While Radley Balko has been keeping a close watch on the  militarization of police for a while,  his post about the Lenco Bearcat (“Not Your Grandfather’s Stutz”) takes the cake.



Imagine the harm this could do.  Radley notes:

Free Staters in Keene, New Hampshire, are pushing back against the town’s proposed plan to buy a Bearcat armored personnel carrier.

Interestingly, LENCO, the company that makes the vehicle, pulled the promotional video below from its website in response to the Keene protests. DHS has given out hundreds of homeland security grants to local police departments across the country to purchase these vehicles.

There are few things more beloved by lawyers than equivocation.  Leave some wiggle room and nobody, but nobody, can ever call you out.  On the other hand, it’s the first thing our eye goes to, the wiggle words that take an assertion that might otherwise mean something and reduce it to meaninglessness.  Better to be covered than matter.

As the social media matures, assuming mature is the right word given the divergent paths it has taken between substance, marketing and those who desperately pray that can pretend to be substantive while simultaneously shilling their stuff and prays no one notices, concerns are arising about the affect of their public utterances. 

An issue arose when Eric Turkewitz at  New York Personal Injury Law Blog wrote about how he was going to delete his old twits in advance of trial so that jurors who might research him wouldn’t be put off by his politics.

Last week I was on trial — at three days it was the shortest one I ever had — and my trial prep included this: Deleting any Twitter messages that were political. My first post on Twitter was thee years ago,  January 29, 2009. Since then I have made about 800+ posts.

So the few tweets on politics that I’ve made were taken down. None were overboard on anything — regular readers know that ad hominem attack isn’t exactly the way I write — but why take the chance?

When it comes to anything that might impair the success of a client’s cause, why take the chance indeed?  For those aren’t familiar with Turk’s twits, I can’t recall anything remotely resembling anything risky, but Turk’s concern for the welfare of his client, above his concern for the critical importance of anything he might have had to say on social media, is admirable. The client comes first. Always. The value of his twits for posterity pales in comparison.

Yet, the lawyer’s natural aversion to risk can take this concern to other, broader places, which was fairly clear in a remarkably revealing post by a Philly personal injury lawyer, Max Kennerly.  From the title, The Real Risks of Writing A Legal Blog, which suggests that the risks Max perceives are “real” while what anyone else says isn’t, to the backhanded compliment to his bloggy-friend, Jim Dedman, the post reflects the tenuous connection between the desire to promote oneself and natural risk aversion.

Over at the North Carolina Law Blog, Jim Dedman, proprietor of Abnormal Use (and friend of this blog) writes about a perceived risk of writing a law blog:  that your opponents may take the things you write and use them against you in court.

I agree with Jim entirely that there isn’t much reason to worry about that, not least because of the low odds that you will actually say something your opponent could really use against you in court.  I believe in what I do as a lawyer and so my thoughts expressed on this blog are usually consistent with the arguments I make in court. 

While Max writes that he agrees entirely with Jim, he obviously doesn’t, or there would be no need to write at all, or at worst no need to write any further.  Certainly, there would be no need to write about the “real risks” if his friend Jim had just done so.  Rather, this was the mere lead in to a rationalization of the concerns Jim discusses that justify Max’s approach.  In other words, everyone is wrong but Max, who being a lover of lists, proceeds to rationalize why he knows best and use this as a mechanism to indirectly confront his demons.

3.         You could receive attention.  Assuming you’re writing a blog worth reading, at some point, people will pay attention to you, but attention isn’t the unmitigated blessing marketers make it out to be.  There are three types of attention that can impose a significant drain on your time and attention.

*  *  * 

Second, you will be criticized.  After I wrote about the software license contained with Apple’s new iBooks Author Program, a law student who writes for an Apple fan site immediately started hurling criticism at me, including questioning how I could have passed the Bar.  When Apple swiftly revised its licensing agreement to correct the problem that I and others had pointed out, the Apple fan returned to tell me that this somehow validated every criticism he had of my post.  Go figure.  He is one of about six billion people who have written a blog, forum post, email, or tweet explaining how wrong I am about something.  If you don’t have a thick skin for that sort of thing, then blogging might not be for you.

Third, you will be misinterpreted frequently.  After I wrote a post about how pregnant women should have more legal protections in the workplace, someone promptly tweeted that I had set back women’s liberation efforts by 50 years.  I have received countless hostile comments from people who obviously didn’t read my post, they just read the title and used their imagination to fill in the rest, and so wanted to tell me how wrong I was for the things they imagined that I wrote.  It’s frustrating and there’s nothing I can do about it. Again, if you want to write a blog with reading, you need to have a thick skin.

What makes this a fascinating lesson is that most of you won’t have the slightest clue who Max Kennerly is or have read anything he’s posted on his blog.  Max does comment here occasionally, but his comments usually aren’t well-received by criminal defense lawyers because of his excess of political zeal and lack of grasp of criminal law.  It’s not that Max has offered insightful comments. He has. It’s just that his antagonistic comments haven’t won him any friends.

Max has long suffered from the lack of interest he’s generated at home, and the antagonism he’s endured elsewhere.  He argues for his relevance, placing himself squarely in that perfect center point of being the only one who does it “right,” and can’t understand why others don’t appreciate his genius.

As a result, Max has made himself an excellent poster-boy for risk aversion and its impact on the blawgosphere.  It’s not that his points about attention aren’t true. If a blog gets no attention, then the complaint is why no one reads.  If a blog gets attention, it may well be negative as well as positive.  Max has tried desperately to find that perfect spot where he can get attention, and yet avoid the criticism and misinterpretation.  He suffers from the Goldilocks syndrome: not too loud, not too soft, just right.

The lesson from Max is that there is no such place, where you reach millions of fans, and they all adore you.  There is no way to avoid the risk associated with the expression of ideas, but with the absence of ideas, there’s no reason for anyone to bother with you.  If you can’t hack the negative, then you are going to be miserable.  If your fear of the negative impairs the expression of any thought, then it won’t matter as no one will read you.

Max describes the the absence of the expression of meaningful ideas in terms of being boring, a gross over-simplification.  Boring (or interesting, for that matter) is the outcome of expressed ideas, not the cause.  It’s what’s produced by lawyers who may want to say something meaningful but are afraid of the potential for negative consequences.  They may equivocate. They may bury their ideas. They may start out with the intention of taking a stand, and end up hiding in a corner. 

Max tries to argue that there is some middle ground, which coincidentally is where he thinks he sits, that provides that perfect balance for lawyers.

As I’ve written before in discussing the types of legal blogs, in my humble opinion there’s nothing wrong with writing blogs for an audience of non-lawyers Googling around for information on something. You don’t need to write for lawyers (like Kevin does) or shout from the rooftops the failings of the law and the legal profession (as Scott does), but the writer of a legal blog must take some pride and joy in what they do. 

When he says “there’s nothing wrong with writing blogs for an audience of non-lawyers,” that’s code for marketing, thereby validating himself.  Yet Max soon came to appreciate that his tepid marketing posts drew no interests, and started getting a bit riskier by coming close to expressing ideas.  This resulted in criticism and misinterpretation, which he now explains can’t be avoided and requires a thick skin (which he must have, since he’s still blogging).

The take-away, however, is quite the opposite of Max’s “real risks.”  There is no La-Z-Boy atop the fence of equivocation that will allow you to come perilously close to acheiving marketing balance without exposing oneself to the negativity of criticism or misinterpretation.  Say something even close to real and someone is going to want to spank you for it.  Say nothing and it won’t matter.

There is another characteristic of lawyers worth mentioning, aside from risk aversion and the love of equivocation.  That’s guts.  Some lawyers have stood at the forefront of bold ideas, speaking bluntly and clearly about the things that matter to them, to the profession and to society, even when they are controversial or unpopular.  There may be a thousand voices who will say mean things about them, but those lawyers who have the guts to speak out won’t care.

And that lays out your choices.  Be tepid and get criticized. Be bold and get criticized.  Or say nothing and don’t exist.  Your call.

It seems as if people have been arguing over whether the Supreme Court should televise its proceedings forever.  While my thought is that there would only be twelve people outside of some law profs who would want to watch, outside of the few cases that are heavily promoted as being “important” every year, what’s the big deal? 

The worst that can happen is people realize how boring our job is. An hour of oral argument in a regulatory case and no one will ever watch again.  The best that can happen is that while the public may not have the slightest clue what’s happening, they will be comforted by knowing that they were allowed to see it from the comfort of their den while wearing their snuggy and sipping hot chocolate with those little baby marshmallows.  No harm, except to fashion.

But as Justice Souter proclaimed that if cameras come into the Supreme Court, it will be over his dead body, not everybody takes such a laissez-faire attitude.  While the arguments against cameras in the courtroom are decidedly different when it comes to a trial court, concerns about their impact on the Supreme Court are hardly as severe.  For the most part, there isn’t much rigor to the arguments against televising oral argument before the Supremes, and most commentators think they court should allow it.

Still, the court resists, and it appears that Congress intends to force the issue. At Concurring Opinions, Dave Hoffman raises some interesting questions.

It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:

‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

Two questions.

(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney?  That it can face the wall?  But more interestingly,

(2) What if the Supreme Court just says no?

Oh my, is it possible that Congress could enact a poorly written law? Clearly, the language sucks. It’s replete with questions, including Dave’s but extending to any number of limitations, prohibitions, conditions, not to mention what the heck they mean by due process rights (does that preclude violations of other rights?).  But poorly written laws are nothing new, and if Congress can craft incomprehensible criminal laws, why should something as innocuous as this be above reproach?

The more interesting question, as Dave notes, is the second. Imagine Souter lying across the threshold refusing to move.  Will the Sergeant at Arms with a cadre of pages storm the court?  They both hard armed guards, but neither has an army.

On the other hand, as  Tony Mauro points out in a comment at SCOTUSBlog, it’s not as if Congress doesn’t pass laws affecting the workings of the Supreme Court.

But if the Court does not act, I don’t see why Congress could not. Acts of Congress dictate the size and quorum of the Court (28 U.S.C. 1) and when the Court’s session should begin (28 U.S.C. 2), so something as unremarkable as camera access seems to be a “lesser included” kind of regulation of the Court.

Then again, do cameras in the courtroom fall into the “housekeeping” measures with which Congress becomes involved?  If they were so unremarkable, why are so many people remarking?

Given the politics surrounding the judicial branch of government, with presidential candidates arguing that judges should be hauled before Congress to explain unpopular decisions, and perhaps be drawn and quartered if their answers don’t meet the approval of the 27 people who comprise a particular (oh, let’s call it the 6th just for fun) congressional district in Georgia,   Would this be a great time to open the door for increased influence from a co-equal branch of government to start telling another how to run its house?

The flip side of so many thinking there’s really not much harm in allowing cameras in the Supreme Court is that it’s similarly not all that important to do so either.  Sure, there’s merit to the argument that public confidence is enhanced by transparency, but few of the public who desires to spend their time watching will have a sufficient appreciation of what they’re watching for it to be meaningful. 

It’s largely form over substance, as the level of nuanced argument in the matters that come before the court are often well beyond the public’s more simplistic understanding of the law.  While this is one of the arguments against cameras, that the public’s inability to appreciate what they’re watching will serve to create controversy based on ignorance, that’s nothing new. Heck, read the lawprofs’ commentary about the Jones decision and ignorance abounds. Why shouldn’t the public get its piece of the pie?

Yet, few lawyers want the politicians poking their fingers into court decisions, particularly those of us who tend to be on the unpopular side of the Constitution, as opposed to those who believe every defendant should rot in hell and whatever worked for the Puritans ought to form our legal morality in perpetuity.

Given the potential for grave mischief if Congress starts tinkering with the inner workings of the Supreme Court, now seems to be a particularly bad time, both for Congress to enact a law and for the rest of us, who might otherwise not care a great deal about cameras in the Supreme Court, to let that opinion blind us to the camel’s nose peeking under the tent.

Cameras in the courtroom may be no big deal.  Congress in the courtroom is another matter.

In a lengthy post at PrawfsBlawg, University of Florida lawprof  Lyrissa Lidsky takes on some issues of “CyberOverbreadth” with the flavor of the month crime, cyberbullying.  To the greatest extent I’ve yet seen on the part of an academic, she tries to wind her way through the politically correct position of being against it while simultaneously considering is First Amendment implications.

With regard to criminal law, a meaningful response to cyberbullying–one that furthers the objectives of deterrence and punishment of wrongful behavior–would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment’s protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.

Sure, it’s not much, but it’s a whole lot more than other scholars have acknowledged.

Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . [This gaping hole is in Lidsky’s post. Why she left the particularly problematic forms unsaid may never be known.]

While introducing narrow legislation of this sort may not be as satisfying as criminalizing “adolescent cruelty,” it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.

While we’re still left scratching our head at what exactly is meant by cyberbullying, no one as yet being capable of defining it or willing to go out on a limb to try, we at least obtain some clue from the description of these laws as “criminalizing ‘adolescent cruelty’,” the laws against which must become a “meaningful tool to combat serious harms.”

It goes without saying that all of this is a backlash to a number of child suicides attributed to bullying.  Whether that’s accurate, or at least complete, is hardly clear, but the mythology has already grown to epic proportions, much like the child-predator claims of wilding back during the Central Park Jogger case, only to learn years later that it was all nonsense.  The lesson of criminalize first, and get the facts second, has been well-learned, even in the Academy.

Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.

While less than a complete recognition of the emptiness of the definition, this is a decent start.  Proponents of anti-bullying laws, and most notably the ones who have adopted the religion of CyberBullying, seek to use criminal laws to punish “every social transgression” that “inflicts emotional distress on its targets.”  They desire a happy Utopia, where no child is ever made to feel badly, and they mean to do it by the imposition of criminal punishment.

While Lidsky falls short of recognizing that hurt feelings shouldn’t be criminalize because it neither provides a basis for a crime nor a rational way to define criminal conduct, at least she recognizes that it impinges on speech in ways that would gut First Amendment protections.  Free speech has become the first casualty in the war against hurt feelings in the Academy, and Lidsky’s stance puts her at odds with many of her colleagues.

Yet, to the extent she’s staked out a rational and doctrinally sound position, she backtracks in her response to comments.

For example, one relevant (and terrible) difference between cyberbullying and offline bullying is that it creates a permanent record of the victim’s abuse that carries into her adult life. It cuts off the victim’s hope that she can ever escape her tormentors. This is something First Amendment doctrines should account for, perhaps by creating some sort of “take-down” remedy. However, existing doctrine stands in the way of implimenting such a “take-down” and must be rethought. We could also broaden existing remedies for invasion of privacy or intentional infliction to better account for this type of harm. But remedies such as these have to be carried out at the level of individual doctrines.

I suppose it makes me an incrementalist, but I don’t agree that we need to “rethink First Amendment doctrine as applied to cyberspace.” Instead, we need to rethink various First Amendment doctrines as applied to certain behaviors or speech abuses that occur within cyberspace, including, but not limited to, cyberbullying.

While acknowledging that attempts at criminalizing cyberbullying suffer from overbreadth now, it appears that she supports the creation of exceptions on an ad hoc basis to fix the roadblocks the First Amendment creates in reaching Nirvana.  Notably, a “take-down” remedy of the sort that’s  gained traction in the European Union under its “right to be forgotten” regime is a favorite.

To the extent any law profs have offered anything to suggest that we not create a slew of laws to turn children into criminals because someone’s feelings were hurt, Lidsky’s tepid support of the First Amendment is about as good as it gets. Unfortunately, it’s not much, and appears to collapse as soon as anyone makes her feel bad about position.  Ironic, no?

While the big crimes tend to cause the greatest outrage, and hence get the most attention, it’s the little ones, the ones we consider inconsequential, that have the big numbers. Thousand, tens of thousands, of petty offenses are prosecuted yearly, although it’s not quite fair to call them prosecuted as they usually result in a quick guilty and check changing hands.

Big numbers and lots of money, but mostly in the aggregate.  For the individual, it’s hardly inexpensive, but still far less expensive than fighting and winning.  And provided it’s not something that will send a guy to jail or ruin his life, most people are happy to get it over with and be gone.  Tiny crime. Thousands of them. Like loitering.

From WXYZ in Detroit, Robert McGowan was driving home when he was stopped by a cop.

The jury agreed. William Barnes, who had already served his time for the attempted murder of Police Officer Walter Barclay in 1966, wasn’t liable for his death  40 years later. But as one might expect, it wasn’t going to be that easy.

When Barnes was picked up on the murder charge in 2007, he had a cellphone and car keys on him. Among his parole conditions was the requirement that he have his parole officer’s permission for a cellphone and a car, and apparently he didn’t. A violation! A technical one, since he had done nothing wrong with them, nor was there any particular reason why they were part of his conditions, but they were nonetheless.

The violation resulted in a recommendation of six months additional time. He did his six months, but with the murder charge pending, he was held. After the acquittal, he came again before the parole board, but this time the assistant who lost his murder case kindly explained in a letter that he was the sort who should never see the street again.  And he was held. And he remains in prison still.

Eventually, he sought habeas relief from the federal court, where the case was sent to Magistrate Judge Timothy Rice.  In his crippled from the shooting,

lived a fitful existence of limited work, injuries from car accidents, heavy smoking, hepatitis, depression, rage that rendered him unwilling to cooperate with physical therapists, a possible stroke in 2005 and more hurdles than any man should bear. He died in 2007. The cause was listed as a urinary tract infection.

Barnes had nothing particularly to commend him. He never saved a cat from a tree or a child from a burning building. He never found religion or dedicated his life to good causes.  There is a question as to whether he ever really felt remorse for what he did, though he eventually said he did.  The best that can be said of Barnes is that, after a few escape attempts, he served his time.  And he was a human being. But then so was Barclay.

The prosecutor who lost the murder trial sent a letter to the parole board arguing against Barnes’ release:

He stated he “came to know William Barnes quite well” while preparing for the murder trial, and claimed Barnes “remains the same vile criminal that he was” decades ago, “despite his outward appearance of a frail, elderly person.” Id. The ADA falsely asserted Barnes “has yet to serve the full sentence” he received in the 1960s for shooting Officer Barclay, and demanded that Barnes “should spend the rest of his life in prison.” Id. at 239-40. In closing, the ADA attached an autopsy photograph of Officer Barclay’s legs.

If ever there was a person to test the mettle of the system, William Barnes was the one.  And Magistrate Judge Rice made his recommendation.

After careful consideration, I respectfully recommend Barnes’ petition be GRANTED, and Barnes be released from custody immediately. A local prosecutor portrays Barnes as a murderer meriting life in prison, but a jury of Barnes’ peers acquitted Barnes of murder. The Board’s repeated denial of reparole strongly suggests that, like the local prosecutor, the Board seeks nonetheless to punish Barnes for that crime. If due process means anything, it means that the state may not punish an individual for conduct of which he has been acquitted.

Even the worst of us, and make no mistake that William Barnes is one of the worst of us, is entitled to due process.  He’s now 75 years old and, as of this writing, in a cell.  The State of Pennsylvania seeks to keep him there for a murder for which he was acquitted because, now that passions are again stirred at the shooting of Barclay, they have decided that he just doesn’t deserve to be free.

The parties will have an opportunity to file objections to the report and recommendation, which will go before the District Court Judge for decision, where he can accept, reject or modify the recommendation.  Mag. Rice concluded:

The actions of the Board, the DOC (through the prison superintendent), and the ADA have forced Barnes to endure a shocking pattern of arbitrary and irrational expectations, requirements, and parole denials over the past two years.

Immediate release is the only remedy that will fully redress the constitutional violation at hand and ensure Barnes is subjected to no further arbitrariness or vindictiveness. I recommend ordering him paroled forthwith.

Forthwith is a funny thing in this proceeding, as will be a while before the report and recommendation reach the court and conclusion.  If the State drags things out long enough, and the court allows it, maybe Barnes will die before any decision was reached.  Even if he is eventually released upon this “arbitrary and irrational” state conduct, he will have spent years in prison that, for someone else, would never have happened.  And for the State, that’s the point, to keep William Barnes in prison for as long as possible, and hopefully until he dies.

H/T Max Kennerly

Jeralyn Merritt at  TalkLeft came up with this charming sentence, for those who thought a life sentence wasn’t harsh enough.  For Bennett Barbour, convicted of rape in 1978, it applied. 

Investigators knocked on Bennett S. Barbour’s door on Valentine’s Day 1978 and arrested him on a charge of raping a College of William and Mary student at gunpoint a week earlier.

The slight, 22-year-old handyman from rural Charles City County had been married just a few months when he was taken into custody, the romantic greeting card and box of candy for his pregnant wife left unopened.

Today, Barbour is a divorced, 56-year-old convicted sex offender who has bone cancer, and who desperately wants to clear his name. “I ended up losing my wife,” he said. “I told them I didn’t do it, but they railroaded me and locked me up.”

Now, the state has proof that he is innocent.

Today, the judge in his case and his defense lawyer are both dead.  The prosecutor can’t remember him, and the trial transcript is long lost.  But Barbour is now conclusively proven innocent of the rape by DNA, which the prosecution has known for 18 months.  Why it took so long to reach closure isn’t clear, but everyone now concedes that he’s innocent.

Then again, no one was all that convinced at the time he was convicted.

Arrest records show Barbour was 5 feet 6 inches tall and weighed 115 pounds at the time. The victim was 5 feet 8 and weighed 135 pounds, Barbour said.

Also, a March 24, 1978, forensic lab report obtained by Barbour’s current lawyers shows that even the relatively crude blood typing performed on seminal fluid left by the assailant strongly suggested that Barbour was not the attacker. The seminal fluid was left by someone who is Type A, as was the victim. Barbour is Type B.

And “negro” hairs taken from the crime scene were said to be “not consistent” with a sample from Barbour, the report said.

Still, the jury found Barbour guilty, siding with the identification made by the 19-year-old victim who, according to a probation office report, identified him by police mug shots and in a lineup.

And if that’s not enough, consider:

Barbour had a solid alibi; he did not match the suspect’s description; he has brittle bone disease; and he did not have a gun, said Enright.

“But (the victim’s) identification of him still wins that contest.”

Of course, eyewitness IDs are easily challenged through the usual means. No reason to worry there, according to our Supreme Court. 

Fortunately, Barbour wasn’t sitting in a cell the whole time, having received a ten year sentence and been released on his first parole date.  Even the cops who investigated him and the probation officer who wrote him up suggested that he might not be guilty, and that he posed no threat to anyone.

Yet Barbour not only did his time, but spent the intervening years as a sex offender, a convicted rapist, losing his family and then his health to bone cancer.  On the flip side, a rapist remained at liberty to enjoy the life that Barbour lost.

So now the world knows that Bennett Barbour is no rapist. Maybe he’ll get some restitution for his troubles. Maybe not.  Nothing will give him back the life he would have had but for that knock on the door on Valentine’s Day, 1978, and some will take comfort in the fact that he was proven innocent in 2012, 34 years later.  Great system.

H/T Rob Robertson

Like everyone with a blawg, I get slammed regularly with spam comments and trackbacks, often to the tune of thousands overnight, requiring me to spend significant time banning and deleting comments written in variations of English, often amusing, selling everything from Gordon Ramsey’s cookbooks to shoes with red soles, tons of Uggs and marital aids of all sizes.  It’s part of the blawger’s glamorous life.

Every now and again, the spam comes from a lawyer.  The other day, it was from the Mesriani Law Group, ridiculously illiterate and blatant.  Apparently, their spammer was very busy, and Eric Mayer got it as well.  If it’s particularly annoying spam, I send it off to Ken at Popehat, because I know he likes to screw with lawyer spammers.  Before I send it off, I sometimes check out the scoundrel sending it, just to make sure it isn’t something really special.

Yesterday, it was special.  The spam came in from someone who clearly worked hard at creating his internet persona, using the website NY Criminal Lawyer.  The comment was literate and tailored to the content of my post, but clearly and shamelessly self-promotional.  Nothing new there.  The website, however, grabbed my attention.

The “Ranked #1” language changes from screen to screen, with “Ranked #1 of 842 Criminal Defense Firms in New York City.”  Click on it and it takes you to Avvo, where you find he’s an Avvo “Pro” advertiser.  The lawyer’s name is Arkady Bukh, admitted to practice in 2003.  His work experience, based on what he posted about himself on Avvo is somewhat limited:

His top three awards on Avvo are:

Howard Wasserman posted at  PrawfsBlawg about the importance of sports for women, one purpose of which was to teach a critical lesson, as expressed by basketball coach Katie Meier:

She particularly emphasized something I never thought of–that sports teach you how to fail and how to come back from failure, an ability we can use in all aspects of our lives.

The requirement of 18 USC §3553(a) is pretty straightforward, that “a sentence sufficient, but not greater than necessary” to fulfill it’s purpose.  The law isn’t saying what that sentence must be. Only that it not be greater than necessary, which leaves just barely enough room for the judge to park a Mack truck.  Still, that’s not enough for some.

Via Doug Berman, the 7th Circuit vacated and remanded the sentencing of Richie Pennington :

Richie Pennington pleaded guilty to selling a firearm to a felon, distributing ecstasy, and possessing a firearm in furtherance of a drug-trafficking crime. The government recommended a 68-month sentence, the bottom of the applicable sentencing-guidelines range. Pennington argued that 64 months was enough.  The judge rejected Pennington’s argument because the four-month difference between the sentencing recommendations was so little.  He added that although the sentencing guidelines are not binding, “judges are told that [they] are to be followed.”  The judge imposed the 68-month sentence suggested by the government.  Pennington appeals, challenging the procedure the judge used to reach that decision.

We vacate the sentence and remand for resentencing.  The judge appears to have rejected Pennington’s request for a modest below-guidelines sentence simply because it was modest and below the guidelines.  There may have been other reasons why he did so, but as it stands, we cannot be sure the judge gave adequate consideration to Pennington’s argument.

What’s four months between friends? Well, the judge and Pennington probably weren’t really friends, but Judge Richard Mills of the Central District of Illinois nonetheless shrugged off the difference.  The Circuit, by opinion of Judge Sykes, held:

By characterizing the difference between the recommended sentences as “de minimis,” the judge implicitly accepted that 64 months was sufficient to serve the purposes of sentencing.  If so, the parsimony principle would ordinarily require the more lenient sentence.

It may come as a surprise to many that parsimony, the quality of stinginess or economy, is supposed to guide a judge in the imposition of a sentence. The judge is to impose no more time than absolutely necessary to fulfill the  legitimate sentencing purposes of §3553(a)(2). 

One of the most inexplicable aspects of sentencing is the basis upon which a judge concludes that one sentence is proper but another isn’t.  Why 17 years and not 16 years, 9 months?  There doesn’t seem to be much to commend one over another, and I have yet to hear a judge explain how some of the oddball sentences imposed make sense when a similar sentence, whether a year less or month less, is inadequate to serve its purpose.

But here, Judge Mills blew it.  He could easily have said that the 68 month sentence, as dictated by the Guidelines, was the minimum necessary to satisfy the demands of the law, and everybody would have walked away.  Instead, he did the one thing no judge can do.  He shrugged.

The question is whether four months on the back end of a five plus year sentence makes a difference.  Clearly, Mills’ answer from the comfort of his bench was “not so much.”  From the comfort of your desk chair, you may well agree.  From the comfort of a prison cell, those four months, 120 days, may seem a bit more significant, more real.  If only because that’s 120 mornings you don’t wake up in your own bed.

What’s revealed by Judge Mills’ sentence isn’t so much evil and callousness, though it wouldn’t be wrong to conclude that, but the detachment of those who make decisions about other people’s lives from the real consequences of their rulings.  They aren’t sentencing people, but defendants. Defendants are interchangeable cogs in the grinding wheels of justice. Rule and roll.

Run enough defendants through a courtroom and they all begin to look alike.  As much as we, the lawyers standing next to the guys in orange (or stripes in some backwoods jurisdictions), like to think our pleas for a lesser sentence are moving and heartfelt, the rhetoric may sound like the teacher in a Charlie Brown special, blah, blah, blah.  It’s not that it’s all been said before, though that’s often the case, but that breaking through the wall of detachment, behind which is the judge’s humanity, isn’t easy.

Obviously, this isn’t true of all judge or all lawyers.  And not every defendant is reduced to mere chattel in every courtroom.  But routineness of it all, the banality of shrugging off four months of a person’s life, is far too common, even with judges who sincerely believe that  they agonize over every sentence imposed.

Rarely does a judge speak such cavalier words as Judge Mills did in sentencing Richie Pennington.  Most know better than to say “whatever,” and assert that they have fully considered all arguments and concluded that a specifics number of months or years, and no more nor less, is required.  While there may be a reason to appeal, it’s not because the judge told the defendant from the bench that four months of his life isn’t worth the effort.

It’s not that they don’t think that, or that they have no magical powers to determine that 64 months is insufficient, but 68 months is exactly what parsimony demands.  Judges have no magic.  And, of course, it’s their job to sentence, and so they must arrive at a number to impose no matter that they are no more capable of a reasoned conclusion that 68 months is good, while 67 months won’t do. 

For those judges who can appreciate that a month, a day, in a human being’s life matters, and who truly agonize over every day of a sentence they impose, I applaud you.  And for those who shrug, whether openly or behind your wall of detachment where a month or a year lost to a person’s life is just a number, it’s time to retire. 

And for any lawyer who doesn’t do everything in his power to make his client into a living, breathing person, a spouse, a parent, a person, you have failed to play your role in the parsimony clause, and failed as the last person standing between the defendant and the grinding wheels of the system. Just because you get to go back to your office after the sentencing doesn’t mean a day in your client’s life doesn’t matter.