Flames shot up from the snarky comments because of Staci Zaretsky, a sweet young lady whose job it is at  Above the Law to find a lurid angle that will incite the unemployed children to a frenzy.  And so rather than look at the substance, she carelessly tossed in that Kaeseberg is a “hottie,” knowing full well that the trolls would say otherwise.

What Lauren Kaeseberg is, however, is a criminal defense lawyer.

Who is the (rather attractive) class of 2007 lawyer representing Blago, and why did a judge characterize her recent courtroom stylings as “harebrained”?

So, who’s the mystery woman we’re talking about?

None other than Lauren Kaeseberg, a 2007 graduate of Cardozo Law. She was admitted to the bar in 2008, and by the luck of the draw, she was hired to join Blago’s team of lawyers during his first trial, which ended in a mistrial on a majority of counts. She continued the representation through the former Governor’s retrial, where he was found guilty on most counts. Oh, and did we mention that she appears to be a hottie?

In her post-conviction motion, raising an issue arising from the subsequent revelation that a juror was in possession, and publicly used, a jury questionnaire that she should neither have possessed nor used, but was to have remained in the custody of the court.  Within the team of lawyers who remain beside the defendant, Kaeseberg was tasked with challenging this impropriety.

According to the Lake County News-Sun :

U.S. District Judge James Zagel took a mere three minutes Monday morning to dismiss a motion by former Gov. Rod Blagojevich’s attorneys as “harebrained.”

“The motion was prepared without any adequate thought,” Zagel scolded Blagojevich attorney Lauren Kaeseberg. “You should seek outside counsel . . . and send a letter of apology to the juror.”

Apparently, uttering the word “denied” wasn’t enough for Judge Zagel, who makes the all-too-common mistake of thinking that being swathed in black polyester permits him uncontrolled intemperance.  Calling a lawyer harebrained is inexcusable under any circumstances.  Unlike blawgers, who are entitled to great latitude in both hyperbole and vulgarity, judges are expected to constrain their nasty, sharp tongue.  James Zagel appears to have failed.

But the gravamen of Kaeseberg’s motion, the one compelling Judge Zagel to abuse his robe, was hardly of the sort to justify such a bizarre reaction.

Zagel said he could hold Kaeseberg in contempt of court but was cutting her slack because she was a fairly new lawyer.

“By the absence of precedent, I assume you couldn’t find precedent,” Zagel said, calling the filing “beyond my imagination.”

The handicap under which Zagel labors becomes clearer, as his admitted lack of imagination precludes him from conceiving of a motion without clear precedent.  His grasp is that of a follower, incapable of realizing that someone has to be the first to move for relief. 

There are a plethora of issues that arise these days that have yet to be addressed, no less become black letter after decades of rulings. Someone has to be the first to raise them, and its hardly clear whether they will be hugely significant or tossed on the pile of rules without consequences.

Lauren Kaeseberg did exactly what a criminal defense lawyer must do. There was an issue, and she raised it.  There was a question and she sought to get an answer.  Her job was not to ignore it, shrug it off, decide that an undecided question was unworthy. Her job was to take anything, everything, she could find that might serve her client and put it to its best use. Her job was to try.

Kaeseberg tried. For her efforts, a United States District Judge called her “harebrained.”  He demonstrated not only an lack of intellectual depth, but a lack of self-control.  He demonstrated that he cannot manage the judicial temperance required of him.

There are some brilliant and thoughtful federal judges around who understand that someone has to be the first to raise an issue, and that a criminal defense lawyer’s job is to take the risk of being that first one.  They may well have denied the motion too, but they would never have uttered such a disgraceful insult.  These judges would have understood what Kaeseberg was doing, and why she had to do it. They would have applauded her pluck, her effort, her zeal, even if they didn’t grant her relief.

These brilliant and thoughtful federal judges must have cringed when they heard Judge Zagel’s language.

But in an ironic way, Judge Zagel’s impropriety gave Lauren Kaeseberg a gift.  While the ATL story gave the children a snark opportunity to poke at her appearance (which, I note in irrelevant passing, is that of a lovely young lady, certainly attractive and playful), it made the rest of us take notice of a 2007 Cardozo Law School graduate who chose baptism by fire over sharing the basement couch with ATL readers.

Sitting in the third chair at the trial of Blago may not have made Kaeseberg a household name, but being lambasted wrongly for having stood up to the court and made the motion a hardened criminal defense lawyer felt needed to be made, is a very impressive thing for a young lawyer to do. 

Whether Lauren Kaeseberg will ever be required to endure a judge as inappropriate as James Zagel during the balance of her (hopefully) long career in criminal defense is unclear.  But where most young lawyers would cower in the well, Kaeseberg faced the challenge and proved that she has the guts to do the job, to be the person willing to risk the ire of the puny to serve her client.

Few young lawyers get the chance to be tested, and to prove they have what it takes.  That was Zagel’s gift to Kaeseberg.  And Lauren Kaeseberg performed in the finest tradition of criminal defense, from risking the court’s animus by raising a new issue to standing firm and proud despite the smack delivered by a judge who dirtied his robe.  As a criminal defense lawyer, I’m proud to count Lauren Kaeseberg among us. 

The image, in its own odd way, evokes a sense of Santa gone terribly wrong.

That’s not a beard, but a spit mask, blocking the mouth of Nick Christie, as he was photographed naked, in restraints, and covered in the pepper spray that finally killed him at the Lee County, Florida, Jail.  Via the Tampa Bay flavor of Fox :

The District 21 Medical Examiner ruled his death was a homicide because he had been restrained and sprayed with pepper sprayed by law enforcement officers. But to this day, nobody has ever been charged with a crime, and the Lee County State Attorney cleared the sheriff’s office of any wrong doing. 

This happened back in March, 2009, after the 62 year old Christie went to Florida to get away.  According to his wife, there was something wrong and he needed help.

She said her husband was depressed and was showing signs of erratic behavior a few days before leaving for Florida.

She called authorities and pleaded with them to take her husband to a hospital and be given his medications. Instead, he was taken to jail for disorderly intoxication.

That the cops took him to jail rather than the hospital isn’t particularly surprising.  It’s what cops do when they don’t care enough to think hard.  But how it ended up with Christie dead has never been explained.  The coroner’s homicide is the state’s attorney’s unfortunate accident.

It’s probably hard for the state’s attorney to figure out who did what and why.  As good as police may be at explaining why others are terrible criminals who deserve to be put away for life, they grow forgetful when it comes to themselves.  Even the best of cops tends not be forthright when it involves one of their own, both for his own sake as well as the empathy he has for the very difficult job his blue brothers do.  The job of killing Nick Christie wasn’t likely very difficult, but still.

The officers who killed this man probably didn’t think it would end this way.  They may not have realized what would result from spraying him ten times with OC, oleo-resin capsicum.  Note that I use the plural, as this is never the work of a single officer, even if others merely stand there and watch.  Sometimes they laugh at how they’ve humiliated a person.  What they rarely do is grab the arm of a fellow officer and tell him to stop.  What they never do is take a brother down to prevent a human life from expiring.

There will be a few officers who lost sleep over this, the image of Nick Christie replacing visions of sugarplums.  It’s been years since they watched it happen, though, and the cops who killed him, who did nothing to save him, will probably sleep fine on Christmas Eve.

These officers will wake up on Christmas morning and feel the joy of their children opening the wonderful presents Santa left for them under the tree.  Their Santa will be jolly, rather than the image of a man, strapped like an animal with a spit mask covering his mouth, dripping with pepper spray, because he needed another human being to help him,  

Since March, 2009, no cop has come forward to tell of what happened to Nick Christie on the night they made him look a bit like Santa Claus, then killed him.  Merry Christmas, officers.

Jerome Kowalski says it pretty clearly.

While this may be complete heresy, but if I see one more article telling me how important it is for me to grow my practice through social media, I may toss a grenade. If I see one more piece entitled “Seven Important Steps to Take to Improve Your Social Media Presence,” I may toss a brick at my computer screen. If I get invited to one more webinar in which the sponsor promises to deliver the real secrets of social media, I will probably toss my laptop out the window. And if I get one more solicitation from somebody who touts himself or herself as the world’s greatest social media expert (whose most recent prior work experience was working as an accounts payable clerk), I may see if I can lay my hands on one of those Army surplus “Fast and Furious” weapons. I think we are all getting burned out on using social media.

I predict that 2012 will be the year this mindset begins to change.

But what’s it mean for the rest of us — those who already have blogs and those who regularly read blogs?

Well, on one hand, I suspect it’s much ado about nothing. Despite their best-laid plans, I doubt all the firms that say they’ll launch blogs really will. And of those that do launch blogs, no doubt a good number will be abandoned or ignored, as seems to happen with many blogs.

On the other hand, I have no doubt that many new legal blogs will continue to launch and that a fair number of them will be worth reading. The more the merrier, I say. Like cream, good blogs rise to the top. Even if we have a flood of blogs, there will be those that stand out and those that do not.

Even more importantly, LexBlog needs to up its game in helping the 8,000 lawyers on our network know what it means to blog well. To offer value. To engage others. To understand blogging is not marketing per se, but a relationship and reputation enhancer.

Otherwise, LexBlog will not only be letting its clients and network members down, but polluting the net and legal dialogue with law blogs offering little value that will come and go.

Remember the survey that started this?  It didn’t suggest that law firms wanted to become part of the blawgosphere, join in the conversation, add to a body of peer reviewed knowledge.  The survey said:

94% of the AmLaw 200 law firms (200 largest law firms) plan to use blogs in their social media marketing initiatives.

The flaw seems obvious to me, though it’s likely because I’ve been around the blawgosphere, as well as the practice of law, for a while.  I read the gurus top ten lists the first few thousand times they posted them, learning that I do everything wrong when it comes to making rain, becoming a thought leader, impressing hotties and becoming a social media rock star.  Still, I’m here, having survived for almost five years now.  I’m no guru, but I am a fairly good observer.  And the only horse I have in this race is to see a quality blawgosphere survive.

If the purpose is marketing, don’t bother.  The return isn’t there. You will not find wealth and prestige blawging.  To the extent the gurus claim otherwise, there is a reason why their days are spent telling others how to market on social media rather than raking in the dough from their law practices.

The blawgosphere can’t handle a million blawgs.  If you are truly dedicated to the blawgosphere, you skim maybe 50 blawgs for something interesting.  That’s a lot, and most do far less.  Imagine a small town with 1000 daily papers. Even if they’re all brilliant, no one can read them all.  And if 990 of them are PennySavers, there will be a lot of untouched paper to recycle.

In 2011, the blawgosphere atrophied.  New blawgers, molded by the gurus, isolated themselves so no one knew they existed, paying good money for SEO that brought them all the way to page 7 on Google, right behind the Uggs advertisements.  There were a few great new entrants, but the vast majority were a waste of time, money and effort. No one mourned their death.

A long time ago, I wrote about Blawgospheric Darwinism.  It remains true.  The only real question arising from the anticipated deluge is whether it will crush the blawgosphere under a pile of crap.  Will every reader, every lawyer, feel like Jerome Kowalski, being sick and disgusted with the whole thing?

If the blawgosphere is turned into a massive and fruitless marketing initiative by over-moneyed and under-mindful law firms, big, small or solo, it’s conceivable that the noise will drown out the signal, turning off those who might otherwise be inclined to spend some time here.  Nobody wants a channel showing only commercials.

There is room for new blawgs. There will always be room for great blawgs, assuming the blawgosphere isn’t crushed under a pile of crap.  Few have the will and desire to produce a great blawg.  Fewer still will resist the effort to turn what they have into a marketing initiative.  You won’t make it. You will waste your time, effort and money.

I predict there will be 25 new blawgs in 2012 that will capture the interest and attention of the blawgosphere, will garner a meaningful readership and will contribute to a thriving blawgospheric community.  I predict yours won’t be one of them. I predict you will fail. I predict you will crash and burn.  And none of them will generate enough business to make a single blawg post worth your while.

Prove me wrong.  If you can’t, find a better way to spend your time and money. Social media isn’t going to change your life.

This is my gift to those of you who, like Kowalski, hear all the noise, and for those of you who, unlike Kowalski, think they’re missing some magic secret to vast wealth and prestige in social media.  Save yourselves before the deluge.

Whenever a motion is made for a bill of particulars in the Southern District of New York, the government’s response is the same: It would unduly prejudice the government to be required to disclose allegations of fact that would enable the defendant to know the specific conduct that forms the basis of the charge against him.  And the court agrees.

You know, telling the defense what exactly it says the defendant did that was criminal would indeed prejudice the government. It would give the defense half a chance to prepare its defense. Well, maybe only a third of a chance, but at least a chance.  Level the playing field, if only a bit?  Prejudice.

But when it comes to prosecuting “enemy combatants,” the ante is upped.  Way upped. Not only is the risk of individual failure at stake, but the reputation of a government that’s come to depend on a population who believes, with their every breath, that it can be trusted to ignore every safeguard around which are concept of a legal system is based, and still be fair.  The integrity of the outcome must be trusted, and yet the conviction of those denied their rights must be assured. 

What to do?  It’s not enough to deny the defense access to the evidence against the defendant. No, not the puny refusal to provide a bill of particulars, but wholesale denial of “state secrets.”  Still, a criminal defense lawyer gets used to thinking fast, working on the fly.  We don’t enjoy the luxury of depositions, document demands, the absolute necessities of civil practice where lawyers whine about not being allowed to use a proctoscope at least five years in advance of trial.  We prepare for surprises because we have no choice.  We deal with the unknowns, because that’s our job.

So the Department of Defense, because enemy combatants aren’t entitled to justice, came up with a new policy because the idea of allowing the enemy any chance of prevailing was too much to bear.  It’s revealed in ABA President  Bill Robinson’s letter to Secretary of Defense Leon Panetta.

We are therefore deeply troubled to learn that a new policy at Guantanamo Bay appears to violate both the letter and spirit of the attorney-client privilege. Lawyers for detainees report that their highly privileged attorney-client communications are being intercepted and reviewed by the U.S. government. It has even been suggested that content from these communications may be reaching the prosecution team.

Nice, right?  Robinson explains that the government’s need to violate confidentiality is purportedly justified by security considerations.

A security rationale has been provided in response to the lawyers’ objections; however, there is no information about any security violation or incident that prompted the recent change in policy. It is thus not surprising for Presiding Judge Pohl in the Military Commission trial of Mr. al Nashiri to conclude (transcript page 168) that the government screening procedures employed during baseline review in that proceeding “infringes on the attorney-client privilege.”

Infringes doesn’t seem quite adequate. Rapes and pillages confidentiality strikes me as a more apt description.  What this security rationale might be is unclear.  Do they fear that their Gitmo detainees are hiding secret cellphones on the north side of their sphincter, ready to call in air strikes via flying camels upon disclosure of top secret info from half a decade ago?

While Robinson’s stand is appreciated, in light of the alternative of the ABA being deeply engaged with more critical issues of the day, whether the iPad is mandatory for trial work and making sure Duncan Law School doesn’t get close enough to accreditation to sully the pool of unemployed lawyers, his expectations of the government are rather low.

We therefore urge you to take prompt action to immediately rescind this policy and restore the confidentiality of communications between lawyers and Guantanamo detainees. We respectfully request that the Inspectors General for the Department of Defense and the Justice Department investigate this matter and make their findings and conclusions public in a report. Finally, we request that the Office of Professional Responsibility in the Department of Justice determine how this serious breach occurred and take appropriate action to prevent any future violations of the attorney-client privilege. We believe that these actions will maintain public confidence and reaffirm the integrity of our justice system.

Thank you for your consideration of these issues.

The demonstrative appreciation of Panetta’s consideration is a particularly nice touch.  After all, one should never “urge” the government to provide minimal constitutional rights without showing due deference to important appointed officials.  He is, obviously, prevailing upon noblesse oblige to obtain a concession from the big boys. 

Not to seem completely vulgar and unappreciative, it might have been a good idea to demand that the government maintain the confidentiality of defense lawyers rather than beg for the government’s largesse.  Sure, the government is omnipotent in the eyes of the ABA and the powerful and important lawyers who end up getting the ABA President nod have spent their  careers being on committees to show that they’re worthy of being invited to cocktail parties thrown by people with official titles.  Nasty bottle-throwers never get invited to the really cool cocktail parties, or are handed titles of importance to list in their obituaries.

And it might also be worthwhile to question Robinson’s view that restoration of a wee bit of confidentiality isn’t all that’s needed to “maintain public confidence and reaffirm the integrity of our justice system.”  Until I read that, I hadn’t realized what a great job our government was doing in affirming the integrity of our justice system up until now.  And here’s I’ve laboring under the misimpression that Gitmo wasn’t the paradigm of excellence in the administration of justice. Boy, do I feel foolish.

But then, that could explain why I’m not the president of the ABA and Bill Robinson is.  Maybe my expectations are too high.  Maybe I’m just never satisfied.  Maybe I don’t get it when the government’s argument is that the playing field doesn’t favor it sufficiently.  Thank you, ABA and Bill Robinson, for standing up for the critical ability of defense lawyers to maintain some semblance of attorney-client privilege.  And hope you  enjoyed hanging out with Chief Judge Roberts and Fox News anchor Megyn Kelly.  Good times.

It’s not easy to create a thriving business that stands out in the Big Apple.  That’s why some use extreme methods to distinguish themselves, like the Naked Cowboy.  But what if you lack the talent to make music, or don’t like fabulous in BVDs?

Meet the Weed Man.



Funny?  Charming? Effective?  According to the New York Times, the Weed Man does good business.

Few scholars are considered more influential when it comes to the Fourth Amendment than George Washington Lawprof, and Volokh conspirator, Orin Kerr.  His latest article, just out in the Harvard Law Review, offers a novel, and quite remarkable, approach: An Equilibrium-Adjustment Theory of the Fourth Amendment.

While existing doctrine is complex and fact-specific, it is not at all a “mess.” Rather, it is the product of hundreds of equilibrium-adjustments made over time. Those  adjustments were usually made intuitively in response to felt necessities, but in rare cases were made out of a conscious recognition of the need for changes to keep the law in balance in the face of new practices and technological change.

Putting aside the personal anguish of not being cited for the proposition that existing doctrine is a mess (and missing perhaps my one and only chance of seeing my name in the Harvard Law Review), this assertion raises a very different view of the law, one that demands serious consideration.

Orin explains the theory by crafting a theoretical Year One, where neither cop nor criminal has any tool to enhance either the intrusion into, or the escape from, law enforcement scrutiny.  This establishes the balance that everything afterward adjusts to maintain.  Of course, from that theoretical moment in time, everything changes, develops, shifts, moves and alters the equilibrium.  The external pressures that affect the balance between cop and criminal are in constant motion.

As societal values change, so must legal rules. In contrast, equilibrium-adjustment always plays defense. It attempts to restore the status quo ante, not serve as an instrument of change.

So while technology changes, allowing (for example) criminals to hide liquor in the trunks of cars while speeding away from the revenuers, the law adjusts to maintain the balance that existed when the criminals were limited to riding around in open buggies.

To some extent, this may be the most cynical theory of the development of search and seizure law ever proposed, that the many decisions that appear to suggest there is a doctrine upon which society, and its lawyers, can rely, is really nothing more than a rationalization for maintaining balance.

While lawyers parse the words, argue the tests, ponder the continued viability of such doctrines at Katz’s “reasonable expectation of privacy,” the law is little more than maintaining the status quo in the never-ending fight between law enforcement’s efforts to maintain order and criminals efforts to thwart it.  All the words in between exist only to give the appearance of rationality or doctrinal adherence, rather than state the true purpose, to keep the two sides in check.

Frankly, Orin’s theory makes enormous sense in trying to explain the unexplainable.  Fourth Amendment law is, if one attempts to fit it into a logical construct, a disaster.  A general rule, roundly ignored, broken up by a multitude of always changing exceptions, often so wholly divorced from their initial rationale as reduce any attempt to make sense of it a farce.  It’s not easy to come up with faux rationales to justify an outcome that is based on nothing more than maintaining the balance of power.  As a method of explanation, it seems that Orin may well be onto something, as reflected in this exchange from City of Ontario v. Quon :

“Rapid changes in the dynamics of communication and information transmission,” Justice Kennedy continued, “are evident not just in the technology itself but in what society accepts as proper behavior.” Given the uncertainty, “[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises.”

In a concurring opinion, Justice Scalia scoffed at the idea of proceeding cautiously:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) — or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions — is in my view indefensible. The-times-they-are-achangin’ is a feeble excuse for disregard of duty.

But the article doesn’t stop at the point of explaining, but rather goes forward to argue that this explanation, equilibrium-adjustment, provides a sound basis for the future of search and seizure law.  This defense of the theory isn’t as easily swallowed.

It strikes me that there are two massive flaws with this balancing act as a basis for law: First, the relative balance isn’t between cop and criminal, but cop and citizen. We tend to forget, because there’s little reason to hear about all the unreasonable intrusions into the personal privacy realm of law-abiding, ordinary citizens who aren’t engaged in any wrong-doing whatsoever, that the Fourth Amendment protects all of us, even the good guys, from police over-reaching.

So criminals use telephones to conceal their conspiratorial chatter from the cops, and the cops in return use pen registers to know who the criminals are talking to.  Balance. But when those pen registers are used on my phone, and I’m not conspiring with anyone, the balance is shot to hell.  Why are my rights to privacy subject to balance based on what criminals do?  What role does the rights of the non-criminal play in the balancing of law enforcement intrusions?  None under this theory.

As the law has long acknowledged, the rights of citizens are vindicated through criminals, since warrantless search, ransacked house, results in no arrest, nothing happens. We’re left to wonder how many innocent people are put up against a wall to be seized and searched, and then sent on their way with no one to challenge the excesses of the police and violations of their rights.

Of course, there are some clues as to how often this happens, and how bad this problem can be, from the statistics developed by the New York City Stop and Frisk program, where cops are seizing and searching 600,000 people a year, only 5% of whom produce anything illegal.  What of the rights of the rest? Is this balance?

Assuming that equilibrium was a viable goal to be achieved, then the balancing act should be between cop and citizen rather than criminal.  The Fourth Amendment may be vindicated through those arrested, but it protects everyone.  Just because we don’t learn of the law-abiding citizens who suffer the indignity of intrusion doesn’t mean they don’t exist, or they aren’t entitled to the protections the Constitution meant to confer.

The second flaw is that equilibrium reflects balance as seen through the eyeballs of a very select group, rather than some sort of societal agreement.  At the highest level, it consists of an agreement between 10 eyeballs, all of which are deeply rooted in the viability of the government; five people decide the relative balance of privacy for the rest of us, as opposed to some cognizable doctrinal basis for enforcing the constitutional prohibition.  One doesn’t get to be a Supreme Court Justice without having a major stake in maintaining societal status quo.  Unlike the rest of us, they trust the system, though some more than others.

But the real fight isn’t on the Supreme Court level, but in every hot, dirty, packed courtroom around the country.  Every judge superimposes his or her vision of the balance of power between cops and defendants every time they rule on suppression.  Whether it’s elevating one fact over another to reach a desired outcome, or spinning what can’t be ignored to serve that goal, judges impose their sensibilities on every case before them.

If Fourth Amendment law is doctrinally based, at least it provides some measure of reason and predictability to limit judges from reinventing the law according to their personal sense of where the equilibrium should be.  There would be rules, and should judges adhere to the rules, there would be a minimum basis to argue whether police conduct violated them.  If, as Orin contends, the rules are just fluff, something to calm the natives into accepting that this isn’t just a matter of whatever a judge’s gut says keeps the balance, then we are awash in personal visions of where along the spectrum of privacy, or intrusiveness as the case may be, the law should fall.  This is, in effect, no law at all.

We tell ourselves that we’re a nation of laws, not men.  Yet the equilibrium-adjustment theory asserts just the opposite, that the law is whatever a select bunch of robed folks feels it should be from time to time to address the never-ending changes in technology, social mores and political perspectives.  The rest is just a big scam to give the appearance of reason when the only reason is that a judge thinks that an adjustment is needed to keep things in balance.

While Orin’s theory provides a very realistic explanation for how Fourth Amendment law has ended up defying anything remotely resembling reason, a mess, it is an indefensible theory.  If search and seizure law is nothing more than a bunch of judges’ personal sensibilities about where the equilibrium should be between police intrusion and personal privacy at any given point in time, that’s not good enough for a constitutional democracy.  And it’s most assuredly not what I swore an oath to.

We may argue all day long as to how reason applies to the varying facts and technological changes that constrain police and citizens in their struggle, but we do so based upon the belief that the Constitution has rational meaning.  That the development of Fourth Amendment law can’t be explained on any rational basis is one thing.  That this is an acceptable way for the law to develop is another.

The equilibrium-adjustment theory may well be accurate in explaining the mess we’re in, but it is most assuredly not an acceptable means of formulating the law intended to protect Americans from the over-reaching intrusions of their government.

The weather outside is frightful?  The fire is so delightful?  Especially when it’s burning those little rocks of crack in grandma’s pipe.  From the Albany Times Union :

A 44-year-old woman stole her 3-year-old grandson’s Christmas gifts and sold them for crack while she was supposed to be baby-sitting him, police said.

Andrea Ocasio was arrested early Saturday after her son came home at 3 a.m. to his North Lake Avenue apartment and found the door wide open. The 3-year-old was asleep on a couch by himself, Christmas presents were missing and Ocasio, who was supposed to be watching the boy, was gone.

A little “me” time perhaps?  Ocasio’s son saw grandma coming out of a crack house down the street and alerted police, who were kind enough to retrieve the presents for the three year old. 

Grandma Andrea fessed up to swiping the swag, no doubt aware of how many drug dealers happily exchange big wheels for anything remotely resembling snow this time of year as a gesture of good will toward man (and addict).

While many of us are busy finishing up our holiday shopping, putting that special finishing touch on the tree and wondering which gingerbread man to leave out for Santa, we tend not to put much thought into the fact that drug addicts are every bit as addicted in the latter part of December as they are any other time of year.  About the only positive aspect of this story is that Ocasio didn’t sell her 3-year-old grandson for crack.

Many talk about drugs as a consensual crime, and would leave crack addicts to their own devices.  While the War on Drugs certainly hasn’t helped to protect baby Ocasio or shutter the crack house down the street, it’s diversion of resources from meaningful treatment and education toward things like armored personnel carriers for local cops to crush chickens.

I suspect that few readers will be sweating the details of where to get that Christmas Eve fix this year.  But perhaps there will be a moment in the festivities to think of Andrea Ocasio.  Or if not her, perhaps her 3-year-old grandson, who didn’t chose to have a crack-addled grandma who would steal his Christmas presents for a fix.

It’s easy to blame Andrea Ocasio for being a truly awful person, putting her desire for drugs ahead of her concern for her own grandson.  But she’s a crack addict. Her mind doesn’t work that way, only craving the high and unable (not unwilling, but incapable) to consider the consequences of her action. 

Though society has dumped billions into a big black hole over more than 40 years because we were told that was the way to “solve” this problem, our adoption of the myth that we can win a war against drugs is every bit as worthless and foolish as leaving crack-addicted Andrea Ocasio to babysit her toddler grandson.  And America still struggles to embrace treatment rather than incarceration, after decades of being told that we had no choice but to sink huge bundles of cash to win the war, buy the equipment, pay the heroes, build the prisons so we could send all the evil druggies to the gulag, was the only way to win,

Wish Andrea Ocasio and her grandson a Merry Christmas. 

H/T  David Giacalone (who, I’m happy to say, is doing quite well)

Nearly one in three people will be arrested by the time they are 23, a study published Monday in Pediatrics found.

Astounding.  Horrendous. Inaccurate?

The study, published in USA Today, sounds yet another round of alarms that proves that one third of our children are violent predators, or we are outrageously over-reacting to childhood indiscretions, according to one’s predilections. 

The new data show a sharp increase from a previous study that stunned the American public when it was published 44 years ago by criminologist Ron Christensen. That study found 22% of youth would be arrested by age 23. The latest study finds 30.2% of young people will be arrested by age 23.

Criminologist Alfred Blumstein says the increase in arrests for young people in the latest study is unsurprising given several decades of tough crime policies.

So the culprit that has turned our babies into criminals is tough on crime policies?  That makes perfect sense, except for the fact that the numbers don’t seem to bear out.  Via Radley Balko at HuffPo :

Taken together, these studies and anecdotes suggest a troubling trend of putting kids in handcuffs for doing the sorts of things kids have always done. This has spurred concern over a burgeoning “school-to-prison pipeline” problem in which children — particularly poor, minority and at-risk children –are funneled from public schools into the criminal justice system. In response, the Justice Department and the Department of Education launched a joint initiative last July that aims to combat this trend.

One problem with the school-to-prison pipeline narrative, however, is that isn’t clear that it actually exists, much less that it’s getting worse. According to the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention, 1.9 million minors were arrested in 2009. That’s down 17 percent since 2000. The 2.3 million arrested in 2000 was down 20 percent from 1996. Since 2000, juvenile arrests have also slightly declined as a percentage of total arrests, for both violent and property crime.

The problem with empiricism is that it’s all about numbers, even when they fly in opposite directions.  The problem with the adoration of empiricism (not that there’s anything wrong with that) is that it becomes a basis for action and reaction.  As if we needed more than “common sense” to rationalize policies that “everybody knows” are right even though there is no basis in fact for their creation and less obvious unintended consequences that “everybody” won’t notice until decades later.  Hey, thinking is hard and can make your head hurt.

My efforts to reconcile the conflicting numbers failed.  Whether the numbers of children arrested are up or down is a mystery to me.  It’s not that I doubt Blumstein’s study, but that Balko’s stats seem equally well grounded.  But not being slave to empiricism, there are conclusions that can nonetheless be drawn.

In our zeal to protect our children from every conceivable harm that might possibly befall them, we’re creating a new underclass of children whose conduct, a few decades ago, would have been characterized as normal, if occasionally rascalian, childhood behavior.  Now, it’s criminal, and its perpetrators are criminals too.  And this will limit everything they do for the rest of their lives.

State and federal governments have been prosecuting consensual crimes more aggressively, particularly drug crimes. And since the late 1990s, again with federal prodding, most public schools have embraced a “zero tolerance” policy for many offenses (drugs and weapons in particular), treating every infraction as if it were a criminal offense. The policy bars school officials from considering context or using nuance when dealing with an accused offender.

There are also more police in America’s schools. A survey by the Justice Police Institute released last month found a 37 percent increase in the number of law enforcement personnel (called Special Resource Officers, or SROs) employed by public schools between 1997 and 2007, including more than 5,000 such officers in New York City schools alone. The increase in SROs, also driven by federal funding, was in part influenced by media-driven hysteria over a few highly publicized school shootings in the 1990s.

There have also been a number of stories in the news of late about pre-adolescent children arrested for absurdly minor offenses, including a 6-year-old Wisconsin boy arrested for “playing doctor” with a 5-year-old girl, a 12-year-old arrested in Memphis for not wearing his helmet at a skateboard park, a 13-year-old boy arrested in New Mexico for burping in gym class (his parents’ lawsuit also revealed the arrest of a 7-year-old girl who refused “to sit next to the stinky boy” in class), a 10-year-old Connecticut boy arrested for giving a classmate a “wedgie,” and a 5-year-old who was bound at the wrists and ankles, arrested and charged with assault after kicking a police officer in the leg.

Remember those days back when, having some fun, blowing off some steam, risking life and limb playing with sticks?  You are today’s child criminal. Me too.  Thinking back, I feel fairly confident that I would be on death row for some of the shenanigans I pulled.  Of course, we used to call them shenanigans. Now, they’re Shenanigans in the First Degree.

The arguments made here (at great length and with some zeal) that the putative goal of creating a world where no harm, real or theoretical, can go uncriminalized and unpunished, is going to be the ruination of our children.  They need to skin their knee, eat dirt, play jokes and make mistakes.  Just like we did. We cannot assure every child the opportunity grow to adulthood without every feeling pain.

While every parent wants their child to reach maturity with only the happiest memories, it requires a great many other children to pay the price.  Whether this is one-third or less, and whether this comports with our baseless “common sense” adoption of every myth used to manipulate our emotions and limited grasp of reality, the consequence is that we are turning children into criminals over nothing in our efforts to stop every inchoate harm.

I like empiricism as much as the next guy, unless the next guy happens to be a statistician or lawprof in need of tenure.  But I’m more concerned for the welfare of children.  The gravest harm we can do to them isn’t ignore the potential for an occasional skinned knee or hurt feeling, but to construct an environment more inclined to have them arrested in the name of a perfect world than allow them to make the ordinary, normal mistakes from which they can learn to develop into mature, responsible, productive adults.

And that’s why the numbers tell me, whether their up or down. 

If a police officer, for no particular reason, decided to put his handgun to your temple and inform you, with a wry smile on his face that he was going to pull the trigger and blow a hole in your head, he was would certainly be wrong.  But if you were to, say, kick him in the nuts in order to stop him from doing so, you would be committing an assault on the officer. Afterward, you would be properly convicted of the assault, while the police department would consider investigating the officer’s conduct to determine whether it violated department policy.

It didn’t have to be this way, but when the law elevates the protection of police over the right of a person to defend themselves from police misconduct, as reflected by United States v. Crossland, that’s what happens.

Yesterday,  we discussed how Judge Florence Pan, employing the tired default rationale of finding the cops’ story credible absent conclusive proof to the contrary, found against Crossland and his witnesses on the issue of whether he physically fought back after cops approached him without reason, stood him up against a wall and began to search.  No one, not even the compliant Judge Pan, contends otherwise.

The government presented evidence that on the evening of April 24, 2010, Metropolitan Police Department (“MPD”) Officers Brandon Baldwin and Kim McCue were engaged in an “aggressive high visibility patrol” in the area of Third and Bryant Streets, N.E. The officers, who were in full uniform, stopped appellant and his cousin Joseph Womack, both of whom were standing near the corner, as part of their effort to gather information about a rash of recent shootings and drug sales in the area. Officer Baldwin acknowledged that neither man was “doing anything unlawful” when the officers stopped them. The officers instructed both men to place their hands on a nearby fence for a weapons pat-down. Appellant “initially” complied, but quickly became “agitated,” telling Officer Baldwin words to the effect of “Fuck this shit. I’m tired of this.”

Only after this point is there any contested issue of fact.  What is uncontested is that Baldwin and McCue used their shields to deliberately violate Crossland’s constitutional right to be left alone, to refuse to be seized and searched, to tell the “aggressive” officers in whatever language he chose to go away.

As  Radley Balko noted with incredulity:

Both the trial court, the appeals court, and even the prosecution acknowledge that because Crossland was doing nothing wrong before the incident, it was illegal for the police to stop, detain, and search him. Nevertheless . . .

 . . . as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) . . .

So even if the police illegally stop you, detain you, and beat you, you aren’t permitted to resist. Just roll over and take it. Submit.

District of Columbia law specifically provides that forceful resistance to an unlawful order is unlawful.  The rationale behind this is that in the scheme of an orderly society, where questions of the lawfulness of a police officer’s order may not be conclusively known until a post-hoc determination by a court, the officer should not be put at risk of harm by forceful resistance.  In other words, it’s the flip-side of the First Rule of Policing, get home for dinner.  Cops will do whatever they have to do to make sure they are not harmed. If that means harming you, so be it.  And the law backs this up.

The problem, however, is that the rule elevates a policy to protect police officers from resistance over the right of a citizen not to be harmed or abused.  The underlying assumption is that a police officer would never use his authority to do so.  Some of us see this assumption as flawed, bolstered, perhaps, by the thousands of videos conclusively showing otherwise.

At WeLoveDC, the question is raised in the extreme:

In other words, once that officer tells you you’re under arrest, shut up and take it. In 2008 the Dolson case upheld that law when it was applied to a man who held a gate shut against an officer – after telling the officer he did not consent for the officer to enter without a warrant – and, after the officer forced his way in and reportedly began choking him, broke the officer’s nose. Whether or not fighting back against an officer while being raped is similarly illegal – assuming they are simultaneously arresting  and assaulting you  – is still an open question.

Of course, there is a practical aspect to fighting back to prevent your being raped or murdered by a cop, that being the concern over arrest for forcible resistance pales in comparison to being raped or murdered.  Conceptually, however, a police officer engaging in illegal conduct, whether merely choking a man (who might well have been killed had he not fought back) is, under the rule, entitled to engage in crimes without fear of challenge. 

It’s not an open question, but an assumption that police officer would never do such a thing.  There is no conceptual basis to distinguish a police officer who uses his authority to rape or murder from the police officer who merely seizes a person without basis, puts him against a fence and searches him.  There is no line of demarcation where some misconduct can’t be resisted while other can.

In his concurrence in Crossland, Judge Schwelb writes:

As Judge Thompson points out in her opinion for the court, we are of course bound by the trial judge’s credibility findings, and I fully agree that Crossland’s convictions must be affirmed. But if anything good is to come from this unfortunate street encounter between the police and a citizen, it should be an end to the unconstitutional police conduct revealed beyond peradventure by this record. If this hope is naive and unrealistic, then to that extent we are less the land of the free than we would otherwise be.

While he is, to a large extent, bound by the trial judge’s credibility findings, that Crossland physically resisted, his lament over the flagrantly unconstitutional police misconduct is bittersweet. At least he bothers to say something about it. But the words are empty and meaningless, made all the more so by the fact that the panel majority couldn’t be bothered.

To call this naive and unrealistic is a bit of judicial arrogance.  It’s far worse than that.  The check on unfettered and unlawful police power is the legal system.  We give these folks cool robes and a high bench, and expect them to use it to enforce the law, parts of which demand that agents of the government not harm us.  A good whine about police misconduct may make for a nice read, but the job is to stop it.  When the best a judge or court can do is complain about its impotence to stop police from engaging in illegal conduct, then it has failed miserably.

And what is a court to do?  The D.C. law that a person cannot physically resist unlawful police conduct smacks of unconstitutionality.  Consider, we have a fundamental constitutional right to be left alone, to not endure the unreasonable searches and seizures, and to defend ourselves from harm.  The government does not have rights, but authority.  Its authority ceases when it steps over the line of lawfulness; the government has no authority to engage in unlawful conduct.

Does a law the deprives people of their fundamental constitutional rights, in order to give the police a free pass on engaging in conduct for which there is no authorization, pass muster under strict scrutiny?  The governmental interest is the avoidance of escalation of police/citizen encounters into violence and the protection of police officers from harm in the performance of their duty. 

The contrary interest is the protection of people from harm at the hands of police.  The facile historic judicial and government assumption, as expressed in Judge Florence Pan pathetic finding, that cops just don’t go around randomly harming people, is false.  Sometimes they do.  And it happens with sufficient regularity, sufficient normalcy, that the governmental concern for the safety of its cops over the safety of its citizens cannot be tolerated.  It’s not that cops don’t deserve to be protected, but that the people do as well, and the protection of the people is a primary function of government. 

And yet Terrance Crossland is the guy convicted.

David Segal continues picking and sniffing in his latest feature in the New York Times, laying out his case against the ABA for its guild-like control over entry to the profession, and its related imposition of requirements for accreditation that foreclose efforts to provide low cost legal education.  Since everybody hates the ABA, this is something that everybody can get behind.

Except, once again, Segal has taken some decent, if tired, points and squandered them.  The article is less a honed argument than a collection of anecdotes and quote, signifying nothing. 

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low– and middle-income communities….

Paradox?  Hardly.  There are two tacit assumptions underlying the article which need to be noted and debunked.  First, lawyers are licensed as generalists.  I’m every bit as much a lawyer if I were to take on a corporate merger as a murder.  Thus, I have to be trained and tested to do both, as the shingle says only “lawyer.”  Change this detail and the entire legal world shifts on its axis.

Whether it’s the solicitor/barrister distinction, or as I proposed, the creation of the Legal Practitioner, or any one of a thousand variations in between, we can eliminate this structural failing within the profession.  If we didn’t need to be trained as generalists, a legal education could be accomplished at a fraction of the cost. 

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

So why must every lawyer be taught as if he’s doing a real estate closing today and trying a multi-million dollar class action tomorrow?  Beats me. Sure, there will need to be strict controls to make sure that lawyers, paras, legal practitioners, solicitors, barristers, whatever you want to call them, stay within the scope of their competencies.  That will be hard work.  So what? 

The second assumption deals with the reality that there are too many lawyers who want to earn the big bucks and not enough to fill the unmet needs of normal folks.  Segal explains that it’s all because of the crushing debt load of going to law school. 

One recent Nashville graduate is Tad Wintermeyer, who was a 26-year-old pilot and airplane mechanic when he enrolled in 2005. His monthly cost for tuition “was like an expensive utility bill,” he says. In 2009, he left with a J.D. and no debt. He took judicial appointments as a public defender, which paid about $25,000 his first year of practice.

“Almost all of my clients were indigent, or low income, or on some kind of government assistance,” he says. “It was incredibly rewarding work.”

What Mr. Wintermeyer has given up in prestige, interstate mobility and income, he says, he has gained in peace of mind, not to mention the freedom to donate his time. There are, of course, thousands of graduates of A.B.A.-accredited schools who are every bit as satisfied with their degrees.

Damn, that’s heartwarming. It’s also nonsense. Sure, there are some truly dedicated, truly interested people who enter the law as means of helping others. They are prepared to forego wealth and prestige in order to use their education and skills for the betterment of humanity.  And that means all lawyers (or lawyer wannabes) are great humanitarians who would willingly give of their time for others if only they didn’t have massive debt to pay off?  On what planet?

Despite the few, the proud, the poor, who do the good work, the vast majority want their Mercedes Benz station wagon in the driveway.  There is a reason why AUSAs fly out the door when their commitment is up to grab their piece of the biglaw pie.  There is a reason why biglaw partners don’t apply for line prosecutor jobs.  Having lost three years of their life, a bunch of money and coming home to hungry mouths and iPods that need cell service, they want to enjoy a comfortable life, if not a fabulously wealthy one.  Defending indigents isn’t the reward they had in mind.

Ken at  Popehat wrote about his pro bono representation of a science blogger in a SLAPP suit, where he and Marc Randazza stood up for the First Amendment because it was the right thing to do. No doubt he’ll regret announcing his victory when the next thousand demands come in for his freebie services, and the angry and outraged reactions smack him in the face because he can’t take them all.  No good deed goes unpunished, even when you are, as Ken and Marc are, humanitarians.

Even if we assume that 20% of all lawyers would desire to use their education for humanitarian purposes, the need for affordable legal services calls for the 80% who won’t.  The same structural deficit continues unabated.  The argument, to the extent it can be called that, in Segal’s article is deeply flawed. 

On the bright side, he includes the voice of Gillian Hadfield, who has been the foremost proponent of fundamental, and rational, change to the profession.

Her vision isn’t a free-for-all, where anyone can hang a shingle; it is a range of options that would entail an array of educational degrees and a broad spectrum of prices and formats for legal services.

This is clearly a fundamental shift from the lawyer generalist approach, the notion that no legal function can be broken down into more limited, discrete tasks that can be accomplished without knowing how to try a case or spending $150,000 on law school. 

If it turns out that we can serve the needs of those for whom legal services are unaffordable, but we are still top heavy on full-blown lawyers who want to make the big bucks but find themselves sitting on the couch in mommy’s basement, so what?  Eventually, people will figure out that law school isn’t going to pay off and find something to do with their lives that makes sense.  The far more important need, to serve an underserved population, will be met, and the far less important need, to provide jobs for lawyers whose only concern is personal wealth and prestige, will collapse under its own weight.

But at least we all agree that the ABA’s control of legal education has been a massive failure on all ends.