At the New York Times Room for Debate, the efficacy of Occupy Wall Street is the subject of discussion.  The introduction is troubling:

If you stopped by Zuccotti Park in New York and asked 10 protesters what their goals were for Occupy Wall Street, you might get 10 different answers. This has led some reports to call the group unfocused, but that may be normal for an emerging movement: would 10 young Egyptians in Tahrir Square in January have been any more unanimous?

Well, yeah, The Egyptians would have been unanimous about the removal of Mubarak, the end of his reign over Egypt.  Whether he would be replaced with a democratic government or a religious oligarchy might have been in dispute, but they all agreed that it was time for Mubarak to go.

And so it is with Occupy Wall Street, where the protesters, who no one would have known existed had the New York Police Department not put them on the map, who all agree that corporate greed, and its ownership of the nice men and women elected to run our government, has well served the one percent, but not done as much for the other 99.  Beyond that, it’s not clear.

The discussion focuses politics and the values of the masses in addressing economic inequity.  Of course, there are anarchists and labor unionists, likely a few syndicalists thrown in for good measure.  But that misses the point.  There’s no unity of purpose beyond making the point that things are not right as they now exist.  What it should be, and how that should be achieved, is a fight yet to be had.

Nathan Schneider, editor of WagingNonviolence.org,  begins the discussion with what I see as the most salient point:

The main thing that Occupy Wall Street is doing right also happens to be the main thing these protesters are doing in the first place: sticking around. Merciless persistence is a large part of what made the Arab Spring work: those in the streets in Egypt and Tunisia managed to hold on longer than their rulers could.

The inability to persist dooms almost every effort to effect change.  Whether we chalk it up to our 2.7 second attention span, or the fact that there are plenty of fun things to do on the internet to keep us off the streets, we tend to scream very loud for a moment and move on.  While those in power might prefer we not scream at all, they’ve figured out that if they ignore us, we eventually go away and they go on with their business as if nothing happened.  That because nothing happened.  Nothing that matters, anyway.

Over the past few days, I’ve been playing something of a game on twitter with my dear friends, Kyle, Mandy and Rachel, of the KitchenAid (a subdivision of Whirlpool Corporation) social media team.  It’s putatively got to do with my refrigerator, which has  taken to twitter and become something of a celebrity, getting a nod from Elie Mystal at Above the Law, a post by Sam Glover at  Caveat Emptor and an interview with Bruce Carton at Legal Blog Watch.  For the record, I am not @SHGrefrigerator.
 
There’s been plenty of fun and laughs along the way, but it’s always made a mess of KitchenAid’s social media branding campaign and effort to pretend that they truly care.  For some, it’s been a bit persistent, causing some to get bored of it, and others to question why their toaster issues aren’t worthy of similar social media concern.  

Twitter “expert”  Adrian Dayton,  informed me that

Afghanistan.  Ten years today, but no crazy parties and wild celebrations.   Turley mentioned it for fear that no one else would.  I pass the date along, as no ten year anniversary should go unnoticed.

Today, our country passes an important anniversary, which (unlike the 9-11 anniversary) will be largely ignored by politicians and the White House. We have now been in Afghanistan for ten years. That’s right, ten years. We have had 2 million troops in the country and lost roughly 1,700 lives. We have spent hundreds of billions of dollars. Yet, the President and other politicians would prefer to have the anniversary pass without much notice for good reason. It has been a disaster and it is not improving. In the meantime, the public is heavily opposed to our presence in the country.

We have now been in Afghanistan longer than any prior war from the Revolutionary War to World II to Vietnam. Yet, the American people are still unsure why we are there while their leaders shutdown vital educational, scientific, environmental and social programs for lack of funding at home. Polls show 6 out of 10 people want us out of Afghanistan, but it does not seem to matter. This year alone Afghanistan will cost over $116 billion. President Obama has set a date of 2013, which will guarantee more loss of life and money in this ill-conceived war.

As he notes, there were credible reasons for going in, in comparison to the invasion of Iraq.  But what we planned to do there, well, remains something of a mystery. 

At the time, finding some enemy to go to war with seemed like such a great idea.  We were angry, a wounded giant who had to teach the little fleas a lesson.  No one questioned what the cost would be, or what our goal would be so that we would know when we achieved it and could come home and throw some parades to celebrate our success.

Now it’s ten years later.  The economy isn’t good, and we’ve thrown a whole buncha money into a hole. Even though we can never get that back, given all money that’s gone missing from Kabul airport, somebody is doing well.  American’s have long had an inexplicable disconnect when it comes to money spent on military-type purpose and money spent for any domestic reason.  We’re ready to start a revolution over the latter, but who cares that a “bunker-buster” bomb costs $145,600 per?  When you need to bomb someone, price is no object.

No doubt you’re a sentimental fool like me, and would feel awful if this anniversary passed unmarked.  What to do about it? Well, it’s an anniversary, right?  Throw a party.

For a while now, Martindale-Hubbell, the one-time stalwart of lawyer ratings and maker of a shelf-full of really big, heavy, expensive brown books, has been the source of spam emails trying to sell plaques to put on my vanity wall to impress the crap out of clients.  And they’re not cheap. Not by a long shot.

In my nearly 30 years of practice, no client has ever asked me what my Martindale-Hubbell rating was.  And even if they did, they wouldn’t have a clue what an “AV” rating meant.  Why should they?

But silliness aside, things took a turn toward the seriously creepy yesterday when the “customized plaques” demonstrating my total self-importance were no longer good enough. Oh no, they took it to a new level.

We are excited to introduce a revolutionary product designed to profoundly increase your exposure on the Web: your own high end, custom video featuring your Martindale-Hubbell® AV® Preeminent™ Rating.

It’s been a conundrum for a long time, the situation of a woman in a domestic violence prosecution.  The problem is well known: Allegation of harm, whether being struck once or routinely beaten, resulting in the arrest and prosecution of (almost always) the man in the relationship. 

After the man is arrested, the woman’s position shifts.  She no longer wants to cooperate. She no longer wants him prosecuted.  She claims she made it up. She claims it was a mistake. She claims she wants it over, the case dropped and the man back.

In some instances, it’s accurate to say that the allegations were used as means of getting back at the man, to have police forcibly remove him from the home as a way of lashing out.  In most instances, however, it’s submission to threats, fear, overbearing will or some other unsavory purpose that prevents a crime from being prosecuted.  There’s nothing like a few broken bones or a black eye and missing teeth to back up the story that it was all a big mistake.

Having been on both sides of this situation, and doing what had to be done to support the outcome my client desired, the dilemma is real and certain.  What do do about it is less clear.

The Cuyahoga County District Attorney is seeking the Ohio Supreme Court’s approval of a means of compelling the victims of domestic violence to testify.  Via the Columbus Dispatch :

The Cuyahoga County prosecutor’s office wants the high court to instruct judges to consider calling the accusers to the stand in domestic-violence cases. That would give prosecutors a chance to cross-examine them on statements made before they refused to testify.

“Without that procedure, there’s very little the prosecutor can do,” said Matthew Meyer, assistant prosecutor for the county.

The case involves Melissa Mathis, who alleged that she was beaten by her boyfriend numerous times, eventually landing her in the hospital.  As trial approached, she recanted.  It was all made up, she said.

The prosecutor asked the judge to call Mathis as a “court’s witness” so that she could be cross-examined on her earlier statements. The judge denied the motion, saying there was no proof that she recanted her story because her boyfriend had threatened her. The 8th District Court of Appeals upheld the judge’s ruling.

Meyer said prosecutors once had some latitude to introduce other evidence if alleged victims refused to testify, but now it is “nearly impossible” to win those cases in the aftermath of two U.S. Supreme Court decisions involving a defendant’s right to confront his accuser.

The problem lies in the confluence of confrontation and the inability of a party to impeach its own witness.  The prosecution has Mathis’ original statement, but without her on the stand testifying to the truthfulness of that statement, it’s worthless.  It can’t be used.

On the other hand, the prosecution is constrained by direct examination not to lead its witness, thus asking the open ended question of what happened.  Mathis’ anticipated answer will be, “nothing,” and that’s not going to help them any.  The next step, to impeach her with the prior inconsistent statement, isn’t permitted.  That’s what the prosecution hopes to do.

If more Ohio judges agreed with prosecutors’ requests to call the victims themselves, they could find out the truth and put domestic abusers behind bars, Meyer said. He is hoping the Ohio Supreme Court sends that message to judges who are unaccustomed or openly hostile to the rule allowing them to call their own witnesses.

This argument is somewhat disingenuous, as it presumes the truth to be what the prosecution wants it to be.  That may very well be the case. Or not. The problem is whether the original statement is true or the recantation is true. Or somewhere in between.

Assistant Cuyahoga County Public Defender John Martin warned against assuming that an alleged victim told the truth at first and then lied later. It could be the other way around, he said. “ This court should not assume, as has the state, that she’s necessarily lying,” he said.

Whenever one side tries to tweak the rules in its favor, to permit an “exception” to evidentiary and confrontation rules designed to control the introduction of unreliable evidence because of transitory politically correct notions, the resulting unintended consequences tend to be bad.  Material evidence ends up precluded, while unimpeachable yet unreliable evidence ends up admitted.  Innocent people get convicted.  As do guilty people who otherwise wouldn’t.

Ultimately, the decision should rely on the fundamental premises underlying the criminal justice system, that it’s better that “X number” of guilty defendants go free than innocent defendants are convicted.  Of course, Blackstone is long gone, and there are a great many Americans who no longer feel too disturbed at the idea that we lock away a few innocents to put a bunch of guilty defendants in prison.

H/T Billy

I was never a fan of Apple. Nothing about it struck me as intuitive, and in fact I often found their contraptions difficult to work.  They looked cool, but that wasn’t enough of a reason to buy one.  And I didn’t. And yet, the impact of Apple’s devices on the computer age was undeniable and monumental.  What we have today was molded largely by one man’s vision and tenacity.

Perhaps no one had as much to do with the state of our world as Steve Jobs.  No president. No terrorist. No general. No saint.  One visionary. 

Steven Paul Jobs (1955-2011)

The United States Supreme Court heard oral argument yesterday in Maples v. Thomas, a case of shocking legal malpractice, incompetence, failure and carelessness.  Some things surprise. Some things don’t.

Via the New York Times :

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them back unopened and marked “Return to Sender.” A court clerk in Alabama filed the returned envelopes and did nothing more.

Mr. Maples’s deadline to appeal the ruling came and went, and so far every court to hear his case has said, in effect, tough luck.

Cory Maples was sentenced to death.

The ruling came in response to a filing by two lawyers from Sullivan & Cromwell, both associates, who argued that Mr. Maples’s trial lawyers had been ineffective. But the associates had left the firm by the time the state court ruled, and neither they nor the firm had informed the court or, seemingly, the firm’s own mailroom.

That can happen, you know, because they had other things on their mind besides the life of Cory Maples. The argument before the Supremes was that Sullivan & Cromwell abandoned its client, leaving him effectively unrepresented after he thought he hit the jackpot by capturing the interest of such a big time, high powered law firm.  Some jackpot, huh?

But the reception at SCOTUS was curious.  Justice Alito, who never met a criminal defendant who didn’t touch his cold, hard heart, in a creepy way, went soft.

“Mr. Maples has lost his right to appeal through no fault of his own,” Justice Alito said, “through a series of very unusual and unfortunate circumstances.”

Apparently there is a line below which an execution shouldn’t happen.

Justice Alito, for instance, pressed John C. Neiman, Alabama’s solicitor general, about why the state had opposed Mr. Maples’s efforts to have the deadline waived instead of addressing his claims on the merits.

“Why push this technical argument?” Justice Alito asked.

Mr. Neiman did not give a direct answer.

The inner-prosecutor still believed that the answer to such clearly stupid mistakes was to exercise the discretion to undo the damage.  Noblesse oblige, and get this ugly mess off our table.  Let Cory Maples have his appeals, as should any person sentenced to death, and then execute him.

But Justice Antonin Scalia took the principled approach of adhering to the glory of procedure.

“Once you are in court and you have a lawyer, it’s up to your lawyer to follow what goes on in the court,” Scalia said. “That’s the assumption of the federal rules. And it seems to me a perfectly reasonable assumption. And I’m not about to hold that they are unconstitutional simply because an extraordinary requirement of notice . . . has gone awry.”

The notice box on the list was checked.  Nothing more to do here.  As Nino has made clear before, there’s no constitutional prohibition against executing an innocent person, as long as he’s been given all the due process he can afford.  Stercus accidit.

As if the handling at S&C wasn’t ugly enough, the exercise of prosecutorial discretion, though not quite what Justice Alito would have preferred, arose during argument.

When the deadline for appeals had passed, an Alabama prosecutor wrote directly to Mr. Maples in prison to tell him so, Mr. Garre said, “which would have been unethical if the state had known or believed that he was represented by counsel.”

Chief Justice John G. Roberts Jr. seemed to find that letter both significant and offensive.

“Why did he do it?” Chief Justice Roberts asked. “Just gloating that the fellow had lost? What was the point of it? He must have thought there was a problem, right?”

A problem?  That the lawyers for a man sentenced to death had neglected to file notice of appeal on time.  Yeah, that’s a problem.  It’s hard to put one over on a justice of the Supreme Court of the United States.

The tenor of argument certainly suggests that the Court isn’t about to let Cory Maples be put to death because a law firm, some lawyer, some clerks and a court system, dropped the ball.  That this is even a question shocked the conscience.

But Justice Scalia’s point, that it remains constitutional to execute innocent people as long as some clerk sent the letter, is the bottom line.  You would think that nobody wants an innocent person put to death.  You would think.

A debate has broken out among the aficionados of cutting edge law office technology.  Naturally, no one told me, though by mere happenstance, I found out via Carolyn Elefant’s terrific and bold post at My Shingle.

Currently, there’s a cross-blog debate raging over the sustainability of the virtual law practice, with Jay Fleishman, Susan Cartier Liebel, Richard Granat and David Bilinsky all weighing in. Take a look at all of the posts to see the wide array of opinions on virtual legal services.

As for me, I’ve always had reservations about the viability of a purely unbundled, forms-based virtual law practice as a stand-alone business model (as opposed to a component of full service firm) primarily because I can’t make the numbers work. When a lawyer’s business portfolio consists of one-off, low cost matters at $300 or $500 a pop, then the only way to make real money is on volume.  And building a  volume practice, whether in the brick-and-mortar world or online requires a serious time or financial investment in marketing – either through paid ads, or persistent blogging, social media use and self-promotion.

There’s no shame in providing competent legal services inexpensively to those in need. There plenty of shame in walking the Boulevard in hot pants to attract your potential clientele, and even more shame in doing such volume that you can’t provide competent, no less excellent, representation.  That’s right, even high volume lawyers have to be lawyers. I know, it sucks.  Tough nuggies.

The virtual law office concept plays into the hands of what many lawyers desperately want and need, less because of any desire to help moderate income folks have access to the law than to accommodate the work/life desires of the lawyer.  How else can you justify sitting at your kitchen table in Phoenix while charging a client in Des Moines?  With the television on cartoon network.

This isn’t to say that all lawyers who advocate for virtual law practice, which seems to invariably come hand in hand with the dreaded unbundled services, are only concerned with how it benefits their life-style, but those, like Stephanie Kimbro, who have led the charge put in a whole lot of effort to keep the concept on the up and up.  Others can’t be bothered with Kimbro’s attention to detail, concern with ethics and integrity.

One might expect this debate to be a bit, oh, one-sided given that the players (at least until Carolyn joined in) all have a horse in the race.  Not so.  Much to my surprise, Jay Fleischman, the Brooklyn wildman, calls it out.  He has an office. He has staff.  And when he can, he works from home, where technology allows him to do and to be the same lawyer as he is in the office.  Except when he doesn’t need to sit with clients, he’s not in the office.

When you look at what I’ve got going, it’s not a virtual law firm.

According to the ABA, the virtual lawyer has “found dramatic new ways to communicate and collaborate with clients and other lawyers, produce documents, settle disputes, interact with courts, and manage legal knowledge. ELawyering encompasses all the ways in which lawyers can do their work using the Web and associated technologies.”

That’s not me.  I use technology as a tool, much as attorneys before me used fax machines, copies, and typewriters.  But it’s just that – a toolkit.

The ABA Elawyering Task Force tells us that, “[t]o be successful in the coming era, lawyers will need to know how to practice over the Web, manage client relationships in cyberspace, and ethically offer “unbundled” services.”

Bullshit.

Me too.  Jay’s point is that “people hire people, not machines.”  Lawyers aren’t fungible. Neither are clients.  The “law as a commodity” crowd will disagree with me, informing me that much law is indeed easy and fungible, and the internet form-sellers, the fill-in-the-blanks solutions, are the future. 

Now that Legal Zoom has thrown in a lawyer consult for $10 extra, the tiny gap between “any idiot can do it” and there’s a hundred ways to screw up a will that people don’t know about may vanish.  Unless the advice is as pro forma as the form, in which case there will be thousands of really unhappy heirs in a few years.

As criminal defense lawyers know, there’s nothing that will take the place of looking into the eyes of a client to know what’s going on below the surface.  No email will serve as substitute for our understanding of what our client needs, how one choice will impact his toddler while another will lead us to adopt a strategy that will put him on the next plane to Bolivia. Or SuperMax.  Or home.

Carolyn raises other reasons why those who confuse technology as the soul of law rather than a tool of law are wrong, confidentiality and accountability.  To the extent that we’re talking about the automation of law that so many of our futurist DIY proponents take for granted, with glossy adjectives warning of certain death without Elawyering, these concerns are missing from their vocabulary. 

Those who, like me, continue to warn that the adoration of technology, the uncritical embrace of every new “concept” in the practice of law, will at best produce a profession that aspires to mediocrity, and at worst leave a public denied competent legal help, are tossed off as Luddites, raging against the machine.

Bullshit.

I love technology. Well, not fax machines.  And I hated wet paper copiers in the early 80s, but otherwise, I love tech. It’s made my practice significantly more effective in many ways.  It’s had issues, like the 47 page rider attached to every real estate contract where a single page used to suffice, or the old form motion where the lawyer changed the names without bothering to notice that a bunch of facts were different. 

But these aren’t problems with technology, but the lawyers who use it.  Technology doesn’t rule our representation, but provides a means to enhance it.  We still have complete control over the delete button, as well as the button that makes the flashing light on our telephones go solid. 

We are responsible for the benefit or damage technology can do.  The people we are responsible to are called clients, and clients are living breathing human beings who, to some greater or lesser extent, have their own issues, questions, problems and needs.  There is no lawyer who should claim to represent a client when he’s never looked into his eyes.  At the end of the day, we represent people. No machine changes that.

For some of us, the execution of Troy Davis would have been a matter of deep concern and attention no matter what.  But that’s because the death penalty and criminal justice system are things we focus on.  Most people don’t.  It’s not their fault, as they have bills to pay and mouths to feed, and their problems are more pressing than others.

It came onto the radar of a significant group of people who would otherwise have been preoccupied because of the emergence of Rick Perry as the front-runner in the Republican presidential race.  Given Perry’s position, that he never met an execution he didn’t like, the mainstream media made Troy Davis the front page news it should have been. 

Now that Chris Christie has begged off the race, again, Perry is likely to remain on the media’s radar for a while longer.  Had Christie run, there wouldn’t have been another front page word about the death penalty; it’s not Chris’ exposure.  This means the death penalty will be front page news instead of being buried on page 27 below the fold. 

At PrawfsBlawg, Maryland lawprof Lee Kovarsky raises what he calls a “cynical” question:

Is the recent spike in public attention to the death penalty a fleeting feature of Republican Primary coverage, or does it signal a more durable interest in capital process and outcomes.

So, back to my question. In light of these two critiques – featured prominently alongside Perry’s bruising ascent through the primary field – is the recent spike in focus on the death penalty durable? Will any lasting coalition for legislative change develop? Or is the interest a byproduct of our cable-tv fascination with jarring political personalities? I don’t feel optimistic. The first calls on Milton’s case from the national media were from well-intentioned reporters seeking to situate the execution in a broader narrative about Perry.  And media coverage of the death penalty generally has sputtered while Perry’s star fades.

After Tom Goldstein announced the “new, improved,” and coincidentally, “exclusively sponsored,” SCOTUSBlog, I pondered whether this would change it, make it more, oh, business-like.  It didn’t take long to get an answer.

From yesterday’s email:

Hi Scott,

I’m writing to you from SCOTUSblog in hopes that you may consider helping us out;  we have just launched a new “SCOTUSblog Community” feature on the blog that will be home to discussion of various Court-related and law-related topics. Tomorrow’s featured topic is “legal blogging.”  Discussion threads will cover everything from the role of legal blogs generally (i.e. the relationship between legal blogs and the academy, business etc.) to what legal blogs people like the best, to  SCOTUSblog specific topics (what features do you like/dislike about the new redesign).

My guess is that you’ve meditated on the general topic a bit, so I was wondering if you might like to give us a “seed comment” we can use to get the discussion going tomorrow.  You can either e-mail me a comment of 2 sentences to 2 paragraphs that I’ll post under your name, or, better yet, if you want to participate directly Tom’s “Guide” to the community is here: http://www.scotusblog.com/?p=128656&preview=true

Please let me know if you have any questions and thanks for your consideration,

Kali
Manager | SCOTUSblog

SCOTUSBlog has a manager?  Like a rock band?  Now I’m always happy to add my voice to a worthy cause, and what cause could be worthier than to be a “seed comment” to grow a new community.  After all, there’s nothing more organic than using a seed to grow a community, even if you have to ask for it, right?  But then, why did Kali ask me?

My pal Billy emailed me this morning with  an article about Crazy Joe Arpaio’s pet, Andy Thomas, noting that I probably wasn’t interested since I had never written anything about Crazy Joe or Maricopa County.  I responded that I had indeed written about the Maricopa situation, quite a few times in fact. 

I wasn’t interested in Billy’s article, but it did give rise to thinking about all the stuff that’s been done before, written about once, then again.  And how many people read what’s new, without the slightest clue of what came before.  We’re “judged” by this quite regularly, with readers telling blawgers what we write about, or ought to be writing about, as if we didn’t exist until the moment the particular reader happened upon our blawg.

That’s how it goes in the blawgosphere.

However, I stumbled across this old post by Mark Bennett the other day,

Sixteen Rules for Lawyers Who (Think They) Want to Market Online

I read it again, and remembered how good it was.  For those of you who missed it the first time, it’s band new to you. Read it now. 

Having written as much as I have, there are quite a few old posts around here that cover topics that continue to arise.  It gets boring for me, writing about the same stuff.  If you want to read about something, and I haven’t written about it today, you may want to take a look back.  Or not.  But don’t expect me to write about the same stuff again because you didn’t see it the first (or the first hundred) time.  If it doesn’t interest me, I won’t write about it. That’s the nature of this blawg.