Now that everything’s changed, and the war against terrorism demands that all our nastiness falls under the doctrine of state secrets (for our own good), the nature of litigation is taking a turn as well.  As the 9th Circuit prepares to hear argument in Jewel v. National Security Agency, the government is making sure that the judges are good boys and don’t spill any beans.  From Politico :

On Wednesday, Justice Department Attorney H. Thomas Byron sent the court a letter (posted here) essentially warning the judges that since the argument is taking place in a courtroom open to the public the court should be careful not to discuss any national security secrets during the session.

“All classified information has been provided to the Court with the understanding that the secrecy of this information will be properly protected,” Byron said. “We are prepared to argue this case publicly, in an open courtroom, without referring to any classified information….If the Court has questions about the classified information in the record, we are prepared to address those questions in an appropriate secure environment with only the judges, cleared court personnel, and the attorneys for the government present, to ensure appropriate safeguards against disclosure.”

Wait, you say.  What about the plaintiff’s lawyers being able to offer argument, part of that whole “due process” thing they keep talking about in the Constitution?  Heh.  Don’t get your panties in a twist, as it’s not like the plaintiff’s lawyers were allowed to see the government’s secret brief anyway.  That was for judge’s eyes only.  

The Justice Department filed a classified brief in the case, as well as declarations that are not public and which plaintiffs’ lawyers have not seen. The parties challenging the surveillance objected to the government’s classified brief, but on Thursday the panel assigned to the case ruled, 2-1, that the secret brief would be accepted. 

Even if the court was to close the courtroom and hold argument in the back room star chamber, it’s not like the other side would have a clue what they were talking about.  They can’t. It’s secret.  The judges get it, at least two out of the three, that they must protect our country against terrorism by concealing the government’s wrongs lest the terrorists know that we tap the phones of Americans without warrants.  Oh crap, I just gave it away.  Strike that. You never read it here.  I never wrote it. It never happened.

But if you think this is bad, it’s better than what the government has argued in other cases, where they refuse to let the court in on the secret because federal judges can’t be trusted.  Ironically, they may not get much of a fight on that point.

The case relates to former President Bush’s allowing the tapping of phones and interception of emails to protect us from the red scare terrorist threat.

The lawsuits argue that the NSA’s efforts to monitor e-mails and telephone calls in the U.S. violate the Fourth Amendment despite legislation Congress passed in 2008—with then-Sen. Barack Obama’s vote—that sought to legalize a program President George W. Bush initiated without Congressional authority after the 9/11 attacks.

Not even the secret FISA courts were fast enough or trustworthy enough to get the job done, so the government just did what it had to do in this decade of crisis to save us.  Even now, it’s a big secret that they ignored the 4th amendment and searched and seized at will.  And all you whiners who would deny the government it’s weapons in the war against terrorism ought to consider its effectiveness. You’re still alive, right?  That’s because of the swift and decisive action on the part of our government to tap into anything they wanted.  Prove me wrong.

But how is the court, or the plaintiff’s counsel, supposed to flesh out the arguments and issues in the case when the government won’t let the other side see its secrets, and commands the judge’s to keep their yaps shut at oral argument?  Well, they can’t.  They can argue the points that the government allowed them to argue, and the judges can ask whatever questions don’t trample on the government’s right to keep their bad stuff secret.  And apparently, this is good with the judges.

Perhaps I’m just an old cynic, unappreciative of the efforts my government has made to protect me from terrorists, even if it meant bending breaking the rules.  After all, few know better than me that 9/11 happened and that thousands were slaughtered in acts of gruesome terror.

Nah. The old joke, I’m from the government, trust me, is still just a joke. There’s no adversary system when the government can conceal its brief from the other side, or tell the judges what they may not ask.  That the judges are good with this, taking their marching orders from the Department of Justice, isn’t going to instill faith in the integrity of the system, but make clear that we’re only as honorable as the government and its enablers will allow.  And that’s not good enough.

When I  first wrote of lawprof Lawrence Connell’s becoming the target of ridiculous hysteria at Widener Law School because of examples used in teaching criminal law, the silliness appeared confined to a few misguided students who were offended by the common employment of the dean as the victim of nefarious crimes.  Just some dopey, entitled teacups flexing their muscle. 

As things wound out, with Connell being put through some very real paces in vindicating himself and his practice, far beyond rational expectations, one thing became increasingly clear.  Whoever was pulling the strings at Widener was nuts.

While lawyers were busily lawyering, a sea change in attitude and mission flowed into the administration of law schools.  Some eschewed the  dirty notion of teaching students how to practice law. Some  eschewed principle despite their  flowery mission of “empower[ing] students and alumni as they explore and create careers inspired by passion and rooted in their faith and values….so that they aspire to greatness and flourish with confidence as servant leaders and ethical professionals,” and pay their tuition bills.

But no law school to date has gone as far as Windener Law School.  David Bernstein at Volokh Conspiracy explains.

The saga of Dean Ammons vendetta against Professor Lawrence Connell, revolving around trumped up charges of harassment and discrimination, gets more and more absurd. Having been almost entirely vindicated by a faculty committee, with the only remaining “charge” that he dared to rebut false accusations against himself publicly, Dean Ammons has recommended that Connell be suspended for a year without pay and be forced to undergo a psychiatric evaluation. Widener’s administration, apparently oblivious to the long-term damage this is doing to the law school’s and university’s reputation, agreed. I hope Connell sues, and I hope he wins his lawsuit, and wins big. Meanwhile, if any of our readers are considering attending Widener, I recommend looking elsewhere–anywhere else. If Connell can be abused in this way, so can you. H/T Instapundit.

As has already been made clear, the basic concepts of how due process and burden of proof clash with the pedagogical process when they fail to produce the results that conform with children’s notion of the correct outcome.  But at Widener, it’s no longer about some teacup students who take umbrage with a lawprof whose examples fail to conform with their vision of political correctness.  Oh, if only it was that simple.

Dean Linda Ammons will not be denied.  Nor murdered, whether by ax, gun or strangulation.  So what if the faculty committee “adjudicating” his grievous wrongs says nothing bad happened here.  And yes, he is guilty of publicly proclaiming that he did nothing wrong, which flies in the face of two new-fangled academic rules, that no one publicly embarrass the school by telling the truth and no one undermine the presumption of guilt. 

The guardians of high-minded principle, our law schools, seem to be struggling just a bit in teaching them, adhering to them, even recognizing them, when they get in the way of punishing the people who piss them off.

Ammons not only wants Connell suspended for a year, but wants him sent to her re-education camp where he’ll learn to love Ammons’ Little Red Book.

Without naming names, because they fear the wrath of the orthodoxy if it came out that they have any unpleasant thoughts, some of my lawprof friends (yes, I have some lawprof friends) tell me that I have no idea how bad the situation in law schools has become. They parse every word they say for fear that it will upset some delicate teacup’s politically correct sensibility, and they will be publicly burned at the stake for not adhering to the dogma.  The Spanish Inquisition pales in comparison.

Students have become little automatons, spewing Kumbaya, demanding respect and crying whenever there’s no one to suckle them.  Administrations and professors who embrace the perfect world, where never is heard a discouraging word that doesn’t conform to the idealists catechism.  There can be no suggestion that any student is unworthy or, oh my, wrong. That would hurt someone’s feelings, and conflict with the Academy’s mission to make the stupidest feel brilliant.

I see it here, whenever a law student or young lawyer feels empowered to tell experienced lawyers how the world should be and how we’ve done everything wrong.  The days of children being seen but not heard are gone.  And the days of a law professor doing his job in a way that makes a teacup tinkle demands psychological treatment.

Bernstein, in an update to his post, does the unthinkable:

UPDATE: I had agreed to participate in a Widener-sponsored project after the committee report was released, which I thought would be the end of the matter. I’ve now sent an email to my contact at Widener, withdrawing. I can’t in good conscience have my reputation associated in any way with Widener Law School.

I would hope that all people of integrity decide to take a stand here, not to lend support to this insanity by contributing, associating, or approving of Widener’s, Ammons’ or the tide of catering to the politically correct sensibilities of the teacups and their enablers.  While there will be some who agree with, and applaud, this insanity, the rest of us need to put on our big boy pants and stand up to this absurdity. 

The Academy is out of control, and those in it who disagree have been hiding in the corner for fear that they will be exposed as heretics who sing Kumbaya out of tune.  Now that Lawrence Connell is being burned at the stake, and David Bernstein has shown the ‘nads to stand up, let’s see how many scholars will similarly come forward and reject the Widener way. 

You know, better than I, that these schools and your colleagues who drank the kool-aid, are doing damage that is turning higher education into a joke.  So, what are you going to do about it?

And if you’re thinking of going to law school, your job is easy. Just scratch Widener off the list, like Marquette and St. Thomas.  And to tell you the truth, the rest of them are no prize either.

The name may not be a household word, but James Cayce is the judge who  signed off on the search warrant on July 28, 2011, requiring Google, as owner of Youtube, to give up its information about the nefarious Mr. Fiddlesticks, hater of the Renton, Washington police.

The alleged crime was cyberstalking, generating a  significant  amount of  analysis about the merit of the law and its applicability to some cartoons posted on Youtube that were unflattering to the local cops.  The story was outed by KIRO-TV reporter Chris Halsne, who questioned whether such parodies could really be criminal.  Relying on nationally respected legal experts, Halsne concludes that it doesn’t pass the laugh test.

The focus has largely been on Renton’s intention to prosecute Fiddlesticks for his alleged cyberstalking.  My suspicion is that nobody ever intended to prosecute, and the cops and prosecutors banged heads trying to come up with any colorable crime to fill out the search warrant affidavit.  Cyberstalking was the best they could come up with. 

But what they really wanted was to know who was creating these cartoons that hurt the cops’ feelings and made them look foolish.  They just wanted a name. Once they knew their enemy, they would fix the problem.

On the morning of July 28th, Judge James Cayce likely had no idea that this was the day that would make him an internet phenomenon.  Not much that happens in Renton becomes an internet phenomenon.  Maybe he had a cup of coffee or two.  People in Washington State tend to like coffee.  Nothing unusual.  And then he went to work, as do judges all over the country, dreading the droning of lawyers whining about the misery of their clients’ lives, every one of which is the worst ever and demands redress like no litigant before him.

In the midst of this judicial drudgery, maybe some papers are shuffled before him by his clerk, telling him they need to be signed.  He glances down at the papers and sees the caption, affidavit for a search warrant.  He checks to make sure the affiant signed and the attesting signatures are in place.  There they are, just as they should be, approved by the prosecutor.  He knows that this means the prosecutor has gone over the papers to make sure the “i”s are dotted and “t”s are crossed, that the niceties are in place, just as they are with all the other search warrants he’s asked to sign.  And as he scribbles his name on the proper line, he wonders what he should have for lunch. 

The effort required to carefully scrutinize a search warrant, to parse the details with the level of scrutiny that one might anticipate before allowing a police officer to engage in an intrusion so severe and serious that it’s worthy of constitutional protection, is really quite hard.  To put in the amount of thought necessary, it could take hours, analyzing its merit from all angles, considering whether it’s truly needed and whether, if the police find what they’re seeking, a crime will be solved. 

This could eat up a large part of a judge’s day, were he to give it the focus demanded of something of constitutional magnitude.  Who has that much time?  The wheels of justice would grind to a halt, and the judge would never make it home in time for dinner.

Putting pen to paper to scribble the lines that constitute the authorization for the police to search is a task that takes no more than a few second.  If we just assume the normal course, the personal presumption of regularity, then the authorization for the search warrant will barely make a ripple in the hard day ahead of a judge.  He can get back to the work of doing justice, listening to the next lawyer whine about the misery his client endures.  All day long, one misery or another, each the end of the world that can only be stopped by his Solomonic decision.  And then there’s the question of what to eat for dinner.

And so James Cayce performed his judicial function, relying upon the banality of the paper searching for the identity of some cartoon-making internet guy, without breaking stride from the daily routine.  And now, he’s famous on the internet for approving one of the most ridiculous search warrants ever signed.

This entire scenario, of course, exists only in my fertile imagination.  I have no clue what James Cayce did on July 28th, nor the amount of time, thought or attention he gave this search warrant application by the local cops who wanted so badly to find out which of their residents was ridiculing them on the internet.  It’s sheer fantasy, borne of my desire to believe that Judge James Cayce isn’t a blithering idiot who didn’t have the slightest clue what he was signing or the outrageous legal issues at stake in his authorization, or some blind cop-loving jurist who would authorize a rectal search of his mother if the highway patrol asked nicely.

No, I prefer to speculate that these papers were just shuffled before him, as search warrants are handed up from clerk to judge in courtrooms across the country every day, with judges performing their legal function by putting their name on the correct line as they ponder why they ever thought wearing a robe was going to be a prestigious career choice.  Work, work, work.

But I do believe that Judge James Cayce never expected to find his name repeated all over the internet on the morning of July 28th.  Had he anticipated this, he probably would have given this warrant application a lot more thought.

Kevin Underhill’s blog, Lowering the Bar, has managed to do something that no one else online has been able to do.  Be funny and stay that way.  It’s not that the law doesn’t offer a multitude of opportunities to find funny things, but it’s very hard to maintain the subtle touch that brings out the humor that could make a lesser man cry.

That doesn’t mean, however, that the subjects Kevin touches are limited to knee-slappers.  Quite the contrary, as humor is often an excellent way to note the foibles of a serious target and ridicule it in a witty way.  As we chuckle at Kevin’s posts, we can’t forget that the humor masks the pain that’s caused in the lives of many.  Funny, and not funny at all.

One of the most pervasive issues of the year stems from the TSA adoption of body scanners, combined with scope and grope, to save us from the terrorists.  Whether they be toddlers or the elderly in diapers, rape victims or breast-feeding moms, it’s been a sickening morass of failure and anger.   We’ve discussed whether the rights lost to safety are worth it, the use has been shockingly misguided and the harm justified or justifiable.  But Kevin’s post, German Police: Body Scanners Are Useless, raises a question of a different sort.

Has this all been just a complete, total, extremely expensive, extremely intrusive, extremely painful, joke?

After a ten-month test of the same scanners currently irritating many U.S. travelers, German federal police have concluded that they aren’t worth using. This appears to be largely because, according to the report, the scanners “triggered an unnecessary alarm in seven out of ten cases.”

How many of the other 30 percent might have been false negatives, I guess we’ll never know.

After all the pain we’ve endured at the hands of these machines, they don’t actually work?  This is certainly something we can all laugh about, even though it’s unlikely that the Department of Homeland Security will admit that the German’s are right, that the body scanners, for which former Homeland Security Czar (and federal prosecutor and judge) Michael Chertoff, lobbied on behalf of their maker, Rapiscan,   And it turns out that the very expensive but shiny hardware, now deployed backwater airports that no terrorist has ever heard of, don’t work. Ha! They got us.  That was a good one.

Adoration of technology has become as American as mom and apple pie, with so many of us believing that any device that runs on electricity contains magic that makes the impossible happen.  We are amazed at how invisible waves zip through the air and make wondrous images appear on tiny screens in our hand.  We are thrilled that metal and wire can protect us from knives and bullets.  And bombs.  And sweaty armpits and pleated pants.  And the layered look that goes in and out of style.

When Apple produces a new iPad, the scrutiny is overwhelming, launching thousands of eyes and fingers a’twitching with overwhelming interest in whether it’s really an advancement over its predecessor.  The interest is monumental.  Of course, the iToys have a shelf-life of a few months, forcing its critics and adherents to start over again before the pixels dims.

Sadly, there has never been similar scrutiny of the technology used by government.  Apparently, no one gives these tools more than a thorough rhetorical look-see, whether it’s the breathalyzer 5000 (which courts have embraced despite the fact that no one other than the manufacturer can explain how it works, or even such old school devices as speed radar, which will clock a tree at 70 when plugged into the cigarette lighter socket of a Crown Vic.  Despite these examples of historic willful ignorance, we still think nothing of spending billions and humiliating people everywhere to enjoy the benefits of a machine that fails.

When Kevin Underhill writes about the findings of the German’s, it’s witty and funny, almost impossible not to bring a wry smile to a reader’s face.  When I write about it, it’s heavy, sad and depressing.  But both of us have the same point to make, whether done in enjoyable fashion or mine.  Our blind faith in technology to magically solve our problems isn’t working out very well.  The people who makes decisions about its purchase, use and admissibility in court don’t have the capability to understand what they’re doing, and they rely on compromised, self-serving voices in making their determinations.

And we suffer for it.  Sorry, but I can’t make a joke of this. 

Once again,  Mark Herrmann offers a reason for the occasional visit to Above the Law, in contrast to  its other columnists who plumb the depths of puddles.  In his Inside Straight column, Mark raises one of the most common whine of lawyers, the lack of appreciation of their exceptionalism.

One of the also-rans wrote to complain: “I’m terribly disappointed by the result of your RFP process. My firm is exceptionally talented in this area. We do precisely this same work for many other clients, and those other clients are delighted with our work. We indicated a willingness to be flexible on fees. I just don’t understand why we didn’t win this work.”

Ha! Observe the delusion of personal exceptionalism!

In my mind, I hear readers saying, “what’s wrong with that? That’s why I would do.”  Glad you revealed yourself.  Now for the explanation.

Look: We invited twelve firms to bid for this work. All twelve could (and did) tell us that their firms are exceptionally talented in this area. All twelve also told us that their firms do precisely this same work for many other clients, and those other clients are delighted with the work. Across the board, all twelve firms were willing to be flexible on fees.

When you speak, you all sound the same. And, so far as I know, you might all be telling the truth. I don’t doubt for a second that many of the finest firms in the world do good work and have satisfied clients. So the things that you insist set you apart — you say that you do good work and that your clients like you — don’t set you apart at all. At best, they make you one of the pack, which gives you a one in twelve chance of winning the RFP. This time, you lost.

Yes, your branding guru told you to write on your website that you’re “experience, aggressive and caring.”  And maybe it’s even true, at least a little bit.  But the guru said the same thing to the other 27 lawyers who paid for his advice.  What? You thought you were the only lawyer who strung three words together?

There’s a reason why sleazy lawyers proclaim themselves the best thing since sliced bread on the internet, because they know that otherwise they’re just part of the pack.  Their hopes of wealth and success depend on finding someone stupid enough to believe them, and, sadly, there are people on the internet who are indeed that stupid.

But for the lawyers who believe their press releases, Mark’s point is critical.  So you’re a great lawyer?  Whoopdy do.  So are others. You are not the only one who can claim happy clients and successful outcomes, though your unhappy clients and unsuccessful outcomes are somehow easily forgotten.  The point is that it doesn’t make you special.

In anticipation of someone asking the obvious and simplistic question, “so what do I do about it,” the answer is grow up, learn to take it in stride and conduct yourself with dignity.  Whining about being the loser isn’t going to impress anyone.  What it does is tell others that you aren’t nearly as brilliant as you think, that you don’t understand that the things you consider exceptional are in fact banal and ordinary.  You may well be a fine lawyer, but you’re hardly exceptional.

But there is something you can do, even if you’re not exceptional.  You can work your hardest for every client. You can conduct yourself with dignity and integrity. You can be proud of the effort you’ve given to every case, knowing that you have fulfilled your duty to zealously represent each client.  Still, you won’t get every case and may not become a household name.  You won’t be the only lawyer who works hard and cares about his clients, no matter what you do. 

There may be a way to distinguish yourself, but it’s not by saying that you’re distinguishable. Next time, try something else.

How about distinguishing yourself by being honorable and competent?  No, it’s not a panacea and it may not get you the gig, but at least you will be able to sleep at night.  And you never know, others may come to appreciate you in this sea of puffery and deception.  Maybe it will distinguish you.  It certainly won’t hurt you any.

Steven Demink was a 41-year-old former car salesman in Michigan, who decided that he could have loads more fun pretending to be a psychologist on the internet.  Though warped in itself, that’s nothing compared to the advice he gave others.  From MLive.com :

An ex-car salesman from Michigan who spent hours upon hours at his home computer cajoling and even berating seven mothers to engage in sex acts with their young children was ordered by a federal judge to spend the rest of his life in prison.

But the judge, a U.S. Attorney, an aunt of two of the victims and even the defendant acknowledged Wednesday in U.S. District Court in Detroit that many lives already have been devastated by Steven Demink’s actions.

“You are like a pebble tossed into a pond; the effects of your actions will not only ripple into the lives of my sister and her two children, but their children as well,” said the sister of a mother charged in Indiana with molestation. “When I think of the sheer horror, fear and confusion they felt in their home that day, it makes me sick.”

Yes, that’s right.  A faux shrink on the internet told mothers to engage in sex acts with their children.  And they did.  Every time we think we’ve found the nadir of stupidity, gullibility and diseased minds, something new comes along to blow our socks off.

Time to make some obvious points.  Just because someone on the internet says they’re a professional does not mean it’s true.  Forget the pseudonymous, who may well believe that by calling himself “Joe the Lawyer” somehow means that the rest of the virtual world is compelled to bow to his expertise.  How many times must it be repeated that On the internet, nobody knows you’re a dog? 

Just because somebody on the internet tells you to do something wrong, disgusting, sick or evil, doesn’t mean you have to do it.  Pro Tip: They can’t reach through their computer and make you.  That you comply with their directions isn’t because they forced you to do it, but because you chose to do it.  No one on the internet can make you do anything. Ever.

No one on the internet can “berate” you without your permission.  Another Pro Tip: If you hit the little “X” in the corner, the internet goes away.  Don’t want to have some dog on the internet say mean things to you?  Click on the “X” and make them disappear.

And finally, mothers, engaging in sex acts with your children is sick.  Really sick.  While the dog on the internet who tells you to do such things is sick, so are you for doing it.  Get help, as you are deeply, seriously sick.

As for Demink, he offered a curious self-assessment at sentence:

“I’m not unsalvageable,” the 41-year-old Demink said. “I still think I can be a productive member of society without the court worried about me re-offending.

“I did not think of what consequences my actions were going to produce. I hope they can find it in their hearts one day to forgive me for what I have done. I need help and I want help.”

[Judge Gerald] Rosen was not convinced.

Nor am I.  Not that Demink is unsalvageable, though whatever diseased impulses drove him to engage in a year long effort to fake being a psychologist on the internet, get women to engage in such behavior and have them send him naked photos of their children.  What it will take to salvage this mutt is hard to say, but he’s hardly the worst around.

What I don’t buy is that he didn’t think of the consequences of his actions. Indeed, I bet that’s all he thought about, and that’s why he did this.  What he meant to say was that he thought more of his sexual gratification than he did of the harm he might cause, but this is at the heart of many crimes, putting self-interest above everything else.  In this regard, there’s nothing special about Demink.  He just did it in a particularly bizarre and disgusting way.

What makes this offense even more troubling, however, is that Demink could not have accomplished any harm alone.  No force was, or could have been, used to compel any mother to do anything.  Most of the women he tried to manipulate blew him off or let him know he was warped, and went about their lives without engaging in sex acts with their children. 

The ones who complied with Demink’s commands did so of their own volition.  Weak minds?  Low self-esteem?  Vulnerable?  There are entire industries dedicated to such people, selling everything from lipstick to brutally painful shoes that no right-thinking woman would wear.  That’s right, Jimmy Choo, you monster.

But the harm Demink caused wasn’t done by him alone.  Yet the sentence imposed, life in prison, puts him right up there with murderers.  Contrary to popular belief, that every crime above jaywalking demands a life sentence, this is both bad policy as well as a seriously disproportionate sentence. 

While it’s understandable that the disgust factor of his conduct could push a judge to treat him harshly, as well as discount his plea of salvageability, a critical aspect of sentencing someone who engages in such sick conduct relating to children is not to push the envelope so far as to make it viable that they personally engage in physical harm to children.  In other words, if he’s going to prison for life anyway, why not snatch a kid on the streets and rape him?  Why not murder the child so he won’t point the finger?  Why not?  If the defendant is sick to begin with, and calculating in his conduct, the potential for this is very real, and it’s something the sentence should be designed to discourage rather than encourage.

More to the point, there’s no indication that Demink ever laid a hand on a child, or anyone else for that matter.  As horrible as his conduct was, it cannot be equated with those who do engage in physical harm to others, whether children or adult.  Sure it’s sick, but that alone isn’t sufficient to explain a life sentence.

This case provides a wealth of lessons, both for the system as well as life on the internet. None of them good.  For crying out loud, people, it’s just a box with lights.  Do not believe it when it tells you to do something stupid or sick.  Just turn it off and walk away.

My old buddy and former NYSACDL president, Dan Arshack, will be interviewing former Ohio AG Jim Petro on his radio show on  WGXC, 90.7 FM and streamed throughout the rest of the civilized world right on your computer, this Sunday. August 7th, at 11:00 a.m.

Petro was considered a decent sort as Attorney General of Ohio, but like most who hold such positions, believed that he stood with the angels.  Apparently, he learned otherwise, kicking and screaming as Jeff Gamso explained, and saw the light. 

Serving as Ohio Attorney General, Petro was confronted with the nightmare of a family man convicted of murder and rape and sentenced to life in prison even when DNA proved his innocence.

While this is unlikely to cause any gasps on the criminal defense side of the courtroom, that a former AG came to the realization that the system just might be wrong is surprising.  For obvious but sad reasons, Petro’s advocacy of systemic changes that would improve the process and potentially save an innocent person from conviction may carry some greater weight than others.

In any event, tune in to Dan’s show and hear what Jim Petro has to say.  I believe they take some calls as well, so you may have an opportunity to ask Jim Petro pointed questions, particularly important given that Ohio seems bent on giving Texas a run for its money in putting people to death.  If it interferes with your tee time, they archive the shows and you can listen to it later.

It should be an interesting time.  Check it out.

There are many things a student can learn in law school.  The newest thing is to be a witless coward, cave in when there’s not a reason in the world and buy off one’s problems.  Welcome to St. Thomas School of Law, where  Deborah Hackerson will be your guide.

they seized it.

What student could possibly go to a school that would pay off Rakofsky rather than tell him to go shit in his hat?  A chain is only as strong as its weakest link, and nothing could be weaker than to succumb to paying off Joseph Rakofsky.

At some point, someone at this school is going to be charged with teaching ethics.  How does a school so utterly lacking in principle do this?  It can’t, but I guess no one thought of that when it approved of its insurance carrier buying its way out.

I’m absolutely disgusted that this is how anyone, but especially a law school and lawprof, would behave. Cowards? Gutless?  Morons?  Pray they write something mean about you, because you know they’ll be happy to fork over five grand for nothing.

Update:  In contrast to my rather clear disdain for acquiescing to this absurd bit of childish extortion, some on twitter raised the question of whether this settlement might have been a decision by the law school’s insurance carrier to throw $5 grand Rakofsky’s way as nuisance value, to rid themselves of this minor annoyance.  Not that this isn’t exactly what this kid might have wanted, which is precisely why this isn’t a wise idea.  But insurance companies think in terms of business decisions, not principles.

The point is well taken to the extent that the carrier might have been willing to toss money into the toilet, despite the complete absence of merit or jurisdiction and any potential for loss, thinking that it would cost that much to defend anyway and now it’s off the books.  But raising this possibility is troubling in a few ways.

But to change the analysis, a confluence of two things must have occurred:

1.  The carrier had complete, unfettered determination without St. Thomas Law School’s approval, or contrary to its disapproval.

2.  The determination of the carrier to settle out from under St. Thomas ws done without its knowledge, such that even if the carrier had the right to settle despite the law schools disapproval, it would have exercised that right in the face of the insured’s insistence that it not settle.

Is it possible that these two things occurred?  Sure, but it’s extremely unlikely. It’s also possible that the decision-maker at St. Thomas School of Law is bipolar and agreed to settle in a state of manic delusion, but that’s not likely either.  And let’s not even get into the space alien possibilities.  The point is, when you hear the sound of hoofbeats, don’t assume it’s a zebra.

 And even if they did occur, there was nothing to stop St. Thomas Law School or Debby Hackerson from asserting, once this became known, that this settlement was contrary to their wishes, their belief, their principles.  No such statement has been made.

All of this makes me wonder why some would make the effort to “explain” (what I would better characterize as “excuse”) this act of stupidityu and cowardice.  Some innate human desire to be contrarian, perhaps?  Some desire to show how smart you are, a rather typical affect of lawyers?  No matter, as Occams Razor teaches us that the simplest explanation that accounts for all known facts is usually the correct one.  There are always outlier arguments, which provide a convenient excuse.

If my assessment of St. Thomas School of Law is wrong, then I invite them to say that they disavow this settlement and despise that it made them appear to sacrifice principle to buy their way out of this completely frivolous lawsuit.

If not, I side with  Mark Bennett who wrote of this monumental collapse of judgment and spine:

From some individual non-lawyer blogger, afraid of going to court, that might be acceptable, but from a law school it is not. Aspiring lawyers, unless they aspire to learn the art of surrender, should avoid St. Thomas; employers, unless they are in the surrender business (like James J. Toomey of New York, who made the deal for these defendants?) will avoid St. Thomas grads.

The CIA  destroyed 92 videotapes depicting the torture of two captives, Abu Zubaydah and Abd Al-Rahim Al-Nashiri, despite a court order requiring the production of the videos. This was the subject of  an action brought by the ACLU under the Freedom of Information Act “related to the detention and treatment of prisoners in U.S. custody abroad.”

We argued that the CIA showed complete disdain for the court and the rule of law itself when it flouted several court orders to produce the videotapes and instead destroyed them. To provide some background, in September 2004, the court first ordered the CIA to produce or identify all records pertaining to the treatment of detainees in its custody, which would have included at least 92 videotapes documenting the harsh interrogation of the two prisoners. Despite the orders, the CIA never produced the tapes or even acknowledged their existence. Unbeknownst to the public, the tapes were destroyed in November 2005, a year after the court’s first order, although the destruction was not publicly revealed until 2007.

After a lively round of arguments, the judge sanctioned the CIA for its attempt to evade the law and will require the agency to pay our legal fees for costs incurred in bringing the misconduct to light. The judge also asked the CIA to publish its forthcoming document-destruction policies, which are being considered in response to our litigation to prevent this type of destruction from occurring again. Finally, the judge commented that the ACLU had played an “extraordinary” role in revealing to the public information about the abuse of detainees in U.S. custody. However, in his ruling from the bench, the judge failed to hold the CIA in contempt of court, leaving unaddressed our larger concerns about accountability.

Would it be considered naive to suggest a victory of sorts for the judge to “ask” the Central Intelligence Agency to publish its document-destruction policies, given that regardless of what policies it makes, it remains above reproach for doing whatever it chooses to do?  Apparently, some people have far more faith in the institutions of this fine nation than others.

So the CIA tortured detainees held abroad.  The CIA destroyed videos of the torture after a United States District Judge ordered them to turn them over.  The CIA denied the former and concealed the latter.  And the remedy is that they should publish their policy about destroying documents, even if there is no penalty for ignoring it and only if they want to.

And they have to pay the ACLU’s legal fees out of their taxpayer funded  budget.  Harsh, right?

The action brought by the ACLU is one of the rare opportunities presented to put an agency of the government under scrutiny that otherwise defies scrutiny of any sort.  The argument on the one side is that the CIA cannot, and should not, be subject to public scrutiny if it’s going to do the vital job we need of it.  It’s all about spying, and spying is one of those things that is best left undercover.

But then, the romance and intrigue of James Bond movies doesn’t fit well the the routine torture of guys with arabic names in foreign prisons.  The willingness to allow the CIA do so as it pleases, as it must according to those who have faith in its ability to protect us from foreign enemies, is dependant on our belief that it comports with our expectations that it can restrain itself from acting in ways that would outrage Americans.

Some supporters might be willing to accept torture as a necessity these days.  Some would explain that those of us who are less enthusiastic about torture don’t get it, that it’s a hard, harsh world out there, populated by crazies who want to end our lives.  The CIA only does what it has to do to keep us safe, and it will continue to do so even if whiners and hang-wringers think they shouldn’t.

Regardless of where you fit along the spectrum of supporters and detractors, Judge Hellerstein’s allowance of an agency of government to not merely disregard his order, but to act in direct defiance of it, presents a deeper dilemma.  Perhaps the people of the United States, and even the courts, are constrained to give our spooks greater latitude in the performance of their duties than we would give anyone else.  Anyone.  Maybe this is a real give-back for the nasty, ugly, harsh but necessary job they do.

But once they are allowed to directly, overtly, flagrantly defy the order of the court, then they are without constraint of any sort.  No one can stop them.  No one can control them.  No one can say, “enough.”

Leon Panetta may be a wonderful human being, deeply concerned for the welfare of the citizens of the United States of America.  But the memo just came across his desk that as Director of the CIA, he answers to no one.  In a democracy, no government official should ever be in a position where he answers to no one.

Eventually, another opportunity will come along to subject the CIA to the scrutiny of our legal system.  Whoever happens to be the judge to whom the case gets wheeled, let this be considered in deciding whether it’s acceptable to have an agency of our government tell the court that its impotent.  No matter how much the judge loves the CIA and appreciates what it has accomplished for the nation, this cannot be allowed or tolerated. 

But it will be awfully hard to tell the CIA that the next time, it has to comply because of this monumentally weak decision.  And when the CIA tells the court to go fly a kite next time, what exactly is the court going to do about it?

“We your committee on Legal Education beg leave to submit the following report:

We believe that no part of our machinery for administering justice in Texas is more urgently in need of immediate overhauling than our system of admitting new members to the bar. Under the existing laws and the rulings of our Supreme Court, the state is being flooded with young lawyers from every state in the union, many of them with little preparation for the duties that devolve upon them as the guardians of the life, the liberty, and the property of the citizen…

Before going into the details of the situation that confronts us, your committee believes it wise to lay down a few general principles and to make some observations of a general character …

There are too many lawyers in this country. That this is true is evident to anyone at all familiar with the facts. In proportion to population, there are more than twice as many lawyers in the United States as in Great Britain, and nearly five times as many as in either France, Germany or Holland. If all our lawyers were busy and rendering a useful service, there would be little reason to complain, but many of them are not busy. On the contrary, many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.

“Such are the standards, or the lack of standards, for admission to the bar of Texas. Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are coming. ”

Not me.  Nuh uh. Bar Section, Resolution Adopted By Dallas Bar Association, 10 TEX. L. REV. 326 (1932).

  “At its annual meeting in 1933 the Association of American Law Schools considered at length the economic condition of the Bar . . .  Among lawyers there was some difference of opinion about the present situation of the Bar. One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time—there was little work for the young lawyer—there were too many lawyers—a man couldn’t get started unless his forebears had been lawyers—banks and trust companies were taking away the business—and even collection agencies obtained powers of attorney to represent clients in the small claims court.  . . .   Many remedies were suggested by the lawyers interviewed. Real estate men and banks should not do so much legal work. Possibly the lawyer should be paid a certain amount by the state and do minimum work for people at large. Average earnings should be published, so the public could see they are not large. The law should be changed so that lawyers must certify that income figures are taken from records. A law might be passed that no legal instrument is legal unless a private lawyer attaches his signature. There is too much talk about crooked lawyers. It is all right to go after the crooks, but to talk and do nothing gives the public the impression that all lawyers are crooks. The Bar should keep its skirts  clean, but does not. It should disbar those that need it, instead of letting them degrade the entire Bar. And finally a feeling that the public regarded lawyers as unreliable, and lumped the good with the bad, led many to be in favor of advertising, traditionally so at variance with the profession’s ethics.

The lawyers’ earnings are low, and there is a great deal of legal work undone which might become what the economists call ‘effective demand’ under other conditions. “

Not this either. Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 YALE L.J. 1272 (1938).

“Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over–production of stuffed shirts in the legal profession  …

[T]he acceptance of the Langdell-Harvard method meant that the university law school teachers, with few exceptions, were those who had never practiced or practiced for only a brief interval. It is probably true that a majority of the teachers in some of our university law schools have never met or advised a client, consulted with witnesses, negotiated a settlement, drafted a complicated contract, lease or mortgage, tried a case or assisted in the trial of a case or even written a brief or argued a case in an upper court.”

Nor this. Jerome Frank, Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 909 (1932).

“The United States is the only country of the Western world where a man can be admitted to the bar without having had any contact with, or any real knowledge of, the active profession.”

Not even this. Elliott E. Cheatham,  Legal Education – Some Predictions, 26 Tex. L. Rev. 174, 180. (1947).

It’s been going on for a long time, and as the foregoing clearly shows, the arguments haven’t change much.  On the one hand, this shows that the nature of the complaints flows downhill, with each generation claiming the next to be lame, lazy and unprepared, and the profession on the precipice of collapse.

On the other hand, not even the most talented oracle would have predicted that lawyers with a few months experience, disbarred lawyers or pathological self-promoters would have created a cottage industry in teaching hungry lawyers the art of “rainmaking,” branding or internet marketing.

If they looked at the practice of law today, would they recognize it?  If lawyers from the 30s thought the money was inadequate, how would they feel about the earnings potential now?  If the lawyers from before the Second World War were asked whether leaving law school a couple hundred thousand dollars in debt made sense, would they have nonetheless pursued their legal careers?

I’ve piggy-backed on the research of Dave Hoffman at Concurring Opinions, whose point is that the current attacks on the legal academy and the profession are nothing new, and who has backed it up with some strong language.  One additional quote, from Professor Myres McDougal, who taught me jurisprudence and influenced me more than any other law professor:

“Proposals for escape from all of this confusion and inadequacy have, of course, been legion . . . . Lecture versus case; large class versus small class; seminars versus courses; group work versus individual work; specialization versus “well-rounded” training; vocational training versus cultural training; Bills and Notes (substitute any course) in the second year versus Bills and Notes in the third year; prescribed pre-legal training versus eclecticism; three-year curriculum versus four-year curriculum—these and many similar questions have been raised like quills on a startled porcupine.”

{Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 206 (1943).]  At no time during McDougal’s class was there mention of using a  catchy jingle to get business, to employ search engine optimization to get a website on the first page of Google or purchase promotional content extolling your virtues as the greatest twit ever from ghostflawgers. 

Things have changed, perhaps more slowly than anticipated, but where we find ourselves today is pretty far down the slippery slope of the lame, the halt and the blind.  It may be taking longer than anticipated, and the road may have some unforeseen twists, but it’s not at all clear yet that we won’t end up in Texas.