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.

One of the aspects of writing this blawg that I most appreciate is being challenged, taken to task, by people I respect when I’ve written something they think is wrong. It may feel nice to be surrounded by supportive readers who agree with me, but it’s like peeing on yourself in a blue serge suit. It feels warm for a bit and nobody notices what you’ve done.

Others see it differently. No fewer than three posts came to my attention yesterday that drove the point home.  At a blog called Call Me Bookish, twitted by Antonin Pribetic, a review by Kelly (who I’ve deliberately sought not to know any better than her name) tells of a friend from her tribe who took issue with her review of something involving Abraham Lincoln and vampires (which I’ve deliberately chosen not to read, both because it sounds awful and I don’t want to be prejudiced by content).  Kelly writes about her “first internet attack”:

My WIP [I believe this means “work in progress] is a work of fiction, but it’s what I imagine a young drunk driver’s life to be like in the years following a similar accident. Due to the emotional toll this takes on me, this work is far from finished. I haven’t released excerpts of it yet because I’m not ready for any sort of backlash. I’m not ready for writing that recounts such a sad time in my life to be ripped apart.

Tonight I realized that I have made the right decision, because I was hurt when a “Blogger Friend” (we’re in the same tribe on Triberr, friends on Twitter, etc.) attacked my most recent review in a blog post. This person clearly misunderstood what I was trying to communicate in this review and if he gave me 24 hours, I would have responded to his initial comment in order to explain where I was coming from. Nope. He decided to write a post that bashed both me and my words.

Final word: There’s a difference between respectfully disagreeing with what someone says and tearing their work (and them) apart. What should I do now?

At the Atlantic, Walter Olson of  Overlawyered fame calls for the death of the law review.

 The circulation of law reviews has been plummeting for a generation; the most famous and widely circulated of them, the Harvard Law Review (HLR), has seen its subscriber base dwindle from 10,895 in 1963-64 to a mere 1,896 in 2010-11.

No law school wants to give up and go web-only because it seems unprestigious…

The wider question is whether the law review model of content–with its long lead time to publication, editing by students, and format that’s resistant to after-publication editing–yields enough scholarly gems to deserve surviving in its present form even online.

We have some inkling what John Roberts thinks of the matter. The chief justice told judges last year: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.”

Just a couple days ago, a lawprof sent me a link to her law review article, as it was on an issue about which I’ve written much and have great interest.  I read it.  Well, truthfully, I read part of it, skimmed other parts and, upon reaching the point of boredom beyond which I feared permanent brain damage, I put it down.  I don’t blame anyone, least of all the lawprof author.  It’s the nature of a law review article, to take a subject of interest and make it as tedious, drawn out and thick as possible.  Did I mention footnotes?

The decision was handed down on the 27th day of May¹ rather than the anticipated date of the 29th.

¹ Using the Gregorian calendar, in contrast to the pre-Julian or Roman calendar. Due Process and the Rejection of Pre-Julian Dating, Richard Head, 28 Yale L.J. 1198 (1947). Others dispute the merit of the Gregorian calendar and contend that Pre-Julian dating should be used, whether in parallel or by itself. See, e.g, United States v. Sparticus, 138 F.2d 490 (3d Cir. 1984).

For a practicing lawyer, I probably read more law review articles than most. At least parts of them. Not all of them are ridiculously irrelevant, grasping for something remotely resembling purpose in a journal of a million murdered words.  It’s awful.  It’s painful.  Not because these articles don’t occasional raise ideas or argument of merit, though it’s rare, but because even the best and most thoughtful bog down in the brutally heavy compulsion to mask worthwhile thoughts in thousand of worthless words.

And so, I disagree with Walter. The law review should not die. It’s already dead. It’s been dead for a while, and merely wanders about like zombies eating the brains of those who are caught in its clumsy clutches.

What we do know is that the page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content. Even low-ranked law schools often publish six or eight of them. There’s no secret as to why: students crave the credential of having worked on law review, while faculty crave a high likelihood of being published. Legal educator Harold Havighurst nailed it half a century ago: “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.”

One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there’s no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.

There are alternatives, as Wally correctly notes.  Blawgs, such as Volokh Conspiracy, played a significant role in shaping the arguments against the individual mandate. While they may not have carried the day, their relevance can’t be denied.  And there were two significant advantages: the posts were readable and read.

It’s not that law reviews, run by students who fancy themselves so brilliant as to entitle them to pass judgment on the work of law professors, have no place in legal society. 

1. They provide resume fodder for students who want to guarantee that they will never be expected to try a case in their careers.
   
2. They provide space for people who aspire to being deemed sufficiently scholarly to commit murder of the language with impunity. 
   
3. They can level a table leg.

Defenders of the faith clap their hands in glee whenever a law review article is cited in an opinion. Sadly, it doesn’t mean what they think it means.  Judges don’t cite to law reviews because they found them persuasive, or even mildly interesting.  In fact, it’s doubtful that judges cite to them at all, since it’s part of the grunt work fed to their law clerks, who just happen to be the former law review editors, on whose shoulders it falls to keep the zombies walking.

Rather, whenever judges come up with cockamamie ideas that cry out for support from any source possible, they send the grunts off to the library in the usually safe belief that somewhere, amidst the millions and millions of murdered words, will be a law review article that is so outlandish and ridiculous that it backs them up.

Will the physical books persist as long as there are trees to be cut and mother’s to buy proof of their darling’s genius?  Of course, but that doesn’t mean they’re alive.  Blawgs have already proven that ideas, if worthwhile, have an outlet for their existence, and can fulfill a function by bearing the basic virtues of brevity, readability and substantive merit.  As for law reviews, they’re just dead weight.

And if law reviews are zombies, the blue book is a vampire, existing only to suck the life out of you.

Update: I am deeply ashamed to admit this, but as Temple Lawprof  Dave Hoffman gleefully informed me, I a disgrace to trench lawyers everywhere.  There is a new law review article available on SSRN by Arizona State lawprof Adam Chodorow entitled Death and Taxes and Zombies.

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

Now this is scholarship.  And Hoffman is just laughing his butt off at me. I’m so ashamed.

The Supreme Court will soon consider whether bringing a drug dog to the front door of a residence to create a basis to claim probable cause in order to obtain a search warrant.  The case, Florida v. Jardines, challenges the decision of a divided Florida Supreme Court’s  rejection of the authority to bring a dog to the door of a residence without cause to begin with, the act itself constituting a search.  The question is whether the Supreme will apply Illinois v. Caballes, holding that a dog sniff of a car is not a search, to a home.

While the case is chock full of interesting and important 4th Amendment issues, one of the more interesting and provocative positions taken comes from Jim Harper and Ilya Shapiro, who filed an  Amicus brief on behalf of the Cato Institute.  Their argument is summed up:

This case offers the Court an opportunity to place the Fourth Amendment on solid jurisprudential footings. Current Fourth Amendment doctrine has failed to produce rules that are administrable and that protect privacy over time. In particular, this Court’s use of proxies such as having a “reasonable expectation of privacy” to locate Fourth Amendment interests has failed to produce a workable rule, and it has eroded privacy. The Caballes Court used a corollary from reasonable expectations” analysis that threatens to erode privacy protections even further. 

Reasoning backward from “expectations” requires courts to engage in impossible surmise about privacy,neglecting the Fourth Amendment’s protection of a constitutional right. This Court should return to plain meanings of Fourth Amendment terms such as “search,” and to precedents that spring from the Fourth Amendment’s terms.

At the Legal Whiteboard, Indiana Lawprof Bill Henderson has apparently just discovered the Ignite concept, where a person gets six minutes and 20 slides that move forward every 20 second whether he wants them to or not. Bill thinks it’s a great idea, as do I. The worst that can happen is you lose six minutes of your life.

But the exemplar offered comes from a London’s Law Tech Boot Camp, described as

a BarCamp-style community UnConference for new media and technology enthusiasts and legal professionals including bloggers, twitters, legal-technology lawyers, social networkers, and those curious about new media and the law.

Michael Bossone

Special Advisor to the Dean, University of Miami School of Law

Michael Bossone is the co-creator and a founding member of LawWithoutWalls. His career has been dedicated to building and sustaining human connection and institutional culture.  It is what first drew him to LawWithoutWalls and what motivates the time, energy, and commitment he joyfully gives to this innovative project.  He is currently Special Advisor to Dean Patricia White at the University of Miami School of Law, and previously served as Assistant Dean during his nine years at the Sandra Day O’Connor College of Law at Arizona State University.

Bossone gave an Ignite presentation that Henderson (who was there) calls “awesome.”



For those of you in need of an incentive, here’s a drinking game: count the number of logical fallacies this former lawprof/current special advisor can get into six minutes.  On the other hand, for those young lawyers inclined toward confirmation bias and in need of validation, this is a wet dream. 

That the typical suspects blindly tout technology is old news, What makes this significantly more disturbing is that, coming from someone imbued with attributed credibility from the Academy, not to mention endorsed as “awesome” some another within the Academy, has the power to confirm the most ignorant, dangerous and deeply held bias of every unemployed wanker who desperately cries,

“but mommy, I know I have no job and no prospects, and can’t afford to spit no less pay for a data plan, but I neeeeeed shiny gadgets if I want to be a lawyer.  My lawprofs said so.”

It’s certainly true that lawyers are slow to adopt new technologies.  “What are we do damn afraid of?”  A facile question from someone whose strawman argument will not suffer from a response.  We’re afraid of destroying lives. We’re afraid of finding out we chose Beta instead of VHS, We’re afraid of the third party doctrine that allows the government to access confidences through its required backdoors or the simple good of some kid who forget to lock up at night.  We’re afraid of violating the trust of our clients that we won’t lose focus whenever something shiny captures our attention.

We are indeed slow to jump onto whatever the latest and greatest new thing may be. “Afraid to try. Afraid to take a chance. Afraid to fail?”

We are free to fail, and fail miserably, when it’s only our own butt on the line. Lawyers have the same right as anyone else to makes lousy choices, provided we alone suffer the consequences.  But when our choices mean someone else suffers, then we do not have the right to take a chance.

“We’re satisfied being dinosaurs in the digital age, technological neanderthals, Fred Flinstones in a world of Elroy Jetsons.” 

If we “push the button, click on the link,” and get a virus, or delete the brief, or miss the critical decision, the court may not find our allusions to cartoon characters as captivating as Bossone does. Indeed, most judges will hold us to a somewhat higher standard than either Fred Flintstone or Elroy Jetson (oddly the young son, rather than George Jetson, Elroy’s father).

The dichotomy, of course, is nonsense. It’s not technology or quills. Even old guys like me (as is readily apparent as you’re reading this on a computer screen) have embraced much of technology, after determining that it’s beneficial, that it doesn’t put clients at risk, that it’s cost-effective and that we won’t have to explain to a human being a year from now that we’re terribly sorry that they will be spending the next decade in prison because we thought our emails were secure and our cellphone conversations couldn’t be readily intercepted by anyone with a national security letter (or maybe just a scared employee of a cell service).

But us dinosaurs don’t particularly care what special advisors to the dean think.  We view empty rhetoric and laugh. We know that correlation doesn’t prove causation.  We aren’t inclined to stand on line to be the first with the newest, coolest shiny gadget, and so we aren’t seeking validation of our bias.  Crap like this doesn’t play well to lawyers who have been around long enough to see new ideas come and go, to see the latest and greatest today become the massive failures of yesterday.

Law students and young lawyers, on the other hand, are susceptible to such ploys.  They don’t believe things can fail because they’ve never experienced failures. They don’t believe things can fail because they don’t want to believe.  Isn’t that right, Siri?

To some lawprofs, this is the nexus of law and fashion design, where they pronounce that hemlines will be above the knees this year, and that technology is the new black.  And the young lawyers believe them, running out to the glass caves with their heads in the clouds. 

“A more profound impact.”  Maybe, but the adoration of change bears no inherent connection to improvement.  What distinguishes lawyers is the ability to resist fashion trends and focus instead on those things that we know will benefit our clients without risking their lives.

“It was bullshit in ’96 and it’s bullshit now.”  If this is the argument in favor teaching law students and young lawyers to ignore reason, throw caution to the wind and just push any button in front of them, then we have a looming disaster on our hands.  “With lawyers, why is it always too slowly.”  Because we have the capacity to think and the responsibility to put our clients first.  This, apparently, is where lawyers differ from lawprofs.

Though curation isn’t my thing, as I prefer the “value added” path of commentary and view it as a bit of a facile way to generate readers without much effort, my own stroll around the blawgosphere this morning leaves me with little to add to some of the more interesting things others have to offer.  So rather than waste the space (and your time) with my thoughts, I bring those of others.

At Radley Balko’s Agitator, where Radley has turned over the keys to some very interesting folks while he recovers from the hair transplants,  In a story by  Ken White (who has been quite prolific and compelling lately) of his youth, remembers the day he was taken by a judge to the Veterans of Foreign Wars to fulfill part of a promise made decades earlier, upon which our Congress reneged after America enjoyed the benefit of a group of men who risked, and some lost, their lives in World War II.

There, in a dark and baroque room, we found eight elderly men. They were too infirm to stand. Three were on stretchers, several were in wheelchairs, two had oxygen tanks. One had an empty sleeve where his right arm had been. A few relatives, beaming, stood near each man. One by one, Judge Lew administered the naturalization oath to them — closely, sometimes touching their hands, speaking loudly so they could hear him, like a priest administering extreme unction. They smiled, grasped his hand, spoke the oath as loudly as they could with evident pride. Some wept. I may have as well. One said, not with anger but with the tone of a dream finally realized, “We’ve waited so long for this.”

And oh, how they had waited. These men, born Filipinos, answered America’s call in World War II and fought for us. President Franklin D. Roosevelt asked the men of the Philippines to fight, promising them United States citizenship and veterans benefits in return. 200,000 fought. Tens of thousands died. They weathered the brutal conditions under Japanese occupation, fought a valiant guerrilla war, and in some cases survived the Bataan death march.

In the deeply-flawed episode “The Omega Glory”, descendants of early Earth colonists (or else the inhabitants of an impossibly-parallel world) fought a bacteriological war between Americans and Chinese which ended in both nations being hurled back into barbarism; the Yangs (Yankees) still have an American flag and a copy of the Constitution, but have forgotten the real meaning of the artifacts.  They revere the flag as a totem and recite the “holy words” by rote; today’s epigram is the Yang leader’s rendition of the beginning of the Preamble to the Constitution (“We the People, in order to form a more perfect union…”) altered by centuries of repetition without meaning.

The situation presents a useful (if exaggerated) metaphor of modern America; though we have not descended to the barbarism of the Yangs, our law and traditions have drifted ever further from their philosophical and constitutional moorings.  The Founding Fathers would not recognize the current legal code of this country, grounded as it is in religion and other dangerous superstitions and “-isms” inimical to the Enlightenment philosophy and thousand-year-old English common law tradition in which it was originally based.

You don’t have to go to school for it. There are no tests I’m aware of. In fact, you don’t have to be paid,as if there was anyone to pay you if you did.  The title is Professional Agitator.  As my young friends like to say, that’s badass.  And the title has been bestowed by no less consequential an entity than the 30th Precinct of the New York City Police Department on Matthew Swaye and Christina Gonzalez.

How does one achieve such high honor?  From DNAInfo :

HARLEM — The NYPD has created a “wanted” poster for a Harlem couple who film cops conducting stop-and-frisks and post the videos on YouTube — branding them “professional agitators” who portray cops in a bad light and listing their home address, DNAinfo.com New York has learned.

The flyer featured side-by-side mugshots of Matthew Swaye, 35, and his partner Christina Gonzalez, 25, and warned officers to be on guard against them. 

“Be aware that above subjects are known professional agitators,” read the flyer, which bears the NYPD shield and a seal of the NYPD‘s Intelligence Division. It also gave the home address of the couple.

“Above subjects MO is that they video tape officers performing routine stops and post on YouTube,” the sign said. “Subjects purpose is to portray officers in a negative way and too [sic] deter officers from conducting there [sic] responsibilities.”

The flyer also listed the name and cellphone number of a Sgt. Nicholson in the 30th Precinct, and implored cops to “not feed into above subjects propaganda.” 

I think Jacob Sullum is right in his post about this incident when he writes that the poster can be taken in two ways: the style and publication of the couples’ home address suggests intimidation, while some of the language suggests a warning to police to leave them alone rather than approach them in a manner that will look bad on video. But whatever the intended message, the unintended message about law enforcement’s entitled attitudes is clear. First, in the face of steadily advancing legal norms protecting citizens’ rights to record cops in the course of their duties, cops continue to do everything they can to portray such recording as dangerous, intrusive, inappropriate, and a signifier of bad citizenship. Second, cops view concern about constitutional rights as a signifier of bad intent and suspect behavior. Only an agitator would want to document, and challenge, the widespread temporary detention of young men of color in New York City.

If you’re not a fan of FunnyJunk, the Oatmeal or the First Amendment, you may not have noticed the soap opera developing around the indefatigable ego of Charles Carreon, whose journey began with a threatening letter on behalf of FunnyJunk who was miffed that content from Oatmeal was funnier than anything it could produce.  From there, it got stupider.  Popehat, Lowering the Bar, even Masnick, the Constitution’s fair-weather friend at Techdirt, have been chronicling Carreon’s every burp.

While the original beef between the humor websites catering to precocious twelve-year-olds has fallen by the wayside, Carreon has focused on his own dignity, determined to prove that he can take on the sniggling masses who mistakenly think they can cow him with their ridicule.  He will not be cowed.  It’s not that Carreon is a slacker or a scammer. Indeed, he has history on the side of good. From Paul Alan Levy at Public Citizen :

Recently, Public Citizen was aligned with a lawyer named Charles Carreon, filing an amicus brief in support of his argument against allowing a publisher to pursue a a copyright-infringement lawsuit against his wife’s Oregon company in federal court in New York.  The former colleague who wrote this amicus brief argued the personal jurisdiction issue orally, so well that Carreon did not feel the need to come argue himself (a good thing too – his appellate brief was terrible).   And it has seemed to me that some of the online criticism directed his way for having sent a demand letter for a client, complaining that a blogger had defamed the client, had become a bit excessive.  I had turned down requests that I represent some of the defendants in Carreon’s earlier litigation, because, although it was apparent that he was litigating strange claims to punish his critics, the theories in the case either were not interesting enough to make a good vehicle for impact litigation, or would have had to be advanced on behalf of entities that could easily afford to hire their own lawyers. 

Most immediately, we have agreed to represent the anonymous author of a blog at www.charles-carreon.com that satirizes Carreon mercilessly by speaking in his voice and imitating the rather pompous and over-the-top language that Carreon himself uses.  Carreon claimed that the domain name infringes the registered copyright in his name, and constitutes cybersquatting, and threatened to add  our client as an additional defendant in the peculiar lawsuit that he has filed against Matt Inman and others over Inman’s satirical charity-fundraising campaign.  

As far as when and where I will sue your client, be certain that it will occur if your client does not cede the domain, and advise her of ten things:

1. That there is essentially no statute of limitations on this claim, and the prima facie laches defense [ed. note: that’s an equitable defense that asserts “you waited too long to file this.”] would not kick in for at least three years.

2. That venue in this action can be validly laid in at least three places, maybe four, if she doesn’t live in Arizona, Florida, or California.

3. That I am capable of employing counsel to handle my claim against her, who will incur attorneys fees and seek recovery of the same. I filed pro se against Inman simply for the sake of convenience and the need for speed, and not from a lack of resources.

4. That the law in this area cannot be predicted with certainty, will evolve substantially over the next three years, during which I will be using digital forensics to establish actual trademark damages in addition to seeking the maximum cybersquatting penalty of $100,000.

5. That a judgment that recites that the domain was obtained by fraud upon the registrar, in the form of a misrepresentation that she did not know of my trademark on the name, might well be non-dischargeable in bankruptcy.

6. That a judgment can be renewed indefinitely until collected, and that California judgments accrue 10% interest, which can compounded once ever ten years by capitalizing the accumulated interest.

7. That you cannot guarantee that Public Citizen will provide her with free legal services on June 1, 2015, when I may very well send the process server ’round to her door.

8. That I have the known capacity to litigate appeals for years (check my Westlaw profile, and of course, the drawn out history of Penguin v. American Buddha, now in its third year, having passed through the Second Circuit and the NYCA, and still hung up in personal jurisdiction in the SDNY).

9. That the litigation, being of first impression in virtually every Circuit, grounded in a federal question, involving a registered trademark, and dispositive of many open issues in the field of Internet commerce and speech, might very well continue for a decade.

10. That Public Citizen might well be unable and/or unwilling to provide her with representation until the resolution of such an extended course of litigation.

While the prosecutor’s duty to disclose Brady material is affirmative, there’s a backdoor in the case of failure where a defendant knew or should have known the existence of impeachment evidence.  It’s a foolish rule, relieving the prosecutor of the consequence of failure by subsequent speculation about what the defendant might have known.  But then, Brady has always been one of the cruelest jokes.

It had to be weird for Jeffrey Dean Ford to sit in the defendant’s chair and listen to the testimony of Constance Goins about his robbing banks.  After all, Goins was the sister of Ford’s wife, and his wife was living with her mother and Goins while Ford dined on the state’s dime.  He knew Goins was no angel, having a multitude of criminal problems of her own, yet somehow free to sleep in her own bed.  But there his lawyer was given no evidence to use at trial to show that Goins’ testimony was a quid pro quo.

Sure, there was speculation. There’s always speculation about a snitch getting a deal, testifying in exchange for lenient treatment. It’s the nature of the snitch.  But proving it, confronting the witness on the stand with the fact that a promise was made, a deal cut, is another matter. The hope of leniency for “truthful testimony” always emits an unpleasant odor.  Finding the rot that gives off the scent to show the jury is the key. 

Ford’s lawyer eventually obtained Goins’ files, well after Ford’s conviction, and went about the task of exhausting remedies before he made his way to federal court. After all, the smoking gun of Goins’ deal was not only true, but denied the defense at trial. Another Brady failure. Ho hum.  But as he approached the federal courthouse, the door slammed shut.  From the 9th Circuit’s opinion in Ford v. Gonzalez :

Petitioner-Appellant Jeffrey Dean Ford (Ford), a California state prisoner, appeals from the district court’s dismissal as untimely of three claims in his petition for a writ of habeas corpus, under 28 U.S.C. § 2254. Ford argues that his claims are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial, received lenient treatment in her own criminal cases in return for testifying against him. We hold that Ford is not entitled to delayed commencement of the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual predicate of his claims could have been discovered had he exercised due diligence at his trial.

Of course, in our nation’s zeal to stop terrorism, it was crucial to limit habeas relief to a year so the terrorists don’t win. 

The majority opinion by Judge Milan Smith doesn’t question whether the prosecution completely and totally failed in its affirmative obligation to turn over Brady as to Goins.  Rather, they ignore the prosecution’s burden and focus instead on Ford.

Based on the testimony offered at Ford’s trial, Ford had reason to suspect that Goins may have sought and received some benefits for assisting law enforcement. At the very least, Ford and his trial counsel were aware that, despite being found in possession of drugs by a police detective, Goins was not arrested. In fact, his trial counsel remarked at trial that he wanted to argue to the jury that Goins “did what she did because she was expecting a deal from the DA’s office,” but declined to press this argument. Thus, Ford’s trial counsel was clearly aware of the possibility of a deal. Regardless of whether this knowledge is attributed to Ford, it illustrates that the testimony at trial gave ample reason for a reasonable person in Ford’s position to investigate further whether Goins sought and received benefits in return for assisting law enforcement.

This is a really cool trick, since every time a witness with some sort of criminal issues testifies for the prosecution, everyone who isn’t on a jury knows they’ve got some personal benefit in mind. The problem is overcoming the pat arguments used to convince the jury that they’re telling the truth, and without actual proof of the deal, the defense is usually precluded from anything more than noting the unpleasant smell in the courtroom. It’s just business as usual.

But then Judge Smith throws a knife into Ford’s heart.

Beyond the testimony at trial, the unique living arrangements and active assistance of Beverly Ford, his wife, also gave Ford access to information about whether Goins had received a deal. Beverly Ford, Goins’s sister, lived in the same house as Goins and their mother. As the magistrate judge found, “it is more than arguable that Beverly Ford was present and aware of Goins’ various criminal cases and their dispositions” after Ford’s arrest. During and after the trial, Beverly Ford pressured Goins to help Ford, and took an active interest in Ford’s case. The magistrate judge did not speculate as to what specific information Beverly Ford was privy to or what information she relayed to Ford. Beverly Ford’s assistance was an additional resource a reasonable person in Ford’s circumstances could have used to discover the factual predicate of his claims at the time of his trial.

Prosecutor’s duty to turn over impeachment evidence? Pshaw. It’s all Beverly’s fault.  After all, she was living in the same house as Goins, and she should have certainly figured it out.  No doubt the trial judge would have found defense counsel’s argument overwhelming if he said, “but your Honor, the defendant’s wife says so, and what more proof would you need?”

Or as Judge John Noonan dissent notes in his opening paragraph:

While there isn’t a criminal defense lawyer who doesn’t bemoan the fact that defendants, by and large, ignore what we consider monumentally sound advice, every once in a while the other side accuses us of something that warms the cockles of our hearts.  This is such a time :

The state Attorney’s Office said that DUI defense attorneys are part of the problem. Many advise against taking breath tests so someone can avoid giving up evidence used against them. Eyewitness News checked online and found several websites that spell out what to do and not do if you’re stopped.

It is also very frustrating for law enforcement. The word is out in Florida that if you’re suspected of driving drunk you should not submit to a breath test.

“I think in county court, DUI is probably 40 percent of the docket,” said Perlman.

However, at least four out of 10 in Florida refuse a breath test, making prosecution more difficult.

Drawing blood when someone refuses a breath test has been done in Florida by Brevard and Hillsborough counties. However, after gaining a conviction, Brevard County saw it overturned.

“I would love to see the law changed because I’m frustrated as a prosecutor with the limitations of proving a drug or chemical substance case,” said Perlman.

Unless the state Supreme Court rules differently, blood draws will only be allowed when someone’s hurt, or a suspect is stopped for at least a third time.

“I definitely would support it, yes I would,” said beachgoer Jessie Gainey.

“I think it would be fine,” said Victoria Mauro. “It’s the law to not drink and drive so I don’t see why not, why it would be wrong.”

“I think it’s against your rights, more than a breathalyzer,” said Ted Kryla.