There was a video of the defendant chasing down a guy with a gun.  That would be pretty good evidence in a gang-related murder trial of intent, and, as it turned out, it was enough for the prosecutor, defense lawyer, judge and jury.  Except for one detail.  From the  NYLJ (paywall):

The video depicts [defendant Tony] Canales, gun in hand, briskly approaching a man while his prey stumbles on a curb, gets up and runs off camera with the defendant in pursuit. However, the man being pursued—a member of the Crips gang—was not the victim, who at that point was alive and observing the events as a bystander.

Ruling on the post-trial motion, Brooklyn Supreme Court Judge Joel Goldberg ripped the lawyers, when he

overturned a gang-related murder conviction in a case where the court described the prosecutor’s conduct as “grossly negligent” at best, characterized the defense case as “feeble,” and suggested if this was not an instance of prosecutorial misrepresentation, it was certainly one of ineffective assistance of counsel.

Apparently, the only person in the courtroom who figured out that the video had nothing to do with the defendant chasing the dead man, but someone entirely different, was the defendant.  And his lawyer, Alan Stutman, failed to pay attention.  He couldn’t remember whether he showed the video to his client before trial, nor recall whether he had a discussion about it with the defendant.

The defendant, Mr. Canales, said that he saw the video for the first time at trial, was baffled by references to it and told his counsel that the man in the video was not the victim, but to no avail.

Indeed, it wasn’t just “references,” but reliance.

No one identified the deceased in the video, no one who witnessed the shooting testified and a girl who the prosecutor [Lawrence J. Fredella] said had picked Mr. Canales out of a lineup as the person who shot the deceased did not testify. According to the court, Mr. Fredella did not show the video to witnesses, or even view it himself before the grand jury presentation.

Mr. Stutman, the court-appointed defense counsel, erroneously conceded in his summation that the video depicted the deceased, leaving him with “no choice other than to make the feeble argument that chasing the deceased was not inconsistent with the defendant having previously accidentally shot him,” the court said.

While the judge’s characterization of both the prosecution and defense is overwhelmingly warranted, notably missing in his ire is any self-reflection.  Who admitted this video into evidence without proper foundation? Who allowed a video to be played before a jury that depicted the defendant chasing someone other than the deceased?

In his decision, Judge Goldberg notes:

Immediately after the Court called for the jury to be brought to the courtroom to view the video, the defendant requested to speak (T. at 234). The defendant told the Court, “That is not the victim. He made his closing argument yesterday that the guy I’m chasing is the victim. The guy that in front of me is not the victim … I know who Antonio Bruce is, not the kid on the floor tumbling”.

The Court responded by telling the defense that, “If he’s requesting to reopen the case and if he wants to testify, he can testify. I would consider that, but as far as doing anything about it, I can’t do anything about it now.”

Offering the defendant the option of reopening the trial and testifying is the functional equivalent of putting a gun to his head and offering him the opportunity to pull the trigger.  While Canales raised one point, and a point that was both critical and, as the court specifically noted, neglected by everyone else in the room, the defendant was not asking for the opportunity to offer up everything he had ever done as a gang member to the prosecution. 

This often comes as a surprise to non-lawyers, but you don’t get to testify only about the stuff you want to reveal.  All the nasty, ugly stuff comes out with it, and more often than not, defendants aren’t particularly good witnesses, which may have something to do with their failure to attend witness class in the police academy.  Not surprisingly, the defendant passed on the opportunity:

The Court additionally stated for the record that, “The summations were yesterday. The defendant didn’t say anything about this yesterday. He didn’t say anything about this, this morning. He didn’t say anything about it until we got the note….”

The defendant, after consulting with defense counsel, did not take the opportunity to testify.

After all, it’s the defendant’s fault that he didn’t salvage the collective error of everyone in the courtroom and instead, told his lawyer thinking that he would know what to do. 

The confluence of failures in this case goes beyond shocking, beyond outrageous.  Nobody, but nobody, paid the slightest bit of attention to what was happening before their eyes, with everyone taking for granted that the video showed what the prosecution says it showed, despite the fact that the prosecutor’s file was replete with information that should have cued him in to the fact that it was the wrong guy.

Video has become our darling, the ability to see what before was only talked about, and when it came from the defendant’s side, dismissed.  But this adoration of video doesn’t mean everyone skips over the basic details, such as who and what the video actually shows.  That everyone simply assumed the video to show the crime is utterly mind-boggling.  And that no one took the responsibility, which was shared among everyone in the courtroom, for establishing the foundation, the relevance and materiality of the video, smears them all. What an utter disaster, and a blight on the notion that our legal system can be trusted with people’s lives.

And no, the fact that the murder conviction was dismissed on the subsequent §440.10 motion doesn’t mean “no harm, no foul.”  This is as foul as they come.

When we talk about sentences, it’s in terms of months and years, time periods way too long to be overly concerned about the details.  But that’s because we aren’t the people sitting in the can, or children awaiting their father’s return home.  From our distance, a day here and there seems trivial. Not to the person on the inside.

From the Des Moines Register, it appears that prison officials in Iowa weren’t too worried about the details either.

Iowa inmates held past their proper release dates deserve to be compensated for each day they were improperly confined, according to a class action lawsuit filed this week in Polk County District Court.

The lawsuit, filed on behalf of Mahaska County sex offender Richard Scott and other similarly situated inmates, contends that Scott was held for 46 days too long under new rules outlined in a decision this summer by the Iowa Supreme Court.

Based upon a decision by the Iowa Supreme Court, the calculation of prisoners’ sentences “requires that any defendant committed to the state Department of Corrections for supervision ‘who has probation revoked shall be given credit for such time served.’ ”  This meant that about 3500 inmates’ sentences needed recalculating.  The state said it did.

State corrections numbers say discharge dates were checked and double-checked as part of a review completed in early November. That process led to the immediate release of 551 inmates from prison and work release programs and recalculation of a new release date for 2,588 others.

Corrections spokesman Fred Scaletta declined to comment on the lawsuit, but confirmed that “everybody who we believe changed discharge dates as a result of the recalculation, they’re out the door.”

Jeffrey Lipman, who has brought a class action against the Iowa Department of Corrections alleges that “hundreds, if not thousands,” of inmates have been held beyond their release dates.

“On information and belief, the cause of the over-detentions is a collapse of the inmate management system and deliberate indifference by defendants to the rights of detainees and prisoners to be released by their release dates,” the lawsuit contends. “Defendant has taken no action to implement an effective inmate management that can ensure release of prisoners by their release dates.”

Calculating release dates for every inmate is tricky, often contentious business, Whether time before or after the actual conviction, in physical custody or under some variant, is supposed to be clearly defined, and it’s the job of the state to make sure it’s calculated correctly. There there are the credits, which vary by jurisdiction, for good time or programs successfully completed, not to mention options that allow a prisoner to transition back into society, such as work release.  But what constitutes “correctly” is frequently in dispute.

The problem is that, for the most part, that no one is watching to make sure that the state is doing its job properly.  For criminal defense attorneys, the last time we see a defendant is when we shake their hands and wish them good luck as they walk out of the courtroom in shackles. Our job is done and they are entrusted to the care of the state. 

There is a subset of criminal defense dealing with prisoners, often consisting of lawyers in prison towns who handle their habeas claims for lousy food or religious indifference, but their focus is on prisoners who retain their services rather than systemic failures. 

An action like this has to make everyone wonder whether the system, whoever is calculating and recalculating sentences in the backroom of some Department of Corrections building, knows what they’re doing and is doing it right.  On the one hand, it would seem so utterly routine that they should have it down pat, and there’s no chance of screwing it up. 

On the other hand, it may well be so routine that an institutional mistake in the manner of calculation could go on for years, could affect thousands, and no one would know about it.  We would all just assume they know what they’re doing.  After all, they calculate release dates constantly. Shouldn’t they be able to do it right?

For the guy waiting for that glorious day when he once again gets to breath free air, the calculation is critical.  Those of us who’ve never enjoyed the largesse of the state may not think of an extra day or forty to be such a bad thing, but then we can’t begin to understand what it means to serve hard time.  While a prisoner may have done 10 or 20 years, it’s done one day at a time.  Every day matters.  And every day in prison when he should have been free matters.

Whether the Iowa Department of Corrections was wrong and stole days from the lives of inmates through it’s “deliberate indifference” to the proper calculation of release isn’t clear from the article. I strongly suspect Lipman knows what he’s talking about or he wouldn’t have brought the action.  If he’s wrong, he’ll waste a lot of time and money for nothing, and lawyers hate doing that.

But if Jeffrey Lipman is right, that Iowa just couldn’t be bothered to get the release dates right, and held prisoners who, under the law, were free men, then this is a disgrace and he ought to clean their clocks.  There’s no excuse for the failure to release a prisoner when his sentence is completed, his debt to society paid.  It’s just math.  So is the calculation of damages for the days of their lives lost to the state’s failure to do its job right.

H/T Doug Berman

The Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., is one of those laws that makes for fabulous platitudes that endear the layman to the government and can be embraced solely on worthless generalities.  The reason is unfortunately simple, as it’s a law comprised of nothing more than worthless generalities, so vague and encompassing that it’s made America into some Pollyanna joke in a flat world.

At the Cato Institute, Walter Olson has ripped the covers off of the FCPA.

The Foreign Corrupt Practices Act, enacted in 1977 and the subject of a high-profile federal enforcement campaign in recent years, is a feel-good piece of overcriminalization that oversteps the proper bounds of federal lawmaking in at least four distinct ways, any of which should have prevented its passage. It is extraterritorial, purporting to punish overseas misdeeds which deprive no Americans of liberty or property and whose punishment is better left in the hands of authorities elsewhere. It is vicarious, inflicting massive liability on businesses and unknowing higher-ups over the actions of rogue local subsidiaries, salespeople and facilitators. It is punitive, menacing its targets with twenty-year prison terms and inflicting huge penalties over less-than-huge misbehavior. And finally, it is vague, leaving companies to guess at the proper line between tolerated payments (e.g., gratuities to speed up visa and license issuance in developing countries) and improper “bribes,” and even such basic questions as who counts as an “official.”

Sadly, he’s not overstating the case.  That it can be wrapped for the happily simplistic as forbidding corporate bribery overseas says enough for some.  But even Lanny Breuer, head of the DOJ’s criminal division, concedes that it’s not so simple.

A top Justice Department official said on Tuesday the agency will clarify next year what triggers anti-corruption probes into U.S. corporations.

Lanny Breuer, head of the criminal division, said his department expects to release “detailed new guidance” on the criminal and civil enforcement provisions of the Foreign Corrupt Practices Act (FCPA).

Between now and then, we’ll just guess.  Or more realistically, suffer whatever spits out of a DOJ computer and comports with what some kid assistant thinks is how business ought to happen.  And when the “detailed new guidance” emerges out of Washington, no doubt it will answer all these incredibly difficult questions that make put American businesses at a shocking disadvantage to those from other countries, and strike fear in the hearts of executives who might well want to build roads and bridges in other countries, but can’t get the gig because they won’t take some local burgermeister to lunch for fear of a multimillion dollar prosecution.

I’m no  knee-jerk  fan of corporate America. and haven’t been shy about attacking abuse when businesses fail to honor their responsibilities.  But unlike others who mistakenly believe that we would do better without them, I fully recognize that they are a crucial part of our economy, our world, our existence.  Let’s face facts, we can’t build fleets of cars in the back of our garage, or pave a million miles of highway from the back of a Schwinn.  Heck, we wouldn’t even have the Schwinn. We need corporate America to create the infrastructure, the products, that we rely upon for our ordinary existence.  

And corporate America needs to be able to exist in a world market to sustain itself.  It’s either that or we sit smug in our platitudes as our wealth flows to China.  More significantly, corporate America isn’t inherently evil or wrong. It may not always be the white knight, but it similarly isn’t always the black one either.

For as long as I can remember, America was viewed as the naive child of the world, strong but misguided in its inability to move beyond rules designed to appeal to third graders. Opposition to, and confusion by, the FCPA isn’t meant to suggest that American corporations want to bribe banana republic dictators to get the job.  But it flies in the face of every culture that isn’t ours, part of that absurd belief that the entire world wants to be just like us.  Because, you know, we’re so wonderful that no one could possibly want to be any different.

At its core, the FCPA is our government’s way of pretending to be the mean old school marm, telling all the nasty children of the world how to behave.  If it doesn’t appeal to the school marm’s sensibilities, then it’s a crime, and demands a hard smack across the knuckles.  A very expensive hard smack.

This isn’t the way to pay back corporate America for any grievances we may have with our KitchenAid refrigerators, or the gross multimillion dollar bonuses paid to executives while line workers can barely put food on the table.  Hate corporations for what they do badly all you want, but try to live in a world where they don’t exist, don’t produce.  This isn’t our world.

As Wally explains, this is a law that puts an unaimed gun to the head of every corporation doing business across a border, and that’s pretty much every corporation that exists.  Cut the CEO’s salary all you want (as it’s not likely they can get a better job playing for the NBA), but don’t make it impossible for corporations to compete in the global economy because we carry around fond memories of that school marm.  

We may hate corporations, but we need them, and we need them to be productive around the globe.  To tie them down because of vague, child-like notions of fairness that conflict with cultural norms everywhere else is just foolish and counterproductive. Surviving and competing in foreign cultures isn’t wrong, and it shouldn’t be a crime. The FCPA has got to go.
 

In another excellent post, Jeff Gamso uses the sad and incredible story of Georgia  Judge Amanda Williams to raise a pervasive problem and make the necessary point.  It’s not novel, or we wouldn’t have to attribute this quote to Edmund Burke:

All that is necessary for evil to triumph is for good men to do nothing.

When he was an army lawyer, he was addressed by his rank, which I assume to be better than buck private. Now that he’s been mustered into the ranks of civilians, he questioned what to call himself:

I’ve never fully understood placing “Esq.” or “Esquire” after one’s name as a lawyer.

Someone told me that it is our version of a doctor calling themselves Dr. as a prefix.

Someone else told me that you should never refer to yourself as an Esq., but that it is reserved for others to use when referring to you. I.e. Improper to use Esq. on outgoing correspondence, but it is acceptable for individuals to address correspondence to you with Esq. added.

Someone else told me that Esq. is something used to demonstrate the awarding of a Juris Doctor degree, but it did not denote bar membership or the active practice of law.

Someone else told me that Esq. was commonly used by people who finished law school but were not yet a member of the bar, just to feel spiffy.

And yet someone else told me that placing the term Esq. behind your own name is a fantastic way to demonstrate that you are a self-absorbed prick.

What this tells me is that  Eric Mayer talks to too many people.  The nuance of using “Esq.” has never been high on my list of issues, though if pressed, I think that’s the way I address formal letters to other lawyers. I would never sign my name with “Esq.” at the end, just as I would never call myself “Attorney Greenfield,” as some lawyers typically do in other parts of the country.  It gives me the willies.

But the American Bar Association  is concerned about what we call ourselves,  It’s sufficiently concerned that it’s issued a policy statement :

J.D. Degree – Ph.D. Degree Equivalency  

WHEREAS, the acquisition of a Doctor of Jurisprudence degree requires from 84 to 90 semester hours of post baccalaureate study and the Doctor of Philosophy degree usually requires 60 semester hours of post baccalaureate study along with the writing of a dissertation, the two degrees shall be considered as equivalent degrees for educational employment purposes;

THEREFORE, BE IT RESOLVED, that all appropriate persons be requested to eliminate any policy, or practice, existing within their jurisdiction which disparages legal education or promotes discriminatory employment practices against J.D. degree-holders who hold academic appointment in education institutions.

So we’re every bit as doctor-y as, say, doctors?  Yeah.

At Above the Law, Elie Mystal expresses his thoughts on lawyers who call themselves “doctor.”

I know J.D. stand for Juris Doctor. I get that at commencement somebody probably proclaimed that law school graduates were “doctors of laws.” All that said, the lawyer who refers to himself as “Dr.” So-and-So has got to be the biggest douchebag on the planet. Bigger even than the tool who runs around calling himself So-and-So, Esquire.

Don’t you want to punch that person in the mouth?

Aside from Elie’s violent tendencies (not to be stereotypical or anything), any lawyer who calls himself doctor is indeed “the biggest douchebag on the planet.”  The ABA’s nonsensical equivalency statement completely misses the point, that we are lawyers, not physicians, not astro-physicists, not chiropractors.  The whole “Esq.” thing is nothing more than a silly vanity used to note, based on modern practice, that we’re lawyers. 

What’s disturbing about all of this isn’t just the excess promoted by the ABA’s needless and mindless policy statement, the inherent fake grandiosity and pomposity of any lawyer claiming the title Doctor, but that it’s happening simultaneously with the diminishing of the profession to the level of puss-encrusted streetwalker.  As the spiral into the gutter picks up speed, new means of branding ourselves are embraced by the forward-thinking marketers at the ABA.

No, it’s not just official permission to call ourselves doctor even though we’ve never wielded a proctoscope and learned the true meaning of myopia.  It’s the websites that self-proclaim someone to be the nation’s leading trial lawyer, an outrageous affront to humility, not to mention an outright lie.  Lawyers are lying through their teeth to manufacture undeserved self-promotion and the ABA is busy providing new lies to spew.

In response to Eric’s question about whether to use “Esq.”, former disco queen  Dan Hull offered his thoughts:

But my 2 cents: No. Don’t use it. Anyone can now become a lawyer in America. And everyone does become one. The attorney world is now like a big bowling alley in a crappy part of Cleveland. Distinguish yourself some other way within our world.

Being a good lawyer is a lot of work.  Calling yourself “Esq.” or doctor is easy.  But if you do, you are “the biggest douchebag on the planet.”  I might not punch you in the face, but I won’t think well of you.  And no, squeezing you fat butt into your “doctor” hot pants isn’t going to make you look any better as you strut down the boulevard.

Every article by some self-proclaimed legal futurist or social media guru (available for speaking engagements and vegamatic demonstrations) has pounded on this line for years, it being at the core of our fabulous changes that compel you to get on board or miss the train.  Because, you know, social media is here and the practice of law is changing.

For a few years now, unsolicited emails have been coming in describing, usually in completely incoherent form, the most intimate details of people’s lives and crimes, seeking representation.  Before you get all excited, thinking that this is the path to finally getting some cases so you won’t spend your day reading blogs and hoping the phone will ring, they want a lawyer. They do not want to pay a lawyer.

You see, they find us through websites like Avvo that give the deliberate impression that lawyers are sitting in front of their computers just waiting for their emails, as if there’s a smörgåsbord of attorneys who want nothing more than to provide free representation to anyone who asks.  We’re their’s for the asking, for the taking. They’re doing us a favor.

But all this changed yesterday when an email came in, naturally unsolicited, but with a twist.

Hello, I am being charged with a [small time crime]. So this is a felony. I want to know how much you charge for the initial surrender and arraignment and then how much after. Please e-mail me quotes as I am comparing and cannot speak on the phone right now.

Thank you.

Welcome to the glorious world of technology.  No string of fabulous adjectives or cute but vague phrases of the glory of social media will change the significance of this email. Here’s a paying client.  Here’s a client who needs a lawyer.  While the case isn’t earth-shattering, it’s a felony as opposed to the typical shoplifting or public peeing that usually draws people to the internet to find a lawyer.

Some lawyer will get this email and respond.

Some lawyer will get this email and send back “quotes.”

And if the “quotes” are better than the quotes some other lawyer sends back, then maybe he will find the time to speak with the lawyer on the phone. 

In the past, I’ve written about defendants researching lawyers on the internet to death, finding 20 (or 100) to interview and spending weeks meeting with lawyers before making a decision, all the while the case moving forward to the defendant’s detriment.  And they don’t realize the opportunities lost in the case while doing what some monumental fool told them to do in some post on how to hire a lawyer.  It’s a disaster.

This email reflects the potential for the next wave of incredibly stupid things that social media could do to lawyers and clients.  Forget the arrogance of this jerk, which can be easily fixed during the 8 months he’ll spend on Riker’s Island, because he’s too busy and important to speak to the person into whose hands he’s about to put his life.  Forget the absence of any notion that he might want to pick his lawyer based on any metric of competence, but rather asks for “quotes” as if he were buying a used car.

Implicit in this emails is that lawyers are standing by, wanting nothing more than to handle this guy’s case and provide an enticing quote in the hope of capturing his business.  What struck me as far worse than what the sender of this email has in mind is that some lawyer, maybe a desperate kid with loans to pay off, or maybe some pathetic old timer who shuffles around the hallways in his black sneakers in search of an arraignment, will jump at the chance to respond.

Many criminal defendants have a peculiar way of looking at the world, which is why they’re put their financial self-interest ahead of the harm they do to others.  They now have a new tool with which to do so.  Many lawyers will take any business they can get, happily demeaning themselves for their next meal.  Most legal futurists and social media gurus will take any example they can find of commoditization of law, the unbundling of services, the transparency of fees and the fungibility of lawyers as proof that they can show us the way to prestige and wealth via the internet.

The high volume lawyers will love this email. They’ve long worked on the notion that cheap fees and quick deals will make them good money, and this is right down their alley.  They’ll quote a couple hundred dollars for the arraignment. and happily give the price list for a quick felony plea. They won’t even need to send out fliers to promote cheap, quick and lousy, as the defendants are coming to them.  It’s a perfect fit.

How would you have responded to this email?  How will you respond when it’s in your inbox?  Remember, if your answer is that you wouldn’t, someone else will.  The defendant who sent me this email may have issues, but it’s not his fault that he thinks this is a brilliant way to get a lawyer for the least amount of money.  This is what he’s been told by the social media gurus.  And this is what some desperate lawyer will grab so he doesn’t have to play another game of spider solitaire.

This is the future of the practice of law in the digital age. Are you happy now?

The putative titles reflect the claims of “male privilege,” that society provides men with benefits they enjoy without thinking about them. The other is about “female privilege,” the claims men throw back in response to their own benefits, which women argue are either trivial in comparison or the product of societal misogyny.

Male Privilege :

Men build discursive spaces and discursive norms based on their own experience. And for instance, in a male-built discursive space, a threat of sexual violence may be viewed by male participants as an obvious joke. After all, the vast majority of men will never experience sexual violence in their lifetime. (Fewer than 4% of men will be sexually assaulted.) And so within the context of a male discussion on a World of Warcraft forum, for instance, it may seem entirely innocuous to use ideas of sexual violence to express one’s views on the game, or to use “rape” as a verb to describe one’s gameplay skills.

Women as a group have a vastly different experience with the idea of sexual violence. One in six women will be a victim of sexual assault during her lifetime. (Yes, some men are also sexual assault victims. But the numbers are overwhelmingly female — about 90% of sexual assault victims are women.) Rape is not an abstract idea or an obvious joke. For thousands of women, it is an immediate and extremely painful reality

Female Privilege :

And, so, predictably, some critics of feminism, “men’s rights” blogs, and the like have assembled lengthy lists of female privilege. (Women get their dates paid for — it isn’t fair!) And it’s true that there are areas where, taken on a stand-alone basis, male and female treatment appears to favor women. As we’ll see, I don’t think these areas really provide an analogue to male privilege.

We’ll start with the obvious, descriptive matter: Some areas exist in which women have some advantages. For one obvious example, some bars offer free drinks to women on some evenings. (Ladies night.) Looked at in isolation, these could be viewed as areas of female privilege. However, in context, it seems evident that this apparent female privilege fills one of two roles.

Alex Trenton – November 10, 2011 at 1:35 pm

“Just about anything that can be put forth as so-called female privilege has roots in misogyny.”

That is the essence of unscientific thinking. It’s completely unfalsifiable: no matter how disadvantaged men might seem, someone with an ax to grind can always come up with an inventive theory by which it’s really men that are being privileged. (“Too many men on death row? That’s rooted in misogynystic beliefs that men are more responsible for their actions than women are.” Never mind that it’s not exactly a privilege to be killed.)

And the response:

allgoodtees – November 10, 2011 at 2:39 pm

@Alex Trenton

That is the essence of unscientific thinking.

Careful, true colors are showing.

Men = Capable of breaking this down scientifically (logical, reasonable)

Women = Someone with an axe to grind (overemotional, irrational, incapable of such detachment)

Men can talk about this in abstract, detached, observational ways because they are not the ones being marginalized by the attitudes they’re discussing. Asking women to set aside their emotions (ie, look at this like the men do, dear, and you’ll understand) is impossible, because it’s their life you’re discussing, and the ways these attitudes impact their life.

It doesn’t get any better than this. Enjoy!

When Southern District of New York Judge Jed Rakoff decided not to be a rubber stamp for the settlements of the SEC, it was like spitting in the government’s face.  Who is he to question what the minions of the executive decided, especially since they hope to be gainfully employed after leaving government service. This was a game where everyone knew the rules, and yet Judge Rakoff wasn’t playing fair.

The  WSJ Law Blog reveals a truth hidden beneath the robes in its profile of Jed Rakoff.

Before he found the death penalty unconstitutional in 2002, Rakoff says he suspected his ruling would be reversed because he knew a majority of judges on the U.S. Second Circuit Court of Appeals would interpret a Supreme Court decision on the issue, Herrera v. Collins, differently than he did. (He thought he might get lucky if he drew a 2nd Circuit panel that included the few judges who would agree with him.) The judge, who still believes he “had it exactly right on the law,” also told his wife before the controversial ruling that it would likely prevent him from being promoted to a higher court. “You’re having more fun in the district court anyway,” he recalls her saying.

In a land of feigned meritocracy, this tidbit says more about the judicial system than any lawyer’s rantings.  One day, a lawyer who was sufficiently respected and avoided pissing off enough people to obtain a nomination to the district court and manage to avoid disapproval in the Senate was forced to make a decision that, in his mind, spelled the end of any potential to climb higher on the judicial ladder.  And he made a choice.

I’ve liked Judge Rakoff ever since I testified before him in a §1983 action, because he got my jokes. I can’t fathom why his height of 5’8″ is an issue, as raised by the WSJ, as it’s the perfect height for a man in my humble opinion.  His beard is fine, but nothing to write home about.  And while I may not agree with all of his decisions, I’m fairly certain he doesn’t care what I think.

When we argue to a judge, we realize that judges, like the rest of us, harbor prejudices and beliefs about right and wrong, the world around us, everything.  We attribute characteristics to them that we assume to be favorable or antagonistic to our positions.  We may try to formulate our argument to be as appealing as possible to the judge’s bias, but arguments are self-constraining.

What we rarely do is recognize that a judge, who might otherwise give us a perfectly fair hearing in conformity with his own belief system and prejudice, has another, less savory, concern lurking in the back of his head.  His future.

This issue has arisen with one of my favorite judges,  John Kane in Denver. who as a senior judge has come to grips with the fact that his judicial career will end in the district court.  He will never be nominaterd for the circuit, and will never need to look for a house in Washington, D.C.  Because of this, and life tenure, he is free to do what he believes is right.  He can make enemies and take risks. He can be a judge.

The issue also arises when discussions about elected versus appointed judges flare up.  The argument is that the former is ridiculous, as voters lack any basis whatsoever to elect a judge, voting instead down party lines or for the one who puts the most posters on telephone poles.  On the other hand, appointed judges are presumably vetted for competency, but what about decsions dictated by the desire to please those whose fingers will sign off on their next appointment?  Or more accurately, to not offend their patrons. 

We want to believe that every judge is bold enough to rule without fear that it will impair their personal interests.  This “outtake” from Jed Rakoff reminds us that our belief is naive.  Judges have a career path just like assistant managers at Dairy Queen, and they will never reach the pinnacle of success if they put too many sprinkles on an ice cream cone.

I don my cap to Jed Rakoff for sacrificing his personal interest in moving to a higher bench to make the ruling that he believed to be right, even if politically unpopular and destined to end his forward progress.  I hope all judges would do the same thing, though if they would, this thought would never have entered Judge Rakoff’s head.  We all know this, but rarely see it spelled out so clearly and honestly.

And so I dedicate one of my favorite songs to a judge of great stature.

If football has anything to do with choices, then there’s no point in any discussion.  Joe Paterno is a legend in college football, and at Penn State.  But there is no separate set of rules to guide the lives of college football legends.

Two people witnessed Jerry Sandusky molesting children, though molesting appears to be too kind a word.  Raping a ten-year-old boy in the Penn State showers is another way to put it.  One witness, the janitor, now suffers from dementia.  The other was then-grad student Mike McQueary, former quarterback, coaching hopeful. A young man who was hardly equipped to deal with what he saw, but he knew he had to do something.

As the lowest man on the coaching totem pole, he went to the top.  He told JoePa, who sent him straight away to the Athletic Director.  Joe Paterno was an old man, but no better equipped to handle what happened than the kid.

With three games left to another great football season, Paterno has been fired by the Penn State Board, after having submitted his resignation after the end of the season.  The University president, Graham Spanier, is out as well, though nobody really cares since he doesn’t coach football.  Oddly enough, it leaves Mike McQueary on the sidelines.

In an ugly episode that has torn at the soul of a proud university, set off criminal investigations and ended the career of one of the sport’s most accomplished and revered coaches, McQueary has occupied among the strangest of positions: he could be the star witness in the coming criminal cases against senior officials at the university; he has become the target for widespread criticism for not having acted more decisively himself nine years ago; and he could well be on the sideline Saturday for the game against Nebraska, helping execute a game plan devised by the coach he once dreamed he might succeed. A Penn State victory would leave it in position to reach a major bowl game.

From the way it’s described, you have to feel badly for Assistant District Attorney Donna R. Andrieu.  She stood there, the face of the District Attorney of Orleans Parish, Harry Connick the elder, as justice after justice smacked her for speaking the words her boss demanded.  If Harry, Sr., was half a man, he would have had the balls to go there and argue Smith v. Cain himself. 

From the New York Times :

Justice Kagan said she could not understand why the Orleans Parish District Attorney’s Office persisted in defending its conduct. “Did your office ever consider just confessing error in this case?” she asked.

Justice Sotomayor made a broader point about the office, which has repeatedly been found to have violated Brady v. Maryland, the 1963 Supreme Court decision that requires prosecutors to turn over favorable evidence to the defense.

“There have been serious accusations against the practices of your office, not yours in particular, but prior ones,” Justice Sotomayor said. “It is disconcerting to me that when I asked you the question directly, should this material have been turned over, you gave an absolute no.”

“That’s really troubling,” Justice Sotomayor added.

The underlying case doesn’t matter, to the extent mass murder cases don’t matter, beyond the fact that it was a one witness ID where the one witness told the police that he couldn’t identify anyone.  Of course, he later did identify someone, and that someone was the defendant, Juan Smith.  Nobody every told the defense of the witnesses earlier statements.

There is no question that a statement by the witness who identified the defendant as the murderer that he was incapable of identifying anyone is critical for impeachment.  Even Nino knows that.

Justice Antonin Scalia said of the evidence, “Of course it should have been turned over.”

Yet the position taken by Connick, with Andrieu standing there to take the beating, is that it wasn’t “material.”  For non-lawyers, materiality is that which has a significant impact on a fact. It matters.

She acknowledged Chief Justice John G. Roberts, Jr.’s suggestion that the defense would have liked to have known that Boatner at one point told police that he could not identify any of the attackers, but then Andrieu insisted that this was not “material.”   Ginsburg then again criticized the prosecutor’s view of what was “material,” and Justice Antonin Scalia joined in to say that the trial did not depend solely on Boatner’s testimony but, in fact, his was the only evidence against Smith.   She insisted there was more.

As a general rule, it’s frowned upon when an advocate at oral argument persists in asserting an argument that is clearly frivolous. To deny the materiality of the eyewitness’ statement that he couldn’t identify anyone who committed the murders was nuts, and Andrieu took a beating for it.

The problem is that she was just the surrogate, the person told to stand up and take the beating for the Orleans Parish District Attorney.  She did her job and took her licks, while Connick was safe at home, perhaps a bowl of jambalaya in front of him so that he wouldn’t be hungry while his assistant was getting her butt kicked.

You see, he’s the same Connick whose name will forever be associated with a defendant named Thompson, who spend 18 years in prison, 14 on death row, and then lost a $14 million judgment for having been imprisoned and nearly executed because Connick’s assistants didn’t bother to disclose Brady material. But the Supremes tossed the verdict because  Thompson couldn’t prove that this was Connick’s official policy.

So there they were, beating up on poor Ms. Andrieu who kept to her script for making a frivolous argument that something that’s obviously Brady isn’t Brady because it’s not material even though it’s completely, totally, obviously material. It doesn’t get more material.

Why are they blaming poor Ms. Andrieu?  They know that she can’t do anything without Connick’s blessing, and if she concedes that they withheld Brady, she’ll never taste decent jambalaya again as there will be cops blocking the Danziger Bridge when she tries to make her way back home.  They know she’s doing Connick’s dirty work.

As for Connick, he’s only doing what the Supreme told him to do in Thompson’s case.deny it all and play stupid.  That’s the beauty of Brady, Wild Bill Douglas’ greatest joke on the law.  It’s the carrot that one can never quite reach, a fabulous and critical “right” without the necessary limits and parameters that allow it to work by holding the prosecution to any discernable test. 

In Thompson, the Supreme Court had a chance to make the prosecution pay a price for violating Brady. You see, there’s no price to be paid in any individual criminal prosecution. None.  Withhold Brady and the worst that can happen is the conviction is tossed. But provide Brady and you wouldn’t get the conviction in the first place, so nothing to lose. Every incentive is to deny it exists.  Or, as poor Ms. Andrieu argued, deny materiality.

If it becomes official, however, then defendants like Thompson win verdicts after their conviction is tossed and get compensated for the years of their life lost to the prosecution’s thievery.  That’s money out of the budget, and a government can feel that bite.  This is something real to lose.

When Juan Smith’s conviction came on the heels of the Supreme Court’s decision in Connick v. Thompson, it seemed pretty darned hard to ignore. Maybe, just maybe, the justices were mind-numbingly wrong in  Thompson, that the Orleans Parish District Attorney had a calculated policy to deprive the defense of Brady material so that they could convict who they wanted to convict without any of that nasty excuplatory or impeachment stuff screwing up their trials.

But all they had to do to beat the problem was shuffle their feet and play stupid, as in arguing that they didn’t know it was material, and all is forgiven.  Connick may lose his conviction of Juan Smith, but that’s no big deal.  If it had been disclosed that the witness couldn’t identify anyone anyway, he never would have gotten the conviction in the first place. No downside at all.  But he didn’t lose a dime to Thompson, and that’s all that really matters.

It seems like poor Ms. Andrieu did her job incredibly well.  There will be a big bowl of jambalaya waiting for her when she returned to New Orleans.