No one will ever feel entirely comfortable that the real story behind the killing of teenager Ramarley Graham is known.  There was no video of the shooting. Graham is dead. The officer who shot him while he was purportedly flushing something, presumably marijuana, down the toilet isn’t likely to tell a story of his mistaken reaction. 

There was only one other person with knowledge. From the New York Times :

The officer confronted the man, Ramarley Graham, who was in the bathroom, possibly trying to flush marijuana down the toilet. A moment later, a shot rang out, killing the teenager.

While narcotics officers had followed Mr. Graham to the apartment on East 229th Street in Wakefield thinking he was armed, no gun was found, making the grandmother, Patricia Hartley, 58, a crucial witness.

What makes this alarming is that Patricia Hartley wasn’t treated as a witness, but as the enemy of the police.

After Mr. Graham was killed, Ms. Hartley was taken to the 47th Precinct station house on Laconia Avenue and held for seven hours, said Carlton Berkley, a friend of the family’s who said he had retired from the police force as a detective in the 30th Precinct, in Upper Manhattan. Mr. Berkley added that Ms. Hartley was forced to give a statement about what happened.

“She gave it against her will,” Mr. Berkley said. “She didn’t want to speak to the police.”

It’s unclear what this means.  Not that she didn’t want to be interrogated, but that she was forced to give a statement. Was she held in a room and subject to the Reed Technique?  Was the told she wouldn’t be released unless she answered questions? Was she subject to psychological torture, or physical compulsion?

The official response is that the claim that she was questioned against her will is untrue, and Mrs. Hartley was cooperative.

Steven Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said Ms. Hartley “made no complaint” to an assistant district attorney who was at the station house.

Had she made such a complaint, it would have been relayed to the police, Mr. Reed said.

“If the nature of Mrs. Hartley’s complaint is true, it would be highly insensitive,” Mr. Reed said. “Nobody should be forced to give a statement, let alone someone who had just lost a grandson in the way that Mrs. Hartley did.”

There’s a bit too much wiggle in this statement for comfort.  It doesn’t say that the ADA was in the room as Ms. Hartley was giving her statement, such that she could have expressed her complaint to him.  No, just that he was in the station house. That smacks of an artful denial.

More importantly, what could have possible taken seven hours? The incident probably took no more than a few minutes, and even if she was asked to repeat it a few dozen times, she would be on her way in an hour or two.  It’s pretty hard to imagine that a grandmother who just lost her grandson chose to spend seven hours in the precinct with the cops who killed him.

And then there is the objective evidence that Ms. Hartley was being held incognito and against her will:

Mr. Berkley said he went to the station house after being contacted by Mr. Graham’s father, Franclot Graham, whom he had known for many years. He added that he waited two hours without being able to speak to her.

A colleague of his called Assemblyman Eric A. Stevenson of the Bronx, who also came to the precinct house and asked a man who he believed was an assistant district attorney if Ms. Hartley was being held against her will. The man disappeared, Mr. Stevenson said, and minutes later Ms. Hartley emerged, crying.

Mr. Stevenson said Ms. Hartley’s lawyer, Jeffrey Emdin, had also been unable to speak to her.

But now for the problem. So what? 

The remedy for a coerced statement is suppression, but Ms. Hartley isn’t being charged with anything, and suppression has no applicability to her situation.  There is the violation of her civil rights, which, assuming it can get past a motion to dismiss based on qualified immunity for engaging in necessary police investigation, might produce a damage award of $27 in five or six years and after thousands of hours of time dedicated to the case.  That would mean the attorney for Ms. Hartley would be entitled to a third, less expenses.

The police officer who shot and killed Graham, 30-year-old Richard Haste, is the subject of an investigation.

Officer Haste and a supervisor, Sgt. Scott Morris, 36, who was in a stairwell between the first and second floors when the shot was fired, have been stripped of their guns and badges and placed on nonenforcement duty.

That the supervisor, Sgt. Morris, has been stripped of gun and shield is curious, since he wasn’t there when the shots were fired, and suggests that something went very wrong immediately after the killing.

As for Patricia Hartley, she lost a grandson, she was held for seven hours in the precinct, she was forced to answer questions against her will and there really isn’t anything to do about it.  No one questions her right not to be interrogated, but a right without a remedy isn’t much of a right at all.

H/T Radley Balko

Some wags suggest that there are no epiphanies to be had in New Orleans, where the American Bar Association is dealing with the hard questions of confronting the legal system these days, like whether red is still the color for power ties.  Yet Associate Justice Antonin Scalia came to a shocking realization at the meet-up, announcing that he doesn’t enjoy hearing criminal cases nearly as much as we enjoy having him hear them.

From Doug Berman, via the AP :

The federal courts have become increasingly flooded with “nickel and dime” criminal cases that are better off resolved in state courts, U.S. Supreme Court Justice Antonin Scalia said Saturday.

Scalia told an American Bar Association meeting in New Orleans that he’s worried that the nation’s highest court is becoming a “court of criminal appeals.”

That this worries him worries me.  That this just occurred to him worries me as well, but it’s understandable that someone who sits as one of nine comprising an entire branch of government might be a little out of touch with what’s happening on the street. I mean, he’s busy and probably doesn’t even twit.

What is curious, though, is Scalia’s description of the criminal cases flooding the courts as “nickel and dime,” which is exactly what I think too.  Great minds think alike, right?  And “nickel and dime” criminal cases, the ones that clog up the court from dealing with important civil issues, put people in prison for decades. Given that they’re nickel and dime-y, what I suspect Justice Scalia is really trying to say is that a year, maybe two in some of the really bad cases, is more than enough.

Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with “nickel and dime criminal cases that didn’t used to be there.”

“This stuff is just pouring into the federal courts. That’s not what the federal courts were set up for,” he said.

Now it’s pretty darn likely that Justice Scalia knows that these cases don’t spontaneously arise out of nowhere, but are being investigated, indicted and prosecuted by somebody who brings them in federal courts.  While it’s possible that it’s civil lawyers bent on making sure the Supreme don’t screw up their sweet deal, it’s more likely that it has something to do with the Department of Justice and it’s local minions, the United States attorneys for the various districts.  Defendants do not rush though the doors of federal courthouses demanding to be prosecuted. Oh, no.

Then, of course, there’s the obvious problem, that every new elected official is required to offer a new criminal law, much like a gang initiation, to prove his mettle.  That doesn’t mean the United States Attorneys have to use every law enacted, or duplicated on every level of government possible, or keep every courtroom filled to capacity, but then they might insult their local congressperson who went and sponsored a perfectly good crime and expects the United States Attorney to use it (Maricopa County excepted).

All of this is a massive insult to the defendants who are trotted through the federal system.  Scalia is quite right, that the federal courts have no business handling the flotsam and jetsam of crime, and yet they do. As they have increasingly for the past 25 years.  And there isn’t a single defendant who asked that it be that way.

There is plenty of blame to spread around, not the least of which includes the expansive reading of the commerce clause which, with minor exceptions, has come to mirror Chaos Theory. That Congress has enacted 3000, 4000, maybe 5000 federal crimes, plus the additional 30,000+ regulatory offences that no one knows anything about, is part of the problem, but the vast majority of federal crimes are brought under a handful of laws, most notably drug conspiracies and weapons. 

These are the bread and butter of state crimes, and it was killing the feds that they couldn’t get any headlines out of these crimes.  If they were happening, someone holding federal office had to be the hero to rid society of these plagues.  Otherwise, they looked inconsequential, bad things happening and them sitting in their chamber talking about, oh, boring federal government stuff.  No front page news there.

The most insulting aspect of Scalia’s epiphany isn’t that the people who are subject to this irresponsible federal criminalization and prosecution cycle are going away for decades for “nickel and dime” crimes, but that his biggest concern is that it takes too much time and energy of the Supreme Court that could otherwise be used for cases they would rather hear. 

“Believe me, it is not hard, once you’ve got it though your head that you are not a court of errors, that it is not the job of the United States Supreme Court to correct mistakes,” he said.

Therein lies a significant separation between our aspirations for the Supreme Court and its own, limited, perspective.  Ultimately, the criminal justice system exists not as a burden to Nine Justices, but as a means of providing a safe and orderly environment while preserving the rights of the people.  The Constitution doesn’t limit the jurisdiction of the Supreme Court to concern itself only with circuit conflicts.  The Constitution doesn’t preclude the justices from correcting error. 

Having paved the way for Congress to enact laws enabling federal prosecutors to spend their days handling “nickel and dime” cases that send people to prison for decades, Scalia can’t disavow his responsibility for both the creation of this fiasco and to deal with its product, the error and failings that are below the dignity of our important federal judiciary.  You cause these prosecutions to happen in your courts? Now deal with it.

And if it’s too much of a burden, too hard to handle, then clean it up.  Admit the you screwed up, that the commerce clause wasn’t meant to allow the federal criminalization of every wrong possible.  When the feds bring cases unworthy of your oak paneled courtrooms, toss them until the United States Attorney gets the message, that “nickel and dime” cases won’t be allowed to clog up your marble hallways anymore.  You have the power to fix this mess.  Use it.

As a humorous aside, Doug Berman, no doubt tongue in cheek,  writes that this story “reveals that I am not the only one who thinks the federal criminal docket has gotten way too big.”  It’s a pretty big club.

The story of Amy has been beaten to death,  both  here and by her advocates, to the point where even the Department of Justice has said “enough.”  Amy, who suffered horribly as the child in the “Misty” child porn series, deserves compensation for what was done to her. No doubt about it.  But the government has come to recognize that every person who ever viewed a Misty video shouldn’t have millions in restitution imposed as a matter of law.

But what about poor Amy, says James Marsh?  Marsh, as it happens, is her lawyer.  So he’s gone to Change.org to start a petition, the content of which is worth reproducing in full:

During the past two years, victims of child pornography (represented by the Marsh Law Firm and pioneering attorneys Paul G. Cassell and Carol L. Hepburn ) have been seeking restitution in federal courts throughout the country.

Using a long forgotten passage in the Violence Against Women Act championed by then-Senator Joe Biden in 1994, child sex abuse victims are asking federal judges to award the mandatory restitution guaranteed by this law.

Unfortunately, the Justice Department has abandoned victims of child pornography on appeal by advancing a legal standard which the courts consider unworkable. The Justice Department’s position is effectively preventing hundreds of child victims from receiving any money from the tens of thousands of child molesters and pedophiles who collect and trade child sex abuse images.

In October, the Justice Department filed a Supreme Court brief opposing child exploitation victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals–at the Justice Department’s urging–decided to reconsider a landmark decision in favor of victims of child pornography. The Justice Department has one more chance to do the right thing and support victims of child exploitation.

Please tell President Obama’s political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year’s oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

“What I don’t understand is why the government has switched sides. They were on Amy’s side in the trial court, were they not? I’m not sure how they can switch sides now and say that the statute doesn’t entitle her to relief. That seems ver–if not duplicitous–very strange to me. And it’s also in derogation of the obvious intent of that provision of the statute.”

Amy and child victims like her need your help. Hundreds of victims are effectively shut-out of the federal courts by the Justice Department’s wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised child victims that they would receive full restitution from criminals convicted of child exploitation. Ironically, Vice President Biden’s own Justice Department is failing to live up to his vision in the Violence Against Women’s Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

Rarely has such a flagrant attempt to manipulate public opinion with outrageously deceptive allegations and arguments been attempted.  And the comments to the petition reflect this pandering to ignorance.

Why People Are Signing

I do hope that DOJ will support the right of child victims to restitution.

Because they should get restitution. The children had gone through enough.

I HATE CHILD ABUSERS!!

Children need us to protect them!

This seems to be the most important piece of legislation to do the right thing, the victim.

While there’s little chance that these comments will persuade anyone who has even a basic grasp of the issues and problems, who could possibly be so disgusting and disgraceful as to stand up against those who contend that they do it all for the children.

This attempt to pervert the system isn’t merely ethically and intellectually outrageous, but yet another attempt to abuse Amy for the benefit of lawyers and an agenda.  Must Amy be perpetually used as a pawn?  I’m with Lanny Breuer on this one, enough is enough.

But more importantly, the emptiness of the victims rights advocates could not be more flagrant than this disgraceful attempt to manipulate public opinion.  Will Marsh and his ilk not be satisfied until they squeeze every last penny for their client, no matter how many lies they need to tell in the process?  Because it’s not like Marsh works for free.

H/T Anna Durbin

Worms turn, it seems, even for guys who never met a prosecution they didn’t adore.  All it took was Conrad Black’s book and some serious rhetorical effort by National Review pundit, and former SDNY assistant Andrew McCarthy to come to the realization that he could still love the bomb while completely ignoring Lord Black’s message.

At the New Criterion, Andy works overtime to explain:

As Conrad Black has painfully learned, the tune in our Manichean legal theater is called by the progressive vanguard—the media, the academy, and, in particular, the Lawyer Left. A Matter of Principle is Black’s often gripping memoir of his nightmarish trek through America’s justice system and business governance culture—a system that can work grave injustice, a culture that is all government and no business. The nightmare endures: Lord Black of Crossharbour, international newspaper mogul, British peer, distinguished presidential biographer, and for most of his life a lover of the United States, sits for a few more months in a federal prison—convicted, he compellingly argues, of crimes he did not commit.

Finally, a defendant he could love as much as Scooter Libby and Whittacker Chambers.  Never, never in my wildest imagination, would I expect to read these words from Andy’s fingers:

Black was convicted on three counts of this hopelessly vague offense. Tacked on for good measure was a bizarre obstruction of justice charge, involving his removal to his home of thirteen boxes out of a company office from which he’d been evicted. Inspectors and lawyers had had free reign to copy all relevant documents for three years, Black had permission from the acting company president to remove the materials, he was unaware there was any American investigation to obstruct, he was unaware of the contents of the boxes, and he had dutifully surrendered over 100,000 documents as demanded. The jury, however, was doubtless influenced by a prosecutor’s repeated false implication that the removal violated a Canadian court order.

When it comes to anyone else, you wouldn’t be able to find such pejorative language to describe the prosecution within a mile of Andy’s writing.  If anything, his efforts would be put toward demanding more severe punishment, and a few more counts in the indictment, for some foreigner ignoring our laws and undermining our ability to put him in his place. But not for Conrad Black.

The jury acquitted the defendants on the fraud trumpeted by Breeden and echoed by the Justice Department. Yet the government had an escape hatch: the ever-elastic theory of denying “honest services.” Originally concocted to deal with the peculiar circumstance of bribery—e.g., a judge who takes money to fix a case, depriving the public of his expected probity—this doctrine was stretched by corporate governance activists to criminalize alleged ethical lapses. Though neither intending nor effecting a fraud, an official can find himself in the soup over loose allegations of self-dealing at the company’s apparent expense.

How delicious to read Andy call “honest services” fraud a “concocted” crime, while ripping “corporate governance activists” (and by “activists,” he means lefties) for the ills they impose on corporate society by raising ridiculous expectations that put defendants in “the soup over loose allegations,”  Man, can you not help but love this guy?

Except Conrad Black wasn’t all about apologizing for the overbearing manner which which this nefarious legal system oppresses corporate CEOs.  Andy touches on it to the extent it serves his politics:

We need not, at this point, trot out the inevitable allusions to Kafka, Job’s tribulations, or Tom Wolfe’s Bonfire of the Vanities. True, in shoring up the indomitable spirit that fairly leaps off every page, Black refreshed himself in their lessons, just as he did in the deep wells of his Catholic faith and the unstinting constancy of his family. Black, however, coins his own neologism to describe the dystopia he makes of modern America: a “prosecutocracy.”

But Lord Black had  long since fleshed out the point in a  National Post op-ed about his prison education at the hands of the American prosecutocracy:

The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

You won’t find anything kind about those “bad” criminals in Andy’s review. They don’t even exist in his screed against the system, which couldn’t convict enough, or sentence enough, until it came to Conrad Black. It’s not that I find anything with which I disagree with Andy this time.  In fact, he’s my frigging hero, and I admire enormously the artfulness of his language as he shreds the prosecutocracy.  He’s quite the writer, even if he never managed to connect his “lawyer left” phrase to any cognizable thought, leaving it dangling gratuitously.

The problem is that Lord Conrad Black’s epiphany was about the system as it worked its injustice on all who were so unfortunate as to come into its clutches, while Andy McCarthy’s fury and spittle is limited to the one fine man against whom this horrible system worked its magic.  That would be the same system that he only criticizes for being insufficiently harsh when the target doesn’t fall into his good-guy pigeonhole.

I’m awfully proud of Andy McCarthy for coming to the realization that the legal system, the one in which he happily participated as an Assistant United States Attorney, the one which gave him the tools and weapons to convict for conspiracies where the proof was every bit as “concocted” as here, the one he applauds as a conservative pundit, the one he criticizes because it won’t impose the ultimate punishment on those he sees as sufficiently craven, is imperfect.  If only that applied beyond the wealthy and powerful, to the rest of us.

Conrad Black understood how the system, the prosecutocracy, harmed every defendant.  Andy McCarthy only sees how it harms corporate giants, and the rest can rot in hell.  But at least Andy got a chance to blame the Lawyer Left, and that made reading Black’s book worth the effort.

His blog, Photography is not a Crime, has stood at the forefront of the movement to record the conduct of police in public, revealing both the dirty underbelly of real “police work” and undermining the long history of misconduct and abuse that was never provable and therefore officially denied.  Carlos Miller chronicled it all.

And now he’s been busted. Again.

From the Miami New Times :

Local journalist Carlos Miller has a blog called Photography is Not a Crime. Apparently Miami-Dade police officers are not avid readers.

County cops arrested Miller on Tuesday night as he was filming the Fuzz forcibly evacuating Occupy Miami protesters from Government Center downtown. But he says the police are the ones who messed up.

Aside: When is the last time anyone called the cops “the fuzz”?  It brings back fond memories.  Good times.

But Miller says the cops really screwed up when they allegedly deleted his footage. Miami Dade Police declined to comment.

“If you’re going to arrest me for doing nothing, fair enough, that’s your stupidity,” Miller says. “But to delete my images… that shows that they were afraid of my footage getting out. That’s totally illegal.”

Miller says that the police were actually doing an admirable job clearing Government Center without violence.

“The stuff of nightmares,” is how Lee Pacchia at Bloomberg Law described it.  Data stolen.  The problem isn’t that we lawyers don’t realize it can happen. Of course it can. But so too can Timmy, the drug-addled offspring of your second cousin Ned, who you gave the summer job in your office, steal a file, even if he’s unfamiliar with the standard alphabet.

The solution is that we don’t believe it’s going to happen.  We don’t believe that someone with the extraordinary technical prowess to hack us doesn’t have better things to hack.  We refuse to believe it. 

The reason we refuse to believe it is that we want to use the internet, as if there is really any option anymore, and there isn’t a damn thing we can do about it.  So we block it from our minds, deny it as a real possibility and plow on.

It must have come as a shock to Neal Puckett, then, when he found out that Anonymous made the announcement.

Just a few minutes ago, Anonymous announced they had stolen 2.6 gigabytes of email belonging to the law firm Puckett Faraj. Neal Puckett represents Staff Sergeant Frank Wuterich, who was accused of leading the group of Marines who killed 24 unarmed Iraqi civilians in the town of Haditha in November, 2005—what later became known as the Haditha Massacre. Last month, Wuterich struck a plea deal where he’ll be demoted from Staff Sergeant to Private, but will serve no prison time.

A good deal for Sgt. Wuterich took a turn south for everyone involved.  While the data has yet to hit the streets, chances are awfully good that it’s not going to make anyone look like a hero.  Did Puckett fail to protect his client’s confidential communications?  Well, sure.  That they are now in the hands of some people he doesn’t know, but he knows aren’t covered by his malpractice carrier, clearly something went very wrong.

But can anyone blame Puckett?  While the details are unknown, chances are that there was absolutely nothing he could have done to protect the data.  If the  FBI and Scotland Yard can’t keep their chats private, what exactly do you think you can do better?

Whether it’s a  disgruntled employee at a cloud computing company, or within your own shop, or the Chinese or Anonymous, or the federal government, or someone as yet unknown, we add this to the list of things that can go very wrong with our new and wondrous digital world.  There are precautions that we normally take, extreme and expensive precautions that, should anything to wrong, others will inform us we should take.  But are there any precautions that will provide perfect security?

The flip side is that we never had perfect security with physical files either.  The same unhappy folks in offices today were in offices before, capable of accessing files and destroying them, or perhaps handing them off to someone else like Pentagon Papers.  Whether it’s Timmy the Addict or that nice gal who empties the wastebaskets, we didn’t stay awake at night thinking about whether we left a file on the desk or a drawer unlocked.

In Lee Pacchia’s interview of Michael Riley, who might consider investing in an iron, the trade-off is couched in terms of money, the cost of “bullet-proof” security versus the potential for liability.  As yet, there isn’t a clear standard of liability, how much security is needed to provide reasonable care.  Is it a decent password or do we need armed digital guards?  And no matter what security a lawyer uses, you can bet your career that it will be second-guessed should there be a breach, as with Neal Pluckett, that spills your clients dirty laundry all over the internet.

Despite my exceptional knowledge of digital security protocols, which stops just short of passwords longer than 3 characters, I take comfort in acknowledging that it’s enough to keep a luddite out but ridiculously inadequate should Anonymous or the FBI decide that they want to know my highest score on Angry Birds.  In other words, I’ve come to grips with the fact that there are some out there who can hack the crap out of me should that be there intention, and there isn’t a thing I can do about it.

Instead, I’ve developed a trick that defeats the problem.  I don’t put anything to substance into an email.  I don’t allow my clients to put anything of substance into an email.  I realize this is heresy, since this is the way all communications are required to happen in this digital age, and that we live in a time when all information is spread from computer to computer, but I never quite trusted it.

For those of you who have been inside a courtroom, you may see codgers use something that’s flat and yellow, with bluish lines going east to west.  This is called a “yellow pad,” and used to be an accepted tool of the trade.  I now call it a yPad to make it sound more modern.  I use it to write on.  With a pen, which is (I’m told) a device that should never touch the shiny front of an iPad, not to be confused with a yPad.  When I get up from the table in the courtroom, I take my yPad with me. Always, unless I’m using it to play an amusing trick on a young prosecutor, but that’s the subject of another post.

When I’m done using a page on my yPad, it is never thrown into a garbage can.  It’s taken with me back to my office, where it is ceremoniously destroyed.  It is not reduced to a computer file, to be held in perpetuity just in case someone, someday, demands to know whether I wrote something down. Things that must be remembered are reduced to another writing, in my personal hand using a script that would make a nun faint, and placed within a manilla folder, within a locked cabinet.  Even if someone breaks in, they would have to be able to decipher my handwriting to know what was on the page.  No one has ever broken that code.

This may not work for everyone.

While the means by which our privileged communications, work product, and client confidences can be obtained by others are multiplying, and from long distances and by people we don’t know and might never imagine would be interested, there likely isn’t a whole lot we can do about it.  For every security guru who tells us it’s a problem, someone will ask the important question, so what’s the solution?  They have tons of answers, but nothing that solves the problem.  There is no “bullet-proof” answer. 

It’s foolish to delude yourself into thinking it can’t happen. Of course it can. It’s similarly foolish to throw a ton of money into putting up brick walls that some nefarious computer culprit can go over, under or around if they’re so inclined, and expect that more people will have the ability to do so every day.  It’s a whole lot easier, and more effective, to avoid creating content that reveals confidences or can be used to harm a client. It may not be entirely avoidable, but we can certainly keep it to the barest minimum.  And really awful handwriting is something to which every lawyer should aspire. It has its virtue.

It would have been extremely funny to open this post, given what will come in a bit,  with a video of Alec Baldwin in Glengarry Glen Ross as a means of emphasizing how bizarrely misguided advice can be.  It would have, but I can’t.  I can’t because Rachel Rodgers used it herself, starting her terribly sad post with the same quote.

Apparently, she didn’t realize what the quote, and Mamet’s story, was about.  Baldwin’s character, Blake, wasn’t motivational, but a monster, a demon brought in to destroy and subjugate the spirit of the real estate salesmen beneath him.  He reflects the worst in man.  Rachel Rodgers uses him as her exemplar.

My first couple of months as a solo, I spent a lot of time talking to prospective clients. At that time I was offering free consultations. During these consultations I would give away the milk, which meant that very few potential clients were buying the cow. Even worse, I didn’t clearly express to my prospective clients what the cow was and why it was worth my fees to get it. I had no idea what the hell I was doing and was quite perturbed that many of these prospects weren’t becoming paying clients.

Unfortunately, how to sell is among the myriad of things that we lawyers need to know yet didn’t learn in law school. When I was just starting out, I didn’t understand how important the mantra, “always be closing” really was. After months of being disappointed at how few clients I had, I realized that closing clients needed to be my numero uno priority.

Bearing in mind that Rodgers’ decades  months of experience color her epiphanies.  When she explains how her early days as a lawyer failed to produce income, it’s easier to understand why she shifted her focus during her second week of practice by embracing Alec Baldwin’s ABC, always be closing.  Hungry people need to eat.  Rodgers is starving.

Despite her tenacious resistance to appreciating the ethical duties of lawyers, and notwithstanding the poverty of her juvenile written and reasoning skills, it’s hard to blame Rogers for her misguided views.  Had she not persisted in her efforts to be a life coach who has yet to have a life, to tirelessly promote herself as a guru to the desperate and foolish, I would not mention her.  But since she’s chosen to scream about her genius, there isn’t much choice.  She doesn’t even realize she’s a pawn, doing the bidding of her elders who enjoy the benefit of making money off her silliness, making her the target as they pull her strings.

Rodgers’ head has been filled with delusions, that lawyers sell, sell, sell, and that’s what brings success. She thinks lawyers sell real estate, sell used cars, sell day old fish. It doesn’t matter what lawyers sell, as long as they sell.  And close the deal.

When  Jordan Rushie asked me about her post, it wasn’t because he had any particular feelings toward a young lawyer named Rodgers.  Rather, he fears for his generation of lawyers.

I mean, who cares what your clients need, right?  It’s all about making money.

Sounds like a great idea, except for one problem.  As a lawyer, we are a fiduciary for our clients.

In other words, a lawyer has a duty to not to view clients as a “mark” or a “lead”.  However, in the comment section, Rachel states:

If you feel like your services aren’t valuable or lack confidence, that can be a barrier to effectively closing leads.

…closing leads?  Sometimes a client might not need your services.  Sometimes they are better off saving their money. And it’s our duty to tell them that.

This is really a question of mentoring, of guiding new lawyers down the road of ethics, or competence, of integrity.  Or empowering young lawyers to make money their God, that anything they have to do get a buck out of their “mark” is the road to success.  While some  try to reimagine the legal profession in ways that will better fulfill our obligation to serve our clients, others are redecorating the boiler room.

Just as Jordan was mentored to believe that skill and integrity are the tools with which a lawyer serves clients, and he strives to earn the trust that clients place in him, Rachel was mentored in marketing and self-promotion, where clients are leads and closing the deal, any deal, is all that matters.  Sure, as a lawyer, Rachel Rogers shouldn’t be such a puppet to the real entrepreneurs who fill her naive head with lies and delusions. But not everyone has the strength, the intelligence, the insight, to know when they’re being played.

So don’t blame Rachel Rogers for being the face of the new generation of lawyers who are so delusional and misguided that they demonstrate the worst of what can happen to the profession. Blame her mentor, Blake, no matter what name he uses.

Oh, what the heck. Here’s the video.

Regardless of how much you love the Langdellian approach to pedagogy, the one thing nobody ever tells a law student is that the story upon which your education relies is, more or less, a fairy tale.   Appellate Squawk airs the dirty little secret.

Trial testimony of Dr. Bag: “When the patient walked into the emergency room, he had a laceration to his leg about 3-4 inches long. He told me he and the defendant were arguing about whether A-Rod had ever played left field for the Penguins, when the defendant slashed him with a bottle opener. I cleaned out the wound, stitched him up and got his blood pressure back to normal. He went home the next day, walking, with Tylenol.”

DA’s brief on appeal: The victim hovered between life and death as he was rushed to the hospital, screaming in pain. His heart could have stopped at any moment. His leg nearly fell off.  For hours it was touch and go, but the surgical team bravely labored through the night. At dawn the chief surgeon, mopping his brow, announced, “By George, it’s a miracle. He’s going to make it.”

Of course, it’s not like the defense has no opportunity to challenge.

Your reply brief: What unbelievable rubbish. That wasn’t the testimony at all.

But that’s argument by lawyers.  The truth is what the court says the truth is.

The Appellate Division’s decision 6 months later:

“Defendant insists that the finding of substantial risk of death was unsupported by the  evidence because the doctor didn’t use that exact phrase. We disagree. The victim, screaming, “Don’t let me die! It’s my little girl’s birthday!” was rushed to the hospital, hovering between life and death, pursued by the machete-brandishing defendant. At one point the victim’s heart stopped and had to be replaced. At another point his leg fell off.  A team of surgeons working around the clock for 72 hours managed to restore him to life, but the victim remained in agony for weeks.  Contrary to the defendant’s stupid, time-wasting argument, there is no formal catechism that a doctor has to recite to establish substantial risk of death. Anything involving blood is clearly sufficient.”

There is no criminal defense lawyer who has done any significant appellate work who doesn’t have a story about this, the “facts” as found by the court that never happened, not even close, either in real life or at trial.  There is an appellate decision, perhaps even one that’s right on the law, premised on facts culled from a brief that flies in the face of every bit of testimony.

Yet, this is now the truth.  The Appellate Division said so, and so it must be.

This is a bit hard to wrap your head around, suggesting that whoever prepared the decision couldn’t be bothered to crack the transcript and vet the prosecution’s brief for just a wee bit of reality.  Perhaps some kid clerk, destined for greatness at Biglaw, the Academy or the bench, was charged with vetting the facts, and was either too raw or too susceptible to influence to comprehend that he was repeating a pack of lies, characterizing argument as fact.  It’s not like anyone expects busy judges to check up on such things.

It’s a killer. You bleed at trial, doing everything you can to undermine the fantasy presented by the prosecution to assure a conviction. You score some points as witnesses concede their exaggerations, allowing the jury to see the face of a person disgraced by their now-exposed deceit.  It may fall short of the truth, but the lie has been exposed to all. Well, maybe not all.

Not every appellate decision comes back this way.  If the court takes a hard look, they may well find facts that bear a reasonable resemblance to something that was said at trial.  And sometimes you have no clue what case they’re talking about, because the ‘facts” upon which the court relies don’t look anything like the evidence at any trial you’re familiar with. 

The affirmance makes the evidence look clean and clear, despite the 9 days of jury deliberations, ending only after the third Allen charge, the one where the judge threatens to sell of the jurors’ children’s body parts if they don’t reach a verdict.  Over objection.  In the appellate decision, the defendant’s guilt is so ridiculously obvious as to make the reader wonder what idiot would possibly have taken the case to trial.  What idiot, indeed.

By the time a case makes it to the Supreme Court, it’s been so utterly sanitized that it invariably strikes readers as being beyond dispute.  We may fight like dogs over the law to be applied, but the facts of the case, often set forth in a paragraph or two, despite the 7 months of trial.  There’s no room for tediously conflicting testimony that would only muddy up the deep and important thought necessary to explain the prosecution’s virtue.

Squawk’s post is, as usual, a very humorous presentation, though tainted with the undertone of frustration and exasperation of fighting one set of facts and losing another.  It doesn’t happen every time, but it happens far more often than you would think.  Ask any appellate lawyer.  Try to explain it to any appellate client.

When Mrs. Miller told the 5th grade class to invent a time machine and take the whole period if necessary, it was great fun and a wonderful exercise.  The kids really enjoyed it and learned a lot. Of course, they didn’t invent a time machine, but that was obviously not the point.

— Principal John Friske

According to a lot of reputable media outlets, the sky is falling for both legal education and legal services.  I understand the basis for this conclusion.  A lot of lawyers, young and old, are unemployed or underemployed.  The debt loads of graduating students are staggering.  The established “brand” law firms are doing something they have never done before — shrink, or at least not grow.  This puts lawyers on edge and has a tendeny to spawn unhealthy, short-sighted behavior.  The federal government, through the direct lending of the Department of Education, continues to fuel the lawyer production machine.  So things may get worse before they get better.

*  *  * 

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal.  The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

The snarky reaction to “better, faster and cheaper law” is pick two.  But he’s right, this is what people want of us, whether it’s attainable or not, and pursuing this, ardently or otherwise, is a worthy goal, particularly in conjunction with making a decent living, wiggly though the concept may be. 

But two lawprofs?

Rather then leap to the obvious problem, it seemed responsible to see what they would do.  After a round of backslapping and mutual admiration, the purpose of which could be the establishment of ascribed credibility or just the usual academic kiss blowing, a  substantive post finally appeared.

Brent E. Newton, an adjunct professor at Georgetown University Law Center, has posted a legal education reform piece on SSRN, entitled The Ninety-Five Theses: Systemic Reforms in the American Legal Education and Licensure   [Hat-tip TaxProf].  Judging by his title, Newton is hoping to spur a Reformation of legal education, akin to what Martin Luther did for Christianity in the 16th century.  If that is his agenda, I will not stand in his way.  

According to his GULC web bio, Newton’s is Deputy Staff Director of the U.S. Sentencing Commission; prior to that, he had a distinguished career as a public defender.  Newton is not the only adjunct-practitioner who has forcefully challenged U.S. legal education.  In 2008, Jason Dolin (solo practitioner, adjunct at Capital), published  Opportunity Lost: How Law School Disappoints Law Students, the Public, and the Legal Profession.   In 2010, Steve Bennett (partner at Jones Day, adjunct at Fordham) published a law review article entitled,  When Will Law Schools Change?

Where does one look for cutting edge thinking to reform legal education and the profession?  Before answering, bear in mind that the Academy has a hierarchy of scholars, the very bottom of which is manned by ugly animal called “adjuncts.”  They are not invited to sit on committees deciding serious matters. They may be invited to faculty teas, but aren’t expected to come and, if they do, nobody talks to them.

Law reviews.  That’s the answer to the question above.  And law review articles written by adjuncts have two things going for them. First, because they’re adjuncts, lawprofs view them as the voice of practicing lawyers, so as to be able to later claim that they are fully inclusive of all “stakeholders.”  But more importantly, by referring to law review articles written by these adjuncts, they sufficiently “serious” to be worthy of a scholar’s attention.

Law professors rarely engage with these critiques; to acknowledge these critiques, some might argue, is to give them oxygen and legitimacy.  I think this approach is a huge mistake.  Any enterprise interested in long-term success cares about the perceptions held by its stakeholders — and adjuncts are definitely in that group.  In times of crisis, we need friends, not enemies.  

Further, Newton, Dolin and Bennett are serious people and very capable lawyers.  If you leaf through these articles, you’ll see that they read like Brandeis Briefs against the legal education establishment.  The authors present thoughtful, fact-based, and (albeit occasionally) trenchant arguments on why we, speaking as a legal education insider, should change. 

My suspicion is that Henderson and Morriss are trying to acknowledge the various problems facing law schools, and to a lesser extent, the profession, but without the rancor surrounding Paul Campos and his provocative  Inside the Law School Scam blog.  No one flees harsh words as fast as scholars, who can’t understand why their priorities of civility and respect aren’t universally shared. 

It seems that Henderson and Morriss are trying to push the envelope as far as they think they can without offending their colleagues, even going so far as to include a funny comic from the New Yorker at the bottom of a post.  Ironically, they mean it as a subtle nudge to their fellow lawprofs, but don’t appear to recognize it’s relevance to them.

Having a discussion about achieving the goal of better, faster and cheaper law is certainly worthy.  Not that it’s easy, or even possible, but that we don’t move forward by ignoring or denying problems.  Yet, it rankles me that the intellectual elite think they can figure this out within their paradigm while ignoring the fact that there is a large group of folks out there who share their interest and concern, but who failed to get their thoughts published in a law review.  Tossing crumbs to adjuncts isn’t exactly the same as bringing all the stakeholders into the same room.  With or without oxygen.

Will Henderson and Morriss reach out beyond the walls of the Academy to trench lawyers to find out how things really work?  Will their sensibilities be offended should trench lawyers use vulgar, even disrespectful, language to express themselves?  Will Henderson and Morriss think trench lawyers are sufficiently serious to be recognized as stakeholders in their discussion?

Time will tell.  Or, perhaps they are just having some fun pretending to build a time machine, something we know from the outset they will never be able to do. Take the whole period if necessary.

Whether the Harris County, Texas, jail is a particularly bad one in the scheme of jails is a question better left to locals.  Having never been there, I know nothing about it. But there’s nothing unusual in jails being thought of as unpleasant places, making the commentary on the website of  Stradley Chernoff & Alford uncontroversial:

The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.

This isn’t exactly a rare complaint, particularly as regards the treatment of visitors to jail elsewhere, who regularly complain about inappropriate touching, outrageous disrespect as if they’re some lesser species, and a laundry list of abusive, often arbitrary, demands and requirements.  After all, they’re there to visit “criminals,” presumptions and fact notwithstanding, and therefore unworthy of human treatment.

So, Harris County jail, and its Jefe, Sheriff Adrian Garcia, gets poked.  Hardly unexpected.

But then somebody started to cry because of the hurtful comments.  As  Mark Bennett explains, that’s a surprise.  You would think the guy in charge of a jail was a Big Boy, able to take a poke in stride.  Not so.

But Harris County Sheriff Adrian Garcia’s in-house flack, Alan Bernstein, got a burr under his saddle and rattled off an indignant  letter to “Legal Assistant” at the firm:

So I hope you will live up to your principles by deleting from said web site this inflammatory and highly dubious statement: “The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.”

I’ve got to admit, there are some crafty “weasel words” in there. It says that jail personnel in Harris County “seem to” take a perverse pleasure in making the jail visit as unpleasant as possible. But the damage of an unproven allegation has been done regardless.

It’s unclear what “damage” Bernstein, a former newspaper reporter who now serves to make sure that only nice things are written about the jail, is talking about.  Winning “Jail of the Year?”  Getting a centerfold in “Jail Digest?”  If a jail has a flack, there must be a reason, because it’s not like bad press is going to ruin its business and leave it without customers.

Like Bernstein, I’m particularly sensitive to “crafty ‘weasel words’.”  As “weasel words” go, however, these are neither particularly crafty nor, in fact, weasel words.  Often, the inclusion of such language, particularly when used in multiples, tells me that somebody wants to say something mean about someone or has no guts to stand up to the challenge, allowing them an out on the back end.  Here, as Bennett correctly notes, it’s a matter of imputing motive to some other person, which can only be based on the manifestations of conduct.  We can’t say for sure what someone else is thinking, and thus words that would be weaselly in one context are necessary for accuracy in another. 

But I suspect Bernstein knows that, being a newspaper guy and all, and just sought the opportunity to toss in “crafty ‘weasel words'” as a means of denigrating the commentary.  Talk about crafty!  When Sheriff Garcia picked his flack, he chose wisely.  Alan Bernstein knows how to turn a phrase.

This isn’t a criticism of Bernstein, who is just doing his job.  The public relations guy is charged with making the place look good in the public eye.  And when some “Legal Assistant” writes something that makes the place look bad, or makes his boss feel sad, it’s his role to do what he can to deal with it.  Indeed, as Robb Flickman notes in a comment to Bennett’s post, he’s long found Bernstein to be an honest and helpful fellow.  But even honest and helpful fellows have a job to do.

The underlying problem isn’t that Bernstein is trying to strong arm the firm into removing its comment.  That Sheriff Adrian Garcia is a sensitive soul doesn’t make him a bad person, though guys who run jails aren’t usually delicate teacups.  The problem is that they’re treating this as a public relations problem rather than a reflection of a deeper problem, that the actions of jail personnel “border on the sadistic.”

In his letter to the firm Bernstein offers, “If you have [specific evidence], please provide it to me and I will relay it to jail commanders for corrective action.”

What planet does Bernstein live on? The offer to relay evidence to supervisors is like an offer to whitewash abuse. The chain of command in a police department does not root out misconduct. That’s why internal-affairs divisions exist.

Allegations of abusive conduct at jails are particularly problematic, as it’s invariably a matter of a pissing contest between inmate or visitor and guard, the battle being a foregone conclusion, and given the control a jail has over the well-being of the inmate, there is enormous concern about the price to be paid for complaining.  It’s one of those instances where, right or wrong, you lose.

Whether the fault for this is Bernstein’s or Garcia’s can’t be said, as whatever was discussed about the handling of this criticism isn’t available for outside view.  This is probably for the best, given that the sight of Sheriff Garcia weeping at the hurtful words written about his jail are likely too much to bear.  But it raises an important question:

Steph Stradley asks, “doesn’t the Sheriff’s Department have better things to spend their money on than scouring the web to find unhappy words about them and send long, whiney letters?” I know it’s a rhetorical question, but I’ll answer it anyway. Sure it does: it could spend its P.R. money investigating conditions in its jails.

Which lead ineluctably to one conclusion:

That Sheriff Garcia is more interested in trying to stifle criticism than in investigating abuse helps explain why abuse persists.

And that strikes me as much better reason to cry. It hurts when someone suggests your people are sadists.  It hurts more if they’re right. If you don’t want to be hurt, then fix the problem.