When I  first stumbled across Marc Randazza, he was misbegotten adjunct professor at brand X law school, rough around the edges and ready to stand his ground against any foe.  He was tough. He was coarse. And that was just the start.

Over the years, I’ve come to admire Marc Randazza enormously, both for the effectiveness of his legal work which, I can say from first hand knowledge as he represents me in the Rakofsky v. Internet case, is exceptional, but even more for his  unrelenting boldness in his support of the First Amendment. As much as we’ve become friends over the years, I have no doubt that he would be the first to rip my lungs out were I to take a position that he disagreed with.  Fortunately, I leave that to the  Feminist Law Profs and the Cyber Civil Rights crowd.

It’s not always easy hanging out with Marc Randazza. He doesn’t mince words, and most of the ones he uses begin with “f” and end with “uck.”  When compelled to use phrases, they tend to include such vivid images, like “circle jerk.”  Surprisingly, not everyone  feels as kindly toward such colorful language as Marc does. But that’s a large part of Marc’s point, that we get all hung up on concealing thoughts behind “nice” or inoffensive language,  

Marc Randazza uses words that make refined folks wince. it’s not an accident.  While he enjoys making others uncomfortable with his language, it’s not without good reason. They’re just words. Get used to them. Get over them. Deal with the ideas behind them, even if the words aren’t pleasing to your eye. 

Writing at the  Legal Satyricon (where I, and not Marco, coined the name for his peeps, Satyriconistas, though he tries to claim it),  Marc Randazza has never been afraid from taking a stand. Some are a bit wacky, but all reflect the strength of his convictions on the First Amendment.  He has no qualms about people disagreeing with him. He’s all about robust discussion.  Take you best shot if you think he’s full of it, but don’t be surprised when he takes his best shot back.  That’s how ideas get vetted, with hard and real argument, and  Marc Randazza is as ready for a fight to defend his beliefs as anyone you will ever meet.

Of course, anyone who shows any guts on the internet is going to make enemies, and  Marc Randazza has his share.  They range from the Happysphere to the tin foil hat club, and the worst of them will show no reluctance in manufacturing a litany of insane complaints.  Then again, his  litany of successes is not only longer, but true.

This is a feature, not a bug, of the internet, as no one who shows the fortitude of his beliefs gets away without making enemies.  The more outrageous the attack, the more important the belief.  It’s a badge of honor to have enemies. Without them, you haven’t done anything worthwhile.

But when it comes time to fight for real, to challenge those whose goal it is to silence the internet, to shut down the speech that makes them feel badly about themselves or to whine about the hurtfulness of someone who disagrees with you, there is no better friend than Marc Randazza.  In a fight, he’s the guy you want standing beside you.

If you believe in the First Amendment, if you feel that the greatest weapon against bad speech is good speech, if you have the guts to stand up for the things you believe in, then look to  Marc Randazza as your role model.  You don’t have to share his love of the vernacular to appreciate his point, and regardless of whether your favorite amendment is the first or fourth (or even the ninth), his fortitude makes him the sort of person who keeps the internet safe and free for all ideas.  And that’s why  Marc Randazza is one of my heros.  He should be one of yours as well.

Judge Ann Pfau was the perfect choice for Chief Administrative Judge of New York State, having been a court administrator since leaving law school.  When she was appointed to the top, everyone nodded their approval.  She was right where she belonged.

And now she’s sitting on a bench in a dump in Brooklyn.  From the New York Times :

On Dec. 1, Ann Pfau, now 64, stopped being New York State’s chief administrative judge, a bureaucratic job that is like being the queen of the courts. After stepping down and being replaced, she wound up in the grimy Supreme Court building in Brooklyn with workaday responsibilities. Among other things, she is now trying jury cases for the first time in a long career, having worked in court administration since graduation from law school. Here, every day is “Judging 101,” and Judge Pfau’s Rules are piling up.

This isn’t to question whether Judge Pfau is smart, fair, hard-working or competent. No one rises to the exalted level of queen of the court without these attributes. But it compels a question that has to be asked: What the heck were they thinking?

Judge Pfau has never tried a case. Not as a lawyer. Not as a judge.

Judge Pfau has never spoken with a client. Judge Pfau has never waited for a decision while a client’s life, business, fortune has disintegrated before her eyes.  Judge Pfau has never had to explain to a child why they won’t be seeing their daddy again until they are fully grown. Judge Pfau has never had to explain to a client why a judge just got it completely wrong and destroyed their lives. 

Instead, Judge Pfau is trying to figure out, for the very first time, how to survive life on the bench. It starts with the basics:

Do not think you are as funny as the lawyers say you are. Sit up straight on the bench. Get the keys to your chambers.

These are a few of Judge Pfau’s Rules, and they are the product of a most unusual judicial education.

It goes on to the banal.

The just-do-it rule. “ ‘Just dive in head first. It’s not like we haven’t all made mistakes,’ ” Justice Laura Jacobson said she had offered as advice.

The tough-it-out rule. “Every judge says that to me: ‘Pretend you know more than you know,’ ” Justice Pfau said. “ ‘Don’t let them see you sweat.’ ”

The you-could-look-it-up rule. There are publications about an amazing selection of judicial topics, including what to do when lawyers shout, “I object!”

Justice Pfau said: “You have to know there is a book called ‘New York Objections.’ It’s a great book.”

The sometimes-you-just-have-to-decide rule. “I was always looking for the rule,” Justice Pfau said, “and someone said, ‘You know, there’s not always a rule.’ And that was a revelation to me.”

The poker-face rule. Judges are supposed to look alert and neutral. “I have to say to myself: ‘Sit up straight,’ ” Justice Pfau said. “And you can’t let your facial expressions show if you think it’s the stupidest question ever asked.”

The when-in-doubt rule. “The only advice I gave her,” said Justice Karen B. Rothenberg, “was, ‘If you have any trouble with anything whatsoever, it’s a good time to take a recess.’ ”

Not all of Justice Pfau’s lessons can easily be reduced to rules. For example, she said, one judge seemed to be asleep. But then he would snap to. What would be the lesson there? Try to keep listening if your eyelids get heavy?

These are the “rules” from the judge’s perspective, the tools to survive in a courtroom stuffed to the gills with lawyers who try case, represent real-life breathing clients, live and die in the courtroom.  But understanding these rules, and knowing which applies when, and more importantly, the impact of these rules on the lives of real people, requires context.  Without experience in the courtroom, there is no context.

Of course, after leaving her post as Chief Administrator, what else could Ann Pfau do than be a trial court judge? She had no practice to return to. She already had the robe.  It’s hard to leave a life where people behave obsequiously around you. Judge it is, then.

On the other hand, had she been a lawyer working in some other bureaucratic capacity her entire career, and decided at 64 that she wanted to be a judge, would anyone have even given her a second thought as being qualified for the job?  Her application wouldn’t have made it past the circular file. There isn’t a thing about her experience that suggests qualifications for the bench. Nothing.

And yet, she now sits in Kings Supreme in charge of a civil trial part.

It may turn out that Judge Pfau is a fabulous judge, one of the best ever to preside in the New York State Supreme Court. Weirder things have happened. I certainly hope so, as no doubt do the litigants and lawyer who will appear before her.  But it doesn’t answer the question.  Rule and roll, Judge.

Over at the Agitator, Radley Balko has a post he’s titled “Scary Numbers.”

In September 2004, Mark Warner, then Virginia’s governor, ordered a random audit of 31 old criminal cases after a vast trove of biological evidence was discovered lying around in old case files saved by state forensic serologists. The testing of those 31 samples led to the exonerations of two convicted rapists. Warner, embarrassed by the revelations, then ordered in late 2005 that every sample obtained between 1973 and 1988 be rechecked. It amounted to thousands of files . . .

It goes on to suggest something truly horrible:

UVA’s Garrett suspects that the error rate may actually be as high as 17 percent. As he discovered in his own research, Barbour’s conviction, based on the testimony of a single eyewitness, reflects the reality that of the first 250 people exonerated by DNA testing, a whopping 76 percent were misidentified by eyewitnesses.

Thank God for DNA, right?  Well, of course, because without DNA for use in subsequent exoneration, the number of innocent people convicted under this study would be zero.  There could be a stray somewhere along the line, where someone else confessed or some smoking gun piece of evidence came out of nowhere, but once a person is convicted, they are guilty.

The presumption of innocence is gone. Their every denial is jaundiced and suspect.  Guilty people obviously deny they did it. Happens all the time. But we know they’re guilty.

What DNA exonerations have done is exposed the legal system’s worst nightmare; that it fails to distinguish the guilty from the innocent with a frequency never before believed.   Justice Scalia once suggested that there was a wrongful conviction rate of .027%.  This, he thought, was acceptable, as no system is perfect.  The old “take one for the team” argument never persuaded me; it’s a great unless you or your loved one happens to be the innocent asked to suffer for the system’s flaws.

But this assumed rate was nonsense from the outset.  It was based on the handful of proven innocents, the beneficiaries of DNA exonerations by the Innocence Project, as a percentage of all people convicted.  In other words, Justice Scalia failed to extrapolate the percentage of wrongful convictions in that tiny class of cases where DNA evidence is involved to the general universe of convictions.

The reason is clear. If they aren’t proven innocent, they’re guilty. And if they’re guilty, the system works. Not perfectly, but with a wrongful conviction rate so minimal as to barely be worth a yawn from Justice Scalia.

Or, the same influences that produce wrongful convictions in this tiny sphere of DNA cases exist in almost every case that comes before the court. They are:

• Mistaken eyewitness identification
  
• Perjurious testimony (testilying)
  
• False confession
  
• Racial influence
  
• Guilty pleas of convenience

The only difference is that there is no DNA evidence to be used to subsequently exonerate the defendants. They get convicted. They stay convicted. Everybody (except the defendants and their families) sleeps well at night. Job well done.

But this is a delusion. Not to blame the Innocence Project, or the miracle of DNA exonerations, but this has put an enormous emphasis on innocence as the primary concern. Certainly, we do not want to convict the innocent.  But when the only question asked is whether the defendant was innocent, we continue to feed the monster of wrongful convictions, overcharged convictions and the faults of the system.

If we knew in advance who was “really guilty,” this might make sense. Perhaps we would demand that prosecutors and police work harder, spend more time, look deeper, be more honest, when it came to those for whom everybody felt there was some doubt as to their guilt.  And there are a few defendants for whom such doubt exists, but prosecutors feel compelled to press the charges nonetheless.

Most of the time, however, prosecutors and police are absolutely certain they’ve got the bad guy. We see this even after the DNA exonerates the defendant, and they still insist he was guilty.  We see this every day when prosecutors inform us of how they’re absolutely certain the defendant is guilty, when we know otherwise. They take comfort in their certainty. There’s no comfort for the defendant against whom the evidence is overwhelming, except for the fact that he didn’t do it. This happens too.

The point is that the flaws of the system remain, whether the defendant is guilty or innocent, and doom both without discrimination.  The “tried and true” means of conviction are every bit as dangerous to the guilty as the innocent, because the system can’t tell them apart.

We know they are flawed. We know they produce the desired result of conviction, even though they are untrustworthy. They’ve been used forever, and the law is nothing without stability and precedent, even if we merely perpetuate the system’s flaws.

The problems are known.  DNA has produced the proof to support the issues we’ve long argued, but the next step, the extrapolation to the general population of the convicted, seems to never really make it into the discussion.  I would argue that it’s because we need to be able to sleep well at night, and judges, cops and prosecutors wouldn’t be able to do so knowing that they were responsible for sending innocent people to prison 17% of the time.

But the truth is, that would never happen, because they remain absolutely certain that they are never that wrong, and that all the people, save the .027%, are guilty.  And for the rest of us, those of us who aren’t being asked to take one for the team, we don’t seem sufficiently bothered by these flaws in our system to lose much sleep either.

Had the Puritans taken a more northerly tack, Anna Gristina might be honored as an innovative entrepreneur rather than sitting in the dock as the latest Million Dollar Madam. But they didn’t, and so it’s a crime for women to do with their bodies what lawyers do with their minds.

How exactly the prosecution arrives at the conclusion that she’s made many millions of dollars remains unclear.  No doubt there’s an algorithm for it, just as a kilo of coke can be portrayed as a million dollars worth with the right assumptions.  And without all the zeroes, the story wouldn’t be nearly as interesting.

Yet, despite her declared wealth, she sits beside her appointed lawyer, Richard Siracusa, who has been at the criminal defense game for 37 years.  I would like to his website, but he has none. He hasn’t even claimed his Avvo profile.  He has no logo. 

On her other side sits another lawyer, Peter J. Gleason, admitted 2004, but who nonetheless has no website, though he does have a logo-less LinkedIn profile.   According to the New York Times :

Mr. Gleason wanted Mr. Siracusa removed from the case. The judge saw no reason to comply with that request, and Mr. Siracusa characterized Mr. Gleason’s role as a “hindrance.”

“She is an intelligent, stoic, strong-willed person with some very sound ideas on the type of person she wants to represent her,” he said, adding that Mr. Siracusa did not fit the bill, partly because he had not visited Ms. Gristina on Rikers Island. Mr. Gleason, who said that he was representing Ms. Gristina at no charge, asked that Justice Merchan remove Mr. Siracusa from the case.

Justice Merchan then asked Mr. Gleason to describe his experience handling criminal cases. Mr. Gleason replied that he had never tried a felony case but had handled elements of cases involving disorderly conduct and assault.

Let’s recap. Mr. Siracusa is assigned to defend Ms. Gristina and has 37 years experience in criminal defense. Whether he has an iPad is unknown. 

Mr. Gleason will represent Ms. Gristina at no charge, but he’s never tried a felony case. He has, however, “handled elements” of disorderly conduct and assault cases. Whether he’s ever tried any case is unclear.

Mr. Gleason did demonstrate the curious judgment of having Ron Kuby appear as his attorney, which didn’t turn out all that well for Ronny as he was told to get his butt out of the well.  Why, exactly, he needed a lawyer wasn’t entirely clear, but then, I would never suggest that any person go anywhere without their lawyer.

The assistance from Mr. Gleason didn’t end with a free ride, but with some icing on the cake that might turn a few heads:

After the two co-counsels consulted briefly, Mr. Gleason told the court that he wanted to put up his TriBeCa loft as security to help Ms. Gristina make her bond of $2 million. He added that Ms. Gristina and her family could then move into the loft with him while she awaited trial.

The prosecutor raised the obvious retort:

[Assistant District Attorney] Charles Lenihan, objected, saying, “We believe it’s unethical.”

Whether this is accurate depends on a few factors, not the least of which is what motivates Mr. Gleason to put his own home at risk for the benefit of a client.  Of course, there is nothing per se unethical for a lawyer to post bond.  Why would he do so?  According to the never-hyperbolic Kuby :

“I think Pete Gleason has a passion for justice and a congenital hatred of bullies. And when he sees someone being pushed around, he intervenes,” said civil-rights lawyer Ron Kuby, who is aiding Gleason.

Of course, Ronny feels that way too, yet he isn’t putting his home up for bond. Perhaps Gleason is a really, really, passionate guy. Really passionate. Go figure.

Rarely does the chance to represent an indigent defendant give rise to such in-fighting.  If a defendant wishes to be represented privately, and the lawyer is willing to be engaged, even if he’s not being paid, it’s not up to the court to supplant the defendant’s choice just because it sounds, well, ridiculous.  We make our own bed, for better or worse. Yet Anna Gristina didn’t utter the words, “I want Gleason to be my lawyer.”  Then again,  she didn’t tell Siracusa to get lost either.

So what makes lawyers fight over the role of defending an indigent Madam?  It could be the chance to hold a press conference, and get their handsome face on the telly. It could be their deep belief in justice, even if it’s never been manifested in prior legal representation.  Or it could be something more unseemly. 

When it comes to lawyers putting aside their pecuniary interest and doing the hard work of representing a person accused of being a Million Dollar Madam, there is apparently no shortage of willing lawyers.  And they say indigent criminal defendants are an underserved population.

I haven’t been kind to Crazy Sheriff Joe in the past. From pink underwear to armored vehicles used to effectively take out chicken coops, Sheriff Joe has been the subject of some derision here and elsewhere in the blawgosphere.  Of course, his hatred of illegals and constitutional rights has been the target of the greatest criticism. Perhaps I’ve been unfair.

As this news report makes clear, he has been working hard in our national interest to clear up one of the most vexing and important issues confronting law enforcement. Not just in Maricopa County, but in the nation.  And he has not received the appreciation his hard work deserves.

A long awaited press conference was given by Maricopa County Sheriff Joe Arpaio, a five time elected Sheriff, which should have made national and international headlines. Arpaio’s credentials include serving in the United States Army from 1950 to 1953, service as a federal narcotics agent serving in countries all over the world with the U.S. Drug Enforcement Agency (DEA), and served as the head of the Arizona DEA. Without doubt, this is a serious Law Enforcement Officer, not one to be taken in by tin-foil-hat wearing loons.

Arizona sheriff finds Obama presidential qualifications forged

And who broke this story of monumental national significance?  Pravda.

You didn’t read it in the New York Times. You didn’t read it in the Christian Science Monitor. Not even the Maricopa Gazzette. How is it possible that a story of this importance didn’t change the course of our nation?

In fact, there is a lengthy press conference conducted by Crazy Sheriff Joe,  captured in a video for all to see. Granted, it runs over an hour and twenty minutes, but aren’t you sufficiently patriotic to spend that small amount of time to learn what Crazy Sheriff Joe’s six month investigation reveals?  After all, this is a “serious Law Enforcement Officer, not one to be taken in by tin-foil-hat wearing loons.”

The video has, as of this writing, been watched almost 50,000 time, and the comments reflect the strong support Crazy Sheriff Joe is receiving for his serious law enforcement diligence.

God Bless Joe, and Arizona. God help America.

 the son of a whore is guilty of treason and will be tried for under house bill 107.

i doubt if the communist jew controlled media will ever have a full story!

 i say that the “o” is a son of a whore by the way……ROFL

what do you think it means then? what do think it means when the race of his father is listed as “African”? was barack sr. “ever” married to barack jr.’s mother? do you think barack obama sr. was even his father? do you think barack obama was a citizen of idonesia? why did barack obama support his cousin odinga?

These are the appreciative voices of your fellow Americans, recognizing the diligent efforts Crazy Sheriff Joe employed to save our nation.  And, for those of you who practice civil law, meet the “reasonable person” standard, up close and personal, coming to a jury near you.

As you put on your shoes this morning, thanking the lord that you live in a nation as great and mighty as the US of A, take a moment before you make the bunny ears and show Crazy Sheriff Joe some gratitude.  Where would we be without him.  And ask yourself, why won’t the Main Stream Media honor this fighter for truth, justice and the American Way.  As revealed by Pravda.

You can’t make this stuff up.

H/T Ed of  Blawg Review 

In a story about the legal quagmire facing Rob Will, a death row inmate in Harris County, Texas, who may well be innocent, the  New York Times included this tidbit:

In Mr. Will’s first appeal, his first state-appointed lawyer, Leslie Ribnik, filed a 29-page boilerplate court document that had little application to Mr. Will’s case. Mr. Ribnik defended his work, but in 2006, the Texas Court of Criminal Appeals removed him from the list of approved death penalty defense lawyers.

But in a January ruling, Judge Keith Ellison of United States District Court lamented that even though he was concerned Mr. Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

There’s a chance this may change with the Supreme Court’s consideration of an Arizona case, Martinez v. Ryan. Then again, Justice Scalia has already made clear that the Constitution protects process, not outcome. And process includes waiver. Rob Will had his appeal, and Ribnik blew it. Bummer.  Nor does the Constitution provide a right to effective counsel on appeal, though some states see it differently.

Trying to figure out just how badly Ribnik dropped the ball, or if the ball was really dropped (since oftentimes information comes to light years later, and the lawyer is held to a retrospective standard that couldn’t possibly be met at the time), it seemed prudent to do a bit of digging.  As it turned out, this was his problem :

(Feb. 26, 2006)–The court-appointed attorney who handled the death penalty appeal of condemned serial killer Angel Maturino Resendiz is being criticized for filing a nearly identical appeal for another death row inmate.

The Austin American-Statesman reported Sunday that Houston lawyer Leslie Ribnik wrote the virtually identical appeals for Maturino Resendiz and another condemned prisoner, Robert Gene Will.

Except for different names, the first 20 pages of both appeals are identical, including the same capitalization error on page 17.

The briefs, which center mostly on a single technical challenge to instructions given to Texas death-penalty juries, also give incorrect conviction dates for both men.

Ribnik has apologized for the mistakes but says the appeal argument is valid.

So he just changed the name in the caption. Mind you, this was a death penalty appeal, meaning that a man was going to be put to death if the appeal failed, and the best effort Ribnik could give it was to change the name in the caption. 

Before you spit out epithets about Ribnik, however, consider this: Is everything you’ve ever written on behalf of a defendant sui generis?  Do you start from scratch, deal with the specifics of the case, the issues, the nuances, the subtleties? Or do you just change the name on the motion and mail it in?

Let’s be frank.  The most common request on the local criminal defense lawyer listserv is “does anybody have a motion…”  Some will say that it’s just a template, a foundation from which they will draft brilliant, wonderful papers that address with great specificity the issues arising in their own case. Many will just change the name. You won’t admit it, but it’s true.

As criminal defense lawyers, one of our most important tasks is to present written work on behalf of our clients. Whether pre-trial motions, memoranda of law or appellate briefs, these are the foundations upon which all the flashy stuff is based. It’s hard work.  It can be drudgery.  No one, especially the client, watches as you parse words and admires you for sitting in front of a computer for hours, days, researching, writing, re-writing.  The client who thinks that the full extent of your effort on his behalf is comprised of the 30 seconds before the judge has no idea that you gave blood to prepare his papers. “You ain’t done nothin’ for all that money,” you’re told.

You know better. You know that you labored for hours to find the caselaw that supports your argument. You sat there, thinking, about how to take something that smells awful and turn it into a legally viable argument. Or not.  Thinking can make your head hurt.  Why make your head hurt when no one appreciates you for doing it. Clients are often impressed with the weight of papers, the bunch of black marks on white sheets, and really have no clue whether the papers are any good. Bad papers get just as much love as good ones, right? No one will know.

We even have some really cool phrases to justify being lousy lawyers. Why “reinvent the wheel?” After all, there’s nothing new to be said, and we have form books that give quick and dirty papers that somebody, somewhere, decided were good enough to suffice. Don’t judges plagiarize all the time? If it’s good enough for them, why not us? It takes time to create new papers from scratch, and who is so arrogant as to think our work will be better than anyone else’s.  And who will know?

You will know. The judge will know. And sometimes, the New York Times will know and put it into an article about an innocent man whose life may be lost because you couldn’t be bothered to do more than change the name. But most importantly, you will know.

So before you go all “hater” on Leslie Ribnik, take a hard look in the mirror and ask whether the person you’re staring at is Ribnik lite.  It may not be a death case.  It may not be an innocent defendant. So what? Your job is to defend that person, whether he’s paid you well or not at all. This is the life you chose, and you have no excuse for doing it poorly.

Maybe an innocent man will be put to death because of a Harris County lawyer who couldn’t be bothered to do more than change the name.  Are you any better than he?

Anyone with a keyboard and an internet connection has a million opportunities to express an opinion online. That doesn’t mean they have an opinion worth expressing, but more importantly, that doesn’t mean others on the internet have an obligation to either respond or treat them as kindly as they want to be treated.

This basic reality has given rise to a demand for remedy, ranging from the proposal of a criminal  anti-meanie laws in Alabama to renewed demands for the elimination of anonymity.  Couldn’t we all just be nicer toward each other?  Did no one heed Rodney King?

There is an underlying flaw in the reasoning of those who seek to create an internet where no one’s feelings are hurt.

Seattle lawyer, Collette Vogele (@vogelelaw), of the nonprofit group,  Without My Consent, providing paths to justice for victims of online harassment [argues]

…[O]nline harassment cases–such as that of blogger Kathy Sierra, who was driven offline after receiving anonymous threatening e-mails on her blog–illustrate other threats from anonymity. Requiring identities will keep things civil.

While the  Kathy Sierra situation has become the exemplar of online harrassment, it’s the outlier. Some have tried to use it to argue that this is a gender issue, giving birth to such intellectual monstrosities as Cyber Civil Rights, while others use it to prove that the internet needs to silence mean speech. For the children.

This isn’t about death threats via the internet, however, but the banality of people demanding attention and validation of their ideas.  While Kathy Sierra is a one-off matter, every day a million cries of “bully” arise online because someone, somewhere, didn’t think you were as compelling as you thought you were.

As expected, free speech advocates disagree.  No one is promoting the idea that people should be mean, but rather that speech happens as it happens, and sometimes it happens mean.  To put it otherwise, it’s better to have free speech and risk the possibility that someone’s feelings will be hurt than limit free speech, together with the ideas it contains, and preclude the expressions that might hurt someone’s feelings.

For lawyers, this is somewhat problematic. We espouse ideas for a living, and they are often in direct conflict. One of the reasons there are judges is to both keep a lid on our argument as well as decide which of competing ideas wins.  There are no judges on the internet.  Because of this, some lawyers want to argue their point ad naseum, which adds nothing to the discussion, is ultimately boring and annoying, and accomplishes nothing.  Once you’ve made your point, there’s little more to say. The other guy doesn’t agree? Do you think if you repeat yourself 27 more times, it will change?

But there has been a cry recently for civility, what some want to cast as professional courtesy, in the course of discussion.  Wouldn’t that be lovely? I think so. Now if all the morons, nutjobs and lying marketers would kindly disconect from the internet, we could have a wonderful, civil discussion.

That’s my perspective, you see. Not yours? That’s the problem. Each of us brings our own perspective to what’s worthy of discussion and what’s so blitheringly stupid or inane as to be immediately dismissed. Some are delicate teacups, and easily hurt by anything shy of complete validation. Some are pugnacious, and demand your time and energy to engage in their fight. Sometimes, a subtle point is clear without being expressed in overtly harsh tones, but more often, people don’t get it unless they’re clobbered over the head.  Nobody like being clobbered.

This was one of the problems that drove me away from blawging. Obviously, not so much of a problem as to keep me away, but a problem nonetheless.  Whether in the comments here, or by the stray twit, two demands are made: first, that I embrace the worthiness of somebody I don’t know, never heard of, by dropping everything and spending as much of my life as they demand to engage in a discussion with them on the subject of their choosing. Second, that I treat them civilly.

Whether the source of this demand is the baby lawyer who believes that his inchoate views on the practice of law is on par with that of the experienced lawyer, or the legal marketer who is deeply hurt by views that don’t show sufficient respect for the value of stringing words together in meaningless phrases, they net result is the same. They are entitled to attention.

Fail to show them the respect they demand and they get all angry and huffy.  You are mean. Tell them they’re ideas are ridiculous and you are a bully.  Ignore them and they are outraged at your lack of professional courtesy. 

One of the constant tools of the ignorant is the misuse of the Latin phrase “ad hominem.”  It doesn’t mean what they think it means.  If a point is foolish and you say so, they accuse you of the dreaded ad hominem attack. They’re wrong, but then,  Dunning-Kruger prevents their ever realizing it. Does the erroneous accusation make it your problem?  Not in my book.

If this post sounds vaguely familiar, it’s because this is a subject I’ve written about a few times over the years.  My views haven’t changed, but the internet has. New people show up and raise the same old civility and bullying arguments. Why aren’t you nicer to me? Why won’t you stop your life and pay attention to me? Why won’t you agree with me?

Because credit is only given where due. Just because you have a keyboard and an internet connection doesn’t mean your opinions are worthy of anyone else’s time and attention. Just because you breath doesn’t mean you exist. At least not to anyone else. No law, no call for civility, no heart-felt plea, is going to make you suddenly fascinating to the rest of the internet, so much so that you will be loved, admired and win every argument you decide to start.

On the internet, we’re all bullies. None of us, truth be told, loves humanity that much that we become best friends with everyone who twits at us, comments on our blawg, Facebook friends us or plusses our Google. We need to grow up and get over this. 

We all pick and choose. Sometimes, we don’t choose you. And no one makes you choose me etiher. It’s not a crime.

There is absolutely nothing wrong with having a logo. Logos are fine. Sometimes, they’re pretty cool.  This is not about telling anyone that they should not have a logo.

Of course, I don’t have a logo. I never have. What was I thinking?

But as I sometimes do, I wandered into the pool at Lawyerist, where a very nice young lawyer, Josh Camson, decided to write about his “journey” in opening a two-man criminal defense practice.  It’s not a particularly scary pool, as it’s a mile wide but only an inch deep.  When Josh began this venture, I was dubious of its value; spreading bad information isn’t a virtue, even if it amuses other baby lawyers who want to “share” in the experience.  But then, being an old curmudgeon, I likely couldn’t appreciate the benefit of crowdsourcing among new lawyers and marketers.

And I was just so damn negative about it all. Nobody is negative at the Lawyerist. It’s a supportive place, no matter how blitheringly stupid something may be. Never is heard a discouraging word.

There was the post about the name of the firm. Josh came up with a cool variation, running the two names of the partners together without a space or ampersand.  I’m not sure it whether it was cool, but it was certainly different.  He chose, however, not to use a misleading name, such as one that would suggest they had associates when they didn’t, or multiple offices when they didn’t, despite expert advice to the contrary.

Then came a post that disturbed me.  The firm logo.

My partner and I knew from the beginning that we wanted the firm to have an identity.

Now, had Josh begun his post with something along the lines of, “I realize that this is silly and utterly inconsequential, but having already spoken with my mentors today, signed up for some skills CLEs and shined my shoes, I have nothing better to do,” I wouldn’t have been troubled at all.

But that’s not what he wrote.  Instead, he wrote this:

In the end, we went with the logo we thought would look good in black and white as well as color. We plan on doing some mailers that may be black and white, so we had to take that into account. It had to look equally good on a business card, our website, and any marketing materials we send out.

In other words, the logo mattered. To Josh. And to the marketers who applauded Josh. And to the baby lawyers who offered supportive comments to Josh.  One marketer with “vast experience,” Karin Conboy, who apparently also writes insipid posts for the Lawyerist, had this to say:

Having a successful logo is not meant to be a reflection of your competence, and no one is suggesting that it is. It is meant to be a representation of your brand and reputation and a method for clients to cut through the clutter of competing messages. A logo is a critical part in the development of any business. SHG, when do you suggest that should Josh be thinking about his logo?

Never would be a good time. Or when he’s sitting there staring at the silent phone and has absolutely nothing useful to do would be a good time. But never would be a better time, since the silent phone would be the sort of snarky comment that opens the door to the marketer.  If only he markets the crap out of himself, the phone will ring, they say. Let’s investigate, shall we.

Will clients call this budding criminal defense lawyer because he has a fabulous logo? No. Never. Won’t happen.  Consider this “hater” dialogue.

“So Joe, did you get a good lawyer?”
“Yeah, Sid. You should see his logo.”
“Has he ever tried a case?”
“Well, no, but the blue in his logo really pops.”

What if a potential client actually did call, spying this logo and saying to himself, any lawyer with a cool logo like this is the lawyer for me.  And this highly impressionable client retained Josh’s services to defend him in court. And the client wanted to go to trial.  And Josh, whose experience in the law thus far has been limited to a stint as a clerk for a judge, is constrained to tell this client that he’s never tried a case. He’s never opened. He’s never closed. He’s never cross-examined a witness. He’s never made an objection. He’s never picked a jury. He’s never made a Batson challenge or won a Batson challenge.

But he has a logo.

Karin Conboy, the marketer, might argue that he’s got to start somewhere, so why not bring in clients with his logo and worry about defending them later?  At least he can put some food on the table, if not a client in the clink, and isn’t that really what the practice of law is all about?

This where mean old men, like me, get unhappy. It’s a matter of sequence, where first a new lawyer concerns himself with gaining the competency to be a lawyer.  Later, he can worry about marketing, though if he’s done step one properly, he won’t have to. He will have already, inadvertently, “branded” himself as a competent, diligent lawyer.  Old lawyers never called this branding, of course. This was what we called practicing law.

My pal from Portland, David Sugerman, saw some of the hubbub I created at Josh’s post and twitted:

Why bother? Talking to these pinheads is like pissing in the wind.

Because these pinheads are the future of the legal profession.  Because these pinheads may one day hold someone’s life in their hands.  It may well be a worthless effort, ignored and rejected as just more hatred by old lawyers of new, who are jealous of their coolness, youth and vigor, and who smack them around to make ourselves not feel so bad about being past our prime.  But to leave these pinheads to their own devices is to abdicate the responsibility we have toward our profession and the public.  So what if they think we’re a bunch of nasty old morons. The obligation persists.

Then again, I don’t have a logo. In almost 30 years of practice, I never realized that I should. It never dawned on me to sell myself like laundry detergent or a pick-up truck. Having done it wrong all this time, and no client having shown the decency to tell me that they retained me despite my lack of a logo, Josh’s post has made me realize this gaping hole in my law practice.

Anybody have an idea of a logo for me?  And no phallic symbols, please, you snarky people.  Why shouldn’t an old dog like me be cool too?  Turn my frown upside down.  To make this even more fun, whoever produces the cooliest logo will win a prize.  More pie.

And the logo will mean absolutely nothing to anyone ever.  That’s okay, however, because I can cross-examine a witness.  My clients tend to like that about me.

This wouldn’t even qualify as a dirty little secret but for the fact that no judge seems aware of it. Cops lie.  NYPD Police Officer Michael Carsey, 31, was  convicted of perjury for lying. Way to go, Cy. You got one.

Mr. Eiseman, 39, and Officer Carsey, prosecutors said, said they had smelled marijuana coming from an illegally parked van. In seeking a search warrant for the driver’s home, both testified that the man had admitted to having contraband in his apartment, where drugs and a gun were later found. But the two had actually learned of the contraband when they found pictures on the man’s phone, prosecutors said. The case against the driver was eventually dismissed.

The backstory involves two of the most common themes in street arrests uptown, the car stop and the smell of marijuana.  So you know, the testimony of the officer who claims to have smelled the marijuana will describe it as “pungent.” That”s the code word for unsmoked marijuana. They’re actually taught to use this word, and it appears in every instance. Search Lexis. It’s no joke.

There there’s the vehicle aspect.  Unlawful turn, failure to use blinkers, illegally parked, whatever. There’s no driver uptown who doesn’t realize that he can be pulled over at any time for something or nothing. That’s just how they roll uptown.  There are no rights because these nice people are unworthy of rights. They are the subjects of the power of the State, and they know only too well that when they cross 92nd 96th Street, they forfeit any rights that downtown people have. 

All it takes to make this happen is for a police officer to utter magic words:

I observed the defendant change lanes without signalling, so I stopped him.

Disprove it. You can’t.  The cop said that he saw it, and there is no judge who will disagree.  The defendant can testify.  The passenger in the defendant’s car can testify. Twelve unrelated witnesses who watched the  stop can testify. Cop wins. Always.

A: As I approached the driver’s side, the defendant opened the window and I smelled the strong odor of marijuana.

Q: How did you know it was the smell of marijuana?

A: Based on my experience and training.

Q: And what did it smell like?

A: It was pungent.

Disprove he smelled the strong, pungent odor of marijuana.  The reason this testimony works is that the officer, after stopping and searching the car, found some pot.  If there was pot in the car, bingo, the search is good.  If there is no pot in the car, and the cop has no particular need to bust the defendant, whether for fun, a lesson, a quota or overtime, then the driver goes on his way and the stop never happened. Life is good.

What makes this case curious is how this went from one of a hundred (a thousand? Who knows how many, since the stops where nothing is found disappear) that happens every day in the Big Apple to a case that made the Official Corruption Unit take notice. 

It’s not that the New York County District Attorney’s Office Official Corruption Unit doesn’t mean business. The
do. Unlike the line prosecutors who grow to love their cops too much, these prosecutors have no problem trying to clean up the mess. The problem is distinguishing between the disgruntled defendants who claim the cop is lying and the cop who is lying.

So what made Michael Carsey stand out?  What made Michael Carsey’s lie different from the rest?

On rare occasion, there’s a video that proves the cop was lying. While video is becoming increasingly pervasive, we’re still a very long way from having a video of everyday police interactions. Reading various stories about the case, there is nothing to suggest why Carsey (and his training supervisor, William Eiseman, who pleaded guilty earlier) were outed as liars.

This is the rub. Why Carsey?  Why did he get caught when he did nothing different than what so many other cops do daily?  What made the Official Corruption Unit take this seriously when claims of baseless stop, lying cops, are made every day?  This is the piece of information that most interests me, and there is absolutely nothing to suggest an answer.

In the course of trying to find out, I came across a  comment, offered after Eiseman’s guilty plea, that pretty well sums up the attitude behind this conduct:

Bill Eisman should only be found guilty of taking his job to heart. He went the extra mile to protect our youth from low life drug dealers and protect our society from careless and dangerous savages. If he recovered a gun with a technically illegal search, he may have saved the life of someone’s precious child. If the majority of the population continue to believe that low lives carrying drugs and guns deserve equal civil rights, the world will just be more miserable for the people who do good because it becomes just too difficult to fight crime. I say give Bill Eiseman a medal of honor and give him back some respect for the hard work he did which most people like me would be much too terrified to do.

There are great many people who will nod in agreement, naturally caring little unless and until they’re on the receiving end of a bad stop and a lying cop.  But it’s long been clear that people aren’t particularly sympathetic to “low life drug dealers” and that our concerns about lying and constitutional rights aren’t universally shared. 

The line between getting a medal and being prosecuted is a thin one. So what caused Michael Carsey to end up on the wrong side of that line?  What can be done to make sure all dirty, lying cops end up there as well?  Without knowing this, the most that can be said is that one perjurious cop was taken down. For the rest, it’s business as usual. Life goes on.

At Sentencing Law and Policy, Doug Berman posts part of the  Constitution Projects’ statement urging Congress to enact legislation to ensure that federal prosecutors fulfill their obligations under Brady v. Maryland.

We, the undersigned, are current and former judges, prosecutors, law enforcement officers, defense lawyers and others, all with substantial professional experience within the criminal justice system.  We call upon Congress to address the persistent problems with discovery in the federal criminal justice system by immediately enacting legislation that clarifies federal prosecutors’ obligations to disclose information to the defense and that provides appropriate remedies when prosecutors fail to do so.

We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act.  Self-regulation by the DOJ has been tried and has failed.  It is ultimately not a solution to the injustices that continue to occur. 

Key to this statement, aside from its support by “credible” folk rather than just criminal defense lawyers, is the strongly worded assertion that the DOJ cannot be trusted to manage Brady on its own.  The decision, which I’ve called Wild Bill Douglas’ greatest joke, requires the government to turn over to the defense any information that may tend to be exculpatory or (per the Giglio decision) tend to impeach a prosecution witness.  The problem is that the information must be material and credible, holes big enough to drive a truck through.

Then there’s the problem of the Brady ever reaching the prosecutor.  Federal agents tend to be pretty well trained, and they know that evidence that undermines their case could end up in the wrong hands and spell the acquittal of someone they’re absolutely certain is guilty. Can’t have that, now can we? So it ends up in the wrong file, often circular, and the prosecutor never sees it. You can’t turn over what you don’t see.

Or then there’s the time dilemma, as Brady never spoke to the issue of when the prosecution is required to provide exculpatory information. While the duty is to provide it before trial, that just as easily means 30 seconds before as 30 days before.  The defense will demand it early. The prosecution will respond that it’s under no duty to turn over Brady until  trial.  The judge snores.  Nothing to see here.

The problem is that Brady material isn’t always a smoking gun. It’s materiality often takes some thought, and it’s utility often requires some subsequent investigation. These things take time, which isn’t available when you’re in the middle of trial.  Then there’s the problem of integrating it into the trial strategy, which isn’t easy when the significance of the Brady isn’t clear until midway through summation.  In other words, it’s become part of a game, even when it is disclosed, designed to make sure that it’s of the least possible usefulness to the defense.  That’s what the government calls leveling the playing field.

There are two great comments to Doug’s post, the first by Michael R. Levine providing an exceptional list of cases that might have “prompted” the conclusion that the DOJ wasn’t up to the job.  The second comment goes through an extremely common, and invariably egregious and essentially insurmountable, problem of federal agents who refuse to record defendant statements, leaving only their own notes to “prove” what was said and how the statement was obtained.  This raises a host of other issues, beyond the scope of this post.  Nothing against commenters here, but I’m jealous of Doug for getting such thoughtful and informative comments.  Hint?

This call for legislation is a great first step toward making Brady work.  The statement goes on to suggest a four-point solution for the problem.

1. Provide that the scope of the prosecution’s discovery obligation extends to all information—regardless of admissibility at trial—that could reasonably be considered favorable to the defendant, with respect to pretrial motions, guilt, impeachment of witnesses, or sentencing. Requiring disclosure of all “favorable” information requires less room for interpretation on the part of the prosecutors than a materiality standard.

2. Clarify that prosecutors have an obligation to exercise due diligence in obtaining any favorable evidence, beyond what is in their possession, from other parties involved in the investigation and/or prosecution, including federal, state and local law enforcement or other agencies.

3. Require that prosecutors disclose favorable information without delay, as soon as they become aware of it, thus clarifying that the Jencks Act does not trump this disclosure requirement. If the government has legitimate objections to disclosure due to concerns about a witness’ safety, a desire to protect classified information, or other reasons, prosecutors may raise those concerns with the court, which can issue a protective order if appropriate.

4. Impose an appropriate remedy in the case of non-compliance, including exclusion of evidence or witness testimony, a new trial, dismissal of the charges, or other remedies to be determined by the court. Courts generally have the power to fashion appropriate remedies under their general supervisory powers, but this law would clarify that the court shall use that power to fashion an appropriate remedy each time a violation of the disclosure requirement has occurred.

It’s not that there’s anything wrong with this, but it’s still the typical warm and fuzzy approach that relies exclusively upon the good will of prosecutors for its fulfillment. It’s a step forward only in theory; in practice, it’s the same old same old.

The underlying problem is that while Brady is critically important from the systemic perspective of establishing some basic integrity to the system, no one has ever been able to figure out a way to make it work while maintaining that prosecutors are just good ol’ boys doing the best they can with a confusing system.

Our experience leads us to believe that the vast majority of prosecutors act in good faith to fulfill their constitutional and legal obligations. However, federal courts, the DOJ and other entities have for years articulated inconsistent, shifting, and sometimes contradictory standards for criminal discovery, leaving it up to individual prosecutors to navigate this legal maze and determine the scope of their obligations to disclose information.

Our experience leads us to believe that this is crap. I’ve know prosecutors who honored their duty and prosecutors who haven’t.  Both tend to be exceptionally smart and don’t need legislation to help them to “understand” their obligations. They know exactly what they’re supposed to do.  And yet it doesn’t happen.  Until this harsh truth is admitted, there is no way to meaningfully address the failure of Brady.