With some new technological marvel emerging every 6 to 8 hours, there is no shortage of legal technologists imploring lawyers to get on the train before we’re left behind.  Whether they get a third of all sales they generate isn’t clear, but their adoration of innovation is beyond dispute.

The problem with being contrary is that you’re immediately labeled a Luddite, dinosaur and hater. Using a great analogy,  Mark Bennett provides a particularly cogent argument as to why this is nonsense:

Buy a standard 10mm combination wrench at Sears, or at Harbor Freight, or off the Snap-On truck, and it’s going to be about the same length: 6.25 inches. You can get a longer 10mm wrench, but it is “long-pattern,” not standard. A standard 10mm box wrench has evolved to the length it is so that you can’t comfortably apply more torque than a fastener with a 10mm head can handle (around 10 ft-lbs, so 20 pounds of pressure in a small area on the palm of your hand); if you apply a long-handle wrench to a standard problem, you can easily apply more torque, and you are likely break something.

In other words, things evolve for a reason, and stop evolving for a reason as well. It’s not about hating innovation at all.

What I know best is criminal law; in criminal defense there is little room for innovations to fail. If I try something radically new in the courtroom, and it flops, someone is liable to go to prison. (Nobody has to know that it was my innovation that lost the case, which creates another problem for courtroom innovation: it’s difficult to measure success.)

This is not a paean to the old ways, but an obligation not to let the use of unproven innovative techniques, what we often call shiny toys, cause harm to another.  Despite technology, the core job remains unchanged, to zealously represent our clients. The only purpose to technology in the courtroom is to allow us to do that job better.

Will it?  Does it?  Which of your clients is willing to put his life on the line to find out?

Despite the youthful arrogance that presumes that old-timers know nothing about innovation, we too were raised with it in our own way.  I never ate a fresh vegetable at dinner growing up, as every piece of brocoli was freeze-dried by Clarence Birdseye and my morning orange juice came from a jar called Tang.

It was the space age, and if it was good enough for our astronauts, it was good enough for me.  It took decades to realize that most of the good things about vegetables were lost in the process. It was quick and easy to make, and time-saving innovation was all the rage.

What old-timers also know, however, is that we often fail to appreciate what we give up in the process of embracing innovation.  We know how many times innovations that seemed so promising eventually failed, or were revealed as a fraud.  We know that the trade-offs that once seemed worthwhile later turned out to be less than fair; Tang was simple to make and less expensive than orange juice, but it tasted, well, lousy. This was not the hey-day for food, as Swanson TV dinners were considered the height of haute cuisine.

This is not to suggest that innovation is bad. Not at all. In the past two decades, lawyers have adopted far more by way of innovation than in the five decades before.  We use copy machines rather than carbon paper. We use computers, allowing us to crank out 37 page contracts where two page contracts used to suffice. Okay, that may be a bad example.

We communicate today with near immediacy, whether by email or cellphone, when before we sent a letter and anticipated a response within two weeks.  On the plus side, we can reach each other when we need to. On the minus side, we can be reached when we don’t want to. Pick ’em.

In the middle there was the fax machine.  Remember them? They were all the rage for a while.

While those of us who aren’t first on line for the next gen iPad have to endure the sneers of the techno-razzi, the underlying assumption that every device with an “i” before its name is worthy of adoption is flawed. They may well be, though I suspect many will admit in confidence that they really can’t figure out a use for some of them or how they are any better than last week’s toy.  As Bennett notes, a lot of products have to fail before one emerges as offering an advancement that we can rely on to improve our ability to zealously represent our client.

You want to use the newest iToy for your personal enjoyment? Knock yourself out. If it impresses your friends and neighbors that you are the first on your block to have the latest innovation, all shiny and glimmering, and you’re not inclined to move to a better neighborhood, then be first on line at the Apple store and flash it around while the other hipsters drool.  This post doesn’t mean that you can’t have any toy you want, and can afford, given how many techno early adopters seem to be perpetually short on rent money.  But it’s your life.

The difference for lawyers is that we do not have the right to place our client’s lives in jeopardy in order to see whether any particular innovation will pan out.  This isn’t a matter of discussing, or arguing, whether some new device is the coolest, most innovative thing ever. This is a matter of putting the client first, even if it means using the dreaded yPad because the computer froze and your notes for cross-examination were lost.  Try explaining that to your client.

Attorney General Eric Holder  made the pitch on behalf of the administration that we should trust President Obama to exercise the utmost care before executing Americans without trial or conviction.  This didn’t fly when Nixon was president, but then, Holder was smart enough not to invoke that particular ghost.

Since this country’s earliest days, the American people have risen to this challenge – and all that it demands.   But, as we have seen – and as President John F. Kennedy may have described best – “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger.”

 

Half a century has passed since those words were spoken, but our nation today confronts grave national security threats that demand our constant attention and steadfast commitment.   It is clear that, once again, we have reached an “hour of danger.”  

 

We are a nation at war.  And, in this war, we face a nimble and determined enemy that cannot be underestimated.

It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

***

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.

***

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

The distinction is a fine one. When the president deems it necessary, it’s not an assassination. That would be unlawful.  But when the target of “lethal force” is someone who presents an “imminent threat of violent force,” it’s entirely different. A good killing.

Lawyers like to take ideas to their logical extreme. It’s a game we play to see whether the rationale holds up to scale, because experience shows that once authority is taken to kill people without trial or conviction because we call them terrorists in our War on Terror, it’s just a baby steps to apply it to our other wars.

To be clear, the use of the word “war” as a rhetorical trick has been around for a while.  In the 60s, we had a war on poverty.  Fortunately, the poor weren’t shot.  We’ve since had war on drugs, war on crime, now war on terror.  The beauty of calling an initiative a war is that it causes pride to swell in the hearts of patriots.  As on part of the body grows larger, it tends to edge out space for another. In this case, the losing body part is usually the brain.

There is a real thing called “war.”  It’s where sovereign nations, with armies and armaments, decided that the best way to address their respective might was on a battlefield. You knew who the enemy was, and there was a natural beginning and end, when one mighty army defeated the other mighty army.  Then it was over and we all went back to whatever we were doing before, with the exception of returning soldiers who were given a parade before they were ignored and forgotten.

The problem with our loosey-goosey use of “war” is that it fails to comport with the definition that allows us to bring it to an end.  If the only criterion was the number of Americans killed, we would be fighting the war on automobiles rather than bailing them out of their financial woes. It’s way too easy to add the words “war on” before a perceived evil and thereupon invoke the power of the executive to fix the problem with extreme prejudice.

GW Lawprof  Jonathan Turley wrote a good op-ed about AG Holder’s speech.

Holder became highly cryptic in his assurance that caution would be used in exercising this power — suggesting some limitation that is both indefinable and unreviewable. He promised that the administration would kill Americans only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” He did not explain how the nation in question would consent or how a determination would be made that it is “unable or unwilling to deal” with the threat.

There is no shortage of threats to our American way of life, though we tend to exclude those threats that could conceivably put us in the firing line.  If the only limitation is that the evil in the Government’s crosshairs is one with popular approval, then pretty much any “war on” will do. It’s a very effective publicity stunt, much like Reefer Madness was in its day.  With a catchy phrase and perhaps a decent theme song, it’s not particularly  hard to get the nation to back up the President on who we should hate today, who is destroying the fabric of our society.

So today it’s President Obama with his finger on the trigger. And today it’s the operational leaders of Al Qaeda, who everybody knows are terrible, evil people bent on destroying our nation.  Who doesn’t want them gone?

And tomorrow, there will be someone else with his finger on the trigger. And tomorrow, there will be someone else in the crosshairs. And if the Government has the authority to kill whoever it deems undesirable today, it will have the same authority to do so tomorrow. But then, what do you care? You won’t be the enemy of our nation.  Right, Pogo?

If Yajira Quezada was my daughter, she would be looking at some very lonely nights ahead, as there would be some serious punishment for mouthing off to her principal the way she did.  Then again, if she was my daughter, she would already know better than to do that. Having done so, consequences must follow.  Just not these consequences.

From NECN :

Eleven-year-old Yajira Quezada, a sixth-grader at Colorado’s Shaw Heights Middle School, was handcuffed and taken to a holding facility for disobeying the orders of an assistant principal during lunch and being “argumentative and extremely rude”.

An Adams County Sheriff’s Office incident report says the assistant principal found Yajira walking in the hallway during lunch because the girl claimed she was cold and needed to get a sweater from her locker.

The report says the assistant principal was in mid-sentence when Yajira, “turned and walked away saying, ‘I don’t have time for this.'”

When intervention efforts with a counselor failed, Yajira was handcuffed and put in the school resource officer’s patrol car and taken to a juvenile holding facility called “The Link.”

Steve Saunders, director of communications and community relations for Adams County School District 50, says anytime an incident rises to this level, officials take a close look at what happened.

“You hate to see something escalate to where it becomes a police matter. Once they step in and take over a case, it is really in their hands. The conclusion was, as far as the district was concerned, everything was handled appropriately,” Saunders said.

I couldn’t have anticipated an announcement of such enormous magnitude. Mark Bennett, running for the Texas Court of Criminal Appeals, is huge, and there was no way I was going to miss the opportunity to have my say.

But truth be told, I was bored.  After this post, I figured it wouldn’t be much of a stretch to wake up and enjoy the ideas and writing of others.  The next morning, I sat there, staring at the screen, my fingers twitching.   Dan Hull left me a  comment that said “writers gotta write.” I told him it was a pretty smart thing to say, but he informed me it was something I once told him.

With a lot of free time on my hands, I read stuff that I had previously neglected.  Some of it was scary bad, ranging from dead wrong to numbingly superficial, and saw how ignorance feeds upon itself.  My joke is that it’s like giving nuclear waste to a group of kindergartners and telling them to figure out a good way to dispose of it. Rather than come to the realization that the  risky shift was at work, and their mutual hugs and support of poor ideas might not be a great way to turn them into lawyers, they circled the prams to defend their right to think like children.

There were a ton of stories, cases and issues that arose during my hiatus, and left unmentioned in the blawgosphere.  Some blawgers complained that there was no reason for them to write because I was too prolific, writing about matters before they got a chance and leaving them only the crumbs.  So without a peep out of me, I figured they would step it up. Still, my RSS readers was pretty barren every morning. Very disappointing.

Not every blawg by a young or new lawyer made me wince. Not by a long shot. One young Philly lawyer, Fishtown’s own Jordan Rushie, really cranked up the machine and showed he’s got both the moxie and the desire to be a lawyer.  As much as others made me feel badly about not being the cranky old lawyer who throws a wet blanket on the babies’ beach blanket bingo, Jordan reminded me that there are young lawyers who want nothing more than to serve their clients. How could I not be there for him?

All of the reasons that compelled me to stand down remain.  They were there long before February 13th, and they are likely to remain for a long time to come. As much as I appreciate (and I sincerely do) all the comments, posts, emails and phone calls, blawging can be a huge burden. As I continually emphasize, the social media marketers are utterly full of it. This is not the way to get rich and famous. This is not the path to success and prestige.  It’s just a  pie eating contest where the prize is more pie.  Eventually, you have your fill of pie.

So when I wake up in the morning and crank up the computer, chances are pretty good that I’ll have something to write about. Whether it will be the same as before, I don’t know. Whether I’ll be crankier, more curmudgeonly, seems awfully likely.  If SJ didn’t suit your style before, don’t expect it to be warmer or fuzzier. But there will be words on the screen for as long as the need to write something strikes me.

Writers gotta write.  At least for now. Thanks for reading and enjoy a slice of pie.

Talk is cheap. A video, on the other hand, speaks volumes.  Aside from the issues surrounding the treatment of Americans (and everyone else) at airports (and elsewhere) under the rubric of saving us from terrorists by placing their body parts against our body parts in ways that would result in long prison sentences if it was done by anyone out of uniform, the concepts falls apart if it’s not effective.

This video is quite persuasive. While the use of body scanners, even if they did serve their intended purpose, fell shy of justifying the imposition of the government on the public as far as I was concerned, this seems to put the nail in the coffin.



Still feel safer?

H/T Randazza at the Legal Satyricon.

Update: It appears that the TSA doesn’t want you to see this video, and has “cautioned” journalists not to write about it. Via Ken (Mr. “I prefer to take long walks anyway”) at  Popehat, who asked TSA spokesgal Sari Koshetz whether it was true:

I expected the TSA might ignore me. I expected the TSA might say “no, you idiot, we didn’t strongly caution anyone against reporting a story, and we didn’t imply a threat to anyone.”

I did not expect a weak semi/non-denial that seems to corroborate that reporters were, in fact, “cautioned.” In fact, an uncharitable reader might note that Ms. Koshetz didn’t specifically deny making implicit threats, didn’t specifically deny strongly cautioning journalists against reporting a story, and in fact only made an ambiguous statement that could be read several different ways, some of them ominous.

The catch-line for the original television commercials was “I”ve fallen and I can’t get up.”  Lots of people thought it was pretty funny, but at the same time realized that it reflected a deep concern, that older folks living on their own needed a way to summon help if something bad happened.  Well, something bad happened to Kenneth Chamberlain, Sr.

From the New York Times :

Somehow the uncle, Kenneth Chamberlain Sr., a former Marine who had heart problems and wheezed if he walked more than 40 feet, triggered his Life Alert pendant. The Life Alert operator came on the loudspeaker in his one-bedroom apartment, asking: “Mr. Chamberlain, are you O.K.?” All of this is recorded.

Mr. Chamberlain didn’t respond. So the operator signaled for an ambulance. Police patrol cars fell in behind — standard operating procedure in towns across America. Except an hour later, even as Mr. Chamberlain insisted he was in good health, the police had snapped the locks on the apartment door.

The law recognizes two discrete functions served by the police. One is law enforcement, and the other is public safety.  But just because the law sees them as distinct doesn’t mean cops see them the same way.  No matter what function they’re supposed to fulfill, the  First Rule of Policing still applies.  So what if they’re on the scene to help someone in distress? 

They fired electric charges from Tasers, and beanbags from shotguns. Then they said they saw Mr. Chamberlain grab a knife, and an officer fired his handgun.

Boom! Boom! Mr. Chamberlain’s niece Tonyia Greenhill, who lives upstairs, recalls the echoes ricocheting about the hall. She pushed out a back door and ran into the darkness beneath overarching oaks. He lay on the floor near his kitchen, two bullet holes in his chest, blood pooling thick, dying.

Shockingly, the White Plains Public Safety Commissioner declared the shooting “warranted” because, well, they invoked the First Rule.  Not that it wouldn’t have been a good idea for the police to have remained calm and de-escalated the situation, calming an old man who might have been in some emotional distress.  After all, they didn’t know what was happening, which means they had to break into his room.  Sure, he told them he was fine at the door, but the police can’t trust the word of the person they’re there to save.

Some may wonder how it’s lawful for police to break into a person’s home without a warrant or probable cause, but this is where the rules applicable to their public safety function differ from their law enforcement function.  They were there to save Chamberlain. They were not there because anyone suspected him of having committed any crime, but to help.  When cops are there to help, they can do whatever they need to do, including breaking and entering a person’s home. After all, they’re there to serve.

Regardless of whether the police are summoned by Life Alert or the bat signal, of course, the same rules of engagement still apply.  After all, even ill people have to be absolutely compliant if they don’t want the police to shift gears.  The First Rule still applies.  If it becomes a choice between the welfare and safety of a citizen and their own safety, the citizen always loses.

There will likely be more information to be had about what happened to Kenneth Chamberlain, as there were video cameras in addition to the Life Alert recording, on the whole time, which captured this prediction:

His son recalls hearing his father say on tape: “This is my sworn testimony. White Plains officers are coming in here to kill me.” A few minutes later, a bullet tore through his rib and heart.

The police tasers also had cameras.  There are claims that he was taunted by police, and that a racial epithet was heard.  An amorphous claim that he was “known” to police is thrown in for good measure, though there is nothing to suggest he had every done anything criminal.  Plenty to consider, though its relevance isn’t clear.

What is clear is that a man who may or may not have needed help at the outset is dead.  What started out as the makings of a real life television commercial ended as an episode of cops.  The question doesn’t appear to be whether this could have been handled better, but whether the end result of a dead man whose Life Alert went off can be explained away sufficiently to rationalize his killing. 

Expect words like “threatening, fear, belligerent,” to be used to explain how reasonable the police were to shoot him. If it had been a drug bust, they would use “furtive gestures.” If unsmoked marijuana was involved, you would hear the word “pungent.” These are magic words that have long made stumbling blocks disappear.  Cheap words are usually sufficient to explain a death when the killing is done by a cop. That’s how the First Rule works.  Remember, it only applies to police, so don’t try it at home.

The scene when the police arrived was that an old man pressed his Life Alert button, and to which the White Plains police responded to help.  By the end of the encounter, he had indeed fallen and he couldn’t get up. That’s because they put two bullets in his chest.  That’s a very different scene.

Jay Rodney Lewis is a winner. He won. Big, big win. Complete acquittal.  But you wouldn’t want to be him.  From the Des Moines Register :

Lewis had just finished 112 days in jail because he didn’t have the cash to make bail. When jurors finally freed him on Feb. 9, Lewis walked out homeless, unemployed and minus most of his possessions.

Lewis, a Kansas native, moved to West Des Moines in fall 2010 to take a job in an Internal Revenue Service call center.

A former security guard and law enforcement officer, Lewis also is a hunter and gun collector and came to Iowa with a permit to carry a concealed weapon.

Lewis found himself in a road rage incident with a 35-year-old guy named James Scott Ludwick, described as a former soldier and convicted felon, who was driving home from a party, with his blood alcohol content at .189.  An accident happened, and Ludwick got out of his car and attacked Lewis, who warned him to stop and eventually shot him. It was captured on the 911 call made by Lewis.  Shockingly, Lewis was still on with the 911 dispatcher awaiting police assistance as things came to a head, the police nowhere to be found. 

According to Polk County officials, most pre-trial inmates spend 20 days in jail until they make bail and get back to normal.  But Lewis couldn’t make bail.

West Des Moines police arrested Lewis for failing to back off and avoid the gunplay. He was charged with two counts of intimidation with a dangerous weapon and one of going armed with intent.

The initial bail asked Lewis to post $225,000 cash.

Lewis, who made $32,359 a year at the IRS, didn’t have the money. So he sat in jail.

Given how common it is for those IRS employees to flee, it’s easy to understand why the prosecution would seek an amount that assured the defendant would remain incarcerated pending trial, and why the judge would go along.  What is less palatable is the police decision to arrest Lewis for defending himself.  Certainly, it’s easier to decide that the fellow who shot from inside his car the guy who was attacking him from the outside was wrong, despite warnings, but then, the easy way is always, well, easiest.

That Lewis spent only 112 days in jail until his acquittal is remarkable.  In other jurisdictions, trial wouldn’t happen for far longer, with a year and a half, may two, being within the realm of probability.  Less than four months from arrest to trial is pretty fast, all things considered, though not fast enough to prevent Lewis’ eviction.

One week after the shooting, a lawyer for [Lewis’ landlord] Regency Woods typed up a notice that eventually was posted on the door of Lewis’ apartment. It described Lewis as a “clear and present danger to the health or safety of the other tenants.” As evidence, it cited Lewis’ involvement in “an assault with a weapon within 1,000 feet of the property described above” and the fact that he’d been arrested because of it.

Amazingly, the landlord won the eviction.

Documents say a process server tried twice the next day to contact Lewis at the apartment. Lawyers also sent him a certified letter. Lewis was never there.

Despite the fact that Regency Woods knew Lewis had been arrested, no one ever contacted him at the jail. Instead, the apartment complex won a default judgment when Lewis failed to appear in court on Nov. 22.

And of course, when someone is evicted, something has to be done about his “stuff.”

The evicting deputy seized four handguns, three rifles, a shotgun and a machete that had been left in the apartment. But all his clothing and furniture disappeared on Nov. 30, along with a laptop containing the only copy of his fourth novel (a western).

“That was several decades of my life that got flushed down the toilet,” Lewis said. “I had a beautiful flat-screen TV. It’s now in somebody else’s living room. … For a while there, every time I turned around it was like, ‘Can it possibly get any worse?’ ”

It seems his belongings were left out at the curb.  Inexplicably, they weren’t still there when the jury returned the verdict of not guilty on February 9th, more than two months later. Go figure.

Stories like this are often related in hushed tones about how the legal system works, how an innocent man fought the charges and was ultimately vindicated.  This makes us feel good about legal system, trial by jury, the best system ever created for the administration of justice.  After all, justice was done, because Jay Rodney Lewis walked out of jail and headed straight for Fudruckers to get his first decent meal in almost four months.  It doesn’t get any better than this.

And so we hold the travails of Lewis up as a beacon to what a wonderful job we do.  The system has a name for guys like Lewis: Winner!  He beat the rap.  Too bad the ride destroyed his life, but that’s the price of our wonderful system.

A while back, I posted a  critical piece about a cop who suppported LEAP, Law Enforcement Against Prohibition, but did so from the shadows. This gave rise to some heated debate, which went down a road that struck me as unfortunate as it served to emphasize the differences between the positions of police and criminal defense lawyers rather than our areas of agreement and support.

I invited LEAP’s executive director, Neill Franklin, to write a guest post. While there are difference in our respective views of the world, and more importantly criminal law, there is no other organization in this nation with whom we share as much. It’s important that we remember this, and work toward a closer and better understanding of each other.  My appreciation to Neill for writing this post, and for taking the time to speak to the concerns of criminal defense lawyers and civilians.

_____________________________

I am a 34 year law enforcement veteran from Baltimore Maryland and the current director of LEAP (Law Enforcement Against Prohibition). LEAP is an organization of cops, judges, prosecutors, corrections officials and federal agents who want to end the prohibition of drugs. We know first hand how these policies of prohibition have destroyed neighborhoods, communities and even countries. We also know how they have led to corruption, police misconduct and the “us vs. them” culture (cops vs. citizens).

Few external forces could move me to post, but the announcement by  Houston criminal defense lawyer Mark W. Bennett has done so.

That, friends, is why I’m running for office.

“What office?,” you might ask.

My first thought was to seek a seat on the Texas legislature. But when I learned that the Libertarian Party of Texas needed a candidate for one statewide office to have a full ticket, and that the office was right in my bailiwick—not politics, but criminal law—an office that ought to be beyond partisan politics, an office that is polluted by the two-party system, and an office in which I could do real and lasting good, I knew that was the race for me.

And that’s why I’m running for the Texas Court of Criminal Appeals.

I’ve come to know Bennett pretty well over the years. In person. On the telephone. Online.  Incredibly smart. Scrupulously honest.  Possessed of the sensibilities that I would ask of a person in whose hands another person’s life would rest.

We often joke that anyone who wants to wear the robe isn’t the right person for the job.  But Mark’s not the sort of guy to desire power.  No need to laugh at his jokes or compliment his excellent choice of cowboy boots.  He is, however, the sort of guy who will sit in his chambers all night long just to make sure there is someone there to read the motion for a stay, rather than lock the doors and put a man to death.

Death.  Unlike such refined places as New York, Texas kills people, and does so at an alarming pace.  Its tradition of saying “oops” after learning that they killed the wrong one is even more alarming, at least to Mark.

As the title to the post of Mark’s announcement says, Bennett, Dissenting.  The voice of the trench lawyer, the criminal defense lawyer, the person for whom procedure doesn’t trump right and wrong, is missing on the Texas Court of Criminal Appeals. It’s missing on pretty much every court, but then, no other court (with the exception of the Supremes) needs it as badly as Texas.  Somebody has to sit in the office next to Sharon “Killer” Keller.

Mark is running on the Libertarian Party line.  It’s not exactly clear how much of a libertarian he is, as I’ve never known him to toe a party line to the exclusion of deeper thought and better ideas.  While his belief that more laws, more government, is not the solution to all evils has never wavered, the only thing he’s ever been really dogmatic about is his hatred of totalitarianism.  Nothing there with which to disagree.

Mark Bennett doesn’t come from a long tradition of judicial service.  Mark doesn’t come from one of Texas’ leading dignified law firms.  Mark isn’t the scion of huge oil money, a baseball team or thousands of ranch acres. Mark comes from the courtroom.  Given the metric by which the voters elect a person for the bench, Mark is not the usual candidate.  Knowing the man, I can state with absolute assurance that he’s not the usual candidate.

Which seems like a damn good reason to break my silence.  Texas needs Mark W. Bennett on its Court of Criminal Appeals.  Because of who he is. Because of what he will do. And because he’s not the usual candidate.  The People of Texas demand better of their Court. They now have the opportunity to make that happen.

Vote for Mark W. Bennett for the Texas Court of Criminal Appeals.

The first post at SJ was published on February 13, 2007.  It was a day without a great deal to do, and Dr. SJ was a bit annoyed at my bothering her, and suggested (in a way that hardly seemed like a suggestion) that I start a blog as a way to keep me busy.  Idle hands concerned her.

So I did.

Since then, I’ve posted 4,744 posts. I’ve written more, but some never saw the light of day because they were either awful, inappropriate for one reason or another or failed to reflect something I believed to be worth your time to read.  I subscribe to the idea that I don’t know what I think until I see what I write.  On occasion, I will write something and realize my thinking was wrong. Sometimes terribly wrong. Other times just a little wrong, but wrong enough to dump it.

Much has changed in five years.  Many people have come and gone in the blawgosphere.  Some still post, but they changed from regular posters to occasional posters. Others have disappeared into the ether.  For the silly people who insist this is the path to wealth and prestige, the hard reality is otherwise. If having a blawg was the secret to success, the vast majority of blawgers wouldn’t quietly disappear, but they do.

There are some who have been at this longer than me, some first-wavers who have remained the pillars of the blawgosphere, and second-wavers (like me) on whose heels I followed.  Some have turned it into their business, though few have been able to successfully monetize blawging.  I certainly haven’t.

I’ve made many friends over these years, and many enemies as well. My posts reflect a number of diverse themes, and I have tried to remain true to them.  It wasn’t always easy, as I subscribe to no particular ideology and try to see each day with a fresh view.  Some themes, that clients always come first, that integrity is the one attribute we cannot forsake if we are to both survive as a profession and deserve the trust placed in us, have been immutable. 

The people I’ve come to admire most in the blawgosphere are the ones who demonstrated two characteristics.  The desire to think, and the ability to be challenged without whining.  To all of our benefit, there are people like this in the blawgosphere, though not nearly enough. They weren’t of any particular political or ideological stripe, or one side of the courtroom, or one job.

Over the past five years, I’ve enjoyed writing whenever the mood struck.  The mood struck often. Managing a blawg wasn’t nearly as much fun, with burdens that readers never see.  Deleting thousands of spam comments every morning was not nearly as glamorous as some think.  Deciding whether to publish or toss comments was always a problem, reflecting my desire to let people speak their minds, but being disturbed by the prospect of people being confused, mislead, or made stupider for having read them.  On rare occasion, I’ve stuck my nose into other people’s blawgs for this purpose. Most of the time, it wasn’t appreciated.

I’ve tried to encourage and support new blawgers whose work contributed to the blawgosphere. This is not a test to see who captures the most eyeballs.  No one makes people read.  The blawgosphere is stronger and more influential as a whole than individually.  I have not been kind to the opportunists who try to use it for their personal advantage, or convince others to do so for either their finaicial gain or self-aggrandizement.  These things are destructive, both to blawgosphere in general, and thought and integrity in particular.

Recently, it’s struck me that some of the new blawgers have written posts that mirrored things I had written years earlier.  They wrote good posts, and they did so without any clue that anyone had discussed the same issues before them. It dawned on me that I’ve gone through another circle, as happens when we get older. Every year, maybe day, new people come into the blawgosphere and it’s a rebirth, where everything old is new again.  As this thought occurred to me, I realized that my work is now part of the old, forgotten blawgosphere.  This is probably how it should be.

Five years in real time is a blink of the eye.  In internet time, it’s an eternity.  Thanks for reading, and keeping me honest.  With that, I offer this concluding video.