the other party. Say you want to buy a cheese danish and mocha latte, but would like to make sure it costs less than the $20 bill in your hip pocket, so you ask the cashier, “how much will this cost?”  Instead of an answer, you get a stare.

What’s wrong with this scenario?

It’s bad business.  But according to the EEOC, it’s the law.  Via Walter Olson at Overlawyered :

Pay up, EEOC tells a cafe owner, for not taking on a hearing- and speech-impaired applicant for a cashier’s position [EEOC press release (Albuquerque’s Savory Fare Bakery and Cafe agrees to pay $20,000 and offer other relief).

“Employers with 15 or more employees must comply with the ADA,” said EEOC Regional Attorney Mary Jo O’Neill. “Employers must make employment decisions based upon the abilities of their applicants and employees, not based on myths, fears or stereotypes about a person’s disability. The ADA was passed so that people with disabilities get a fair chance at making a living and have equal employment opportunities.”

It’s true: the Equal Employment Opportunity Commission and private lawyers are hitting employers with legal complaints for preferring jobholders whose manner of speech is familiar and understandable to the customers and co-workers they deal with. In fact, in many cases it has become legally suspect for companies to insist on strong communications skills. The immigrant-rights unit of the U.S. Department of Justice has run subway and newspaper ads warning that the “ability to speak fluent English” must not “affect your decision about hiring a prospective employee.”

Civil rights enforcers admit there are some circumstances where employers may legitimately consider accents. They just take an ultra-narrow view of what’s legitimate. Consider the controversy that engulfed the town of Westfield, Massachusetts, a couple of years ago.

The town’s school system had assigned instructor Ramon Vega to an experimental program where he’d teach language skills to first- and second-graders. Some parents had trouble understanding Vega’s conversation themselves and worried that their kids might have the same problem. Four hundred of them proceeded to sign a petition asking that instructors in early grades be proficient in “the accepted and standard use of pronunciation.”

When word reached Boston, all hell broke loose. The state education commissioner charged the parents with “bigotry.” The National Education Association rushed through a resolution at its annual meeting decrying disparate treatment on the basis of “pronunciation”–quite a switch from the old days when teachers used to be demons for correctness on that topic.

Experts popped up and were quoted saying expert things. Donaldo Macedo, described as “director of graduate studies in bilingual education” at a local university, accused the parents of “linguistic racism”

Don’t do it for the children. Do it for the money. From the American Independent :

The detention and treatment of sex offenders represents a growing business opportunity for GEO and its competitors, who hope to score lucrative contracts from state officials looking to keep predators off the streets.

In this case, the facility that GEO wants to run is the Virginia Center for Behavioral Rehabilitation, a civil commitment center that houses and treats “sexually violent predators” who have already completed criminal sentences in a department of corrections facility but are deemed by a special court to be at risk of re-offending. Rather than being released at a predetermined date, these sex offenders are sent to VCBR to participate in what the state describes as “intensive treatment.” Their “eventual conditional release” from the center “is determined by their progress in treatment and reduction of re-offense risk.”

Is that not the most efficacious business model you ever saw, where they get to decide when their inmates civil commitees are ready to cut loose?  The worse job they do treating them, the more money they make off them. It doesn’t get better than this.

Virginia’s civil commitment program has been operating for about a decade. It grew slowly at first, with fewer than a dozen new detainees per year. But in 2006, the General Assembly greatly increased the number of crimes that can qualify convicts for the program and also made changes to the evaluation process for identifying which of these offenders are sexually violent predators eligible for civil commitment. The result was an explosion in VCBR’s population.

Talk about a win-win. The legislature gets to show how tough it is by adding crimes to the mix, and GEO gets to warehouse them indefinitely under the fabulous legal fiction that it’s not punishment, because that would be wrong, but to protect the good folk of Virginia while helping violent sexual predator, such a heinous public urinators bent on publicly urinating again, or 18-year-olds who have sex with 17-year-olds, recover from their sick and demented ways.  Eventually, anyway.

Civil commitment is “the perfect market” for private detention companies, according to Michele Deitch, a criminal justice expert at the University of Texas’ LBJ School. “No one’s likely to want to close them down. The inmates probably aren’t getting out. You’ve got the growing population feeding into these civil commitment centers. I would imagine private prison companies see it as a fairly safe area for growth.”

Not even the iPad offers this level of investment security.  We may run out of fossil fuels. Whole industries may be outsourced to third world countries, but we will always have people to hate, new crimes to add, defendants who are so reviled that no one will say “boo” about their being held in confinement on their three year sentence for another 50 years,  Just to make sure.

So how does one establish a foothold in such a lucrative business?

GEO Group has long been active in Virginia politics. From 2003 to 2009, it donated a total of $84,600 to state-level politicians, mostly Republicans, according to data compiled by Influence Explorer.

In 2009, GEO contributed $28,000 to Republican Bob McDonnell’s gubernatorial campaign. Four years earlier, GEO gave more than $28,600 to the campaign of GOP gubernatorial nominee Jerry Kilgore. GEO executives Jorge Dominicis and Wayne Calabrese each donated another $1,000 to Kilgore.

Both McDonnell and Kilgore have long been outspoken proponents of tough sex offender laws.

Because, you know, it’s for the children.  Isn’t it worth it to you do protect the children?  Of course, it’s not like Virginia doesn’t take seriously its duty of oversight to make sure private companies aren’t just in it for the profit, but to truly benefit the fine citizens of the state.

The growth in VCBR’s population has contributed to swelling program costs. In 2005, Virginia’s civil commitment program received only $5.8 million; in 2011, the center spent $24.5 million, or about $91,000 for each of the 269 patients, according to the commission.

But the commission warned that the state should carefully consider whether private companies’ “profit motive” was appropriate for a civil commitment program.

“The incentive to make a profit tends to encourage efficiency and quick decision-making that often results in lower costs,” the commission explained. “However, the same profit motive could supersede treatment and safety considerations and lead to individuals being moved through treatment and then recommended for release before they are ready.”

A very serious concern, that the private operator would send violent predators home rather than keep them locked up like animals long after their sentences are finished, since they get paid by the number of people in their custody.  Oh wait, it makes absolutely no sense at all.  So what would militate in favor of a private company running civil commitment prisons?

Experts differ on whether privatization could potentially improve treatment. Eric Janus, the dean of the William Mitchell College of Law in Minnesota, is a harsh critic of civil commitment. “This is a quintessential public function. This is the state exercising its most awesome power to deprive people of their liberty. I think there’s something inherently worrisome about the state turning that over to a private company,” Janus says.

But given the right mix of talent and funding, Janus thinks it is conceivable that private companies could do better than states and adds that “it’s hard to imagine anything that would make [state-run systems] worse.”

Finally, the ultimate rationale for the success of privatizing the booming sex offender commitment sector: The government is so incompetent that anything, even a private enterprise whose every motive runs in conflict with every rationale, nonsensical though they may be, would be better. 

When it comes to investments, the metrics don’t get any better than this. Who’s in?

H/T Ed at Blawg Review

Marketing philosopher Seth Godin, to whom all legal marketers pray every morning in the hope that some lawyer, somewhere, will send them a check,  Will they internalize this bit?

The road to the bottom is paved with good intentions, or at the very least, clever rationalizations.

National Geographic goes into a cable TV partnership and ends up broadcasting shameless (shameful? same thing) reality shows, then justifies it as a way to make money to pay for the good stuff.

Restaurants serve chicken fingers to their guests’ kids, because it’s the only thing they’ll eat.

Some comedians give up their best work in exchange for jokes that everyone will get.

Brands extend their products or dumb down their offerings or slap their brands on inferior substitutes all in the name of reaching the masses.

And that’s the problem with the shortcut. You trade in your reputation (another word for brand) in exchange for a short-term boost of awareness or profit, but then you have neither. Yes, you can have a blog that follows every rule of blogging and seo, but no, it won’t be a blog we’ll miss if it’s gone.

But isn’t this what it’s all about, smearing one’s glory all over the internet, no matter how undignified, shameless, deceptive it takes to make you “stand out” with the thousands of others similarly vying for those few legal bucks as yet unclaimed?

If anything-for-a-buck isn’t a sound approach for selling laundry detergent, could that possibly suggest that it isn’t utterly fabulous for lawyers?

It’s occasionally ironic that the consummate marketer and a disgusted curmudgeon see much in common, but it happens.

Yes, you can pander, and if you’re a public company and have promised an infinite growth curve, you may very well have to. But if you want to build a reputation that lasts, if you want to be the voice that some (not all!) in the market seek out, this is nothing but a trap, a test to see if you can resist short-term greed long enough to build something that matters.

Too many lawyers are hungry.  Too many, despite your self-proclaimed brilliance, fail to apprehend the long-term consequences to yourselves and the profession, of running the race to the bottom, as if being first to arrive makes you a winner. 

No lawyers builds his real reputation on the internet.  Sure, lawyers who are glib, willing to pretend to care deeply about every disembodied twitterer or commenter, will gather a tribe.  It’s easy to fool with the mass of others in the race for digital validation, just as the person who is so foolish as to think their number of Facebook friends truly love them.  For those who believe that follow-back reflects reality, they will confuse reputation with carefully crafted internet persona.

But they’re fools. Your internet friends come and go, and when they find that the thousands of hours put into pretending to like other people they don’t know on the internet doesn’t create anything of real value, but merely sucks away their time and tricks their pheromones into overdrive when they get a #followfriday, until one day someone in the real world smacks them for sitting there in the tattered underwear with three day’s growth of beard, banging a keyboard in fury because someone said something wrong in the internet.

Some will look into the mirror and realize how insane they’ve become.  Some will just continue to bang, their original purpose forgotten and their only remaining goal to pander more than anyone else.

It can’t be said that there aren’t people who will sing your praises because of your twits or blog posts.   Kevin O’Keefe has told me how some people are great lawyers, even though he’s never seen them in court or read a word of their motions.  He was once a lawyer, but he believes that twits and blog posts are good enough substitutes for real legal work.  He wants to believe. He needs to believe.

But even Seth Godin knows better.  He doesn’t believe. He reminds us to distinguish between the lies we tell ourselves and reality.  The things lawyers do to pander may serve them for the moment, but will diminish them in the long term.  It will demean us all, for it makes lawyers no better than brightly colored boxes of laundry detergent that proclaim “new and improved!!!” when it doesn’t work. 

People will remember what you claimed. People will remember what you produced. People will remember that you failed and your claims were empty.  What will you then do to pander?

After being sentenced the first time to 28 months for refusing to honor rules rammed down her throat at the cost of speaking with her client, Lynne Stewart uttered the unfortunate words, that she could do the time “standing on my head.”  So many who otherwise would never bow to the will of the government were on their knees this time, outraged that this terrorist loving idealogue was getting away with . . . refusing to genuflect.

So after a  scathing reversal of her “good fortune,” with a direction to suck the blood out of her, Lynne was resentenced to ten years.”  And the  Second Circuit has affirmed the sentence, rejecting the argument that the increase from 28 months to 120 months in the absence of any substantive change, but rather due to the dissents urging of brutal harshness for her unspeakable crimes of affirming compliance with the special administrative measures (SAMS) and her post-sentence bravado. 

From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar.  We cannot agree with her that the sentence imposed on her was “shockingly high” so as to warrant a finding of substantive unreasonableness.

There has to be a story behind a native American surname of White Twin, but there’s no denying that Boyd William White Twin was a happy person. Maybe a bit too happy.  Via Doug Berman, the 8th Circuit affirmed the sentence imposed in  United States v. White Twin of 84 months for assault with a dangerous weapon on an Indian reservation.

The sentence was already an upward departure, but that wasn’t the worst of it.  Apparently, while standing before the court for sentence, White Twin did the unthinkable.  He smiled.  And for this act of happiness, an offense that clearly upset and possibly enraged the judge, an additional six months were tacked on.

And the 8th Circuit saw no problem.

White Twin claims that the district court abused its discretion by considering an improper factor – his smile.  This court reviews the substantive reasonableness of a sentence for abuse of discretion.   United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  A district court abuses its discretion when it “gives significant weight to an improper or irrelevant factor” in sentencing.  United States v. Williams, 624 F.3d 889, 896-97 (8th Cir. 2010).

The district court did not abuse its discretion by increasing White Twin’s sentence by six months after he smiled.  The court was uniquely situated to observe his demeanor, and personally charged with reviewing the § 3553(a) factors.  District courts have wide discretion in determining a fair and just sentence.   See United States v. Gant, 663 F.3d 1023, 1029-30 (8th Cir. 2011).  A district court may consider a defendant’s attitude and demeanor when exercising its sentencing discretion.  See United States v. Robinson, 662 F.3d 1028, 1033 (8th Cir. 2011).  Congress has provided that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.  The district court based its increase in the sentence not solely on the smile, but a combination of it and other factors.  The district court did not abuse its discretion in considering White Twin’s smile.

The rationale in upholding the six month sentence for smiling was twofold, that a sentencing judge can take anything “concerning the background, character, and conduct of a person convicted” into consideration at the time of sentence, and that, the increase was not based “solely” on the smile.  Still, consideration of the smile was not an abuse of discretion.

Standing there, awaiting sentence, isn’t merely one of the most difficult things a person can go through, but one of the most awkward.  It’s hard to know how to react, how to present oneself, when years of his life are on the line.  Sometimes, the fear manifests itself in a smile, like a nervous laugh.  It may come off poorly, but it happens.  What it is not is a basis for an increase in a sentence.

While the opinion is shy of details about the defendant’s attitude, it seems likely that the judge took the defendant’s smile as defiance or arrogance, a small way for the defendant awaiting sentence to show his contempt for the judge.  While this may have been the case, so what? 

The law doesn’t demand that a defendant bow and scrape to the judge, genuflect to the majesty of the court,   Sure, it’s foolish to be less than respectful, though some judge see anything shy of obsequiousness as an affront, and respond poorly. While judges are human (sometimes too human), and behaving inappropriately while they’re about to decide what’s to become of the next few years of your life certainly isn’t going to make them feel more kindly toward you, it’s also not a crime worthy of punishment.

And a smile isn’t a crime. A smile, whether because a defendant’s reaction to the fear and nervousness of sentence or as a last-ditch affront to the judge’s dignity, isn’t a basis to put a person in prison for an extra six months.

While the circuit tries to spin around the details, it remains that the authority of the judge to sentence the defendant is based upon the crime for which he was convicted, not for the appearance of respect during the actual sentencing.  That the smile factored into the sentence at all is fundamentally wrong, yet the court upheld it.  Whether it was the “sole” basis for the six months, a contributing factor or the straw that broke the camel’s back, it should not be approved.

And to judges whose “dignity” is offended by a defendant who doesn’t stand there and react the way you think they should, put on your big boy robes and don’t get all hurt about it. At best, the defendant before you is scared, angry, frustrated and often striving to maintain a shred of his own dignity in a system that sees him as just another piece of dirt to shoveled into a hole. 

It’s not about you, Judge. You still get to go home after court is done, when he’s led off in shackles to ponder whether he’ll meet nice new friends in the penitentiary, and whether his kids will eat while he’s away.  Get over the offense of a smile. Be bigger than that.

Bob Ambrogi, who apparently spends part of his day reading ads on Craigslist for lawyers, found a curious yet troubling offer in Boston.  A virtual law firm seeking lawyers from anywhere to staff its virtual offices, and interest in the offer being to overwhelming that it couldn’t handle the bandwidth..

[A]n ad appeared on Boston Craigslist, Virtual Law Firm Seeks Lawyers. For further details, it said, go to www.wenhamlaw.com. Within a short time after the ad went up, the site went down. Visits to the URL showed only an error message, “Bandwidth Limit Exceeded.” No doubt, every unemployed lawyer for miles around was clicking through to learn more.

When the site eventually went back up, it revealed what is described as a new, online law firm focusing solely on the needs of companies, all for a flat rate of $150 an hour.

And as for that Craigslist posting, the firm’s site says that it is expanding rapidly and seeks experienced attorneys who want to work online and flexibly. Pay is expected to be $75 to $100 an hour.

Our legal staff is extremely high quality.

We seek attorneys with a JD, admission to a bar and several years of corporate-law experience.

Because they just don’t attorneys with years of experience but not JD or admission to a bar.  And who do these experienced lawyers get to work for?

Notably, one of the firm’s three founders is also the founder of one of Boston’s leading technology law firms. The site lists one of its founders as Andrew Updegrove, who is a founder and name partner in Gesmer Updegrove.

Certainly an interesting and provocative person to found a virtual firm.

Also notable is that another of the firm’s founders is not a lawyer. Inder-Jeet Gujral is identified as CEO of Enfold Inc., a provider of online filing cabinets to consumers and small businesses, and a former VP of WebMD.

The third founder, Elizabeth Gujral, is outside counsel to two Boston-area companies. “Her current role represents a re-entry into the workforce after she took a few years off to have and raise three children,” the website says.

Interesting as well, but for very different reasons.  While I may not be up on the latest news out of the Boston legal market, I’m pretty sure that non-lawyers still aren’t allowed to own law firms, even if their wife is a lawyer who wants to re-enter the workforce.

Nonetheless, this doesn’t seem to concern the lawyers looking to sign up.

A Google search indicates that the Gujrals live in Wenham, Mass., thus explaining the firm’s name. A search of Mass. attorney registration records does not bring up a result for Elizabeth Gujral.

But who needs founders who are lawyers or, if they are in th existential sense, currently licensed to practice?  This is the 21st Century. This is technology. This is virtual. Ethics, adherence to the rules and the unauthorized practice of law is so yesterday.

While it’s hardly surprising that lawyers in need of work will respond to an ad for legal jobs, no matter the pay or dubiousness of the prospect, it is surprising, and disturbing, that no one seemed to be troubled by the fact that this virtual law firm was founded by a real lawyer, a non-lawyer and his maybe-lawyer wife.

Bear in mind, anyone working for this firm is likely to never actually meet any of these people. Clients clearly won’t, as the firm expressly says that all contact will be handled from a distance.  The firm address, 143 Grapevine Road in Wenham, is an  1870 shingle house on 7 “magnificent acres,”  which happens to be where the Gujrals live.

And as a commenter to Bob’s post says:

For a solo needing to fill in gaps in work due to econ. changes, it sounds like a good idea. I am going to investigate further.

Is this the future of law?  Seriously?  As long as there’s a possibility you could make a few bucks, can you shut your eyes, hold your nose and just not care?

On the internet, nobody knows your a dog. Or a lawyer. Or not a lawyer. Or a lawyer working for someone who’s not a lawyer. 

According to this story at Newsday, 41-year-old Jorge Guevara was stopped by two police officers for driving with his 2-year-old not secured in a car seat.

Police said that, as he was being questioned, Guevara started to walk away. Officers attempted to stop him, but, police said, a struggle ensued.

Why was he being questioned, given that the offense was a child out of a carseat, is unknown. How the cops “attempted to stop him” is unknown. How a “struggle ensued” is unknown, as if struggles ensue on their own.  But what is known is the resulting injuries from that struggle.

Guevara suffered a facial contusion, police said. One officer suffered contusions, lacerations and a sprained finger. The other officer suffered several fractures to his hand.

Let’s connect dots, shall we.  Cops: hand injuries. Guevara: facial contusions.  And charges are: two counts of second degree assault.  You probably thought I was kidding whenever I wrote about defendants being charged with assaulting cops’ fists with their faces. Nope. It happens. It happened again here.

Below is a picture of Guevara. In case you’re wondering, he is not winking at you as if he were running for vice president. Where his right eye used to be is a heinous weapon used to assault and seriously injure two police officers. Doesn’t it look vicious?

Former Deputy Attorney General Larry Thompson was a powerful guy at George Bush’s Department of Justice, instrumental in signing the deportation memo that prevented Canadian citizen Maher Arar from being returned to Canada, and sent instead to Syria where he was tortured. And then there was the Thompson memo, requiring corporations to waive attorney-client privilege and refuse to pay legal fees for employees if they wanted to cooperate with the government.  Good stuff.

Though mentioned as possible Attorney General or Supreme Court possibility if McCain was elected, he instead suffers that hard life of General Counsel at Pepsico.  So like me, you probably wondered what Larry was up to, and  the Atlantic is here to oblige, with an article by Larry showing his post-DOJ epiphany that the law just isn’t fair.

The bedrock principle of Anglo-American criminal law has always been that people must know they are doing something wrong before they can be found guilty and branded a criminal. This legal concept is known as mens rea, Latin for “guilty mind.” The reason for this fundamental legal requirement is obvious: violations of criminal laws are serious, and before we put a fellow citizen in jail, we want to make certain that he is actually a bad person, is morally culpable for his crime, and that he deserves to go to jail.

Today, however, we are moving away from this fair and common-sense principle in our legal system. Increasingly, federal criminal law, and especially that related to business conduct, has what is called “weak mens rea,” or even no mens rea requirement at all. In the 2010 Dodd-Frank legislation, for instance, many of the new criminal provisions have no requirement of criminal intent, meaning that morally innocent people can (and will) receive harsh criminal penalties for otherwise innocent mistakes.

Today. Larry?  As in, not in 2003 when you were the friggin’ deputy AG, those grand old days when mens rea was honored about all else? Because you, big guy, would never have been party to the prosecution of tens of thousands of people for violations of thousands of crimes that required no mens rea?

And naturally, Larry ends with a zinger:

It is time to bring fundamental fairness and common sense back to our criminal laws — especially those that relate to business people. Doing so won’t be giving them a break or letting them off easy (fines should always be on the table for even innocent mistakes). Rather, we will be extending to them the basic protection of the criminal justice system that is afforded to all citizens: the commitment to punishing only that behavior which is morally wrong.

It is time. It was time ten years ago, back when you had some power and authority to do something. You could have exercised discretion. You could have knocked on your boss, John Ashcroft’s door and had a chat about bringing fundamental fairness back to our criminal laws. You could have written this article back then, when somebody might have given a damn about what you had to say.

And you did nothing.

So now, after the trail of bodies is behind you where the sight of misery won’t disturb you any longer, you’ve had your epiphany that things aren’t exactly fair?  And I really like how you slipped in “especially those that relate to business people,” because we all know that those that relate to everyone else are hunky dory, and you, Mr. Pepsico GC, have a special spot for the poor, maligned business person who nobody loves.

Welcome back to the fold, Larry. Good to see you’re now one of us.

Via PBS News Hour, the Republic of Texas has figured out that it’s handing school children Class C citations instead of report cards tends to have a negative effect on their futures. Whouda thunk?

“In fiscal year 2011 … 330,000 non-traffic Class C [citations] were handled in the municipal and justice of the peace courts for juveniles,” Fowler said.
And because Texas adjudicates less serious “classroom cases” in municipal and justice of the peace courts – rather than in juvenile courts that attach confidentiality protections to the proceedings – the punishment likely won’t stop there for Rollins.
He may have to list the conviction going forward on everything from college and job applications to the forms requesting a driver’s license with the state of Texas.
It’s all part of a sweeping zero tolerance movement in schools that Fowler says started in the last few decades and has created a “school-to-prison pipeline.”

There were, of course, a few possibilities as to the long term consequences of saddling school children with criminal records whenever possible.  First, they would have extra stuff to put on their college applications right below their National Honor Society induction.  Second, they could do a research paper about their experiences that garnered them international acclaim. Or third, they would be more likely to drop out of school, find themselves incapable of getting a job because of their criminal record, and engage in a life of crime because they had no great expectations.

Research has shown the earlier a student comes into contact with the justice system, the more likely they are to drop out of school, according to Fowler.

Uh oh. This doesn’t bode well for the college option. But isn’t this just Texas, where nobody expects much else.

In Los Angeles, the nation’s second largest school district, many activists have begun protesting what they see as a culture of criminalizing student tardiness.
Some students, who claimed traffic, late buses and oversleeping as reasons for tardiness or truancy, have been ticketed and summoned to court to pay fines that can exceed $250.

More than 40 percent of the tickets were given to students 14 and younger. And critics say the citations have unfairly targeted low-income, minority households

Because it’s no big deal for children 14 and under from low-income minority households to pay $250 fines.  They can just trade their food stamps for some cocaine, sell it on the streets and come up with the fine money, and maybe even a few bucks extra.  For books, maybe.

The police is Los Angeles have declined to stop ticketing students, but are giving serious thought to potential reforms.  Like conducting a study. Because saddling kids with criminal records under zero tolerance policies are working really well, aside from this minor glitch.

That’s the name given by Matt Brown, who is feeling the rush of adrenalin as he comes closer to the edge.

I had a long weekend of work, but I’m ready for trial. The work I completed over the weekend wasn’t trial prep, though, because that was done long ago. I spent the weekend tying up loose ends.

Trial is like a really shitty vacation. You have to make sure all your ducks are in a row so you can take some time off. Instead of dipping your toes in the water and watching a sunset with your adult beverage of choice in hand, however, you get to endure grueling combat all day every day for days on end. It’s a break from your daily stress during which you forget about your normal troubles in favor of some more pressing troubles. Did I mention that I love it?

The point of the job is often trial. Negotiating and writing and analyzing are frequently the point too, probably more so, but trial is the most obvious display of skill. Lawyers phone in motions and avoid other important work altogether. People watch you at trial.

Some lawyers feel a sense of dread, cold fear, as the judge turns to them and asks, “counselor, would you like to give your opening statement?”  Others embrace it. The blood pumps, and sense become hypersensitive. This is the moment they live for, to stand up before the jury, all eyes on them, and feel the rush of owning the courtroom.  If the words, “you may inquire” thrill you, then you are a trial junkie.

For most criminal defense lawyers, this is the epitome of our work, where everything is on the line. This is what people want to hear about at cocktail parties, and where we regale the groundlings with our glory. Or our crashing defeat.  Sure, everything else we do matters too, but it’s not the same.

Different lawyers approach trial different, with some walking down Main Street as gunslingers, no more thought than a challenge demanding a quick draw. Others plan their assault as if it was Omaha beach, meticulously parsing evidence, inspecting crime scenes, preparing witnesses and making sure each document is premarked and ready to be offered.

Like Matt, I prepare long and hard for trial.  My clients have no idea what goes into their trial, as they don’t seen the long, often boring, nights spent pouring over somnambulant papers to find the sentence, maybe only the word, that will destroy a witness’ testimony. Or read page after page and find nothing.  But you do it because there’s someone’s life on the line. And because you want to win. Every thought in your head is to win.

But this isn’t a universal approach. I cringe when I read about some lawyer going to trial tomorrow who has spent the past month doing nothing to prepare. Daily announcements of how wonderfully busy you are going to court on cases of every sort but the one on trial, desperately trying to tell the world  how cool you are. Yet not a word about preparing for trial. It’s disgraceful, and only fools think this makes you an admirable lawyer. Your neglect shames you.  This is a trial. Do you really think it makes you look good to tell the world that you’ve utterly neglected your client? 

When I saw this twit, I was astounded.

@kreyes 22 murders in a year and a half—something like that. Badass.

— Mark W. Bennett (@MarkWBennett) June 21, 2012

To the trial junkie, this might at first blush seem cool, or as Mark put it, “badass.”  And if this was a sporting event, it might very well be.  But this isn’t a sporting event, but a process by which someone’s life could well be destroyed. 

No one can try 22 murder cases in a year and a half. No one. Not the best lawyer ever. Not anyone. At least not competently.

That this was viewed, discussed, as if it was incredibly cool reflects a horribly misguided focus. It’s never about how a lawyer is such a gunslinger that they can go from trial to trial to trial, toughing it out and not breaking a sweat.  It’s about 22 defendants whose children may never again see their father. Every one of those children deserves a lawyer who takes the time to make sure their father receives the best possible defense.  Not one of those children care about how cool it is that a lawyer can rack up mind-blowing numbers of trial over the course of 18 months.

It’s so easy for lawyers who run from case to case, being as much a part of the dehumanizing of defendants as the prosecution, the police, and the system, to think only of their interests as trial junkies.  The names and faces cease to matter, and it’s just the rush of trial that counts.  They harbor irrational belief in their abilities to cross a witness to death, without ever having put in the time or effort your client deserves.

To extol the lawyer who tries 22 murders in a year and a half is insane.  This isn’t cool.  This isn’t badass. This isn’t awesome. This is wrong.  This is the trial junkie taken beyond reason and acceptability.  This is where the trial junkie has lost sight of what trials are about, and what they exist to do.

From the plea junkies, the ones who seek obscurity and dread the light of courtroom, I learned that the point of the job is to do every part of the job as well as possible. A big part of that job is trial. Whether that’s where you actually end up or not, it’s something no lawyer worthy of respect should fear. A lawyer’s time and advice may be his stock in trade, apparently, but some of that time is probably going to have to be spent in the well. Fear can lead to injustice, and that fear just as often comes from the lawyer as it does from the defendant. The fear I saw in many of my colleagues was disturbing, but the overall effect wasn’t all bad. A desire to resolve cases short of trial can inspire a powerful desire to fight for an acceptable non-trial resolution, and the plea junkies taught me that what makes it onto the record is often just the tip of the iceberg.

The trial junkie despises the plea junkie, and looks down on him as if he’s worthless dirt.  But the trial junkie who thinks of trial only for his own rush, who fails to do the boring preparation, is worse than the plea junkie. No criminal defense lawyer is more destructive to the lives of defendants than the one who tries a case without having done what’s necessary to give his client a decent chance.  You are not a badass.