Every once in a while, a person has a chance to make a difference in the larger world. Sometimes, the chance comes at personal expense, but the person’s will to make a difference transcends self-interest. Most people choose to cover themselves rather than risk it. Only the truly brave take the chance.
Brooklyn Supreme Court Justice Gustin Reichbach is a very brave man.
In a New York Times op-ed, Gus Reichbach has done what few would even consider. He not only told the truth, but told the truth that exposed him to a huge potential problem. You see, Gus Reichbach sits as a criminal term judge. And Gus Reichbach smokes dope.
He doesn’t toke for fun or relaxation, but for relief from the pain and nausea from pancreatic cancer.
THREE and a half years ago, on my 62nd birthday, doctors discovered a mass on my pancreas. It turned out to be Stage 3 pancreatic cancer. I was told I would be dead in four to six months. Today I am in that rare coterie of people who have survived this long with the disease. But I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana.
While the federal government persist in midnight showings of Reefer Madness and keeping marijuana on schedule I, for drugs with no use that isn’t evil, Justice Reichbach can’t afford to indulge in the fantasy of the drug war. Cancer is real, as is the suffering that goes with it. No kind words from Gil Kerlikowske will stop the pain. Indeed, they would be more likely to induce nausea than ameliorate it.
When used for medicinal purposes, there is no rational reason why marijuana is any different than any other drug. Throw your back out and you’re in agony. The doc writes a script and you feel better. Until the feds put an end to that as well. Can it be abused? Of course, like anything else, including power. Does that mean it’s ineffective for those who need it. Clearly no. The toss-up is whether it’s better to make cancer patients endure the suffering or offer the only medicine that provides palliative care.
In the heat of war, there are always victims. In the War on Drugs, cancer sufferers like Justice Reichbach is called collateral damage.
So rather than suffer for the cause of politics, Gus Reichbach has chosen to address his pain and nausea. It is unlawful in New York to possess marijuana, regardless of how worthy and justifiable the reason. For a man who sits on a bench in a robe and metes out punishment, doing something unlawful isn’t generally considered a good thing.
This must have weighed heavily on a judge, as well it should have. While there are excellent arguments for the legalization of medical marijuana, many a criminal defendant can offer a sympathetic rationale for breaking the law. Yet they are prosecuted, convicted and sentenced, because they have broken the law. Nobody is individually entitled to chose to ignore the law because they have what they feel to be a reason.
And that “nobody” includes a sitting Supreme Court Justice.
Gus Reichbach knows this.
Given my position as a sitting judge still hearing cases, well-meaning friends question the wisdom of my coming out on this issue. But I recognize that fellow cancer sufferers may be unable, for a host of reasons, to give voice to our plight. It is another heartbreaking aporia in the world of cancer that the one drug that gives relief without deleterious side effects remains classified as a narcotic with no medicinal value.
Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease. I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year. Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.
You will note that he doesn’t speak to the inherent conflict of being a law-breaker and judge, which is the message he’s sending to Albany. Meet your criminal, Governor Cuomo.
How many legislators, governors, presidents, didn’t smoke dope? Every one is as much a criminal as the kid snatched off the street during a sweep of an uptown block. They just didn’t get caught because cops didn’t roust kids at Harvard or Yale, which somehow makes them different.
Gus Reichbach offers his reason for breaking the law, and it’s a damn fine one. But he is still breaking the law, because the law accepts no reason. The former (or current) pot-smokers in Albany perpetuate a law that they themselves violated, because they got away with it and can’t be touched.
No doubt Justice Reichbach is facing his own mortality, and doesn’t want to leave this earth with work undone. He has chosen to sacrifice himself on the alter of integrity to make a point that could change the course of suffering for such a ubiquitous disease and such pervasive suffering.
It should come as no surprise that Justice Reichbach has long been one of the best and boldest judges on the bench, That is the sort of person who would take a risk like this, to sacrifice himself for the welfare of others. Let any politician in Albany, Washington or any other place where self-important people meet under marble domes say they’re a better person than Gus Reichbach.
Update: On July 14, 2012, the Honorable Gustin Lewis Reichbach, 65, Justice of the Supreme Court of the State of New York, Kings County, died. May he rest in peace.
The NPR Talk of the Nation broadcast followed upon Cohen’s Washington Post column on the same subject.
New York Mayor Michael Bloomberg has a new kind of crime statistic. It is not the astoundingly low number of murders committed in his fair city — 471 in 2009 vs. about 2,000 per year in the 1980s — but murders not committed in the last decade: 5,600. Those people are alive today by the grace of God and the policing policies of the Bloomberg administration, particularly what is known as stop-and-frisk. New York City is heaven on earth possibly because it is a certain kind of hell for young black and Hispanic men.
I didn’t think I would ever do this, but here I am: There should be a law against this. The law should prohibit anyone from espousing something in public to large audiences that makes them inherently stupider. The law should prohibit people from offering an opinion on a subject about which they are clueless. The law should punish the murder of brain cells.
Richard Cohen, j’accuse.
Compared to the relatively benign column, the NPR broadcast made my eyes well up with tears, my ears ring and my fingers twitch. After the typical humblebrag beginnings of “I don’t know nothin’ about birthin’ no babies,” Cohen goes on the get most of the facts wrong and yet elevate ignorance to new heights. His opinion, baseless as he falsely admitted, was nonetheless worthy of assertion under the last refuge of the ignorant, common sense.
It’s a trade-off, Cohen informs, between all the people who aren’t dead today because of the stop and frisk policy, and all the people who suffered the stop and frisk. Cohen readily concedes that he’s not likely to be subject to it, and wouldn’t like it much if he was, but since it saved lives, proven by the absence of dead bodies littering the streets of Manhattan, it’s something we can’t dismiss.
Maybe Cohen was sick that day in third grade when the teacher, Mrs. Crabtree, mentioned it. That happens, but it’s a good reason not to write about it. The “it” is the Constitution. The “it” is the foundation of our government. The “it” is not subject to individual approval or “common sense” revisionism. In other words, columnists for the Washington Post who go on radio to talk about crap they know nothing about do not get to opine that the application of the Constitution to the government is subject to either their approval or their imaginings of common sense.
Of course order and security would be enhanced if the people had no rights and the government was all powerful. This isn’t exactly higher order thinking. But Cohen, when that bunch of dry good merchants decided to form a better union, they made some choices to guide how that government would function going forward. No one told you? Sorry, but it’s all over the internet.
The United States Constitution, Fourth Amendment, establishes a value judgment upon which this nation was formed. It provides that police cannot stop and frisk people at will. Done deal. This is not subject to either popular approval or your severely limited grasp and equivocation.
Yes, the stop and frisk program is more effective than adherence to the Constitution at preventing crime. So too would be anal cavity searches at will. Summary executions would also work pretty darned well. There is a laundry list of things the police could do that would have an impact, to at least some degree, on crime.
And yet the Constitution says they can’t.
It sucks? It’s not your cup of tea, Cohen? There’s always Singapore. I hear it’s lovely this time of year. They have no Fourth Amendment prohibiting the government from flexing its muscles at will to prevent the potential of crime by allowing people to be free from baseless searches. Sure, apartments are hard to find, but isn’t it worth it to feel safe?
What strikes me as incredible is that the newspaper that broke Watergate would give space to a column that makes people stupider. And if that’s not bad enough, the NPR puts Richard Cohen on air in the apparent hope that its funding won’t be cut.
Prefer safety over rights all you want, and point out the 5600 people alive today but for the flagrant violation of civil rights. There are many people who agree, despite the fact that it’s based on an imaginary argument. But to suggest that this is an open question, a toss-up for fans of security to decide, rather than a facial violation of our Constitution is just fundamentally ignorant. If you want to be a pundit, you don’t get to be ignorant, and you don’t get to make other people ignorant.
I would proclaim you guilty of my imaginary law, but then, in America, you have a right to trial. Unlike you, I didn’t miss the day in third grade when Mrs. Crabtree mentioned the Constitution.
Today is Judge Katherine Bolan Forrest’s seven month anniversary on the bench of the Southern District of New York, having been appointed by President Obama to fill Jed Rakoff’s seat, and it’s an anniversary worth celebrating. Not because seven months is such a big deal, but because her decision in Hedges v. Obama shows that the President did at least one thing right when he appointed her to the court.
The indefinite detention provision buried within the 2012 National Defense Authorization Act, which Obama signed with a lame excuse after flipping from his prior position, The President explained in his signing statement:
Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.
And if you say it’s unnecessary and will never be used, that makes it a good law? No matter. The President signed it, and law it became. Four plaintiffs with curious backgrounds brought suit in SDNY to hold it facially unconstitutional. Granting a preliminary injunction Judge Forest found they have a substantial likelihood of prevailing. It may seem both obvious and proper to many, but it’s a monumentally bold move for a new judge in a highly controversial, politically charged and legally problematic case. Yet, she did it.
The action itself isn’t without some curious problems, initially stemming from the fact that suit was brought in advance of someone being actually indefinitely detained. Of course, if the case wasn’t ripe until someone was, in fact, indefinitely detained, it would present a host of problems, even if we didn’t take the word “indefinitely” literally. Rather, an American seized off the streets of Des Moines and held incommunicado, with neither charges nor access to counsel, would have a really hard time suing the United States of America unless and until he was released from detention.
Of course, that means he would have already suffered all the harm possible (sorry, pal, but that’s how our legal system works), and may well find some stumbling blocks, like state secrets, to prevent an answer to silly questions like “why?”
But Judge Forrest didn’t allow peripheral questions to blind her to the big issue, the facial unconstitutionality of the notion that the Executive, in executing the power of one branch of government, imprison a person without charges or review by another branch of government, because he is, after all, the Executive. She offered the Department of Justice an opportunity assert that no conduct by plaintiffs would subject them to indefinite detention, and the government declined. So be it, the court concluded.
Over at Volokh Conspiracy, my buddy Orin Kerr finds the new judge’s reasoning “quite puzzling,” which is profspeak for incredibly wrong and stupid.
Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”
Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I don’t think it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct.
Orin raises an interesting point about whether a law that prohibits no conduct in itself is a criminal law. Judge Forrest held it “akin” to a criminal law, but how, Orin questions, can a law that prohibits nothing be void for vagueness?
Orin is correct that Section 1021 doesn’t prohibit conduct, or impose punishment, as those concepts exist in criminal law. He’s wrong, however, to ignore that this is the core of what’s so horribly wrong with the indefinite detention. It’s precisely these omissions that render the law facially unconstitutional. That the prohibited conduct is whatever the President says it is doesn’t mean that the law doesn’t prohibit conduct. It just means that it is wildly overbroad that it includes any and all conduct without limitation, provided the Executive decides that it supports any entity he deems hostile to American interests.
This is yet another example of the law providing untouchable breadth based on a lack of definition. The less said, the broader the power. As for the lack of punishment, indefinite detention may not be a sentence of imprisonment, but you still have to eat cheese sandwiches on white bread while wearing an unflattering jumpsuit. The absence of an end date doesn’t strike me as a good reason to not consider it punishment. In fact, it strikes me just the opposite.
The issues Orin raises reflect a more insidious problem, and one that goes well beyond this horribly misguided law. Congress has gone into the business of crafting hybrid laws, skirting the traditional definition of criminal laws (and often officially calling them civil which somehow make imprisonment feel much cheerier) and thereby defying constitutional scrutiny, whether over vagueness or due process. Another example of a hybrid criminal law is the post-sentence “civil” incarceration of sex offenders, or civil in rem asset forfeiture.
While these hybrids are different in basic ways, the point is that the traditional dichotomy between criminal and civil law has long since blurred, as has the creation of fully conceived crimes, with all the components ranging from definitions to sentences. That §1021 doesn’t fit the mold isn’t a reason why it shouldn’t be subject to constitutional scrutiny, but rather a reason why it must.
Tell the guy (which of course isn’t likely to happen, since no one will ever have an opportunity) who is “disappeared” that you’re sorry, but since he didn’t commit a crime and was never convicted and sentenced that his indefinite detention defies constitutional scrutiny. No doubt he’ll feel better about eating cheese sandwiches in a jumpsuit. Forever. For nothing.
The criminal justice system is broken. Many judges are little more than prosecutors in robes.
The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way.
Matt goes on to vent on the ironies and wrinklies of the broken system, how it’s a machine designed to efficiently move defendants from arrest to conviction. Whenever anyone uses language like “fuss and fume,” it tells me that emotions have overcome reason. This is the mistaken language of melodrama, which has nothing to do with the legal system. It’s merely the annoyance over someone impeding the working of the machinery of justice.
My response to Matt was to tell him to give himself a smack and snap out of it.
This is our life. This is what we do. If it was easy, anybody could do it. If the judges were fair or caring, then we would be on the pedestal instead of cops and prosecutors. But we’re not, and that’s how it goes. Don’t wallow. This job is hard, and it sucks. And we keep doing it anyway. Give yourself a smack and get back to work. There’s too much to do and no time for self-pity. If we don’t fight, nobody will.
Rick Horowitz has been sliding down the slope of frustration as well lately. He wrote:
One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.
He doesn’t mean it, but sometimes the frustration comes out that way. Brian Tannebaum gave Rick the pep talk.
Things in the criminal justice system are getting pretty bad. No doubt. A decade after 9/11 we see an America where the public has no desire to curtail police power (until their kid is of course “unfairly, wrongly, and illegally stopped and searched.”)
As a criminal defense lawyer, you have a couple choices – run for office (and maybe lose), try to become a judge (not easy either), write about it (which you do), leave the practice and focus on something else, or try to make a difference on client at a time.
A vacation is also not a bad idea. Go clear your head, take a deep breath, see the good in life in other areas.
Anger doesn’t change the system – anger and work – maybe – can make a difference.
But don’t ever think that it’s going to change much. Remember that the system operates as it does because the public allows it to.
The other day, I sat across the table from Radley Balko eating flaming cheese. I really love flaming cheese. And as we talked about stuff like where he gets his hair cut, he casually mentioned that public defenders have a macabre sense of humor. Gallows humor, he called it. I agreed, that they had to in order to survive their days in the well.
I then lapsed into a discussion of new criminal defense lawyers, punctuated by the occasional bite of flaming cheese. “We all start out with dreams of being the next Clarence Darrow, full of piss and vinegar.” I actually used that phrase, one that my father used all the time but rarely appears anymore.
And then they burn out when they figure out it’s not so easy, when they get smacked hard a few thousand times, when they have to explain to the next wide-eyed defendant why the law didn’t work. Again. Why they have to say good-bye to their children and will spend the next decade wearing an khaki jumpsuit.
There is no good answer to why. Not for the defendant. Not for the lawyer.
Debates about truth and justice are for kids and fools. The real fight is over how to maintain the zeal a young lawyer feels when he steps into the well for the very first time after he’s been beaten to a pulp one time too many.
The blawgosphere is coming of an age when the last generation of blawgers are reaching the burn out point. The frustration is overwhelming. The lie of the system has been revealed. The realization that they may not be the next Clarence Darrow, or even his third cousin, has become undeniable. As brilliant and tough as they are when they start, they can no longer rely on their youthful vigor and enthusiasm to keep them going.
Those of us who have gotten over the hump and survived (meaning that we didn’t succumb to drugs and alcohol, give up on defending and churn pleas for a living or turn our law practice into a used car lot), we’ve watched as comrades have quietly fallen by the wayside. Public defenders could share their frustrations with others in their office. Private lawyers were reluctant to do so, fearing that it showed weakness or failure. Even in frustration, no one wants to look weak.
The blawgosphere has changed this, providing a place to vent one’s frustrations combined with the new normal of exposing one’s inner feelings to all. It’s a good thing. These feelings of frustration, loneliness, failure have stolen many a good lawyer from the ranks. We need them. Defendants need them, even though they may hate them for being the embodiment of the machinery of a broken system. Without them, who will gain the experience necessary to keep up the fight?
It’s not that we’re likely to win the war. If we can win the occasional battle, we’ve served our purpose well. It’s just a matter of fighting each battle at a time, always believing that this is the one you will win. And if you don’t, you shake it off and fight the next battle. And the next.
The criminal defense lawyers who hit the wall of frustration and break through are the ones who keep the system as honest as it can ever be. It may not be much, but without them, there is no one to impede the machinery of justice. We’ve all been there. We just keep fighting. Sometimes it helps to make a joke of it just to keep our sanity. Sometimes a stiff drink helps. A vacation is always a good idea. Whatever it takes, break through the wall. Welcome to the other side.
Radley Balko posts about a car stop in Monterey, Tennessee, where a brave police officer, Larry Bates, caught a heinous criminal. The person driving the car, George Reby, was no criminal. He wasn’t arrested.
Reby was stopped for speeding, though it’s unclear whether he was given a ticket. It may have slipped the officer’s mind as he struggled with the vicious criminal, wrestled the criminal until, exhausted and spent, the criminal was subdued. The name of the vicious criminal in the accusatory charges against it? $22,000 in United States Currency.
A Monterey police officer wanted to know if he was carrying any large amounts of cash.
“I said, ‘Around $20,000,'” he recalled. “Then, at the point, he said, ‘Do you mind if I search your vehicle?’ I said, ‘No, I don’t mind.’ I certainly didn’t feel I was doing anything wrong. It was my money.”
That’s when Officer Larry Bates confiscated the cash based on his suspicion that it was drug money.
“Why didn’t you arrest him?” we asked Bates.
“Because he hadn’t committed a criminal law,” the officer answered.
The reason for the initial question is, sadly, obvious: forfeiture has long been a mainstay of law enforcement. The seized monies go to various purposes according to jurisdiction. In most places, the funds are a prize for law enforcement budgets, providing the wherewithal to purchase cool new stuff like SWAT equipment or tanks to stop the terrorists from invading Tennessee. In other places, New York City for example, local seizures go to the police pension fund. And don’t police deserve it for all they do to protect us?
So what makes currency such a heinous criminal that it requires a cop to wrestle it into submission?
Bates said the amount of money and the way it was packed gave him reason to be suspicious.
“The safest place to put your money if it’s legitimate is in a bank account,” he explained. “He stated he had two. I would put it in a bank account. It draws interest and it’s safer.”
“But it’s not illegal to carry cash,” we noted.
“No, it’s not illegal to carry cash,” Bates said. “Again, it’s what the cash is being used for to facilitate or what it is being utilized for.”
If we assume, just for kicks, that Bates was sincere in his suspicion, it places the decision of a nice enough fellow like Reby subject to the sensibilities of a cop like Bates. Since Bates thought it would be a better idea, if the money was to be used for legit purposes, to put it in a bank account, it struck Bates that Reby was likely to be using it for drugs. That, under the legal fiction of forfeiture, means the money offends the sovereign, and becomes the criminal. It’s lucky that Bates didn’t have to tase the money for failure to respond immediately to questioning, but then, what question could there be?
NewsChannel 5 Investigates noted, “But you had no proof that money was being used for drug trafficking, correct? No proof?”
“And he couldn’t prove it was legitimate,” Bates insisted.
The word “proof” here is probably not the best choice. Proof has nothing to do with it. The officer was under no obligation to prove anything. Indeed, the burden in forfeiture is probable cause, which requires no probability and cause only limited by an officer’s imagination.
Bates’ response, that it’s the burden of the person from whom currency was taken to prove it was legitimate, isn’t as wrong-headed as you might think at first. The trick is that if an officer can articulate any basis of suspicion, the burden to prove legitimacy falls on the claimant. And the only thing the officer needs to say is that it’s a large amount of currency.
Possession of a large amount of currency in the United States of America is, alone, probable cause to believe that it is contraband, either the proceeds of crime or to be used for criminal purposes. There exists a tacit presumption that non-criminals do not use cash. Cash was the first victim in the War on Drugs, and the development of the wide variety of monetary tools in common use today was intended to facilitate the tracking of financial transactions by the government, both to end the underground economy that survived on currency and to enable taxation of all transactions.
So cash was once king. Now it’s a criminal. Oh, how the mighty have fallen.
The story from Tennessee offers insight into many of the tricks of the forfeiture trade, from targeting out of state drivers (you can tell by the plates, guys) in order to substantially increase the cost and burden of fighting for the return of the money (Reby was from New Jersey), to the seemingly innocuous inquiries having no bearing on the basis for the stop or any other facially illegal conduct. Handing out a speeding ticket doesn’t get anyone a medal. Bringing home $22,000 in currency is a fine day’s work.
And, of course, the only person worse than the officer taking cash because it’s there is the lawyer hired to fight for its return.
It took him four months to get his money back, but it usually takes a lot longer for most people.
And that, Miles said, works to the benefit of the police.
He had two clients where police agreed to drop the cases in exchange for a cut of the money — $1,000 in one case, $2,000 in another. In both cases, that was less than what they might have paid in attorney fees.
A whole lot less. Like innocent people who can’t understand why they have to pay their lawyer, or guilty people who can’t understand why they aren’t guaranteed a win for their money, the legal fee paid by the wronged claimant whose only mistake was to believe that currency issued by the United States government was legal tender for its return is the glue that holds the scheme together.
And the final nail in the coffin is that judicial approval of forfeiture is an ex parte proceeding, since the criminal in the currency, prosecuted in rem. Not until a claimant intervenes, after the seizure and judicial approval, by establishing his bona fides to claim the return of the money (as if it having been taken from him in the first place didn’t suffice), and disproves the presumption that cash is evil, does the money get returned. And not everybody can prove either the source or purpose of the currency, despite its having nothing to do with crime.
I remember my first forfeiture case, back in the mid-1980s, when we conferenced the proceeding before a federal judge who later went on to the 2d Circuit. He scoffed at the government for making this very argument, reminding the prosecutor of the age-old maxim, the law abhors a forfeiture. Those days are only a fond memory.
It’s an internet meme, the Rules of the Internet. It’s a funny joke to most, though in a peculiar way it has always carried a kernel of truth. But as Max Kennerly found out after trial, the joke is on us.
Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.
As is invariably the case, what is learned from the jurors isn’t quite what one expects. The case involved an oral agreement, a handshake. No pics.
When we talked to the jury, we learned that the two jurors who felt we hadn’t met our burden, and then two more jurors who had kept the damages award lower (the remaining eight jurors wanted to award our client nearly $7 million), all had one thing in common: they were under 30 years old, and they expected more of a paper trail for our client’s claims. Said one, “I felt your client was negligent in not doing more to protect himself with a written agreement.”
The norms, the expectations of Max’s baby jurors were so strong that they were incapable of conceiving of a legitimate world where there was trust. The notion of two people shaking hands, making a deal, and honoring that deal, when it came to anything of substance, was too far removed from their reality for them to accept. No contract? It didn’t happen.
Plenty of stuff has been lost in the past decade. Some understandably, such as rotary phones. Some disturbing, like United States currency, which has become presumptive proof of criminality. But no one said anything along the way that young people have lost the concept of honoring their word.
Maybe it’s because we’ve become a lawyered-up society. Maybe it’s because writings, whether texts, emails, twists, whatever, have replaced all other forms of communication, such that there must, by definition, be written evidence of every breath. Maybe it’s because a cottage industry tells young people that legal advice is free to all, and worth every penny. Or maybe it’s because their world has become their memes; the funny joke has replaced social norms as the true glue of society.
I was invited to come in and speak on how lawyers can use the Internet for professional development (getting to be a better lawyer) and business development (getting a job or getting clients in an area you want to work in – area of practice or location).
While it may seem odd that a law school invited a vendor in to speak to students, I’ve been on a panel with Kevin and know that he gives not only a good talk, but a straight talk. He doesn’t sell his products, or even push his LinkedIn Blogging group (“where brain cells go to die”). The old lawyer part of him kicks into gear and he tries to provide serious information, if only a bit tainted by his perspective. Then again, his audience tends not to want to hear straight information, but rather the quickest, surest way to make money. You can’t blame Kevin for what his audience wants of him.
What he found was disconcerting.
Rather than being ahead of the curve in their use of the Internet, most of the students were behind practicing lawyers in how to use the Internet to accelerate relationships and word of mouth referrals. Ironically, all of them agreed it was referrals and a strong word of mouth reputation that drove a good lawyer’s practice.
Were these 3Ls the last bastion of disconnected, rotary phone users? I suspect what Kevin means is that they may have all clutched a iPhone in their grubby little hands, but their grasp of the internet was limited to lurking on 4Chan and reading Above the Law, thinking that this is what being a lawyer in the age of the internet was all about.
Kevin was directing them to an internet they never knew existed, the one where lawyers try desperately to sell themselves to each other. It was an epiphany.
Afterwards out in the hallway (where you get to know students and their struggles), students came up to me and asked why doesn’t someone like me teach a semester long class or do a semester or year long clinic on how to use the Internet in the ways I was trying to cover in 2 hours. Students told me that no one had told them how to use the net this way. One student told me he felt so far behind the times.
If ever there was an argument for dispensing with the third year of law school, this is it. Finally, something of worth to be learned. Not cross-examination. Not how to craft an effective motion. Not even the rudiments of negotiation. Nope. They wanted to know how to sell themselves on the internet. They wanted a semester’s worth of it, if not a full year clinic. They know what matters.
Images of another 10,000 websites popping up overnight, proclaiming shiny new lawyers as “experienced, aggressive and caring,” with a very impressive resume provided one doesn’t fact check much, came immediately to mind. I wonder whether any lawprof has taken a look at what students are saying about themselves on the internet a year after graduation?
But as long as it’s there, on the internet, in writing, with pictures, it’s real. The handshake is dead. Honoring one’s word is for dinosaurs. Anyone who doesn’t create hard proof deserves to get nothing. We used to call this memorializing an understanding, but it’s now been subsumed by an internet meme. And with Kevin’s help, they’re coming to a lawyer website near you. You can rest assured they’ll have pics, because without pics, it never happened.
It would be a New York joke if it didn’t mean that 684,000 people were stopped on the streets of New York and frisked last year. In 2003, cops stopped and frisked 160,851 people and recovered 604 guns. This proved that stop and frisked worked, even if it meant the sacrifice of the right to be left alone of more than 150,000 people.
Last year, they recovered 780 guns, proportionately negligible, which again proves that stop and frisk works. Mayor Bloomberg explains that the reason so few guns per capita were seized is that people are afraid to walk around the guns for fear of being stopped and frisked. With that rationale, the program is a rousing success no matter what comes of it.
More than half of all stops were conducted because the individual displayed “furtive movements” — which is so vague as to be meaningless.
The data also show that the police are significantly more likely to use force when they stop blacks and Hispanics than when they stop whites. This means minority targets are more likely to be slammed against walls or spread-eagled while officers go through their belongings. Even when victims are unhurt, they are likely to develop a deep and abiding distrust of law enforcement.
Let’s be clear: if police could stop at will anyone they wanted, they would turn up more illegal stuff, whether guns or drugs, than they would if they were limited by something like, oh, a Constitution. Same is true if they could search houses at will. Or people traveling on airplanes.
That Mayor Bloomberg has to stretch so far to spin what he knows to be a flagrantly unlawful program is telling. He’s not stupid. Few billionaires are, and even then, they have the wherewithal to surround themselves with smart people. Somebody must have mentioned to him at some point that this really isn’t kosher. When the Newspaper That Shall Not Be Named Here Anymore has an editorial stating that stop and frisk is a terribly wrong thing to do, does Punch Sulzberger think it’s going to change something?
What this reflects is the Mayor’s relative weighing of two irreconcilable responsibilities, one to protect New Yorker’s from crime, and the other to respect New Yorker’s right to walk the streets without being slammed against a wall for no particular reason. When David Dinkins was hizzoner, there were bloodbaths on the streets of uptown Manhattan, and chains ripped from the necks of white folks downtown. Dinkins wasn’t as inclined to promote the police rousting people at will and people screamed about the murder and mugging rates. Of course, the crack epidemic might have had something to do with it as well.
But times have changed, as has the regime on power, and the mess that existed under Dinkins, and exacerbated under his successor, Rudy “If Only I Could Be President” Giuliani, have given way to substantially reduced crime, particularly gun crime. The penalties for possession of a weapon are far more severe than they used to be, and the demographics have changed as well.
So naturally, the solution is the perpetuation of a program at whose core is the evisceration of the constitutional right to be left alone. And naysayers aside, it works, even if it means that many hundreds of thousand of people have to give up a little so that the residents of Sutton Place can sleep at night.
Because filling out forms is the highest order of government service, police officers are expected to do two things: Each time they stop and frisk someone, fill out a form. Each time they fill out a stop and frisk form, state the basis for the stop. And so they do.
This has been going on since the beginning of the program, when naive people (like me) thought 160,851 people stopped for no reason was an outrage. Now that we’re closing in on 700,000, maybe it’s time to be honest with ourselves. While there has been some squawking from the Newspaper Who Shall Not be Named Here Anymore, the NYCLU and a couple bloggers, there has been no massive uprising against the stop and frisk program. Bloomberg continues in his post as Ruler for Life, and Ray Kelly bobble-head dolls continue to sell like hotcakes.
Forget Mapp v. Ohio, which the uninitiated seem to think applies, and even DeBour, which provides the constitutional limits to police seizures in New York. Every lawyer, every judge, every politician, every cop and certainly every black and Hispanic, in New York knows that to walk the streets of Manhattan is to invite a stop and frisk. No, the law says they can’t do it. Yes, they do it anyway. No, as the numbers climb closer to a million souls stripped of their right to walk on the street without being tossed in the name of safety, there are no cries of revolution.
There is no epidemic of furtive movements. Let’s put the lie to rest, stop demanding that cops keep breaking the law again by filing false documents at the behest of the administration, and put up a big sign at the midtown tunnel: All persons subject to search.
The choice has been made and the Constitution lost. At least show New Yorkers the courtesy of being honest about it.
James Craig, of “I’m a Phoenix fame,” heads up the 1000 member Cincinnati police department. While that number of officers is slightly more than the number needed to change a New York light bulb, it’s still a big city police department, which makes James Craig’s announcement matter, as he’s the first top cop to admit the obvious: Tasers sometimes kill people.
In light of a recently released scientific study that shows the electronic Taser stun guns can cause cardiac arrest and death, the leader of Greater Cincinnati and Northern Kentucky’s largest police force announced today that the findings concern him and changes are coming to the department’s policy regarding the devices.
Cincinnati Police Chief James Craig said the changes should come in about a month. Those could include altering where officers direct the Taser’s prongs on a suspect’s body, perhaps at the back as opposed to the front, Craig said.
Every silver lining has its cloud, of course, so while Craig acknowledges that non-lethal means occasionally lethal, and that there is presumptive connection between shooting people in the chest and cardiac arrest, he solution is to shoot people in the back?
One might wonder if he has considered why, praytell, the back of a person who needs shooting would be facing the cop. But it’s possible that he didn’t study anatomy at the University of Phoenix, and remains confused as to which direction the person in need of Tasering is facing when his actions are so threatening as to demand the use of force against him.
“I am concerned about it because, like most police chiefs, I am a big supporter of the tool. We know that the tool has saved lives,” Craig told reporters in a media briefing at Cincinnati police headquarters in the West End. “We know it’s minimizing injuries to both police officers and suspects. Based on this report we are looking at our existing policy. We will be making some revisions.”
He said he will not pull Tasers from officers’ belts, and this is not the first time the device’s policy has been revised.
“We are not going to eliminate the use of Taser. We just want to make sure we are doing it within what this evidence-based report is suggesting,” he said. “I think that it is suggesting – the key point – is elevated heart rate and the taser coming in contact close proximity to the heart if someone has an elevated heart rate. Usually when we have contact with suspects, it’s pretty clear their heart rate is elevated.
That’s pretty darned likely, as is the possibility that they are using drugs or in less than perfect health, all characteristics of the sort of folks who end up on the business end of a Taser, and all characteristics of the sort of people who die when tased.
While Craig’s embracing evidence-based thought is a novel approach for a police department, and one that should be (and is) applauded, there remains a question as to what, exactly, he plans to do to reduce the likelihood of people being killed by “non-lethal force” for calling cops bad names. The “tase-’em-in-the-back” policy has some inherent problems, the least of which is the laws of physics. What about the “why-tase-’em-at-all” question?
Now that Chief Craig has openly acknowledged what everyone not on the Taser International payroll has long known to be the case, that Tasers aren’t always less-than-lethal, the next logical step is control their use as the tool of first resort to prevent a cop from having to spend a few minutes talking a defendant off the ledge rather than tasing anyone who backtalks, questions or doesn’t comply fast enough (especially if they happen to be deaf, blind or intellectually or mentally impaired).
At what point will a big city police chief decide that painful and potentially deadly force should not be used except to meet force and prevent injury?
Since 2001, more than 500 people have died following Taser stuns according to Amnesty International, which said in February that stricter guidelines for Taser use were “imperative.”
There is no doubt that Tasers have saved lives, both cop and non-cop, when there was justification for the use of force, and getting tased beat the hell out of a bullet from a Glock. The problem isn’t that they haven’t served as a valued tool, but that the use of Tasers as an expedient means of shutting down a recalcitrant person who poses no threat to anybody for the convenience of a police officer remains largely uncontrolled.
The idea of praising James Craig for acknowledging that Tasers can kill seems incredibly banal at this point. It’s not that empirical evidence isn’t a good thing, but all those dead bodies send a message of their own, despite Taser International’s explanation that it just must have been their time, and had nothing to do with getting tased.
If someone threatens a cop, or anyone else, with physical harm, their chances of surviving a Taser over a bullet, or even a half dozen cops with clubs beating them until their clubs break, suggests that the weapon should remain on the utility belt. It is a useful device, and one that benefits everyone involved when used properly.
Maybe avoiding the chest is a great idea to reduce the risk of killing someone. Maybe avoiding the use of weapons, of force, altogether when there is no reason for any force to be used, is a better idea. Just because there’s a Taser on their belt doesn’t mean they have to use it whenever it’s convenient. And if they don’t use it without reason, that’s one less person who won’t die.
One of the tactics frequently urged by aggressive lawyers is to push judges to start living up to their oaths by granting motions, whether for suppression, controversion or even simple discovery. You know, the stuff that really shouldn’t be an issue at all except for the fact that the Government will not negotiate with terrorists give the defense half a chance at preparing.
On the island of Saipan in the northern Marianas, a lawyer named George Anthony Long pushed the envelope by demanding that the government disclose stuff it didn’t want to disclose. Not that it was some huge secret, but that it would have offered Long the chance of defending his client, Julita Sablan. And the judge, Mark W. Bennett, granted his motion.
So the government promptly complied with the court’s order and turned the requested material over to the defense? Nope. From the Rule 48 motion, which is the equivalent of telling Judge Bennett to go screw himself. Instead of disclosing, they responded with a pox on your bench. And, naturally, the defense consented.
Was Judge Bennett serious? They called his bluff by tossing the prosecution and leaving the good folks of the Northern Marianas in the clutches of Julita Sablan. Hah, they spit. And when they tell the tale of the judge who condemned Saipan to drugs, it will be on your head, the government said.
And Judge Bennett collapsed. He folded like a cheap suit.
Judge Bennett, sua sponte (for you non-lawyers or folks who slept through Latin class, sua sponte means he did it on his own without anybody asking) reversed his prior ruling compelling disclosure and denied the government’s motion to dismiss. Pwned.
If you’ve ever had the pleasure of getting a huge ruling, one where you get a judge to move off the dime and actually make the government do something that forces them to give the defense half a chance at fighting, you know the feeling. It’s like a miracle. It’s fantastic. You feel ten feet tall, You feel brilliant. You feel like you’ve finally done something to make all those knee-jerk denials, all those affirmed no opinions, all those rulings that cut your knees out from under you and make you wonder why you wasted a clean shirt, worthwhile. It’s one of the best feelings a criminal defense lawyer can get. And defendants like it too.
And then the rug gets pulled out from under you when the court, in an act of supreme supplication, realizes that by doing the right thing and applying law, he’s violated the basic precept of the legal system: Never give the defense a fighting chance. And poof, it’s gone. Reversed, denied, gone. No, there’s nothing more to discuss.
Try explaining to your client how, in the blink of an eye, a huge win turned into a crashing defeat for no reason whatsoever. Except it’s not quite no reason, but really acquiescence to the government. The government refused, and the judge couldn’t bear the government’s ire. And so, poof.
But the law wasn’t done smacking George Long around just yet. It wasn’t enough that his win crashed around him. The defendant pleaded guilty, and he argued that Judge Bennett should take the government’s willingness to dismiss into consideration at sentence. Nope, he said. Judge Bennett, having been told he’s a bad boy once by the government, wasn’t about to suffer it’s displeasure again.
Long appealed. Nope, said the 9th Circuit in an unpublished opinion, noting that the defendant got enough of a break as far as they were concerned. But Long, even though he was assigned CJA, petitioned for rehearing en banc because the Circuit affirmance neglected to mention, note, consider or recognize that Judge Bennett’s refusal to consider the Rule 48 motion at sentence wasn’t quite the law.
The market is speaking. It may be wrong and foolish, but that never stopped the market from speaking before, and it won’t this time either. And you can’t argue with the market because it only speaks. It doesn’t listen. At The Legal Whiteboard, Bill Henderson is trying to tell us what it’s saying.
This story is fresh off the newswire: “Law firms are no more the preferred destination for fresh law graduates looking for jobs. With outsourcing catching up even in this industry, legal process outsourcing (LPO) companies are now bagging a large number of graduates.” A law professor opines, “There is a rising trend of students opting for LPOs. The nature of work is changing and these places offer good packages and work culture. … [P]romotions also come faster in LPOs.”
Wonderful news. But the story was written for the Hindu Business Line. The law graduates went to school in India. Why are the LPOs become more attractive jobs for Indian law grads? Probably because (a) LPOs are increasingly focusing on process and technology, engineering out the drudgery work, and (b) process and technology are creating a sustainable competitive advantage within a global industry — and that can support higher salaries.
This isn’t the entire legal market, but it has a virtue that lawyers in the United States don’t have. It’s alive. It’s thriving. It’s where the legal work that used to go to American lawyers now lives. Not all of it, of course, but a lot of it. Not all types of legal work, but the routine, commoditized, crappy, boring stuff that was once the lifeblood of new lawyers.
Bill has an important message in his post, which sadly is hidden behind academic jargon, on the one hand, and inadequately detailed application to practicing lawyers, on the other. So let me play sign language interpreter for a moment. The bulk of work that kept baby lawyers in civil firms busy until they got some decent lawyer chops and learned how to bring in business is being done in Bangalore at $3 an hour or fed into a computer. Where it’s not going is a firm near you, which is why a firm near you has no job for you.
This means that lawyers have to shift out of the routinized, commoditized work that provided them jobs before into practice areas that can’t be shipped off shore. Except they aren’t competent to do so, undermine the market price and fill the courthouse with death and destruction. They do this because they have no place else to turn. They have a ticket. They have debt. They have no other future. And we keep churning them out.
A second post by Bill Henderson notes that LegalZoom has filed for an Initial Public Offering. While real lawyers struggle to pay rent, LZ had revenue of $156 million and turned a profit of $12 million. Plus, it loves all those poor, miserable souls who need legal-type stuff but don’t want to pay a lawyer.
We believe that everyone deserves access to quality legal services so they can benefit from the full protection of the law. Our mission is to be the trusted destination where small businesses and consumers address their important legal needs and to be our customers’ legal partner for life.
A different way to say that would be that they sell forms to people who have no clue what they need or why, using the brilliant method of taking a piece of paper that only needs to be written once and selling it a million times over. One size fits all? Close but no cigar? Not even close? A disaster waiting to happen? So what?
Whether it’s corporations or mom & pops, they are prepared to trade off bespoke legal services for potentially crappy but substantially less expensive, and take their risks. They’ve come to realize that the “bespoke” legal services aren’t all that great, because most lawyers aspire to mediocrity, caring only that the check cleared, and because even if a client tries to do everything as well as possible, the legal system (I mean you, judges) is considered so unreliable that there’s no faith that the righteous will prevail. So if expensive legal services are a crapshoot, and inexpensive legal services are a crapshoot, why pay more?
But we’re criminal defense lawyers here. Neither computers nor lawyers in Bangalore can do what we do, right?
Do the math. Law schools continue to crank out tens of thousands of newly minted, deeply indebted, lawyers every year with no place to go. To the extent that they have any hope of practicing law, the kid who dreamed of one day being an M&A lawyer at Skadden and buying that Ferrari is now standing in the hallway of 100 Centre Street hustling misdemeanors at $100 a pop. He has no choice, if he wants to eat again tonight.
But lawyers aren’t fungible, you say? Of course not, but most clients can’t tell us apart. We all wear similar suits and, despite the cheerleaders, our websites extolling our virtues are essentially the same. You’re an “experience, aggressive and caring” lawyer? Well, isn’t that special. So is the kid next door, who got his licence last week. So is the old man down the hall, who has 30 years of experience. So is the guy who did real estate closings until the business went bust. Etc. We’ve hyped ourselves into oblivion, and the potential client has a choice of 31 flavors that all claim to be vanilla.
On the other hand, he doesn’t really want to waste his money on you. You say you’re worth it, but he can’t tell. You guarantee nothing, because you can’t. The system sucks, as the internet tells us, making the concept of trying one’s best seem like a fools errand. The net result is why bother. If you’re going to lose anyway, save your money.
Within the discussion of what has to change in the nature of American law schools, and the practice of law, is that our society has no need for the tens of thousands of new lawyers being dumped on the market. Not only is it bad for the silly children whose mothers told them that becoming a lawyer assured them reasonable prestige and security, but it’s bad for everyone. The Boulevard can only handle so many lawyers in hotpants.
But Greenfield, you ask, isn’t it true that there is a massive underserved population who is in desperate need of legal services? What about them?
Yes, I respond, but they’re not your market, your potential client. They want and need a lawyer, but they have no money to pay you. Society won’t put together the money to pay you, as that would take needed money away from buying armored vehicles for the police in Peoria to stop terrorists. While it would be very nice of you to serve these poor, needy folks, what will you tell your babies when you have no money to put food in front of them this evening and they’re really, really hungry? The price of cannibalizing ourselves is that a robust legal profession can’t be maintained, and if lawyers have to take jobs as assistant manager at Dairy Queen to survive, they really aren’t lawyers anymore and can’t help much of anyone.
Shutter the law schools. Whether it’s a third, or half, or more, there is no future in the law for most of these students. As we discuss how to fix the systemic problems arising from the structural changes in the law that Bill Henderson talks about, one thing that’s clear is that we have no use for the numbers of full fledged lawyers that are being produced. Yet, the ABA keeps accrediting more law schools, and they do whatever they have to do to fill their seats.
Don’t cry for the empty classrooms and idle lawprofs. They can convert them to carpentry schools. Do you have any idea how hard it is to find a good carpenter? And lawprofs, being the intellectual elite, will quickly learn how to lecture on the theory of hammers and nails. They’ll survive, like cockroaches after nuclear holocaust. But whether lawyers survive is another story.
My gift this mother’s day is to pass along a message. You love your child and want the best for him. Don’t let him become a lawyer. Maybe a cowboy would be better.
