The Marginal Cost of Thrift

With much discussion at the  Mud Puddle and elsewhere about what it takes for a new lawyer to start up his own firm, a post by  marketing guru Seth Godin struck home.



Making big decisions about money


We’re bad it. And marketers know this.


Consider: you’re buying a $30,000 car and you have the option of upgrading the stereo to the 18 speaker, 100 watt version for just $500 more. Should you?

In a surprisingly large number of cases, we take the stereo, even though we’d never buy a nice stereo at home.

In case nothing about his example struck you as curious, the point is that you might not be inclined to lay out $500 for a stereo upgrade if it was not connected to a car. Does the fact that it’s just another $500 when you’re already buying a car make it digestible? Godin explains.



Here’s one reason we mess up: Money is just a number.


Comparing dreams of a great stereo (four years of driving long distances, listening to great music!) compared with the daily reminder of our cheapness makes picking the better stereo feel easier. After all, we’re not giving up anything but a number.

In other words, Godin says we don’t connect the value of the price to anything real, and therefore don’t feel as if there is any actual cost involved.  His solution:



Here’s how to undo the self-marketing. Stop using numbers.


You can have the stereo if you give up going to Starbucks every workday for the next year and a half. Worth it?

Interesting that Godin, a marketer, would use Starbucks as his example. From my seat, I wonder why so many people choose a cup of joe at Starbucks while watching the world go by on their iPad. I love coffee. I drink a ton of it, but mine is made in a pot and the cost is negligible, even with the price of my beloved half and half factored in.

Last weekend, Dr. SJ bought a new Prius. She could have gotten the 2012 model with a very cool navigation system that allowed the driver to talk to it and it talked back in return. Instead, she selected a 2011 model and passed on the nav system, which would have added another $2000 to the price. While she’s tough on cars, regularly haranguing them for not doing what she thinks they should, she doesn’t drive to places that would require directions frequently. For the rare time she does, she has a Hagstroms. I asked the salesman if he knew what a Hagstroms was. The very nice young man did not.

The question wasn’t whether Dr. SJ was cheap, though she can squeeze a nickel until the buffalo cries. Rather, the question was whether the nav system (which really was pretty cool) was worth another $2000.  She had managed to get around pretty well without one for a long time. Her need for one was limited. By the time the car was passed to its next owner, the tech would be archaic and return no value.  And cool wasn’t worth $2000.

Godin attributes this fiscal disconnect to marketing plus the inability to convert empty numbers to real life experience.  Over the years, I’ve watched from a slight distance as a variety of new-fangled necessities were created and embraced by younger folks. Between cable TV, plus the cost of the box and clicker, and smartphones, plus unlimited texting and 4G internet access, not to mention the vente mocha frappucino, I pondered the costs that they happily took on. For people who weren’t making money hand over fist, the few hundred bucks struck me as exorbitant and wasteful. But that’s me. They didn’t blink.

One fellow who road the train with me every day did pretty well, and had every toy a guy could have to show it. He always had the latest gadget. He drove the coolest car. He wore expensive clothing and took fabulous vacations. Unlike his envious friends, he was making the money to pay for his toys. But when the economy tanked, so did his income. We learned that he spent every penny he made, plus some, to live in grand style. At first, his demeanor changed from cockiness to quiet desperation. One day, he wasn’t on the train. We never saw him on the train again.

I ran into him on the street one day and asked him how he was doing. He told me he had gotten divorced, as the fights with his wife grew in direct inverse proportion to his fortune.  He told me that with all the fun things he owned, he neglected to put anything away for a rainy day. He was unprepared when the storm hit.  Not only could he not afford the toys that were once an integral part of his life, but creditors were knocking down his door.  The freedom to spend money, even more than he had, became his prison. And he was a hedge fund guy.

For new lawyers, busy debating the merits of the new iPad or the slimmest computer capable of doing wonderful things, I’m constantly befuddled by one question: Why? When I get a call to talk from a new lawyer asking for advice on setting up their practice, and learn that they can’t afford a real office but have unlimited internet access, I can’t help but wonder whether they realize that they’ve traded their monthly office nut for a toy they can live without. 

Then again, even the gainfully unemployed have all the toys. I assume their parents pay the bill, which makes me wonder what their parents are thinking.  But nobody seems to have connected the dots between things they need, things they want, and what it means in their life.

When Dr. SJ passed on the cool nav system, I told her to get it if she wants it. She said no, that if she needed a navigation system, she would pick up a Garmin for $100, but she suspected that her Hagstroms would do just fine. It had gotten her wherever she needed to go for a few decades, and there was no reason to throw $2000 in a hole for nothing. 

But then, when she started her practice, she had nothing and scraped her way to solid footing by figuring out what she really needed, what she could afford and what was worth the price.  It’s a lesson that stays with you for the rest of your life.  Does anybody still learn that lesson?


Stand or Retreat: A Hard Choice

The distinguishing factor of “Stand Your Ground” laws, which have been under renewed debate since George Zimmerman killed Trayvon Martin, is a simple concept: The rule was that a person had the duty to retreat if he can safely do so rather than use force against an aggressor in proportion to the force being used against him. “Stand your ground” laws eliminated this duty. Simple to write. Really hard to do.

Former New York City Deputy Police Commissioner John Timoney, who went on to be Miami Police Commissioner, has an op-ed in the New York Times.  Surprisingly to some, and less so to others who are involved in the system, most police officials hate “stand your ground,” Timoney included.

Trying to control shootings by members of a well-trained and disciplined police department is a daunting enough task. Laws like “stand your ground” give citizens unfettered power and discretion with no accountability. It is a recipe for disaster.

To call it “unfettered power” is a bit too hyperbolic. It had plenty of fetters, but they were only considered after the fact, during what should have been the calm, reflective period when every detail could be considered.  


[A] police officer is held to account for every single bullet he or she discharges, so why should a private citizen be given more rights when it came to using deadly physical force?

The first part of this sentence is one that raises eyebrows. While this may be how it should work, experience suggests otherwise, bringing the latter part of the sentence essentially in line the beginning.  Most of us would argue that as long as the ‘good guy” ended up shooting the “bad guy,” everything else is a rationalization to justify it.


If you found yourself in a situation where you felt threatened but could safely retreat, you had the duty to do so. (A police officer does not have the duty to retreat; that is the distinction between a sworn police officer and the average citizen regarding use of force.)

Police officers are trained to de-escalate highly charged encounters with aggressive people, using deadly force as a last resort. Citizens, on the other hand, may act from emotion and perceived threats. But “stand your ground” gives citizens the right to use force in public if they feel threatened. As the law emphatically states, a citizen has “no duty to retreat and has the right to stand his or her ground.”

That police are trained to de-escalate an encounter doesn’t mean they do so, but Timoney’s point, that society authorizes certain members, who are charged with dealing with force and, at least theoretically, trained to end an encounter without anyone being harmed, is critical. While we may complain (regularly) that police fail in this regard, the answer is not to let everyone behave like bad cops, but to make bad cops do better.


[C}itizens feel threatened all the time, whether it’s from the approach of an aggressive panhandler or squeegee pest or even just walking down a poorly lighted street at night. In tightly congested urban areas, public encounters can be threatening; a look, a physical bump, a leer, someone you think may be following you. This is part of urban life. You learn to navigate threatening settings without resorting to force. Retreating is always the best option.

This is where Timoney gets to the crux of the matter. Indeed, this is where  Geraldo’s hoodie point comes into play, as well as Zimmerman’s “suspicion.”  Just as with the cries of “bully” that permeate the school hallways, fear permeates the streets, at least for some.  One person’s normal is another’s threat. One never knows whether the hand in a pocket is grasping a handgun or a package of Skittles.  The argument is whether one needs to wait until the gun is pulled before defending, at which point it’s too late, or can take pre-emptive action because he feels threatened.

We can argue amongst ourselves about what constitutes a threat, and which threats are sufficient to justify pulling the trigger on a licensed magnum.  There is likely to be a great deal of disagreement about where the tipping point is between a threat of deadly force and unwarranted or mistaken fear.  People believe with absolute certainty that the point where their sensibilities kick in, where they think concern turns into a legal reason to kill, is correct.  As with most questions that depend on an individuals’ personal sensibilities, we tend to all have different views, yet are absolutely certain that ours is right and anyone who disagrees is wrong.

There are platitudes that allow us to rationalize the hazy areas, such as “better to be judged by twelve than carried by six.” How about better not to be judged or carried?  No matter how much better platitudes make us feel, they almost never contribute much to help us think through these situations. 

On the other hand, in the face of a threat, the ability to think things through with perfection, to know whether we can safely retreat without getting plugged in the back of the head, can be pretty difficult as well. The adrenal rush as we find ourselves in a threatening situation, with a split second to make a life or death choice, clouds our judgment at best.  At worst, few of us are really equipped to process, no less make a rational decision, when thrust into a situation that presents a real threat of life or death. 

Ever been in a car crash, with a mere instant between the recognition that something really bad is about to happen and it happening?  The body just reacts without thinking, the foot jamming on the brake, because fear takes charge.  Substitute a gun for the car and we’re no better at thinking things through.

Despite John Timoney’s opposition to the “stand your ground” law, the Florida legislature enacted it.  The good news is that the prediction of never-ending gunfights in the streets didn’t happen. The bad news is that one person died, even though it’s not at all clear that “stand your ground” had anything to do with it.  On the whole, Timoney is right that police are (or at least should be) better trained and equipped to make life and death decisions as to when deadly force should be used.  The rest of us, not so much.

On the other hand, humans possess the reflexive “fight or flight” instinct, and it’s sometimes impossible for the person who finds himself in a terrible situation to know which course is best.  Any law that encourages the participants to not harm another and live to argue the point another day is better than a law the encourages shoot now, think later.  But if it comes down to my life versus yours, I’ll shoot first and deal with the consequences later.

Regardless of which side you are on, there is nothing simple about it.

Lawyer Fashionista: Haute Hoodie

Once again, I’m constrained to put on my dashing fedora, brim turned down in a rakish sort of way, to address the latest legal fashion connundrum, the hoodie.  While it bears passing connection to baggy pants, previously discussed as a fashion faux pas, it’s been elevated to a pressing sartorial issue by no less important a personage than my doppleganger, Geraldo Rivera.



While it was understandable that the baggy pants look came into fashion as young men sought to emulate the excellent appearance of the recently arrested, it’s unclear to me that the police give hoodies to perps as they enter lockup.  I’ve been to lockup and while there are certainly plenty of people with hoodies, occasionally weather related, it’s not exactly a uniform.

Apparently, as Geraldo points out, the hoodie is the outer attire of choice for holding up 7 Elevens.


Every time you see someone sticking up a 7 Eleven, the kid’s wearing a hoodie.

Correlation or causation? Fashion forward observers need to know.  Gerry argues that the hoodie is every bit as responsible for the death of Trayvon Martin as George Zimmerman.  This view has not been widely adopted.



That stupidity brought immediate comment from the saner and hipper side of the planet. “i didn’t even know geraldo still did stuff ppl listened to. damned if i listen to him now. but #BEATEMDOWNhoodies ARE on sale for $25,” media personality Bomani Jones tweeted. “Dear Geraldo Rivera: I’ll use small words so you can follow me, okay? Hoodies don’t kill people. Paranoid racists with guns kill people,” tweeted Wil Wheaton of Los Angeles. “That’s like saying Martin should not have left the house while being Black. As the Million Hoodie marches emphasize, there is nothing inherently devious about hoodies. It’s our culture’s racist stereotype for “suspicion” that makes hoodies worn by people of color — not soccer moms or Anderson Cooper –  an act that could be met with violence,” journalist Kristen Gwynne wrote on AlterNet.

While there may not be anything particularly threatening about the hoodie per se, I would be remiss in not reading between Geraldo’s lines.  Let’s face facts, Gerry is a fashionplate. He always has been, despite questions that have arisen about his retaining his 70s porn ‘stache. What he’s always truly wanted was to be a clothing role model for black and Hispanic youth.

Sure, he’s had remarkable success as a Fox News commentator, which was no doubt calculated to keep him in the eye of his critical demographic of young black men, and yet his efforts have been for naught.  There they are, walking down the street in baggy pants and hoodies rather than the finest couture.  This has bugged Geraldo for decades.

At one particularly low point in his career, Gerry tried to start a new fashion trend, nose-clothes. It went nowhere.

While it’s all too easy to ridicule Geraldo’s levy of blame on the poor hoodie, few have given thoughtful consideration to the alternative.  Would it kill young men of color to dress more like lawyers?  As Geraldo argues, it can kill them not to.

The argument against Geraldo’s efforts to bring the youth of the ghetto into line with his choice of attire is that their fashion preferences are nothing more than that, a choice of what to wear that they feel makes them look good.  So it’s not what you would wear to court, or what Geraldo would wear to an Emmy award dinner where he could clap for the winner and admire him from a distance, so what?

Youth have long fought the better judgment of their elders on styles of dress that will make them appear more acceptable to elderly people.  And if they appear acceptable, they similarly appear less threatening.  Of course, the trade-off is somewhat limited, since wearing a Brooks Brothers suit while carrying a machete will create sufficient cognitive dissonance as to make a reasonably prudent person cross the street to get away from them. But since this combo doesn’t happen with great frequency, it hardly seems worth discussing.

Why, Geraldo wonders, will the youth of America, particularly those with dark skin like his son Cruz, not dress as Gerry does?  Uncool, you say? Feh. Everyone looks great in a bow tie and suspenders.



 Perhaps the real takeaway here is that the haters who have ridiculed Geraldo for his attempt to eradicate the hoodie from the street is that they are prejudiced against Hispanic Jewish lawyers.  Had it been Rush Limbaugh who raised this issue, no one would have questioned his good will in trying to prevent another hoodie-related tragedy.

The bottom line is that guns don’t shoot people.  People don’t shoot people. Hoodies shoot people.  And nobody shoots anybody while wearing a bow tie. So leave Geraldo alone.  Remember, if it wasn’t for Geraldo, we would never know what was inside Al Capone’s vault.


 


 

Packaged Like A Rebel

Winning an argument isn’t accomplished by coming up with a platitudinous blanket in which to wrap your actions.  That’s the beauty of  clichés, there’s one to cover every occasion. 


Two heads are better than one
or


Too many cooks spoil the broth
Cool right? Either way, you’re covered.  As fun as it may be to justify your choice by resort to some trite expression, it does nothing to prove your point. It’s the refuge of the ignorant. It’s a hole in the ground in which your head fits perfectly.

So what’s a young lawyer to do when trying to be cute, perky and innovative, only to get slammed by more experienced lawyers for flouting ethical considerations and making others dumber for offering her thoughts?

Repackage herself as a rebel!



I Am a Rebel . . . Is That Okay?


I have considered myself a rebel for a long time. I think of myself as someone who does what she wants, not what she’s told.


So there’s plenty of proof that I don’t live my life according to the expectations of others . . . right? Wrong. What I realized while reading The Art of Non-Conformity over the weekend, is that I do allow the expectations of others to stop me from saying, doing and even accomplishing certain things. The worst part is that some of those things are really important to me.

This is the set-up, how she’s really been trying to please others and repressing her own rebeliousness, her dreams.  Don’t dreams matter? Aren’t dreams what we live for? Everybody loves dreams.  And so she must break away from the irrational need to please the unnamed forces that repress her dreams.


This is the work that is necessary for us entrepreneurs, rebels and World Dominators to do. Think about it: the worst that could happen if you truly let go of people pleasing is that certain people won’t be pleased. Guess what? Certain people won’t be pleased no matter what you do! Therefore, there is no point in letting that stop you.

How wonderfully inspirational this would be, but for one flaw, and it’s a big one. The concern about “pleasing people” relates to low self-esteem and the need for validation that has long been a hallmark of Gen Y, but it’s a purely internal concern, immaterial to the more important question of whether what you’re doing is right or wrong, good or bad, helpful or dangerous. 

It’s almost reached the level of meme to create the impression of David versus Goliath, rebel versus conformist.  If you can’t be one, be the other. Either way, you can market yourself.  And for the self-esteem challenged, you can find validation, the brave, lone rebel bucking the forces that try to control you. Bravo!

If I was a fan of marketing, I would applaud the ability to make lemonade out of lemons.  But I’m not a fan, and disinclined to elevate bold packaging over substance. 


Aside: I feel compelled to note that this post comes from a sense of obligation rather than any desire to pile on.  I’ve purposefully not included the name of the young lawyer, though its easy enough to find, because it concerns me that I and others have directed too many words at her conduct, and it’s not about one person, per se. Unfortunately, as the envelope keeps getting pushed further and further, and as she screams as loud and often as possible for others to look at her, she invited scrutiny.  She just doesn’t like when she gets it.  If only she could limit it to the happy, admiring thoughts she desires rather than the unpleasant ones she invites.

The rebel package resonates with a lot of young lawyers. It’s a facile means of justifying one’s “outside the box” conduct, good, bad or somewhere in between. Most people adore cute little kittens. Are you a rebel if you hate them?  Are you even more of a rebel if you like to crush their cute little heads? No. You’re sick.

It’s hard to wear the torn dress of the rebel when you’re trying to use to capitalize on being a lawyer.  Being a lawyer means you accept certain constraints, foremost of which are ethics and competence.  Skirting ethics doesn’t make you a rebel; it makes you unethical. Offering less than competence legal advice doesn’t make you a rebel; it makes you incompetent. That it’s hard to be innovative while conforming to ethical and competence constraints doesn’t mean you get to ignore the latter. Be as innovative as you want, but if you’re doing so as a lawyer, then ethics and competence still constrain you. 

I like rebels. Rebels are cool.  And there’s nothing wrong with trying to package yourself as a rebel if that’s what you think will bring you fame, fortune and adoration.  If people buy the packaging, good for you. But don’t try to cast yourself as a rebel under the guise of being so bold as to validate your choices and deflect criticism of conduct that fails to adhere to the minimum requisites of being a lawyer. That’s not being a rebel. That’s just being a bad lawyer.  No platitude, no cliché, no trite phrase, no repackaging can change it.

Some innovation is good. Most won’t work, whether because it’s ineffective or because it fails to meet the demands of the profession.  Even rebels have boundaries, no matter how well you try to package yourself.  And if you don’t want to be continually subject to scrutiny, and hence the criticism that leaves you feeling the need to please others, then recognize the constraints under which lawyers function and stay within them.  Or, stop screaming to the legal world, “look at me!!!” and then whining when it does.

H/T Betsy Munnell

“Disgraceful, Excessive, and Unprecedented”

These familiar words weren’t uttered by some demagogue criminal defense lawyer or civil rights tool, though they have been many times before.  This time, they came from the mouth of the Michael J. Palladino, President of the Detectives Endowment Association. 

It was 2006 when cops shot 50 bullets into Sean Bell and his friends on the eve of his wedding day. Do you still remember? So many things have happened since then, good and bad.  At the time, it was big news. There are  eight posts about Sean Bell here from 2008, and my guess is that few of you read them. If you did, they likely blend into obscurity. Here’s a quick reminder of what happened :


The shooting of Mr. Bell, 23, who did not have a gun, occurred in the early morning on Nov. 25, 2006, as Mr. Bell and two friends were leaving a strip club in Jamaica, Queens, where they had been celebrating. The case drew widespread scrutiny of undercover police tactics.

The claim was that undercover officers heard Bell and his friends talk about getting a gun, and they tried to arrest him when Bell drove his car at Det. Gescard Isnora. Isnora fired the first shot at Bell, and other cops joined in.  Bell, who was to be married the next day, was killed, and his two friends were wounded. There was no gun.  Sound familiar now?

The police were tried for manslaughter and acquitted. They were then brought up on departmental charges.  At the time, and in light of the acquittal of criminal charges, I was dubious as to whether departmental charges would be taken seriously, or was a palliative to calm down the outrage.  I wrote at the time :


The question remains whether the NYPD, having gone as far as taking the broad view of wrongdoing in this tragedy, will now pursue it with vigor and integrity.  Charging is one thing.  Now they have to prove that they can pursue their own cops with the same degree of effort and effectiveness that they would use against anyone else.  This has yet to be seen. 

But as first steps go, I’m impressed.  I’m not prepared to go as far as saying that maybe they’ve learned something from all this, but it’s better than they have ever done before.  And that’s something.

It’s now been seen.  The  New York Times reports:


The New York City police detective who fired the first shots in the 50-bullet barrage that killed Sean Bell in 2006 has been fired, and three others involved in the shooting are being forced to resign, law enforcement officials said on Friday.

Law enforcement officials said word of Police Commissioner Raymond W. Kelly’s decision came late Friday. Detective Isnora, an 11-year veteran, will not collect a pension, one official said. “He loses everything,” the official said.

Three other officers — Detectives Marc Cooper and Michael Oliver, who fired shots at Mr. Bell; and Lt. Gary Napoli, a supervisor who was at the scene but did not fire any shots — are being forced to resign.

Forced to resign is code for “gets a pension.” Isnora won’t be so lucky.  This evoked outrage. Not by Sean Bell’s family, who settled with the City (together with the two wounded friends) for $7 million, but the supporters of Isnora.
Mr. Isnora’s lawyer, Philip E. Karasyk, said, “The commissioner’s decision to terminate Detective Isnora is extremely disheartening and callous and sends an uncaring message to the hard-working officers of the New York Police Department who put their lives on the line every day.”

The party line, that police “put their lives on the line every day,” is an argument of desperation. While it may be somewhat true, it’s not a free pass for cops to kill people. Next argument.


Michael J. Palladino, the president of the Detectives’ Endowment Association, called Detective Isnora’s firing “disgraceful, excessive, and unprecedented.”

He continued: “Stripping a police officer of his livelihood and his opportunity for retirement is a punishment reserved for a cop who has turned to a life of crime and disgraces the shield. It is not for someone who has acted within the law and was justified in a court of law and exonerated by the U.S. Department of Justice.”

Being acquitted of manslaughter isn’t the same as the good housekeeping seal of approval.  Notably, Palladino’s primary concerns are for his union member’s loss of income and pension, the core of every cop’s interest in the job.  While it may strike civilians as misdirected, every cop understands. The pension is the bottom line of law enforcement.  The only thing worse than loss of the pension is death.


One law enforcement official said that, as the reality of the decisions sink in, they could have a drastic impact on how detectives view their work, particularly in the department’s undercover programs.

This is the point of the decision, to have a drastic impact on how police function. It would be nice to think it will be as dramatic as contended, but experience suggests otherwise.  This is still the outlier case. 

The New York City Police Department has finally closed the file on the Sean Bell killing.  The killing happened in 2006. It is now 2012.  Isnora was fired from the job. Sean Bell is dead. Isnora won’t get his pension. Sean Bell’s family received a substantial settlement.  The Union president is outraged.  Sean Bell’s fiance is lonely.

Did this fix the problem?  Will this change the way the police interact with civilians? Will the next undercover detective be more cautious in firing? Will his partners be less inclined to join in the barrage until there are no bullets left in their weapons?

Six years after the death of Sean Bell is a long time to reach closure, but NYPD Commissioner Ray Kelly did what he said he would do. Will this be sufficient to change anything?




 

Be Careful What You Wish For, Bully Edition

The anti-bullying forces have a great victory under their belt. So what if Tyler Clementi didn’t commit suicide because of Dharun Ravi; Ravi was still wrong, and certainly a galvanizing target in the War against Bullying.  Sure, Clementi was no Matthew Shepard, but you take your targets where you find them.

Now what?

Because of hate crime legislation, Ravi faces a term of imprisonment of 10 years. Uh oh.  Suddenly the anti-bullying crusade has a problem. They demanded he be convicted. They demanded he be held accountable. And now that they got their way, they are confronted with the consequences of what they asked for.  But it’s become clear that they don’t want that either.

Not ten years. That’s too much.

It’s what the law provides, and nobody in the Anti-Bullying Crusade argued that the law was too harsh.  But put it to use, and suddenly they’re staring the consequences in the face and they’re not happy about it.  A letter to the Editor in the  New York Times shows the misguided ambivalence.


To the Editor:

Re “Jury Finds Spying in Rutgers Dorm Was a Hate Crime” (front page, March 17):

This case raises critical questions for the gay community and for us all. How do we balance justice and compassion? Should this young man be imprisoned for up to 10 years for a cruel and immature act that had a dreadful consequence he did not foresee and would not have wished?

What is accomplished by imprisoning him, apart from satisfying our urge for retribution? Is this really the way to end bullying, or are we in danger of becoming the bullies we abhor?

We suggest that Dharun Ravi be sentenced to work for a gay rights organization. There his prejudices would be confronted every day simply by coexisting with people whom he might grow to like and respect.

We hope that a prominent gay rights organization will intervene in the sentencing hearing, saying: “Justice has been served. We applaud that. The message has gone out that harassment and bullying of gay people will not be tolerated. However, we do not support the maximum sentence for this young man and ask the court for leniency.”

STEPHEN KARAKASHIAN
ORLANDO RODRIGUEZ
PHYLLIS RODRIGUEZ
Milwaukie, Ore., March 18, 2012

The writers are, respectively, a gay rights activist, a criminologist, and a peace and reconciliation activist. The Rodriguezes’ son died in the Sept. 11 attack.


What the relevance of the Rodriguezes’ son’s death on 9/11 has to do with anything is unclear. Perhaps it’s to create credibility or generaly sympathy. Perhaps it’s to explain, without explanation, what a “peace and reconciliation activist” is. I dunno.  But now that the Crusaders have sent their message, they have embraced the belief that they get a say in the sentence as well. 

The problem is multifold. You wanted a crime with enhanced punishment for thinking thoughts you don’t like, but then argue that the very enhancement that distinguishes the crime you demanded serves no purpose.  It probably seemed like such an important message at the time, that hate crimes demand special especially harsh treatment.  But after you’ve calmed down and stopped hyperventilating, it doesn’t smell right anymore.

The letter writers are of the view that the judge whose responsibility it is to impose sentence should take into account their personal views.  Not only do they think that they’re view, that a ten year sentence is unduly harsh, should be considered, but they have the perfect alternative.  Ravi should be sentenced to work for a gay rights organization.  To this end, they hope that such a group “intervene” in the sentence.

Newsflash, singers of Kumbaya.  Neither gay rights groups, nor you, can intervene.  The imposition of sentence is not a matter of public approval.  It’s not a democratic decision. The judge won’t “crowdsource” it.  And nobody gets to “intervene.”

Maybe you should have considered the impact of the enhancements imposed by the legislators, a group that sometimes cares what others think provided they can grab some votes, when they tripped all over themselves to come up with punishments that would make the Crusaders all warm and fuzzy. 

The hyperbolic adjectives used in abundance to describe how awful it is to suffer a hurt feeling also make a great reason to add a decade to the punishment.  And you applaud the harshness, because of words like “cruel” and harassment, and the one no one has yet to adequately define: bullying.

It’s a lot harder than you thought to watch the consequences of your demands play out in the real world.  You wanted a message sent?  The message isn’t just the conviction of Dharun Ravi, but the punishment for the crimes for which he’s been convicted.  You don’t get to choose to truncate the message because it suddenly isn’t quite what you intended.  The message will be complete upon sentence, whatever that will be.  It can be ten years, because you screamed about the horror of bias crimes, the need to punish those who hurt someone else’s feelings.

You got what you wished for.  Are you sorry now?


Tough Choices, Easy Answers

Our complex world is filled with questions.  Why do we stay to the right when we drive? Is there something wrong with the left? Are countries where people drive on the left-hand side of the road wrong? Evil? Foolish? Of course not. It’s just that a choice has to be made so we don’t crash into each other, and for better or worse, our choice is the right side of the road. Done.

Even a question that’s fundamental to our legal system needs an answer. Why are defendants presumed innocent? Why not presumed guilty, and the burden placed on the defendant to prove that he’s not guilty?  The Constitution doesn’t expressly state that defendants are presumed innocent, though it does provide that a person can’t be convicted “except upon proof beyond a reasonable doubt.”

The question of what to do about the New York City Police Department stopping and frisking hundreds of thousands of men and women of color is, yet again, on the table.  From the New York Times :


The Police Department has said that it conducted a record 684,330 stops last year, and that 87 percent of those stopped were black or Hispanic. About 10 percent of the stops led to arrests or summonses and 1 percent to the recovery of a weapon, according to the Center for Constitutional Rights, which has examined police data.

These numbers aren’t new. The program isn’t new. The disproportionate impact on blacks and Hispanics isn’t new. And the results, the negligible recovery of weapons which provides the putative rationale for the stop and frisk program, isn’t new. Nothing new here at all.  But some legislators, who happen to be black or Hispanic, recall the joys of being on the wrong end of a stop.


Senator Kevin S. Parker, a Brooklyn Democrat, recalled several occasions when, as a high school student walking home in Flatbush, he was stopped by the police, patted down, told to empty his pockets, produce identification and divulge his destination.

Assemblyman Karim Camara, a Democrat from Brooklyn, remembers greeting a woman who was walking down a street in Crown Heights, Brooklyn, when, he said, officers in plain clothes approached him and demanded to know who he was, where he was going and whether he had any guns or drugs.

And when Senator Adriano Espaillat, a Manhattan Democrat, was just 14, he said, detectives threw him against a wall and patted him down in Washington Heights, in Manhattan, when he was on his way to buy a Dominican newspaper for his father.

With 684,330 stops last year, the cops were bound to snag at least three people who mattered, at least to themselves. The reason why the personal experiences of three New York politicians gets play is that nothing matters until it touches you. This touched them. Forget the other 683,327. We don’t know their names, and why should anybody with a title care if they felt dehumanized by police conduct.

But the Police Commissioner, Ray Kelly, asks the tough question:


Police Commissioner Raymond W. Kelly, facing increased complaints about the practice, has  pushed back hard against critics. Last week, assailed by the City Council over the practice, Mr. Kelly said that the policy was an important policing tool intended to reduce the violence that has victimized blacks and Hispanics, and that, “What I haven’t heard is any solution to the violence problems in these communities.”

“People are upset about being stopped,” he continued, “yet what is the answer?”

It’s a great question. People are upset about being stopped. People aren’t too thrilled about being the victim of gun violence either.  As Kelly notes, the complaining legislators haven’t offered an alternative solution to the problem of violence, so he’s sticking with the stop and frisk plan.

Kelly isn’t wrong to be concerned about making people safer by taking illegal guns off the street. Nor is he wrong about seeking a solution to violence.  The choice before him is doing what he can to make the streets safer or not stopping and frisking 683,330 people on the streets of New York, 87% of whom are black or Hispanic, and resulting in 10% being issued summons or arrested, and one percent resulting in the seizure of a weapon.

These are both legitimate concerns and competing interests. Which takes primacy is the core question Kelly asks.  And it’s giving the legislators a headache.

Fortunately, there is an answer to this very difficult question.  The answer isn’t right because it’s necessarily the better choice, or that one side is inherently superior to the other. If your child was shot on the street by a stray bullet fired from an illegal handgun by some gangbanger, chances are you would be more than happy to have many hundreds of thousands of people stopped if it could have saved your child’s life.

But this isn’t a debate between choices, as the debate was had long ago and a decision was made. The Fourth Amendment, or if you’re New York centric, Article 1, Section 12, provides that a person cannot be seized or searched “but upon probable cause.” There’s also a warrant requirement, but let’s not get hung up on something that isn’t taken seriously anymore.

The Constitution prohibits the police from stopping and frisking people for no reason.  In fact, it expressly states that the police can’t stop and frisk without a pretty good reason.  This means that some people carrying illegal guns are going to not be stopped, not be arrested and the guns will not be seized and removed from the streets where they can no longer fire a bullet into a child who doesn’t deserve to be harmed. 

It’s not that our founding fathers didn’t care about children. It’s not that they didn’t take seriously the need to protect people from harm.  it’s not that they didn’t foresee street crime as being a plague that demands a cure. It’s that a choice had to be made, and they made it.

The New York Legislature is pondering a law to prohibit the New York City Police Department from stopping and frisking hundreds of thousands of people, 87% of whom are black and Hispanic, from being stopped and frisked without cause.  They have been presented with the opposing interests and are debating which interest should prevail.

The decision has already been made, and it’s not up to Ray Kelly or the Legislature to decide otherwise.  They may not agree with the choice. Maybe they prefer to drive on the left rather than the right. Maybe they think defendants should be presumed guilty rather than innocent. But choices must be made. They have been. It’s done.  The NYPD cannot do what it’s doing. There is nothing more to discuss.

Password Politics

Turk asked me the other day how outraged I was over potential employers  asking job applicants for the Facebook password.  I think I surprised him when I responded that I agreed with the Deputy Sheriff, Rusty Thomas, who explained:




And since 2006, the McLean County, Ill., sheriff’s office has been one of several Illinois sheriff’s departments that ask applicants to sign into social media sites to be screened.


Chief Deputy Rusty Thomas defended the practice, saying applicants have a right to refuse. But no one has ever done so. Thomas said that “speaks well of the people we have apply.”


Perhaps it speaks to the litmus test to make sure no one is hired who has either the balls or brains to say no, but the point remains.  Just say no. 

This has more to do with my view that a job is not a right than it does about the intrusiveness of the request.  Whether a prospective employer asked me for my password or an impromptu colonoscopy, my response would be uncivil.  They can ask. I can decline, and I would.

The reaction elsewhere is that, “but I need a job.”  Ah, the rationalization that explains the downward spiral.  We make choices about whether to get on our knees or not. They happen in all aspects of life, and we are presented with the option of doing things we would prefer not to do or suffering the consequences of our refusal. This is nothing new.


You made me love you. I didn’t want to do it. I didn’t want to do it.

— Al Jolson

Yet, it scares me when I find my view to be to the right of Orin Kerr’s.



“It’s akin to requiring someone’s house keys,” said Orin Kerr, a George Washington University law professor and former federal prosecutor who calls it “an egregious privacy violation.”

What makes this an “egregious privacy violation” is left unsaid.  It’s totally inappropriate, but to call it a violation means it violates something. What does it violate?  The  best answer so far is the Facebook terms of service, but then nobody reads the TOS so this is a disingenuous argument.  When it serves out interest, we argue that nobody has a clue what the TOS say since we all just click-through the crap.  We can’t suddenly claim our refusal is due to our slavish devotion to the terms of service. 

There’s also a suggestion that it violates the Computer Fraud and Abuse Act, but that’s too far a stretch for anyone to take seriously. When you hand over your password, you implicitly authorize its use.

This isn’t to suggest that I think this is a good trend, or an acceptable practice. It’s completely inappropriate, just as an employer asking an applicant to drop his trousers (or for the feminist readers, open her blouse and unhook her brassiere). It’s disgustingly intrusive.

So draw a line and say there are things you won’t do for a job. 

Cries to regulate the employment interview process to prohibit, whether for public employers or all, a demand for website passwords are being heard across the interwebz.  Libertarians have suddenly come to appreciate the joys of regulation.  But this is a mere substitute for personal accountability. People may need jobs, but at what price?  Nobody can coerce you to give up your password unless you let him. If an employer wants your password before giving you a job, what else will be demanded of you once you get it?

In lieu of regulation, there’s always the top ten excuses why you’re  not allowed to give up your password. Of course, this is remarkably unpersuasive, since the potential employer isn’t obliged to care how good your excuse is when you refuse his demand.  So what’s an applicant to do?

Here’s a thought: refuse to give up your personal autonomy.  Refuse to agree to something you find disagreeable. Show some guts and tell the person that you will neither hand over your password nor bend over for the colonoscopy. 

Or you can just whine about how you need a job and it’s all so unfair.  But if you do, stop complaining about why others keep demanding more from you that you really would prefer not to give. That’s how downward spirals work, and they work because people like you lack the fortitude to say no.



Please Plea(se) Me

The Age of Plea is now official.  Not that it wasn’t real before, but Justice Anthony Kennedy put it in writing.

The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.  “To a large extent . . . horse trading [between prosecutor  and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is.  It is not some adjunct to the criminal justice system;  it is the criminal justice system.”


This is not merely an acknowledgement of reality, but a tacit condemnation of what we’ve allowed the system to become.  That there is anything controversial about demanding (not merely aspirationally expecting) effective assistance of counsel throughout the process is absurd.  That it subverts the idea of challenging the government by putting it to its proof, a  favorite  of late among scholars, is obvious. That it’s a  necessary evil is similarly obvious, reflecting again how the quest for doctrinal purity by scholars demonstrates their inability to grasp or appreciate the real dynamic of the criminal justice system.

Whether this is seminal or the death knell of the system is a matter of where you stand.  It’s not as if the questions surround plea bargaining haven’t been beaten to death over the years.  That there is any controversy about criminal defense lawyers being competent from start to finish is like poking a hot dagger in my eye.  That Justice Kennedy arrived at the curious split-the-baby remedy of discretionary relief in order to make the “windfall” problem more pallatable is just silly.

But this is all a bunch of silliness, if you step back and take a look at it from a distance.  Not silliness in the funny clown sense, but silliness from the very hard, cold perspective of people’s lives at stake.  We should never have needed a Supreme Court decision to tell criminal defense lawyers not to be incompetent. It is inexcusable that a lawyer fails to convey a plea offer to his client. 

Short of his falling dead of a heart attack on his way to tell the defendant of the deal, it just can’t happen. Ever. Under any circumstances. Absolutes tend to make for poor positions, but I’m going out on a limb here. Never, ever, ever, can this be excused.

The fact that the system has developed into a huge plea bargaining machine, with between 97% in federal court and 94% in state court (see Laffler at 11) of cases resulting in negotiated pleas, is the culmination of a multitude of mistakes made in the effort to achieve whatever the prevailing sense of justice may be at any given moment.  What we learn from a distance is that we’ve created a monster that everybody hates and nobody thinks works very well.  Even the Supreme Court now concedes that a system devised to try cases has been reduced to a system designed to coerce almost every criminal defendant to accept some form of plea and sentence rather than take a chance and pay the price.

The Supreme Court has officially recognized the trial tax as well.  The court noted that the prosecutor, by offering a plea to a reduced charge with a similarly reduced sentence, acknowledged the lower sentence to be sufficient for the crime.  And yet,


In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

With Justice Kennedy’s eyes shut tight, the final nail in the coffin isn’t struck.  If the sentence offered in the plea bargain was sufficient, in the eyes of the prosecution, to satisfy the legitimate purposes of sentencing, then the sentence after trial (“3½ times more severe”) was excessive.  Want to rid ourselves of the ugliness of plea bargaining? Does this not suggest a way out?

And that’s why the Laffler/Frye decisions are silly. They’re stopgap decisions, a half-hearted attempt to fix problems that should never exist. On the one hand, the criminal defense lawyers have no excuse for being incompetent at any stage of the proceedings. On the other hand, a system that coerces nearly all defendants to cop a plea rather than risk the trial tax has turned an adversary system into horse trading, even when the evidence stinks, constitutional rights have been mangled and/or the defendant is innocent.

To put a cap on the silliness, I would be remiss not to mention the “headline” offered by Stephanos Bibas doing his best Doug Berman impression :


Wowza! Oh boy! Court Fryes prosecutors, gives defendants the last Lafler.

If so, why is there so little about any of this that I find pleasing.



When the Thrill is Gone

A call came in the other day from a young lawyer, Josh Camson, who is chronicling his move from judicial clerk to criminal defense lawyer at the  Lawyerist in a series called “The Shingle Life.” I hate the title too, but Josh is a serious young man who shows great promise.

During the conversation, an interesting issue arose.  As a judicial clerk, Josh has had the opportunity to watch lawyers whose performance was so lackadaisical and mundane as to make him wonder how they ever managed to get a ticket.  The answer, of course, is that they weren’t always that way, concerned only with going through the motions and getting out of there as painlessly as possible.

Young lawyers are filled with zeal, believing that they will be brilliant advocates and rise to fame and glory.  They are smitten by their bright futures. What they aren’t is the bored, dull, routine and careless lawyers who show up in the well everyday, say the ordinary words and walk away.  The ones who don’t care and don’t even try. They just go through the motions.

Josh knew who I was talking about, and asked a great question.  What can I do to make sure that I don’t become that lawyer?

The lawyer who “mails it in” didn’t start out that way. He was just like every other new lawyer, full of zeal and dreams.  He believed, like most other young lawyers, that he could achieve greatness. He cared. He was smart and talented. He was just as grandiose in his self-image as every other young lawyer. Sound familiar?

Today, young lawyers enjoy ridiculing those experienced lawyers who fail to appreciate their brilliance.  We don’t get it. We don’t understand. Of course, they don’t connect the dots, that we were them once, and now we’re them with ten, twenty, thirty years of experience.  If you are so brilliant and zealous at year 1, how did you become such a blithering idiot at year 30?

As proof of their thesis, they point to the mail-it-in lawyers, the ones who have experience but have lost the desire.  Aha! The proof is in the well. And indeed, it is, but not necessarily the proof they think.

Josh’s question got me to thinking, as it’s quite a quandary.  What went wrong between the first time a young lawyer stands up before the court, ready to argue for his life, and five, ten years down the road, when he chants the courtroom plea mantra in the same monotone as he does every other day.

First, not every new lawyer is as smart and talented as he believes.  It’s easy to be full of your brilliance when it’s never put to the test. It becomes far more difficult to live the fantasy when there’s someone with a robe to tell you “denied.”  Nothing kills the dream faster than a harsh dose of reality.

Second, spend time in a courtroom and you meet the guys who hang out there day after day, going through the motions and making the wheels of justice crush people’s souls.  You become friends. You talk. You bond.  They explain to you how the system really works, that no one ever wins and that it’s not worth the effort. They teach you the shortcuts, the moves, the methods that have served them well.  They tell you the secret language of hallway lawyers, that gets them paid and back to their office without breaking a sweat.

You are young, and despite your bravado, realize that the old hands in the courtroom know the great mysteries you were never taught in law school.  You are flattered by their attention, and hang on their every word.  They seem to know exactly what to say when they stand up on their cases, and never miss a beat as the recite the magic words that result in their client being led away in cuffs. And little by little, inch by inch, you adopt their ways.

These lawyers don’t mean to steer you wrong. Rarely do they perceive themselves as mailing it in, but rather playing the game of being a lawyer.  The game becomes a routine, but they still believe they are doing their best, and that their efforts really are for their clients benefit. And indeed, sometimes they are, and they will proudly point to those anecdotes to show that they aren’t pedestrian lawyers, doing as little as possible to make it through the day.

What the young lawyer doesn’t often get to see is the lawyer who doesn’t carry a list of 20 names into court every day, and stand before the court, case after case, repeating himself.  The lawyer who spends most of his day thinking, researching, writing and rewriting, rather than sitting on a hard bench doing the crossword, waiting for a name to be called, is largely invisible to the young lawyer.  It’s much harder to make friends with that lawyer, as he’s in and out, he’s busy, he has obligations to fulfill.  His time is taken up by trying to come up with the way to win the case the other guy pleads out.

Of course, it’s more nuanced, more circumstantial than can be explained here. It varies from lawyer to lawyer, and unduly simplistic characterizations fail to explain the mechanics of how a lawyer with dreams ends up  spending his days in the hallway hoping someone with cash will ask him to stand up on a case.

I doubt my response to Josh was adequate. It was mostly aspirational, that knowing that he doesn’t want to be the lawyer he despises is the best start, and not to allow himself to become so inured to the routine that he wakes up one morning and realizes he’s just mailing it in.  Yet most of the brilliant, zealous young lawyers today will end up doing just that, mailing it in.  I wish I had a better answer.