At Popehat, Ken posts about  breast cancer survivor Lori Dorn’s story of humiliation at the hands of the TSA at New York’s JFK Airport.  Her post-surgical image presented as an anomaly, compelling the laying on of hands.  

I was again told that I could not retrieve the card and needed to submit to a physical exam in order to be cleared.  She then said, “And if we don’t clear you, you don’t fly” loud enough for other passengers to hear.  And they did.  And they stared at the bald woman being yelled at by a TSA Supervisor. 

This is, by far, not the first time we’ve heard that the TSA acts in an inhuman fashion to people with illnesses and disabilities. We’ve seen wanton treatment of people with urostomy and colostomy bags, the sick torment of the mentally disabled, and the demands that cancer survivors remove prosthetic breasts. Throughout, for the most part, the media remains the TSA’s compliant fluffers. So, though what happened to Lori Dorn is sick and infuriating, it is not new.

That Conrad Black wrote a book of his experiences should come as no surprise. Writing is one of the things he does, and his time in Cubicle 30, Unit B-1 at the Coleman Federal Correctional Complex in central Florida provided the perfect opportunity.

Jonathan Kay’s article in the  National Post about Black’s A Matter of Principle leaves little doubt that he was an angry man, absolute in his belief in his innocence and resolute in his intention of paying back all those he blamed for his circumstances. 

At other points in the book, his tone is decidedly less lofty — even downright nasty. Mr. Black’s iron-clad conviction in his own innocence has been the psychological armour that’s permitted him to carry on in public life, head held high. Yet there is an unfortunate flip side to this sense of complete moral self-assurance: Because he cannot fathom why any intelligent human being could honestly believe his actions to have been criminal (or even unethical), he attributes either stupidity or dishonesty to each critic. Even Mr. Black’s own lawyers get denounced as fools when they fail to embrace their client’s legal theories.

This is the common, maybe even proper, reaction of a man convicted who is certain of his innocence.  Dealing with the cognitive dissonance requires the mind to lay blame, and Black does exactly that.  His lawyers are an obligatory target.

One of his lawyers, Eddie Greenspan of Toronto, was unhappy with being the target of Black’s invective.  Rather than suffer in silence, he decided to speak out via the Globe and Mail.  The initial curiosity, why Black would choose a Canadian criminal defense lawyer to participate in an American trial, is explained.

Conrad Black and I were first-year classmates at Osgoode Hall Law School in 1965. I didn’t really know him at that time, but over the years we have met at different places. On one of those occasions, I stopped to say hello to him in a restaurant. We chatted and at one point he said to me, “You’d better leave, I don’t want people to think I need a criminal lawyer.” I didn’t realize it at the time, but he wasn’t joking.

Years later, Conrad got into the difficulties that ultimately resulted in his criminal trial in Chicago. Early on, he retained me as an adviser. I helped him find a U.S. criminal lawyer, the celebrated Brendan Sullivan, whom he hired. It was understood that if he was charged, Mr. Sullivan would be his lawyer. As that day approached, Mr. Sullivan told Conrad he needed $25-million in addition to the many millions he had already received. That was the first time in my life I ever regretted not being an American lawyer.

When Mr. Sullivan made his request, Conrad came to me and said, “I want you to be my lawyer in Chicago.” I’m Canadian; my practice is here. But Conrad pushed strenuously for me to take the matter on. 

Did  Brendan Sullivan’s retainer stop you dead in your tracks?  Me too.  No matter what the case, or who the defendant, that was a remarkably healthy fee.  Yet, in retrospect, it might have been a far more thoughtful amount than would appear at first blush.  He had come to know his client and the nature of the case.  Perhaps he understood just what would be demanded of him over the next few years, and decided he wasn’t going to sell his soul cheap.  Or maybe, having lived with his client for a while, he didn’t want the case that badly, and charged accordingly.

Greenspan found two excellent lawyers to replace Sullivan, Eddie Genson and Marc Martin, though in retrospect, Black described their experiences as unsavory.

Conrad wrote that he doubted Mr. Genson had ever represented a respectable client and then said of me: Respectable clients “were not his specialty.”

Conrad added that we have a misplaced reverence for the hoods and lowlifes he believes we represent. It is sad to observe this reckless lashing out at his lawyers and those charged with presumably less lofty offences than fraud. Eddie Genson and I have had the privilege over our careers to act for an enormous number of decent, honourable people, just as wrongly charged as Conrad. He has to know that these petty insults are beneath him.

Curiously, just as Black’s time in prison gave him an appreciation of the “lowlifes” with whom he took comfort, he fails to recognize that they are part of the mix of clients in need of a criminal defense.

Greenspan goes on to address Black’s play by play of his trial tactics.

Conrad’s flawed account of his own trial is a reminder of how seldom an accused person actually grasps what is going on in court. Most defendants in a criminal trial realize that they shouldn’t expect to understand the process. That is what hiring experienced criminal counsel is all about.

Black’s descriptions of Greenspan’s cross-examinations run the gamut of brilliance to hackery, hyperbolic on both extremes.

When it comes to Mr. Radler, this key witness was ultimately so completely erased by cross-examination, in Conrad’s description, as to become a non-issue. Mr. Radler, whom Conrad describes as the “rat” (to my water buffalo-cougar-crocodile hybrid), was dismantled to the point where, he writes, the cocksure prosecutors, earlier described as so much younger and more nimble than his own slow, past-it, lawyers, hung their heads like “chastened schoolchildren” and avoided meeting the jurors’ eyes.

Conrad wrote in his book, “Radler was smeared over the floor and walls.” Flattering as this is, I’m really not that violent.

He wrote elsewhere that I destroyed Marie-Josée Kravis of the Hollinger board, to the point of making her look contemptible. As for former Illinois governor Jim Thompson, also on the Hollinger board, testifying against Conrad, I apparently “tore him limb from limb” and “dragged him like an un-housetrained dog to the site of his many incontinences.”

Despite the violent imagery, Black blames Greenspan’s perceived “inadequacy” on his being diabetic.  Having a hard reason upon which to attach blame always makes rationalizing easier, though Greenspan was just as diabetic when he was a water buffalo as a cougar.

Greenspan raises some post conviction public-relations strategy, which is the aspect the most closely skirts revelation of confidential communications, where he felt that Black’s control impaired the defense.

At the time, I didn’t understand why Conrad Black didn’t want me to do what needed to be done: shape the climate in which the trial judge would do her sentencing. I think that, reading this book, I finally do. He writes that when I said to him the verdict amounted to a vindication, what I really meant was that it was a victory for me, personally. Of all that he has written, this is in some ways the saddest passage.

While there has been a great deal of attention paid to Black’s post-conviction proceedings, not the least of which is the Supreme Court’s rejection of vague and dreaded “honest services fraud” for conduct beyond bribes and kickbacks, the inside story of the trial is rarely something that outsiders get to see. 

What may surprise many outside the practice of criminal defense is that defendants rarely view anything beyond a complete acquittal of all charges as successful, and resent their lawyers for taking some pride in the achievement of a less than perfect verdict.  A separation of interests appears between lawyer and client, even if none exists in reality, because the defendant has only one interest, complete and total vindication, usually followed by an apology and perhaps a small block grant for the indignities suffered.  This isn’t a particularly realistic expectation.

By his book, Conrad Black shows us what it looked like from the defendant’s chair.  The most interesting thing is that it apparently looks the same when the defendant is filthy rich as dirt poor.  Either way, one constant is that the lawyer, regardless of relationship, fee paid or degree of success short, will invariably be in the line of fire.  Even if there’s a complete acquittal, since that’s due to the fact of innocence (often with a bit of a deity’s assistance) rather than a lawyer’s effort.

Not only is this a difficult job, but often a thankless one as well.  Eddie Greenspan shouldn’t be surprised.

Reactions to my  Newsday op-ed provide a fascinating opportunity to see what people think, or more properly, feel, outside the realm of the blawgosphere.  As much as we get some mind-numbingly dumb comments here, they are a giant leap ahead of what you get at newspaper websites or non-law blogs.  And since I have my hands on the wheel, i get to ding comments that are most likely to leave the reader stupider than before reading it.

Two primary failings appear in the discussions I’ve seen elsewhere.  First, they fail to demonstrate anything remotely resembling a firm grasp on the point.  Whether it’s the inability to use all the words in a sentence to understand its meaning, or just projection or assumption to read something completely apart from what appears in black and white.

Second, lay-people (and the occasional lawyer) just make stuff up.  They regale us with “the law” as they imagine it should exist, though only in their vivid imagination.  And then others run with these faux legal concepts, adding in their anecdotes to disprove the error of logical fallacies.  It’s great fun to read, though it suffers the malady of feeling a bit like your part of a misinformation campaign.  Of course, since it can’t be controlled or stopped, there’s little point in fretting over it.

What this reaction said to me is that we need a simpler, unsophisticated way to explain the law to people whose understanding is already so burdened by their mistaken assumptions that they will never be able to comprehend its complexities if we try to give it to them accurately. 

And then Eric Mayer, at his blawg, The Unwashed Advocate, did the dirty deed, providing a easy to understand 2-part system of criminal justice:

1. The Fair and Compassionate System.

Available to: Themselves, Family Members, and Close Acquaintances.

2. The System For Everyone We Don’t Know/Don’t Give a Crap About.

Available to: Everyone Else (especially people we don’t personally know, the poor, and those whose cases are covered by mass media).

I know! From the nuttiest to the meanest, it’s hard to not get the point here.  Among my perpetual themes as SJ is that nothing matters until it affects you.  Once it’s you or yours in the hot seat, everything becomes brutally real, and suddenly the injustice of it all becomes manifest.  We scream and cry, and can’t understand why everyone else doesn’t share in our outrage.  It doesn’t dawn on us that the reason is that it’s happening to us, not them.  It didn’t matter to us either until it was our butt on the line.

There is, of course, a corollary to all this, which stems from the fact that we have a connection to the situation, albeit from the other side.  The reason the SAT cheating scandal cause many otherwise empathetic people to boil over and froth at the mouth is that they’re children, who got wait-listed at Cornell and had to go to SUNY Oneonta feel as if they personally suffered from this cheating.  They are the victims.  And they are still angry about it.

It’s reminiscent of the controversy that arose when the Supreme Court decided  Board of Regents v. Bakke in 1978, the reverse discrimination case that got the nation’s blood boiling.  When it came to your li’l darling getting into college so he could “be, all that [he] could be,” not even a few hundred years of slavery could get in the way.  Fairness, like justice, depends largely on whether it’s your ox being gored. 

When I sat on the panel at the Asian American Bar Association of New York a few weeks ago, Vivia Chen at the Careerist, also on the panel, opined that one of the benefits coming from the blawgosphere was that the law was becoming more transparent, that people were learning more about the law and gaining a greater understanding.

I disagreed.  People are merely gaining confirmation of their biases, their ignorance reinforced by others of similar ignorance.  The make vague and off-point arguments, bolstered by unverified anecdotes of a dubious nature, reflecting their own exposed wounds.  In return, they receive the soothing support of equally ignorant people who agree with their irrational imaginary world of the law, or more accurately, the law as it should be in their eyes.  Not only are they no better off for having a blawgosphere, but they’re now absolutely positive that their ridiculous and irrational notions are correct.  The  Dunning-Kruger Effect applies in full force.

And yet, it remains our duty as lawyers to try to offer some rational ideas into the mucked up view of the criminal justice system.  And watch in silence as non-lawyers use them for whatever purposes they find most availing.  Still, we try.

There are occasionally posts by law professors that reveal their hidden sturm und drang, the issues seldom discussed that annoy, if not anger them.  Deborah Borman raises one such problem at Prawfs :

Now and again when a student does not like a rule for class conduct or a particular assignment we hear the cry: “we paid for this class so we can [miss class, come in late, turn an assignment in late . . . fill in the blank].” The “law student as consumer” dictating the course construct is a phenomenon that has likely been discussed here before, but I wonder if anyone has noticed an increase in these “consumer complaints” in recent years.

During my most recent consumer complaint experience, I was hosting a guest speaker who responded by telling the student that when she was in law school, one of her professors demanded that all students be in their seats by the start of class or they were locked out of the classroom.

This concept produced the response that the late student in that scenario was entitled to a refund for tuition. The guest and I indicated that when a consumer is late for other professional or paid services, such as a doctor’s appointment or a play, the consumer/patient/client/patron must also follow rules and often must still pay for that missed appointment or miss or enter a show during the second act.

In yet another decision demonstrating that a judge whose career was spent prosecuting can show the fortitude to suppress, Brooklyn Justice Mark Dwyer rejected the testimony of NYC Police Officer Robert McNamara, who falsely claimed consent to justify a search of an apartment to locate a weapon.

In People v. Hazzard, police had probable cause to arrest the defendant outside his home for possession of a weapon, but couldn’t be bothered to get a search warrant for the apartment.  Instead, they went the old knock and talk route.

The door was opened by defendant’s mother, Lola Hazzard, who stated that she was the tenant of Apartment 3A and that defendant was not present. Officer McNamara recalled that Ms. Hazzard was Hispanic, dark-haired, and about 52 or 53 years old. She walked unaided.

Ms. Hazzard invited the three officers inside and walked them into the living room.

There the officers asked to search the apartment and displayed a consent form. They advised Ms. Hazzard that she was free to refuse, but she signed the form. The document, which was received in evidence, shows an apparently shaky signature in the name of Lola Hazzard. The signature appears underneath, not on, the line on the form intended as the signature line, and on top of handwriting specifying the date and apartment number.

Nothing special here, right?  Notably, Lola Hazzard had died between the time of the search and the suppression hearing.  But defense counsel Jacob Lipsky of Brooklyn Defenders, fought back.  First came the defendant’s “paramour” (Justice Dwyer’s word, not mine):

Madeline Rivera testified for defendant. She stated that in February 2010 Ms. Hazzard was 75 years old, frail, and bed-bound. As of February 2010 Ms. Hazzard had not been able to walk unassisted for a year or more. By February 2010 Ms. Hazzard also was often unable to understand what she was told or to respond to it. At times she might be lucid, but at other times she was incoherent.

Ms. Hazzard was dependent for her care primarily on two healthcare providers who would attend to her 12 hours each day. With assistance from Ms. Rivera and family members they fed her, dressed her, gave her the numerous types of medication prescribed for her, and washed her in her bed. Ms. Hazzard was incontinent, and wore diapers. With assistance she could be moved from her mechanical hospital bed to a chair or to a wheelchair placed close to the bed, in particular when she was to be transported by ambulette for kidney dialysis. Ms. Hazzard died on October 31, 2010.

Rivera disputed the officer’s testimony about the search, that they marched in without obtaining consent, and obtained Lola Hazzard’s signature by telling her to sign a paper to prevent trouble with “the housing.”  As to Ms. Hazzard’s condition, the defense called Betty Jenkins, a health care aide, and offered hospital records to corroborate Rivera’s testimony.

In light of the very particular testimony of P.O. McNamara, Justice Dwyer found it impossible to square with the defense evidence.

But upon examination, that theory unravels quickly. Officer McNamara was quite particular in describing his conversation with the woman who opened the apartment door. She identified herself as the tenant of the apartment and as defendant’s mother; Ms. Rivera would not have done so. And the officer was quite particular as well about the signing of the consent form; it was signed in the living room, after Ms. Hazzard was joined by Ms. Rivera. And, of course, the name placed on the form was Lola Hazzard. There is no way to square the officer’s account with the fact that Ms. Hazzard was confined to her bed.

While the decision fails to use language like “pathological liar,” which might well have been considered appropriately temperate under these conditions, the court nonetheless granted suppression.  And yet, the thorough decision raises an issue that makes this case cautionary.

Had only Officer McNamara and Madeline Rivera testified, this court would have concluded that Ms. Hazzard and Ms. Rivera consented to the search of Apartment 3A. The officer’s testimony was straightforward and facially credible. Ms. Rivera’s testimony was also facially credible, but she was an interested witness. However, Ms. Rivera’s testimony was corroborated by Ms. Jenkins’ apparently disinterested testimony and, as well, by the hospital records.

In other words, had the defense been unable to provide corroboration for the “interested witness” testimony of Madeline Rivera, the liar would have prevailed.  The rationale is that “main squeeze” (my word, not Justice Dwyer’s) Rivera was an interested witness.  P.O. McNamara’s testimony, however, was “straightforward and credible.”  The only problem was that it was a complete lie, but a lie from a “disinterested” police officer.

Most of the time, the defense is lucky to have any breathing witness, interested or otherwise.  This makes it a field day for the cops, who are trained to appear credible and can say anything they want without fear of contradiction.  Not much of an incentive to tell the truth.

The reality is that a police officer is every bit as interested a witness as a defendant, or someone who cares about a defendant’s disposition.  The cop is trying to make his bust on the stand, knowing full well that the short cuts taken, even the outright wrong committed, disappear in the legal ether if he tells the right story on the stand. 

He has a motive to lie, to cover his conduct and make the bust stick.  Let’s get real and stop pretending that cops don’t care whether the defendant is convicted.  They made the arrest and now they own it. They need to make sure a conviction follows.

While everything worked out in this case, due to the efforts of counsel in putting together corroborating evidence, the fact that the liar would have prevailed otherwise can’t be ignored.  And can’t be shrugged off.  Yes, Rivera was an interested witness.  So was McNamara.  Let’s not pretend otherwise.

My op-ed on the Great Neck North SAT cheating scandal appears at Newsday, with access behind the dreaded paywall. 

The TL;dr version: Yes, cheating by having a ringer take the SAT’s is a verybad thing, no matter how bad the pressure to achieve.   Life is full of pressures. Dishonesty isn’t the answer. Anything sound familiar yet?

But no, prosecution, nor the potential for a jail sentence, isn’t the answer.  That there needs to be significant consequences is clear, but we still have to be guided by proportionality.  Most importantly, these are teens, children, and despite our anger at what they’ve done, we do not impose needlessly harsh punishment on children that will have a permanent and devastating impact on their lives.

Greenfield: Jail not right for SAT cheating

Hopefully, we can demonstrate our ability to be the adults in addressing this problem, to send not merely a message, but the right message, to our children. 

In a decision out of the Southern District of New York, the heartland of wiretaps, Judge Robert Patterson refused to suppress the recording of defendant Michael Lamond.  So what, you say?  Lamond was a lawyer, and the recordings were of his communications with his client, now co-defendant, Aron Chervin.

Without necessarily holding that the communications were privileged, Judge Patterson held that the burden was on the government to show that the crime-fraud exception applied:

The Second Circuit has held that the party seeking to invoke the crime-fraud exception must prove there is a “factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.”

Defendant Lamond argues that he is “clearly providing legitimate legal services to his client by consulting with him concerning financing, no-fault collections, and arbitrations.” However, the attorney-client privilege will not attach to any communications in furtherance of a crime or fraud regardless of the attorney’s lack of knowledge that he is being consulted in furtherance of that crime or fraud.

Therefore, Lamond’s knowledge of whether a fraudulent scheme was afoot is not relevant to the application of the crime-fraud exception to Lamond’s interactions with Aron Chervin.

Lamond claims that the conversations he is seeking to suppress took place in his capacity as legal counsel to Mr. Chervin and involved consultations regarding financing, no-fault insurance collections and arbitration matters. Specifically, Mr. Lamond states that the conversations are “on their face conversations between a lawyer and his client regarding legal advice in connection with their routine ongoing business transactions relating to no-fault insurance claims.” There is nothing in the seized conversations, according to Mr. Lamond, that gives any “indication that they are related to the commission of a fraudulent act or any other offense.” Id. The conversations do show, however, that the Government has probable cause to believe that Aron Chervin intentionally and knowingly utilized the services of Michael Lamond to further Chervin’s illegal scheme to obtain funds by submitting fraudulent medical bills, traveling in interstate commerce, to no-fault insurance carriers.

V. Conclusion

There is probable cause to believe that Aron Chervin was knowingly involved in a complex mail or wire fraud scheme to defraud no-fault insurance providers. This suppression motion need not decide whether Defendant Lamond had actual knowledge of the fraudulent activity during his conversations with Defendant Aron Chervin. The crime-fraud exception to the attorney-client privilege applies to this set of facts.

This decision suggests that lawyers have a problem and, given the nature of our clientele, criminal defense lawyers have a bigger problem than others.  That we may neither know, nor have reason to know, what motives are behind a question from someone seeking our advice and counsel, our performance of our function in a facially lawful and proper manner could land us square in the middle of our clients Title III investigation, and perhaps sitting next to him at trial as co-defendant rather than lawyer.

This makes perfect sense legally, as the decision is limited to suppression of the wiretapped conversations, and Lamond’s indictment, assuming that his advice and counsel were indeed as legitimate as claimed and provided neither knowledge, nor reason to believe, that he was aiding in the commission of a crime.

Where it becomes a problem is that the conversations, lawfully wiretapped per the crime-fraud exception, are now subject to scrutiny through the eyes of the government.  You know, that would be the same government whose understanding of the recorded conversation between target husband and wife reads:

Target:  Do you want me to stop on the way home and get some milk?
Spouse: That would be great. Could get a quart of whole milk and a quart of skim?
Target:  Will do.

Agent:  Based upon my training and experience, this was a conversation about the sale of large quantities of cocaine.

Certainly, clients have questions from time to time that would appear to relate to how to run their business more efficiently and effectively, including the elimination of unseemly disruptions in the supply line.  Yeah, these were never conversations that you were allowed to have, and it’s critical that lawyers not get sucked into an involvement in matters that clients might very much appreciate but are flagrantly criminal.  We are criminal defense lawyers, not criminals. We cannot do this.

But when the issue isn’t clear, or worse still, when the conversation is completely appropriate, yet for reasons wholly outside our knowledge and control, relate to a criminal transaction, we can very easily find ourselves in the middle of a firefight without the slightest clue what we did wrong.

And this is fine, since we need not have any clue about wrongdoing to become a proper target of a Title III wire.  I figured you would want to know.

Former hand surgeon Michael Brown was not a well-loved defendant around Houston, but then, few guys coke-tooting guys accused of assaulting their wives are embraced with much warmth.  No matter, since Dick DeGuerin  beat the charge and Brown was acquitted. 

But after the acquittal, as jurors met with the lawyers in the case and sought to satisfy their curiosity, things got hot.  In Op-Ed for the Houston Chron, Brian Wice, a member of the defense team, explains:

Late Tuesday morning, in the jury room off state District Judge Jim Wallace’s 15th-floor courtroom at the Harris County Criminal Justice Center, I found myself facing the 12 jurors who, a little less than an hour before, had acquitted Michael Brown, the high-profile CEO of the Brown Hand Centers, of assaulting his estranged wife, Rachel. The jurors had asked to speak with lead defense counsel Dick DeGuerin, co-counsel Catherine Baen and me, as well as the two prosecutors.

*  *  *

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about “the real Michael Brown.” In a matter of moments, and over DeGuerin’s objection, the prosecutor tainted the jury with the details surrounding Brown’s plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown’s character and reputation – the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Apologies for the length of the quotes, but Wice is an appellate lawyer.  The gist of what they learned from the jurors was that they didn’t find Brown’s wife credible. 

Wice goes on to note that such conduct could violate Texas Disciplinary Rule 3.06, “which prohibits any lawyer from making any post-verdict comments to a juror ‘calculated merely to harass or embarrass the juror or to influence his actions in future jury service.’ “

Some junior Harris County prosecutor got a little too hot under the collar, hearing of the juror’s rejection of the prosecution, and just couldn’t muster the self-restraint not to smear the already-acquitted defendant?  Well, he was still hot as Wice’s commentary hit the streets.  Hot enough to leave this comment:

I am the “out of line” prosecutor. My name is Nathan Hennigan. Wice didn’t want to call me by name, but I feel a necessity to respond, as most don’t know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn’t a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from “Who Framed Roger Rabbit.” Uncanny.

What happened in the jury room is as follows…Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I’ve ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right. Even if it isn’t easy.

I’ve broken the comment into two paragraphs to make it easier to digest, if not easier to read.  So Nathan felt is was [his] duty to “explain the truth?”  So Nathan thought Brown was the “worst person” he’s ever dealt with?  And he doesn’t like Wice, who reminds him of a cartoon weasel, which is clearly of sufficiently grave importance that Nathan feels constrained to point it out.  A bit more truth, no doubt.

Hennigan is correct, it’s not easy.  It’s not easy to lose a case that was universally seen as a slam dunk.  It’s not easy to lose a case against a man that was despised and despicable, the “worst person” he ever dealt with.  It’s not easy to lose when this “worst person” has a weasel by his side.  But Nathan Hennigan, you lost. You lost.

This paragraph could be an homage to grace in defeat, but nobody needs to read something so obvious.  It could also be a cautionary tale about anger and immaturity getting the better of a prosecutor, but the same is true.  Instead, I’m going straight to the heart of the matter: Nathan, whatever demons fill your baby head, you violated Disciplinary Rule 3.06. 

Not surprisingly, my personal knowledge of Texas disciplinary rules is somewhat inadequate to make such an assessment.  I therefore turn to someone more knowledgeable than me, and as luck would have it,  Mark Bennett wrote at some length about this particular rule.

Okay, listen up, Harris County prosecutors, because one of you is going to find that this is your ticket to a grievance. (Actually, it’s a marvel if none of you have been grieved for this already, but the defense bar is better educated about this issue, and less reluctant to file grievances against their adversaries for the most egregious ethical violations, every year.)

The things that the jury didn’t hear about in trial, they didn’t hear about for a reason. When you go into the jury room after a verdict, and you start telling the jury about those things, it’s likely to influence their actions in future jury service. You and I know that your intent is to poison the jury pool so that these jurors, when they are next called, are more inclined to convict.

It’s almost as if Bennett anticipated Nathan Hennigan’s emergence as the angry, graceless loser, whose outrageous lack of self-control compelled him to “explain the truth.”  That this happens to be Nathan’s truth, his graceless loser truth, is of little consequence.  Nathan Hennigan is of little consequence.  Having lost the big case, the slam-dunk win that no prosecutor could possibly lose, Nathan has already shown the world that as a lawyer, he sucks.  Having called Wice a weasel because, well, he has no control over his anger and impulsivity, he’s shown the world that as a person, he sucks.

But as a prosecutor, he has violated the disciplinary rules by poisoning a jury in violation of DR 3.06.

 I am proud to stand up for the Harris County District Attorney’s Office and fight for what is right.

Yes, the zealot’s call to arms, to “fight for what is right.”  And what is right in the twisted mind of Nathan Hennigan is violate the disciplinary rules and his oath of office because little Nathan is all angry.  A prosecutor, however, doesn’t have the latitude to indulge his personal fantasies. He is a state actor, given power and authority by the state, whether he deserves it or not.  Having abused that power by poisoning a jury, there’s no refuge by whining that he’ll “fight for what is right.”

Harris County District Attorney (and former judge) Pat Lykos is a grown up.  Let’s see whether she gives her baby lawyers a damn good spanking for this outrageous exhibition of impropriety and immaturity.  It may well have been a disgrace that her office lost this case, but a loss hardly brings the kind of shame upon the office that Hennigan’s conduct does.

Update: It appears that consequences have been swift for Nathan. From Bennett’s Defending People :

Now—because of his DR violation? because of his Chronicle comment?—this prosecutor has been suspended for a week and moved to the intake division of the DA’s Office for six months.

How will his conduct stack up under Bennett’s Law of Rules? Will he take the punishment as a badge of honor, “proud to fight for what is right,” or will he take his marbles and go home?

Will Nathan be willing to suffer the consequences of his proud fight?  We shall see.  In the meantime, former Harris County prosecutor, purged by Pat Lykos, and alleged barbecue hater, Murray Newman, feels quite differently about Brian Wice’s op-ed.

A couple of days ago, I wrote about a New York Times article hot off the presses.  in 1989.  Not to be left ahead, the  Wall Street Journal reports that there are a  huge  number of federal crimes and they  largely ignore the existence of mens rea.

Shocking.  At least this was shocking the first few times around.

Perhaps there were large white areas in these papers that needed filling.  Perhaps the reporters were new and hadn’t heard that these issues had been thoroughly covered before.  But then, perhaps these issues deserved to be revisited and I’ve been unkind in lambasting these reports.

While there is nothing new about the issues, or the underlying problems, it remains that they are still a blight on our legal system, and our society, that has yet to be cured.  Sure, we know about the problems, but whoever said that knowing the problem was half the battle was wrong.  A start, but we’re nowhere near solving the problems. 

The expectation that people remember is, sadly, no longer reasonable.  People don’t remember.  Whether it has to do with their attention span or retention span, I can’t say, but they don’t seem to have much capacity to recall that we have problems that remain unresolved.  Whether people will remember these articles after the iPhone 5 comes out has yet to be seen.  I’m not sanguine about it.

Then there are the n00bs, the people who have just discovered that there is a big world out there with a bunch of important issues worthy of their attention.  Maybe the discovery came about because some aspect of it touched their lives.  Maybe they tripped over it.  No matter.  Today, they know.

The problem is that the n00bs never look back.  Just because they had the epiphany today doesn’t mean that it’s band, spanking new.  Like television reruns, if you never saw it before, it’s new to you.  Well, that doesn’t make it new to the rest of us.  Think of new parents, like nobody ever had a baby before them and they have invented the concept.  And they must tell us about it at unbearable length.

The issues raised by the Times and WSJ are important.  And they remain important.  And there are likely a great many people who either paid no attention the first (few) times around, or have forgotten, or weren’t there to pay attention because they were too busy cruising in their huggies.  Whatever, the problems are of a sufficient magnitude to justify another airing.

To the extent I was critical because these aren’t exactly cutting edge newsy issues, I now think I was wrong.  It was the curmudgeon in me, but not every article is written for curmudgeons.

That doesn’t mean that the writers couldn’t have put in a line or two about the fact that these are long-standing problems, problems that have defied ready solution, or problems that have festered for decades.  Doesn’t anybody learn about George Santayana anymore?

Still, better that these issues get space in the papers than a generation forget, or never know, they exist.

And Francisco Franco is still dead.  Sorry, I couldn’t help myself.

Lawyers who have a marketing blog need not read this post.  This will never happen to you, because, frankly, no one really cares when you write and, well, you don’t write anything of substance anyway.  If, on the other hand, you have occasional thoughts that appear on a screen, this could matter.

A while back, I  wrote a post about Arthur Alan Wolk’s lawsuit against Overlawyered, and Wolk left me a  love note that ended with the ominous sentence, “I hope you have insurance.”  I didn’t  take kindly to his threat, and apparently Wolk decided that I wasn’t worth his time as nothing came of it.  In the meantime, he had suits pending against a rather large group of people on the internet, with some particularly unsavory things to say about Reason, it’s editor and its commenters.

Since then, Reason and Overlawyered settled with Wolk.  From Paul Alan Levy at Public Citizen :