When he took on Dick Heller’s case, it likely seemed like a lost cause. A good cause, perhaps, but an uphill fight the whole way. Up the steepest hill you can find. The steepest hill that never ends. Yet Alan Gura took it on, and because he did, the Supreme Court reversed its view of the Second Amendment to the Constitution, restoring it to a fundamental right, in  District of Columbia v. Heller.

For his efforts, District Court Judge Emmet Sullivan smacked him.  From the Blog of Legal Times :

It took six years for the attorneys for Dick Heller to win the D.C. resident, and all Washington residents, the right to possess handguns in their homes. The U.S. Supreme Court made its landmark decision in District of Columbia v. Heller in 2008.

It’s taken another three years for those attorneys, after a lengthy court fight with the District of Columbia, to be awarded their attorney fees.

In a ruling released Friday, U.S. District Judge Emmet Sullivan in Washington awarded Heller’s attorneys, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, just over $1.1 million, about one-third of what they had requested.

To the uninitiated, a fee award of $1.1 million may seem like winning the lottery.  That’s because law is easy and it’s all wrapped up in an hour, like a television show.  They neither see nor grasp the reality, that Gura has dedicated nine years of his life to this case, without any assurance of either winning the point or being awarded a dime.  Regardless of whether you love or hate the fundamental personal right to keep and bear arms, you can’t ignore the accomplishment.

D.C.’s argument against Gura’s fee request in Heller was a diabolically curious one:

Sullivan noted in his 65-page ruling that lawyers for the city had claimed Gura’s team shouldn’t be allowed to “enrich themselves at the expense of the taxpayers” in a time of financial crisis. The judge made it known that he, too, was cognizant of the issue.

“Sensitive to the fact that the fees in this case will be paid by the taxpayers, this Court is left with the difficult task of closely scrutinizing plaintiff’s fee petition to determine what is fair, reasonable, and just compensation for the legal services of plaintiff’s attorneys,” Sullivan wrote.

The lawyers representing the District are paid from the taxpayer’s fisc, but lost no sleep at night. So is Judge Sullivan.  Gura, they argued, was trying to “enrich” himself, that greedy fellow.  Given that the Supremes concluded that Dick Heller was right about the Second Amendment, the government’s use of the rhetoric of evil to characterize the lawyer who fulfilled his oath the protect and defend the Constitution is worse than disingenuous.  If they were concerned for the taxpayer in a time of financial crisis, they should have given back their salaries, as no government lawyer should be paid to argue against the Constitution.

The Heller legal team claimed 3,270 hours of work went into the case. It was cut down by Judge Sullivan based on sloppy timekeeping by three attorneys who came from nonprofits, Clark Neily III of the Institute for Justice, and Robert Levy and Gene Healy with the Cato Institute. No doubt they reconstructed their hours after they won, being neither used to keeping time nor winning and being required to provide a bill for a fee award.

But Gura’s hours, more than 1500, could not be questioned.  What could, however, was their value.

Both sides argued to Sullivan that various matrixes and formulas should be used to determine the correct hourly rate. The plaintiffs’ team concluded that the rates should be $589 per hour for all of the attorneys except Huff, who had less experience. They argued Huff should be compensated at a rate of $361 per hour.

Sullivan called those rates “extraordinary” and not appropriate for this case. “[T]he Court is unwilling to award the high rates requested by plaintiff absent specific evidence that those rates are, indeed, the prevailing market rates for attorneys engaged in complex federal litigation outside of the District of Columbia’s largest law firms,” Sullivan wrote.

Gura’s rate was cut to $420, producing an award of about $662,000 for the six compensable years (but nine total years) he fought for Dick Heller.  That Judge Sullivan called the higher rate “extraordinary” has first year biglaw associates rolling on the floor laughing.  Their paralegals get nearly that much an hour for fetching them coffee. Plus a bonus this time of year.

The matrix employed to determine what, in Judge Sullivan’s words, is “fair, reasonable, and just compensation,” bears no relation to the real world.  From this fee comes the expenses of the case, from copy paper to rent to dial tone.  As this had to be paid all along, since lawyers aren’t given free rent until their ship comes in, Gura financed the defense of our constitutional rights. 

And most importantly, he did so with no assurance that he would win, and ever be compensated for his work.  Not impressed? Well, Gura’s family probably likes to eat every day, just like yours, and the supermarkets don’t let Gura walk out without paying any more than they do you.  Get the picture?

Regardless of whether you think the Heller decision was the greatest defense of the Constitution in a generation, or the worst thing to happen to society since the invention of the Taser, is irrelevant.  The message here is that an outsider fighting the status quo in the defense of constitutional rights not only does so on his own dime, but does so without much expectation of compensation even if he prevails.  This is an incentive to lawyers to stay clear of big cases, hard arguments, the overarching constitutional issues that need a champion.  What Judge Sullivan tacitly told Gura is champions go hungry.

For all the zealots who find it simple to spill a few thousand words on how clear and easy it is the scream about constitutional rights, somebody, some lawyer, has to be the grunt who actually makes it happen.  The risk he takes to secure your rights is enormous, enough to crush a person in spirit as well as financially.  You make silly noise about it.  The lawyer puts in the hard work, long hours, personal risk, that actually accomplishes something. 

Yet Alan Gura, for better or worse, accepted the responsibility of defending your rights.  For his efforts, he was taught an expensive lesson by Judge Sullivan.  For those of you who delight at his accomplishment, rather than send him a love note and your undying appreciation, send him a check, and send another one to the nonprofits who stood beside him.  This may be your entitlement, but its Gura’s work.  If you love your constitutional rights, show it by your willingness to pay the people who defended them for you.

Unlike the doll my sister left naked on the floor, this Ken has balls. Big, bright, shiny brass ones.  When  Marco Randazza described them the other day, he cautioned not to stare, as “we would be blinded by the reflection from their shiny brass surface.” 

His background isn’t quite what one would expect.  Stanford undergrad. Harvard law. Judicial clerkship leading to Assistant United States Attorney.  Smart, for sure, but more natural that he travels the path to big money at Biglaw, or embraces the sanitized world of government service, where his soft, clean hands would never have to touch the dirty hands of those accused of evil.

Ken remained hidden from view for quite a while, allowing him to straddle the world of political opinion without consequence while doing the work asked of him when he made the decision to walk away from the safe hallways of the government;’s wing of the courthouse.  Unlike others who hid because they lacked the guts to own up to their opinions, Ken hid to avoid the appearance of using his opinions to curry favor or seek business.  It gave him the freedom to be critical without suffering the idiots’ reaction that it was a ploy for self-aggrandizement. 

He has since chosen to out himself, meaning I’m now free to write about him.  He deserves it.

The blawgosphere is filled with people who talk tough.  Talking tough is easy, especially when its the sort of thing readers like to hear, beating up on the expected enemies, placing blame on the people we love to hate.  Even the insipid and self-promoting inhabitants of the Happysphere beat up on those listed in the approved enemies list.  But here’s the shocker:  Few, when push comes to shove, have the guts to be the tough guy in real life that they play on the internet.

There are only a handful of bloggers I would want behind me in a knife fight.  Ken White is one.  He’s the real thing.  When someone was needed to stand up, pro bono, for the cause he believes in, Ken was there.  When it was impractical because of distance, Ken was still there.

He may not wear his superhero cape out in public, nor have a pony tail to prove he’s special.  But if the measure of a man is his actions, then Ken White is one damn fine looking fellow.  Robert Redford, eat your heart out.

The end of the year is a wonderful time to look back and give some thought to things that stood out over the past year, perhaps in the hope that it will provide some inspiration to others to follow the path that’s more difficult, more demanding, and serves a greater good than collecting twitter followers and authentically engaging with self-proclaimed thought leaders who might toss you a case.  Ironically, Ken White is as much a thought leader as you will ever find in the blogosphere, though his thoughts aren’t likely to spur any celebrations from social media experts.  The end of the year is a good time to think about Ken White.

There are some very real, very bold, people to be found among the tepid and insipid who feign worthiness in both the courtroom and the internet.  You ought to know who they are.  If you need someone who lives the words he taps on the glowing screen, then look to Ken White.  He’s easy enough to find.  Just send out the Popehat signal.

Ken White stands for something.  He’s someone who matters.  Is anyone blinded by the reflection off your shiny brass balls? 

Addendum: An orthogonal point, as my pal J-Dog used to say.  In an otherwise interesting post, Heather Morse wrote:

How will ANYONE know what great work you are doing if you won’t promote it?

Perhaps this post answers the question.  Be worthy of recognition, do great work, and others will sing your praises.  If no one else does, perhaps that’s an accurate reflection of your work. If you’re left to promote yourself, chances are exceptionally good that you do nothing worthy of promotion. Sorry if this hurts your feelings, but you are not Ken White.

Thirty years ago, would a young and less mealy-mouthed Joe Lieberman, the disgrace of Connecticut, propose criminalizing BIC pens, or maybe IBM Selectrics, for facilitating communication by terrorists?  Ridiculous as that sounds, it’s hardly impossible.

Via Kevin O’Keefe at  Real Lawyers Have Blogs (yes, that Kevin O’Keefe),

Now Shurat HaDin, an Israeli law center, is threatening to sue Twitter unless the social network cuts off access to terrorist groups, including Hezbollah.

Msnbc’s Suzanne Choney, reports the center’s attorney and executive director, Nitsana Darshan-Leitner, wrote Twitter:

…[I]t has come to our attention that Twitter, Inc. provides social media and associated services to such groups as Hezbollah and the Al-Qaeda-affiliated Al-Shabaab — labeled as “foreign terrorist organizations” (or FTOs) by the United States.

Please be advised that providing social media and other associated services to terrorist groups is illegal and will expose Twitter, Inc. and its officers to both criminal prosecution and civil liability to American citizens and others victimized by terrorisms carried out by Hezbollah, Al-Shabaab or other FTOs.

This comes on the heels of some other developments at the forefront of blaming the tools of communications as the culprit in the spread of ideas some prefer not to hear, even despise. 

• A week ago, Sen. Joe Lieberman began an effort in Congress requiring Twitter to block pro-Taliban accounts.


• Earlier today, a Boston Court refused to a quash a subpoena demanding account information of a Twitter user involved in Occupy Boston.


• Earlier this month, three WikiLeaks associates filed an appeal of a court order that would force Twitter to hand over information from their accounts without a search warrant.

You had to know that Joe Lieberman would manage to stick his smarmy nose in the middle of anything remotely stinking of censorship and prior restraint. 

To the extent there is a culprit in this effort to silence the sounds that offend official ears, it certainly isn’t twitter. Or Google, Facebook, LinkedIn or any other medium, any more than one can blame a BIC pen for writing words we don’t like.  They’re just the tools by which things get passed around, in this case those “tubes” that comprise the “internets” that Washington leaders have heard so much about.

So why Twitter?  Because they can. They know where to find it. They know how to threaten it. They know that it is run by real people, identifiable and locatable, who they believe can be made to cower and cringe. 

And the funny thing is (using “funny” in an ironic, awful way), the Joe Lieberman’s of the Senate, the judiciary, the government, are likely right.  The laws are already in place, and continuing to be developed, for the purpose of criminalizing the medium by which communications used by our “enemies” are transmitted.  It would feel better if these were happening in far off backwater nations, but they’re championed by our very own “leaders,” who do so in the name of protecting good from evil at any cost.

Every day, tens of thousands of new twitter accounts are opened, the only criteria being possession of a keyboard and internet access.  Any fool can open a twitter account, and they do.  So too can a terrorist, a criminal, and a philosopher.  And it’s killing our martinets that they can’t reach into their computers and grab by the scruff of the neck every voice they find despicable.  They are outraged that our fabulous American technologies are being subverted for use by our enemies, and fully expect true patriots to throw upon their doors upon demand so they can root out these evil doers on their networks.

And what’s wrong with ridding society of those who would harm us?  Why should businesses be immune from challenge, above participation in cleansing of evil from out midst?

Had the target been telcos, they would have not only bent over backwards to offer up any information sought by law enforcement, but served coffee and donuts to the hard-working men and women sifting through records.  Of course, their kindness would be repaid by  retroactive immunity for violations of old laws never intended to criminalize cooperation with the government.  How could cooperation with the government be wrong?

The new “tubes” that make up the interwebz haven’t been nearly as compliant.  Whether they aren’t as inclined to bend over at the first sight of a federal agent, or believe that the moment they become willing supplicants to governmental involvement, the integrity of their glorious experiment is lost. 

Twitter, in particular, has  demonstrated it’s fortitude in refusing to yield to the demands and threats.  Given it’s position at the crossroad of technology and communication, it seems nearly impossible that twitter’s intransigence won’t make Lieberman’s blood boil and launch a thousand new regulations designed to make its officers shake in their boots.

Of course, there will come to a point where the volume of subpoenas, lawsuits, prosecutions, laws, regulations, investigations, indictments, perhaps some new Writs the Lieberman’s of government will dream up, will suffocate a new and thriving medium until it chokes.  Or there will be final showdown where our elected officials, and their appointed minions, come to grips with the fact that their compulsion to blame the messenger, the medium, because they are legitimate and findable and real, will be a death blow to invention and progress.

Let twitter stand firm in its refusal to capitulate to Joe Leiberman and his ilk.  Let them pass law after law criminalizing any enterprise that spells out the name or our sworn enemies, Al-Qaeda, Hezbollah or Taliban, Occupy Somewhere, Anonymous or Wikileaks.  And the prosecute them. Along with the roads they drive on, and the BIC pen in their pocket, and the light bulb makers that illuminate their evil caves at night. 

These sputtering saviors of American order can rationalize how they do all this to save us from evil and protect us from our enemies. That’s always been a favored excuse, so no person is ever hurt again.  When they come for Twitter, I hope Alexander Macgillivray gives me a call.  If Twitter is up for the fight, so am I.

My pal Dan Hull of  What About Clients/Paris? fame, gets around more than I do, spending a lot of time jetting between his various offices.  This means he gets to overhear what people on airplanes say.  Like, “can I get an extra bag of peanuts?”  Or “the guy’s fat is spilling over the armrest and onto my seat and giving me the willies.”

Every once in a while, Dan hears something profound, like this on Delta Flight 1537, departing Cincinnati for San Diego,

No one wants to be alone. So what does the Net offer non-business humans? Only this: the illusion of companionship and support without the demands and responsibilities of friendship.

–A passenger.

Know anybody who thinks their twitter followers really care deeply about them?  You know, the sort of person who rushes through dinner with the spouse and kids to share his pain online?  Or has to get back to the internet because someone has written something about her and she has to respond or their feelings will be hurt?

You are all, no doubt, very wonderful people, but we don’t really know one another. There are real people, however, who do know you.  Some will like you and others won’t, but they’re real.  You can shake their hand, touch them, ask them for a favor and get turned down. 

Maybe you have 10,000 friends on Facebook.  Maybe you have 50,000 twitter followers.  Maybe you have 100,000 blog readers.  How many will drive you to the office if your car breaks down?

There is nothing wrong with enjoying the digital world, feeling the glow of a community that doesn’t exist in real life, yet surrounds you with approval that no flesh and blood person ever did.  But do they disappear when you turn off your computer?

Don’t let the shiny toys distract you from what’s real.

Over at Volokh Conspiracy, Orin Kerr raises an interesting question:

What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a “technique.” At the same time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashlights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home).

Putting aside that hearsay is admissible in suppression hearings, is a “woof!” admitted for the truth of the matter asserted?

While it’s never supposed to be uttered, judges sitting in criminal courtrooms presume the defendants who come before them to be guilty.  It’s just a matter of probability, knowing full well that the vast majority will plead guilty and, indeed, are guilty.  The question isn’t whether they deserve to be hauled into the dock, but how bad they are.  That’s the range of thought.

What one never quite sees when looking down from a criminal court bench are the ones who never made it to court. Little thought is given to the more than half a million people in New York City who are subjected to stop and frisk every year, then go about their day because the cops found nothing.  The connection between how the system treats those in custody from those who were rousted and cut loose is tenuous.  They weren’t arrested; isn’t that enough?

Then comes a guy like 54-year-old Tomas Torres, another “isolated incident” as Radley Balko sarcastically calls it.  So what if it happens regularly, as long as we can chalk it up to an anomaly that allows the rest of us to sleep well at night.  Torres’ home was the target of a search warrant, and the Connecticut State Police exploded in and did their job.  The job included beating Torres and ripping his home to shreds.



That’s what it looks like when you’re an isolated incident.  No drugs were found.

Judges can accept the violent nature of a search warrant, the boot firmly planted on a man’s face to make sure that no cop will be harmed, because they only look into the faces of the presumed guilty.  In the back of their heads, they hear a little voice that whispers, “he made the choice to be a criminal, and this is the consequence.”  There may be a pang of empathy, but it’s overcome with the righteousness of taking a criminal off the streets.

The problem is that Tomas Torres’ face won’t be seen by a criminal court judge.  The judge who signed the warrant, maybe even skimmed the warrant, won’t see the fruit of his labor.  The people who aren’t arrested disappear in the mist.

The judge who signs the warrant trusts that the police who seek it have done their homework, paid attention to details and have good reason to break down a person’s door.  There is no hearing to consider the evidence behind the warrant.  There is no deep deliberation that goes into the decision to authorize police to do what they did to Torres.  It’s quick and dirty.  It’s trust.  No contrary voice challenges it, reminds the judge that these cops are about to rip apart a life, to stomp on a person without a second thought, without the slightest concern for the pain he will feel or the scar he will carry.

And judges go along with the plan, because they see only the people who commit crimes.  No one walks Tomas Torres in for arraignment, to tell the judge how they beat him and destroyed his home, then came up empty.  No one explains to the judge how they could have been so wrong as to do this to a person who committed no crime, made it a thousand-fold worse by the utter disdain of the sole of their boot imprinted on his innocent face.  No judge has to stare into the eyes of the man whose life was affected by their signature.

There is no room in the system for anyone other than the parade of criminals to walk before a criminal court judge to remind them that not everyone is guilty.  To the extent innocence enters into the mix at all, it’s the outlier who beats the charges. No thought is given to the person you never see.

Of course, this criticism is unfair and naive.  The warrant was sufficient, saying all the words that were needed to authorize the raid.  You have two minutes to consider it in your busy day. The words blur, become pro forma. There’s no one to challenge the warrant, and most of the time they find what they’re looking for.  And if you were to raise a doubt, you would become a pariah in the courthouse. Or worse, the target would murder someone tomorrow and you would be on the front page of the New York Post as the worst judge ever. Go with the odds. Trust the cops. They’re right more often than their wrong.  Mistakes happen. Somebody has to take one for the team.



Explain that to Tomas Torres. I’m sure he’ll understand what a difficult job you have.  I’m sure he won’t mind being sacrificed to the odds.  After all, it’s not like you will have to look down from the bench and see his face before you.  In your world, they’re all bad guys.  They’re always bad guys.

Being very much a part of the Establishment, even though my role in it is to be the contrary voice to a society that adores order above all else, it scares me.  I’m no faux anarchist, imploring other poor schmucks to violence and mayhem while I sit in the comfort of an office, my biggest risk a paper cut.

At the same time, I’m well aware that the pen isn’t always mightier than the sword. Sometimes, I wonder whether the truly powerful would have invented the blawgosphere as a catharsis, a way for everyone from curmudgeons to the disaffected to get out all those nasty counterculture ideas without doing any actual harm. And the powerful continue with their daily routine, untouched by disagreeable thoughts.

That there exists a group, if it is indeed a group, who possess the technological skills to disrupt the best laid plans of the government and its quietly effective friends is both scary and, in a peculiar way, encouraging.  No entity, not even the ones that allow establishment types to enjoy the normalcy of their lives, should be above fear.  Power corrupts. Absolute power corrupts absolutely. No one should possess absolute power.



Anonymous, hackers possessed of the ability to make the steel walls of the internet seem like Swiss cheese (or at least that’s how it seems to tech-challenged me), hasn’t taken kindly to SOPA, the monumentally ill-conceived the Stop Online Piracy Act.  Neither has anyone else with even a rudimentary grasp of the the internet, except for those who will have a direct financial benefit from wreaking needless havoc as a weapon of financial control. 

While guys like me may rail against governmental actions, Anonymous plans to strike at the heart of the problem. 

Appellants would be more than happy if you only briefed one argument.  Provided it won. Otherwise, chances are pretty good that they will believe that you ruined their chances of “justice” by failing to raise that winner point, the one you left on the table.

But try to cover them all and you can anticipate some snarky judge to write what Third Circuit Judge Aldisert did in United States v. Bansal :

We note at the outset that Bansal’s and Mullinix’s briefs raise approximately 75 issues for our consideration. Although the government responds by calling to our attention no fewer than 339 cases drawn from the span of more than 120 years (as well as 49 separate statutes and one book, for good measure), we reject any implication that we should pick up their torch and embark upon a similar adventure ourselves. We address only those issues we deem worthy of discussion, and only to the extent we deem necessary to explain our reasoning.

There isn’t always two sides to every story, but don’t try to tell that to the guy on the other side from you. If there is only one right side, they own it and you don’t.  You, of course, are absolutely certain they’re wrong, insane and controlled by Satan (or whatever evil deity you prefer). 

At Crime & Federalism, Mike writes of the greatest threat to free speech not being the government, but each other.  While he uses copyright troll Righthaven, one of the few private actors it seems everyone agrees is evil, and is being gleefully crushed by  Marco Randazza as I type, He notes:

But not everyone can afford legal help. Many people allowed Righthaven to extort it, as a purely economic matter. If defending a lawsuit costs $20,000 that you don’t have, then putting a $5,00 settlement on a credit card makes sense (especially when you consider that the maximum exposure for copyright infringement is $150,000).

Now some of you will be hard asses. “Freedom isn’t free.” Cute slogan that is ignorant of constitutional text. Speech is supposed to be free. The First Amendment protects, after all, “freedom of speech.” Read the Constitution. It’s all in there.

Well, yeah. It’s in there. Though most agree that freedom doesn’t mean complete, total, unfettered freedom, because people, being people, can say some really bad stuff sometimes.  Like lies. Like things that deceive others. Like things that are calculated to cause unjustified problems, whether for some pernicious purpose or just the lulz.  So it’s all about freedom, except when it’s not.

The problem is that people sometimes often disagree about what’s true and what’s false, what’s right and what’s wrong.  We can all agree that the right stuff is better than the wrong stuff, but which is which presents a problem.  It’s not about popular vote, where one against the world makes the world right and the one wrong.  Sometimes the sole voice is the right voice.  And most of the time the sole voice insists its the right voice, whether it is or not.

But the point of Mike’s post is that the testing, by litigation, is the killer.  Most would agree we need a way to separate the good from the bad, but the price is more than most of can, or are willing, to pay.  When someone decides they don’t like what another person writes, they can challenge it. The writer must then defend himself.  That’s where the nightmare happens for the good guy writer.  For the bad guy writer, the nightmare is endured by the person challenging. 

See the problem?

Not too long ago, Arthur Alan Wolk settled his beef with Reason. When Jacob Sollum announced the settlement, he closed his comments with this explanation.

Note to commenters: This costly and time-consuming litigation is over, and we do not want to see any further lawsuits filed as a result of comments on our site. Because it is impossible for us to screen and monitor all comments, we have disabled them on this post.

I was critical of his decision. Soon after, I received an email from Jacob asking if we could talk about it in the upcoming weeks. “Sure,” I responded, then never heard about it again. Recalling the request, I sent him another email and never heard back. Obviously, it wasn’t that important anymore.

I’ve  been sued for what appeared in this space. I’ve been threatened with suit numerous times. I’ve been threatened with harm a few times as well.  I can only shrug.

For those who don’t know better, the cheap talk about the wonderful benefits of blawging is nonsense. This blawg has not made me rich and famous, hasn’t shod by kids, and won’t pay for a Ferrari.  When there is a cost associated with it, it comes out of my pocket. That includes defending myself should I be accused of defamation.  Whether I can afford it isn’t the point. Nobody wants to pay it.

There is a cost associated with expressing an opinion in a public forum.  As bloggers talk about the potential deluge in new blawgs from the 94% who “plan” to start, and as  LexBlog honcho Kevin O’Keefe uses his good offices to urge n00bs to work hard to create meaningful content rather than drown out the signal with noise, nobody but Mike talked about the hidden cost.

The price for creating the vehicle, the blawg, the domain, the program, is one cost. Time lost to more productive efforts is another.  The emotional loss when you learn that you’ve been deceived, that blawgs are unlikely to come close to a viable ROI to justify their existence (sorry, kids, but that’s the truth; we’ve been there, this isn’t an argument). These are all the obvious costs of blawging.

There are ways to minimize your exposure.  Become the “go-to” blawg for caselaw and news stories on Iowa residential property line disputes, curating stories with nothing more controversial than a prefatory “interesting” or, get really risky, “curious.”  Add nothing more and chances are that you won’t be threatened too often.  And like Iowa Dirt Lawyer, chances are you will fade away when the pointlessness of it becomes manifest.

Or you can play it safe, close the comments, tone down the rhetoric, try your best not to offend anyone.  After a few of us, including Mike Masnick at  Techdirt and Paul Alan Levy at  Public Citizen, refused to cower in the corner, and  “chided” Jacob Sollum for closing comments, he tried to find a middle ground :

Again, we are glad this litigation is over and would like to get on with our other work, so we ask readers to exercise self-restraint in their comments so as to forestall any more claims that we are inciting others to libel. 

Endnote:  The title of this post reflects my view that we need national anti-SLAPP regulation as a means of providing a counterbalance to frivilous litigation designed to silence critical speech. It’s hardly a perfect solution to the threat of lawsuits to shut down underfunded critics, but it would provide a much needed disincentive to SLAPP suits.

You have to be in a select club to appreciate the relief that must have swept over John Rivera when he learned the news.  It had been a long fight.  From Oren Yaniv at the Daily News :

Rivera was convicted in 1997 of pumping a bullet into the head of his estranged wife, Kimberly, during a struggle over custody of their infant son, who was just a few feet away at the time of the shooting.

He claimed that his spouse, an NYPD scooter cop, was depressed and turned the gun on herself.

A jury acquitted Rivera of intentional murder but found him guilty of a fallback charge of depraved indifference murder.

After affirmance by the Appellate Division, and leave denied by the Court of appeals, he had only a habeas before the federal courts left.  But in the interim, there was a fundamental shift in New York law.  The  Payne and  Feingold decisions put an end to the common practice of double charging murder defendants with intentional and depraved indifference murder.  If they didn’t convict on the former, the prosecution got a second bite with the latter. That’s how they nailed Rivera.

On August 9, 2011, the Second Circuit  issued its opinion holding that Rivera, having been acquitted of intentional murder, could not convicted of depraved indifferent murder (both reflecting different formulations of Murder 2º). The preliminary issue on appeal was whether the standard on habeas review was the substantive state law at the time of his initial conviction by jury, or when the conviction became final.  The Circuit held that the appropriate law was that in effect 90 days after leave was denied by the Court of Appeals.

Viewing the evidence adduced at Rivera’s trial in the light most favorable to the verdict, as we must at this juncture, see id. at 319, a reasonable jury could have found either of two possible scenarios to explain Cassas’s death. First, a reasonable jury could have found, as the State argued at trial, that Rivera plotted his attack on Cassas in advance, lured her to his home on the night of the murder, and then deliberately “put a nine millimeter semiautomatic Beretta handgun to [her] head ․ and pulled the trigger.” J.A. 28. After Hafeez, however, such a “quintessentially intentional attack” could no longer be categorized as depraved indifference murder. See id. at 258–59, 762 N.Y.S.2d 572, 792 N.E.2d 1060. Thus, to the same extent as in Hafeez, in Rivera’s case, no reasonable jury could find Rivera guilty of depraved indifference murder rather than intentional murder on such facts.

Despite the fact that the Brooklyn District Attorney tried that case as purely an intentional murder, they tried to sell a new spin to the Circuit.

Alternatively, the State now contends—contrary to its position at Rivera’s trial—that a reasonable jury could also have found that, after bringing the gun to his meeting with Cassas in an attempt to scare or intimidate her, Rivera accidentally shot Cassas when the gun discharged during a struggle.1 The State argues that this alternative set of facts would support a conviction for depraved indifference murder because the act of “confronting [Cassas] ․ with a loaded weapon, thereby precipitating a struggle for the gun,” was sufficiently reckless to render Cassas’s resulting death depraved indifference murder. Appellee’s Br. 39–40. This argument is without merit, however, as such facts would not rise to the level of depraved indifference murder even under Register and Sanchez.

One might think that pretty much covers it, having both addressed the reality of the evidence offered in Rivera’s conviction as well as dismissing the fantasy offered to sustain it in the face of challenge.  As the Court expressly held, “no reasonable jury could find Rivera guilty of depraved indifference murder.”

But that was said in the heat of summer.  In the cool of winter, minds change, thoughts vary and, apparently, reversals disappear.

In a highly unusual move, Second Circuit judges pulled back a detailed, 23-page August ruling freeing John Rivera and substituted a four-page decision keeping him locked up. The new paperwork was made public last week.

The Second Circuit, without much fanfare, flipped completely and issued a new opinion in Rivera’s case. This time, Rivera lost.  Shocking.

What changed?

Subsequent to our decision, Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted “the necessity of deference to state courts in § 2254(d) habeas cases.

It’s not entirely clear why the court bothered to include respondent’s’ petition for rehearing en banc, inasmuch as that’s about as significant as a litigant threatening to appeal. So what?  Perhaps it was tossed in because the reliance on Cavazos just wasn’t going to pass the laugh test.

After much reflection, we now reverse course. Applying the law as it existed after Rivera’s conviction became final in July 2004, we find that although evidence of “significantly heightened recklessness,” People v. Sanchez, 98 N.Y.2d 373, 380, 748 N.Y.S.2d 312, 777 N.E.2d 204 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder.

Is the court suggesting that gave only cursory reflection to reversing a murder conviction the first time?  The notion that the panel hadn’t given “much reflection” to its original decision, reversing Rivera’s conviction for murder of his police officer wife seems ridiculous. It’s impossible to believe that the court didn’t agonize over the reversal, giving its deepest possible reflection before deciding.

But then, what of the express holding that “no reasonable jury could find Rivera guilty of depraved indifference murder?”  It was suddenly reduced to “slim, at best,” but enough to squeak by.

Therefore, we have no choice but to uphold the decision of the state court.

And poof, the reversal of John Rivera’s conviction for depraved indifference murder, despite the acquittal for intentional murder and the evidence, except in some fantasy dreamed up while crossing the Brooklyn Bridge on their way to Foley Square, magically disappeared.