Michael Allison’s  Illinois eavesdropping charge was dismissed.  In Chicago,  Tiawanda Moore was acquitted of eavesdropping.  So life is good and the craziness of charging citizens with eavesdropping for recording police in the public performance of their duty is behind us? 

Not yet.

A senior appeals court judge said Tuesday that if Illinois’ eavesdropping law were expanded, gang bangers and “snooping” reporters would run rampant, secretly recording conversations unchecked.

“If you permit the audio recordings, they’ll be a lot more eavesdropping. … There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”

This isn’t some nutty state court badge-licking judge pandering to get the cop union endorsement for his next election run.  This is Richard Posner.

Posner, considered one of the most influential jurists on the appeals panel, made his comments Tuesday morning as the Illinois American Civil Liberties Union argued to change current law to make it legal to audio record public officials in public areas.

On the one hand, most of us appreciate Judge Posner’s concern for privacy.  We like privacy.  We want privacy.  We appreciate privacy.  But we want it for ordinary citizens, for us, to maintain our privacy from governmental intrusion.  That’s not the privacy that Judge Posner is talking about. 

Judge Posner’s privacy concern is for police and government officials, their “such thing as privacy” while serving in their governmental function, while working on the public’s dime.  He speaks to privacy of public officials to be free from “snooping around by reporters and bloggers.” 

For generations (if not centuries), allegations of misconduct have been leveled against law enforcement, and summarily dismissed.  The analysis was always the same: Who can believe the defendant, the person accused of a crime, when compared to a police officer, sworn to protect and serve.  The win/loss ration was always the same. The defendant loses.

Video changed everything.  For a few years now, I’ve run an occasional series of posts entitled “But for Video.”  The gist of the title is that if it were not for the existence of video evidence proving police abuse and misconduct, no one would believe it ever happened.  No judge. No prosecutor. Maybe not even me.  But for video, the outrageous lies, the horrific beatings, would never be known. 

And Judge Posner thinks this is a bad thing?

Will there be “snooping,” a derogatory word that substitutes for investigation if one wasn’t inclined to be dismissive, of cops and public officials?  Sure.  And if they’re doing things that they shouldn’t be doing, then a whole lot of snooping ought to be going on.  If the snooping produces nothing interesting, then there won’t be as much snooping.  And if the snooping happens to show some cops beating up a cuffed defendant or nice, law-abiding person with a video camera, then we won’t be confronted with that either. 

The dismissal of Allison’s charges, and the acquittal of Moore, certainly reflect an enormously positive trend in the prosecution of citizens for creating evidence of law enforcement impropriety.  The concern of Judge Posner, on the other hand, reflects a judicial perspective that elevates the privacy of law enforcement over transparency and integrity.  He doesn’t want to know the truth. 

The truth can be ugly and difficult to deal with.  It was so much easier all those years when judges just adopted whatever a cop said and rejected the defendant’s claims of abuse.  So what if the defendant shows up for arraignment with a broken nose and the only injury to the cop was a scuff mark on the toe of his boot. 

“Why would Officer Smith want to hurt this defendant, a person he doesn’t know and against whom he holds no grudge?”  This argument has been effectively used thousands of times, and it’s a darn good one.  And yet the videos show it happens anyway.  “Why” is a great question.  “Why” indeed?  Ask the cop “why.”  We only know it happened, and we can only prove it because there’s a video.

It would seem that the myriad videos conclusively proving that cops do engage in impropriety, beatings, abuse, lies, would have some impact on the collective consciousness, including judges.  It would seem that given how far we’ve come in having conclusive proof that judges could no longer dismiss allegations by defendants that they were the victims and not the perpetrators.  It would seem that no jurist who has the slightest concern for the integrity of the legal system, the honesty of law enforcement, the welfare of the public, would want to return to the days when we pretended that none of this ever happened.

And yet Judge Richard Posner’s concern for the privacy of police in the performance of their official duties weighs more heavily on his mind than does his concern for the public.

This is a bad thing.

Now that the Supreme Court has ordered a stay in Texas’ execution of Duane Buck, whose sentencing phase was tainted by the introduction of race when psychologist Walter Quijano responded to a prosecutor’s question that blacks were more likely to commit future violent crimes than white, we can all take a sigh of relief and sit back.  But there’s a big, no huge, gap that few have mentioned.  It’s time to talk about it.

Quijano, the evil psychologist who inserted his bizarre and unsupported theories of race and crime into the trial, was not called as a witness by the evil prosecutor.  The opening for the evil question on cross examination that put race into the mix wasn’t manufactured by the evil prosecutor or allowed by the evil judge. 

Here’s the sad, hard reality:  Walter Quijano was called as an expert witness by the defense.  On  direct examination by Buck’s lawyer when he “”solicited testimony from him regarding the use of race … for predicting future dangerousness,” the defense inserted race into the sentencing phase.  Knowing of Quijano’s theories about race and recidivism, the defense nonetheless used him as a witness.

In other words, this discussion about all the terrible things that happened to Duane Buck, the impropriety of inserting race into the decision to execute him, utterly omits one key factor: It all leads back to Duane Buck’s own lawyer. 

And who was Duane Buck’s lawyer?  Jerry Guerinot.

Does that name sound familiar?  It should.

A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.

Twenty of Mr. Guerinot’s clients have been sentenced to death. That is more people than are awaiting execution in about half of the 35 states that have the death penalty.

“People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg has said.

So what is Mr. Guerinot’s secret?

Enter Walter Quijano in this case.  A bad choice.  In other cases, other bad choices. 

“Basically, he’s an undertaker for the State of Texas.”

When the  New York Times told Buck’s story, of how the case went wrong, there was no mention of Jerry Guerinot, as if Buck had no lawyer at his trial.  The  Times editorial decried the use of race, without mention of what distinguished Buck’s case from the other five who were affected by Quijano. 

In  writing about this the other day, and without more complete information in the stories available, I made the terrible mistake of assuming facts not in evidence.  In a comment, Shawn McManus, who labored under the same mistaken assumption, asked :

If Quijano were an expert witness called by the defense, would that make a difference?

I don’t know if he was and I don’t think that it does make a difference as the prosecutor shouldn’t have followed the line of questioning anyway.

I responded :

No, provided he wasn’t a defense witness and the defense didn’t elicit or open the door to (though I can’t imagine how this could be possible, though I can envision a court saying it) the improper testimony.

Talk about being wrong.  I was soon informed just how badly colored by response was, and that my assumption that no defense lawyer could ever be so shockingly incompetent, foolish, dangerous as to not only introduce an outlier like Walter Quijano into the mix, but then open the door to bizarre racial theories that would help, if not assure, my client’s being sentenced to death, was completely wrong.

While some think I’m less than kind to the brethren, disinclined to conceal bad things done by lawyers and shift all blame to the players in the system who are acceptable villains to criminal defense lawyers, my assumption here still reflects my bias, that no criminal defense lawyer can be that bad.  Indeed, they can.

Duane Buck should no more be executed because the State of Texas assigned its undertaker, Jerry Guerinot, to be his lawyer than if his execution was the product solely of outrageous prosecutorial or judicial impropriety.  It implicates very different tests, particularly where, as here, Guerinot’s decision to put Quijano on the stand as the defense expert was tactical, though so obviously risky that it was beyond any possible sound judgment.  Yet, that a defendant’s unfair sentence came about at the hand of his own lawyer is a very different equation.

Had this not been pointed out to me, in fact my nose rubbed in it, it would never have been clear to me how this horrible sequence of events resulted in Buck’s death sentence.  These stories cannot, however, omit the crucial dots that need connecting, even when the missing dot turns out to be the criminal defense lawyer. 

All of us, and criminal defense lawyers more so than anyone else, need to remember that our failure can just as easily be the source of an execution as our adversaries.  Just because the media leaves that dot out of the tale doesn’t change how such outrageous errors happen.

It’s not often that someone gets to sit next to  Above the Law’s editor, Elie Mystal, twice in a week, provided your name isn’t Lat and you’re not on trial with him.  For those who read ATL, you know that he’s got a wicked sense of humor, fights contemporary spelling and grammar protocols and takes a ton of crap from the commenters.

I’m here to tell you that Elie is an extraordinary young man.  First, his bio:

Elie Mystal is an editor of Above the Law.His first name is pronounced like Eliot without the “it,” and his last name is pronounced like Cristal (the champagne).Prior to winning the ATL Idol Contest, Elie wrote about politics and popular culture at City Hall News and the New York Press. Elie received a degree in Government from Harvard University and a J.D. from Harvard Law School. He still has a rash from all the poison ivy.He used to be a litigator at Debevoise & Plimpton but quit the legal profession in lieu of stripping naked and lighting himself on fire.Elie is a proud and basically competent husband. He is a contributor at True/Slant and enjoys the Mets, dogs, and arguing with strangers.

Not an unimpressive background, though he isn’t kidding about his experience at Debevoise driving him to the brink of nudity, something that no one wants to see.  Yet this fails to begin to capture either his intelligence or thoughtfulness.*

Sitting next to Elie on a panel at the Asian American Bar Association of New York conference held at the Skadden Arps offices in Manhattan, a terrific conference by the way, I had a chance to watch Elie play the room.  Gregarious, self-effacing, funny as can be, one would be hard-pressed to realize that he holds one of the most powerful positions in the blawgosphere,

Whether or not you read or like ATL, it would be foolish not to realize the impact it has within the Biglaw community.  It can make or break careers, and on a really good day, contribute to the demise of a law practice through its choice disclosures.  When I asked who in the room read ATL, every hand went up.  Every single one.  That’s clout.

While he assumes the persona of the comedian, and he’s got a funny anecdote for pretty much every situation, make no mistake about it. Elie is brutally smart and aware.  The nuance of his comments is easy to miss, but if you listen closely, process the ideas he tosses about at lightning speed, you immediately realize that Elie is one of those guys whose minds move seamlessly through a multitude of ideas so quickly that its a struggle to keep up.

Chatting with him after our talk yesterday, one thought struck me and prompted me to write about Elie.  The commenters at ATL write smack about him constantly.  On the one hand, this is a good thing, reflecting the fact that he is and remains relevant.  For contrast, when Jay Shepherd posted his  final small law column on ATL, comments were sparse (for ATL). Few read the column, and fewer still cared. He no longer mattered, and if you’ve ever had the misfortune of reading his column, you would understand why.

For all the incredibly nasty things said about Elie, which he tolerates with amazingly good nature and wears like a badge of honor, he is relevant.  The lost children who populate the comment section feel powerful having someone to beat up on, and it has to be someone more worthy than themselves to count.  That’s why they’ve chosen Elie.

Having had the opportunity to spend some quality time with him, I’m enormously impressed with this kid.  Sure, the infantile sex jokes and obsession with scatological references aren’t my thing, and hopefully he’ll outgrow them someday, and his strained use of ghetto-speak is contrived.  Harvard didn’t waste space on him.

If you get the chance to spend some time with Elie, do it.  If you want to leave a comment at ATL making fun of Elie, you can do that as well.  He can take it.  But know that this is quite an extraordinary intellect and person, and that whatever joke you make is merely an homage to the influence he rightly holds in the blawgosphere.  And know that this influence is in very good hands.

*That’s right, I’m writing something nice about someone.  Stercus accidit. Get over it.

At My Shingle, Carolyn Elefant tried something unusual.  Her focus is to support lawyers who want to hang out their own shingle, to go solo.  Unlike others who bolster solo practice as way to rationalize their own choice, however, Carolyn has been  very careful to make clear that it’s not for everyone, it’s no panacea and, sometimes, it’s going to be a massive failure.

She received an email asking for help from a solo whose practice was dying. This is often the view from the other side of that great divide, the one where looking forward into the future is filled with excitement and expectation, while looking back is filled with a silent telephone, spider solitaire and an empty file cabinet. 

Carolyn doesn’t say, but my guess is that no easy answer presented itself to resolve her emailer’s prayer for help.  Instead, she tried to “crowdsource” a solution, which is the internet version of “ask the audience,” a lifeline from the TV gameshow “Do You Want To Be A Millionaire?”  For some types of questions involving popular culture, “ask the audience” was very likely to produce a correct answer.  For other types, like the atomic weight of cobalt (58.933195), not so much.

My guess was that Carolyn, and hence her emailer, was unlikely to get any novel or focused response, It would prove along the lines of surgeons saying the solution is to cut (insert carpenter with hammer analogy instead it that’s your preference).  Still, it offered a very interesting experiment, not so much as a means of getting a viable answer as a means of seeing who wanted to use this opportunity to sell their wares. 

Naturally, a  marketer showed up like a guppy drawn to chum, providing a fairly detailed scheme of how the lawyer could demean himself by walking the boulevard in hot pants begging for quickies. More curiously,  another voice chimed in by referring readers to his own blog for advice.  This voice belonged to Joe Flanders.

One of the bad habits I picked up years ago was to begin reading a book at the beginning.  Not the first chapter, but the acknowledgements, then the foreward and finally onto the book itself.  Sometimes, it provides the reader with a perspective that enhances what follows.  This time, it was a mistake.

Peter Manso’s book, Reasonable Doubt, The Fashion Writer, Cape Cod, and the Trial of Chris McCowen, is the story of the murder of Christa Worthington, the somewhat drab prodigal daughter of a local family that’s longer on real estate and peccadillos than cash on hand or good judgment.  Her life wasn’t great and her murder wasn’t pretty:

In January 2002, forty-six-year-old Christa Worthington was found stabbed to death in the kitchen of her Truro, Cape Cod, cottage, her curly-haired toddler clutching her body. A former Vassar girl and scion of a prominent local family, Christa had abandoned a glamorous career as a fashion writer for a simpler life on the Cape, where she had an affair with a married fisherman and had his child. After her murder, evidence pointed toward several local men who had known her.

Yet in 2005, investigators arrested Christopher McCowen, a thirty-four-year-old African-American garbage collector with an IQ of 76. The local headlines screamed, “Black Trash Hauler Ruins Beautiful White Family” and “Black Murderer Apprehended in Fashion Writer Slaying,” while the sole evidence against McCowen was a DNA match showing that he’d had sex with Worthington prior to her murder. There were no fingerprints, no witnesses, and although the state medical examiner acknowledged there was no evidence of rape, the defendant was convicted after a five-week trial replete with conflicting testimony, accusations of crime scene contamination, and police misconduct—and was condemned to three lifetime sentences in prison with no parole.

That case you so desperately want, the one that will launch you into the stratosphere and add your name to the pantheon of great and important lawyers.  The one that will destroy you. The  high profile case.

Walter C. Bansley III took on a case that seized the State of Connecticut, defending Joshua Komisarjevsky, accused with Stephen Hayes of the 2007  Cheshire home-invasion :

July 2007, Komisarjevsky and Steven Hayes invaded a home in Cheshire; beat and tied up Dr. William Petit; raped and strangled his wife, Jennifer Hawke-Petit; molested one of their daughters; and set the family’s house on fire before attempting to flee.

The two daughters — 17-year-old Hayley Petit and 11-year-old Michaela Petit, both of whom had been tied to their beds — died of smoke inhalation. Petit escaped to a neighbor’s home.

 Certainly in Connecticut, and likely everywhere else in the country, this case was huge news.  This is why Bansley’s name is a household word in America, right?  What? You’ve never heard of him? 

Lesson number one: The story is about the case, not the lawyer.  Sure, sometimes the lawyer becomes well known outside of legal circles, but in the vast majority of cases, the lawyer is background noise in the story and even if they garner a little public recognition, it’s soon forgotten when the next big case comes along.

What does last, however, is the impact of a case like this.  From the Hartford Courant :

“I have had clients leave me after they learned I was involved in this case,” Bansley said. “They recognized that I would be working 50 to 60 hours a week on this and would not have the time for them. When this case is over, I will really have no practice left.”

Since taking the Komisarjevsky case, Bansley has lost friends, he said. When bricks were thrown through the windows of his New Haven law office, he moved to a location he now keeps secret.

Unless you’ve had the pleasure of dealing with a case of this magnitude, combined with the incessant intrusion of the media looking to engage you in lengthy discussion on a near constant basis because you become the source of their material and exist so they have something to write about day after day, you can’t begin to appreciate the time suck a high profile case can be.

Rather than be a draw for new clients, it scares them away.  First, the hard factor is time, as you simply have no time to handle anything else, and existing clients who loved you dearly before hand become less enamored when you can’t be found or reached for days.

The soft factor is perception, that a lawyer so “important” is too important for their cases, and they become afraid to call, thinking their murder isn’t worthy of your very important time.  While some potential clients, often with psychological issues of their own, think an important lawyer is suddenly worthy of their shoplifting case, these generally aren’t the sort of clients you want.  You wonder why old clients and good cases are going elsewhere as you are tied up with the big case.  This is why.

But at least there’s the money, right?  Big cases bring big bucks?

On top of all of that, Bansley battles the growing public perception that defending Komisarjevsky is making the three-member defense team rich.

Defense attorneys say it’s quite the contrary.

From 2007 through Sept. 1 of this year, the state spent $506,509.79 on Komisarjevsky’s defense, according to Deborah Del Prete Sullivan, legal counsel and executive assistant public defender of the Office of the Chief Public Defender.

Of that amount, Bansley was paid $200,648.43. Jeremiah Donovan received $192,380.30, and Todd A. Bussert was paid $97,317.61, according to Del Prete Sullivan.

On the surface, $200k doesn’t seem too terrible, but if you do some basic math, you see it’s only about $50,000 a year.  Not quite food stamp territory, but he’s definitely studying the dollar menu when he dines out.  For a good lawyer, or one with a couple of kids who like to eat every day, this isn’t going to provide for a lavish lifestyle.

There are remarkably few big cases that pay well, mostly because few defendants in these cases have any assets to speak of, such that the lawyers are living off the largesse of the state.  And in those rarest of the rare, the high profile case involving a wealthy defendant, even they aren’t always inclined to compensate for the amount of time involved.  Aside from the time spent daily working on the case itself, the amount of time eaten up by the media is absolutely mindboggling.  Think of calls at home at 11 p.m. because of a deadline the next day and the compulsion not to piss off a reporter whose information and friendship (or at least absence of animosity) you may need.

Granted, a few lawyers have transformed their transitory notoriety into public personas that have garnered television gigs, like Star Jones, Nancy Grace, Greta Van Susteren.  A few others have tried and, while seeming to have traction for a brief period, ended up falling by the wayside.   Judge Judy Sheindlin pulled down $28 million last year, but not everybody can make a career of being snippy,

There are a bunch of lawyers, young and old, dying to get their hands on a high profile case, to make their name and launch their careers.  Or kill their careers as they case may be.  And I haven’t even mentioned the worst thing that can happen, that you get the big case and the world finds out that you’re not the next Clarence Darrow, but that you’re crappy lawyer.  That can happen too.

H/T Ed at  BlawgReview 

So the politically correct professor warns his students in advance that he finds certain opinions “unacceptable” and “dangerous”. (The fact that he used a particularly egregious example doesn’t make up for the fact that he shouldn’t be intimidating his students by encouraging self-censorship the first day of class. [Not to mention that in a free society everyone is, in fact, entitled to his opinion, though not to express it in all circumstances.]) Politically correct student decides that the professor wasn’t being sensitive enough, and that the example he used was “unacceptable” and “dangerous.”

David Bernstein at Volokh Conspiracy

Pity poor Professor Cameron Johnson at York University. He was just trying to make this fundamentally Canadian concept clear to the students in the class he was teaching by giving examples of unacceptable opinions.

Ken at Popehat

He didn’t notice Sarah Grunfeld storm out. Grunfeld, a 22-year-old in her final year at York, understood Johnston’s example to be his personal opinion.

“I think it’s a very good thing that people are sensitive to this kind of remark, and I think it’s a very good thing that someone would respond immediately and deal with it if they thought that they heard an anti-Semitic comment,” Johnston said. “But in this case, it’s a misreading.”

The Toronto Star

Bernstein calls it irony.  Ken calls it stupidity.  The Star calls it cautionary.

Professor at his first lecture of the semester to Canadian university students: “Despite what you may have heard elsewhere, everyone is not entitled to their opinion. ‘All Jews should be sterilized’ would be an example of an unacceptable and dangerous opinion.”

Student misunderstands, and launches attack on professor for being anti-Semitic. When the context was explained to her, she refused to relent: “The words, ‘Jews should be sterilized’ still came out of his mouth, so regardless of the context I still think that’s pretty serious.”

Bernstein

Grunfeld also expressed skepticism that Johnston was in fact Jewish.

Asked directly by a reporter whether she believes Johnston is lying, she was unclear.

“Whether he is or is not, no one will know,” she said. “. . . Maybe he thought because he is Jewish he can talk smack about other Jews.”

Ken

It has been a very painful experience for me to see how the university has closed ranks and reneged on its assurances to me. I understand that there may have been a miscommunication, but any miscommunication was on the part of the professor, not me. The media has been complicit in allowing a false interpretation of my actions to be circulated widely, which can only have a chilling effect on the ability of students to have any kind of a voice on campus.

Sarah Grunfeld via The Toronto Star

Meanwhile, if Sarah Grunfeld feels that Canada is a cold and barren place that refuses to celebrate her differences, she should consider coming here to America. Sure, we don’t have Human Rights Councils like Canada. But there are signs that our universities and their administrators are coming around to Sarah’s way of “thinking,” and doing what they can to protect the moron community.

Ken

Professor: I’m very troubled because “I’m very proud of the fact that in the history of my teaching career I’ve stood for the best values of what constitutes a meaningful human community.”

Bernstein

No one was bullied in the writing of this story and no transgender Jews were harmed.  This is only going to get worse.

In what may be one of the most difficult calls ever in the game of football, should Quincy, Michigan high school senior Mitchell Landis play? 

…Mitchell Landis, is charged with rape and many parents are outraged that he’s still in school and that he’s still being allowed to play football.

Landis has been charged with two counts of criminal sexual conduct in the third degree, each count is a 15 year felony, but Landis has made bail, he’s back at school, he’s even playing football and that has some parents extremely upset.

On the one hand, Landis has been charged but not convicted of anything.  Legally, he’s presumed innocent. 

On the other hand, the allegations are significant enough for the judge to have imposed $100,000 bond for his release, a not-inconsequential amount for a high school kid who’s not running away to his chateau in France.

On the other hand, he’s a senior in high school, a football player, a kid, and if he’s denied the opportunity to play ball, it’s not like he can make it up some other time.  Landis has one chance to play football (or do anything else) in his senior year, and to deprive him of that while he’s presumed innocent is to cause irrevocable harm should he not be subsequently convicted.

On the other hand, if he is guilty of rape, having him in high school at all puts other people at risk.  It would be unconscionable to risk the safety of another high school girl. 

On the other hand, the allegations against Landis area kinda screwy, such as:

On Tuesday Newschannel 3 spoke to the mother of the alleged victim, who asked not to be identified for fear of causing further stress for her daughter. She says this all started on August 28th when her daughter was at a friends house for a small party. She says Landis was there.

“She had went to bed and the alleged person had went into the room while she was sleeping and woke her up by taking her shorts off,” said the mother.

She says her daughter screamed, but no one came to help.

High school kids in Quincy have co-ed sleepover parties?  She screamed and no one came to help?  It’s not to say that Landis didn’t commit the crime, but this, and more, gives some pause.

There is nothing at all unusual about release bonds including requirements that a limit the conduct of an accused, or come with an order of protection.  Pre-trial defendants are regularly subject to limitations from loss of a drivers license to drug testing to staying 100 yards away from the object of their affection.  Given the grave seriousness of a charge of rape of a high school girl, would it be inappropriate to protect others from Landis, and remove him from the high school environment altogether?

But once that’s done, and done to a high school boy, there’s no going back and giving him another senior year, another year of high school football and whatever comes long with it.

This is one of those litmus test scenarios, where you simply favor the presumption of innocence or the safety of others. 

In Quincy, the presumption of innocence seems to have prevailed.  And parents are not at all happy about it.

H/T  Turley
 

One of my  earliest posts at SJ was about the horrific case of Martin Heidgen, who plowed his pickup into wedding party limo and killed two people, including the 7-year-old flower girl, Katie Flynn.  Heidgen, then 25, was totally drunk.  

Heidgen was the first in a series of cases prosecuting drunk driving deaths as murder.

But the law does not vary by the horrific nature of the outcome, as much as we sometimes wish it would.  The law must be dispassionate, as we know that the next case will not have such terrible consequences, but now that the dam has been broken, can be prosecuted as a murder.  And murder, any way you turn it, is a different crime from manslaughter or vehicular homicide.  It has an intent element, whether under the  intentional murder subdivision, or the depraved indifference subdivision, as was used here.  And drunk drivers, no matter how bad the result, do not have the intent necessary to commit murder.  No matter how bad the result.

By decision issued September 13, the Appellate Division, Second Department,  affirmed the conviction for two counts of murder.  This decision,  remarkably long in coming because of inexplicable delay in the submission of appellant’s brief, come after other decisions that reflected this court’s rejection of the underlying theory:

Much has happened since Heidgen’s conviction.  The case of Alberto Valencia was decided by the Appellate Division, Second Department, the same court that will hear Heidgen’s appeal.  There, the court rejected the “depraved indifference” theory of assault upon which the conviction rested, the same theory (though applied to second degree murder) that was used against Heidgen.  Valencia was sentenced on February 23, 2007, five days before Heidgen. 

Yet the affirmance here seems to be a carve out, where the majority relied upon highly specific facts to reach its result:

The majority concludes that when viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude that the defendant was aware that he was driving “the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night,” and that given “the defendant’s statement to the police that he was in a self-destructive’ mode, it was reasonable for the jury to find that he possessed the requisite mens rea at the time that the impact with the limousine occurred.”

Specific to this case, the majority relied on the fact that three cars passed Heidgen, who was traveling he wrong way down the Meadowbrook Parkway, and honked to alert him.  He kept going.  His statement to police, that he was in a “self-destructive mode,” was used to suggest that he was conscious of what he was doing, but that he was suicidal. 

To the majority’s credit, they have made great efforts to make their affirmance so fact-specific as to avoid screwing up a body of law in order to make sure Heidgen remains convicted of murder.  As the lone dissenter, Jeffrey Cohen, asserts, however, it’s not, and shouldn’t be, the law.

I disagree, and conclude that no rational or reasonable juror could infer that the defendant was suicidal, and acted with depraved indifference to an appreciated grave risk, merely because he stated that he was in a “self-destructive” mode. Thus, the evidence was legally insufficient to support the essential elements of murder in the second degree or assault in the first degree. It was not established beyond a reasonable doubt that the defendant was aware of the danger of his conduct, aware of the grave and high probability of injury and death his conduct portended, and wholly indifferent to any such probability.

Justice Cohen picks apart the facts upon which the majority relies, turning them from rationale to rationalization.  This is a fascinating dissection, as it’s the sort of detailed parsing of facts that one rarely sees in an appellate decision, where reality is whatever the opinion says it is, regardless of what actual evidence was presented and how that evidence connects (or not) with the rest of the dots. 

To the extent this decision is outcome oriented, bad facts compelling a bad outcome, it doesn’t appear to do anywhere near as much harm to the law as it could have, and for that we should be grateful.  But as the dissent makes clear, it’s still about outcome. Martin Heidgen was convicted of murder for the drunk driving deaths a was going to stay that way.

I had a nice chat the other day with a young lawyer who has a very popular legal website.  His site is a business, intended for profit and designed to maximize the number of eyeballs it draws.  He was disgusted, well, concerned (actually, I was disgusted, so I’m projecting my own feelings about his website onto him. He didn’t hate his website anywhere near as much as I did), that in the zeal to create the website and draw the eyeballs, he might have lost a critical ingredient.  Purpose.

It gave rise to the concerns raised by Alissa Walker at Good Technology :

One of the reasons I wanted to become a writer is that I was fascinated by a journalist’s ability to shape public opinion. Yet, the more information I have about who actually reads my words, the further removed I feel from the field of journalism. Sometimes my writerly self takes a back seat to my other personality, the one that’s obsessed with getting strangers to like me for something I wrote. As a slave to data, my success as a writer now hinges on how often I get Stumbled Upon, Voted Up, Promoted, Ffffound, Dugg, RTed, and Liked.

One might argue that I’m more machine than journalist. I actually enjoy the rush of attracting traffic. But does it make me any less of a creative person?

She writes about her learning the lessons of the internet, and how she became consumed by what they had to offer.

I remember the first time I was confronted with this new reality. I had written a blog post with the most perfect, pun-filled headline. But when I saw it, edited and published, I did not recognize it as my own. My headline had been swapped with a gimmick that anyone who writes for the web (and anyone who reads it) will instantly recognize: The dreaded formula of “The Top 5 Things That Will Prove Something Important.” My post had been turned into a list. My editor—a hardened blogging authority at the age of 26—shrugged. It had been proven somewhere (where?) that people love lists.

At first I was skeptical, borderline insulted. But when I saw how a slight tweak to my text would make my page views skyrocket, I became a convert. Now, instead of organizing my thoughts into pithy paragraphs for readers, I engineer my words so they’re algorithmically attractive. I rewrite my headlines to make them more enticing to Google. I tag them with dozens of relevant phrases to boost my authority on specific topics. I add search terms to my text to further optimize my SEO ranking. I admit that I don’t totally understand what that last sentence even means.

What’s left unmentioned is her concern with providing substantive information, well-written prose and thought-provoking commentary.  Apparently, no one told her that a  simple picture of a cute kitten was enough to draw the love of millions, cheap though it may be.

People love lists.  Social media gurus regurgitate the same list of Top 10 things constantly, to the wild applause of the crowds.  The comments that follow, extolling their utter fascination with the writer’s sheer brilliance, will warm even the coldest heart.

A while back, the emptiness of much offered by the blawgosphere began to gnaw at me.  I knew people cared about things, but you couldn’t tell by the insipid crap they wrote.  I wrote a post imploring people to take a stand, write something meaningful, put their ass on the line. 

If you ask most people who blog, they tell you they want to be relevant and meaningful.  They just don’t want to risk losing the love of readers.  After all, what good is being meaningful if no one reads what you write, and so they put their efforts into trying to collect eyeballs, as if a day will come when they will have enough, sufficiently own them that they can then, finally, offer a real contribution to thought.  They’re still waiting for that day to come, but it never does.

So the young lawyer with whom I chatted asked me what I thought he could do to improve the quality of the content on his website.  His actual words were, “what can I do to not suck?”  I offered him a few suggestions, including that he make certain that the articles/posts that appeared not make anyone stupider for having read them.  This was a major problem for him.

But more importantly, he had things to say, things he had learned between his third year of practice, when he knew everything there was to know about the law, and his eighth year, when he recognized how much he still had to learn.  He was aching to get these things out, to tell others what he had learned.  But he was afraid that he would offend his readers by telling them they were ugly and dressed funny, and they would run away from him and never come back.  He would lose their eyeballs.

Walker too had to come to grips with life on the interwebz, where any ploy that gets more eyeballs trumps quality and substance, even to the point of titling a post “what time is the Super Bowl” because that’s the predominant inquiry on Google at the moment.

Take it as the exception, but in fact this is not too different from how many sites with a veneer of journalistic integrity are generating stories right now. The sorts of stories you’ve no doubt clicked on. Instead of stumbling across a story idea while walking down the street, or meeting a stranger, or pondering an issue in the shower, a writer—maybe even me—skims Twitter’s trending topics or the most-searched phrases on Google Trends and then writes a piece. In most cases, a piece of crap.

So write a piece of crap and gather as many eyeballs as possible. Then what?  It won’t matter.