Spend enough time in the trenches and you get to learn how the secret language of law develops.  Older lawyers remember when “use and carry” of a firearm meant that a defendant physically possessed a gun and displayed it during the commission of a drug deal.  Then it meant that there was a gun in the next room that no one knew about.  The words “use and carry” took on a life of their own.

The same could be said of “intended loss” as applied to the federal sentencing guidelines, which grew wings and took flight in the fertile minds of prosecutors.  It was like “chaos theory” as applied to loss, flowing to places that no one ever considered.  The only limitation was the prosecutor’s imagination and the judge’s willingness to get the sentence over.

The 10th Circuit, however, said the unthinkable in United States v. Manatau, a small-time identity theft case where the defendant made a habit of stealing “convenience checks,” those faux checks credit card companies send people who don’t want them, never asked for them and are little more than an invitation for theft.  Manatau, unfortunately, wasn’t very good at it. Not only did he get caught five times before the feds indicted him, but he significantly undervalued the credit limit when he filled in the blanks, and stole far less than he could have.  What a maroon.

That, of course, didn’t stop the government from trying to milk his sentence for all it was worth.  While the actual loss Manatau caused was embarrassingly small, that’s not the end of the discussion.

Seeking to calculate the applicable advisory guidelines sentence, the district court focused on U.S.S.G. § 2B1.1(b)(1). Under that provision, a court must compare the economic loss the defendant “actual[ly]” inflicted on his victims with the loss he “intended to result from the offense” even if it was never realized. See U.S.S.G. § 2B1.1 cmt. n.3(A)(i)-(ii). A court must identify the greater figure, the actual or intended loss, and then proceed to one of the guidelines’ inevitable charts.

What would a sentence be if it didn’t beg for the greater amount? In this case, the difference added between six to 12 months to the sentence, as the actual loss was a piddling $1,840, but the government contended that the “intended” loss was $60,000.

To reach this figure, the government argued (among other things) that the district court should simply tote up the credit limits of the stolen convenience checks. Whether or not Mr. Manatau ever intended to reach those credit limits, the government said, is neither here nor there. It is enough, the government represented, that a loss up to the credit limits was “both possible and potentially contemplated by the defendant’s scheme.”

This might actually be considered a fairly conservative estimate by the government, since they could have just as easily argued that Manatau planned to steal 100 (or maybe 1000) additional convenience checks, and upped the number to $1,000,000.  Once reality no longer serves as a constraint, anything is possible.  Apparently, this very thought occurred to the court as well.

We hold that “intended loss” means a loss the defendant purposely sought to inflict. “Intended loss” does not mean a loss that the defendant merely knew would result from his scheme or a loss he might have possibly and potentially contemplated.

Whether the defendant “knew” is itself a very iffy proposition, as he was apparently a dope at best, and an incredibly small-timer at worst.  But still, the court defines intended as that which he purposely sought to inflict.  As in, “intent” means, wait for it, “intent.”

The Circuit apparently feels just awful about its having defined a word to mean exactly what it says, so it proceeds to justify itself.

This definition is, of course, seriously circular, using the term “intended” to define itself not just once but twice. At the same time, the sentencing commission’s definition offers us no reason to think it wished us to apply anything other than the word’s ordinary meaning. If anything, the commission’s (repeated) use of the word “intended” to define itself suggests that the commission thought the word’s meaning was pretty plain. And in contemporary usage, it is. Something is intended if it is done on purpose — not merely known, foreseen, or just possible or potentially contemplated.

You can almost feel their pain in interpreting a word to mean what it says, a rending of the very fabric of federal criminal statutory construction.  And yet, the court held firm to its conclusion, that intent means intent.

But the guilt must have been too much for the court to bear, as it went on to assure that its firm, clear holding conformed to the requirement that no circuit court of appeals fail to offer love to the government.

[T]he district court should examine what losses Mr. Manatau intended.   Of course, in answering this question the court is free, as we have explained, to make reasonable inferences about the defendant’s mental state from the available facts. In the sentencing context, too, the government need only prove Mr. Manatau’s intent by a preponderance of the evidence, and the court need only make a “reasonable estimate” of the intended loss.

There’s the Court of Appeals we’ve all come to know and love, who giveth with one hand and taketh away with the other.  While the government may not be allowed to create wild and wonderful scenarios of intended loss that encompasses slightly less than the gross domestic product of China, it still need only offer the argument that most closely matches a judge’s fiscal sensibilities to meet its burden.

Though the 10th Circuit may have upset the balance of nature by employing the circular reasoning of words having their actual meaning, it returned the law to equilibrium by reminding us that it’s all just a figment of a reasonable judge’s imagination.  Carry on.

The lawprofs at  Concurring Opinion have been holding an online symposium on Yale lawprof  Jack Balkin’s book, Constitutional Redemption, Political Faith in an Unjust World, described as a liberal’s constitutional credo in contrast to the conservative originalist view. 

Not having read the book, and not needing to for the purpose of what follows, I borrow  Danielle Citron’s description:

Constitutional Redemption envisions the Constitution as a wiki-like project of tinkering and revision in which each “generation has an obligation to flesh out the Constitution’s abstract commitments and build out institutions.”  How do the American people fulfill that obligation in practice?  As Doug [NeJaime] underscored, Jack isn’t necessarily suggesting that lay people read the Constitution’s text and try to convince others to see it their way.  They could, and the written nature of the Constitution gives them the opportunity.  More often though, elites tend to mediate on their behalf, producing narratives that shape how the public understands the constitution and how the courts interpret it.

The point, I believe, is that Balkin’s view of the Constitution’s vitality rests in its abstract nature, subject to evolution in the vision of each generation’s understanding of its application to their problems and world.  Clearly, this isn’t an homage to Justice Scalia.

But then, this post isn’t really about Balkin’s alternative constitutional vision, but rather Dan Solove’s contribution to the symposium.

At its core, Balkin’s constitutional jurisprudence is one founded upon faith — a faith in redemption.  He concludes his book with the following paragraph (SPOILER ALERT):

Faith in the Constitution is really faith in a succession of human beings working through a framework for politics, adding to it as they go, remembering (and misremembering) what previous generations did, and attempting to persuade each other about how to make it work.  To believe in this project is to believe in progress despite human imperfection, and in what Abraham Lincoln called the better angels of our nature.  If we want to believe in the Constitution, we must believe that, flawed as we are, we can create a better world than the one we inherited.  If we want to have faith in the Constitution, we must have faith in ourselves.

And to that I say “amen.”  Although this sounds right descriptively, and I believe it is correct, part of me has lost faith. 

Many of the lawprofs use the word “inspirational” to describe Balkin’s vision, and indeed, there’s a definite religious fervor to their words, the belief that humans, despite our faults, can make this work, and rework.  While Dan clearly knows the catechism, he breaks from the flock.

Why do I feel this way?  Congress is deeply divided and can barely act unless under dire circumstances.  Money and special interests are infecting politics and exercising undue influence.  The size of our country is so large now that I wonder whether our system scales up particularly well.  Districts are Gerrymandered, increasing polarization and radicalization.  Supreme Court confirmation hearings are a joke, where prospective justices must give a nod to the tired old shibboleths of how they are umpires and neutral.  Our legal system is ridiculously inefficient, where the costs of resolving disputes often outstrip the money at stake.  Our criminal justice system resolves 95% of cases by plea bargains, with defendants readily signing away their rights.  I could go on and on.

The rule of law is an essential myth that holds together our judicial system.  But what if we no longer believe in the myth? 

This is a monumentally bold statement from a scholar.  Adherence to the faith that the “elites” in charge of the show are inherently intelligent, fair and of good faith is at the foundation of any constitutional philosophy, Balkin’s included.  We’re a nation run on wondrous platitudes, drilled into the minds of school children and believed by those who want to sleep at night.  I could add to this litany, as I’m sure every reader could as well, but Dan makes his point, that our institutions have deteriorated and no longer fulfill the nation’s aspirations and expectations, whatever they may be.

If people start to believe that judges are not engaged in legitimate exercises of Constitutional interpretation, then the myth of the rule of law begins to erode.  When that myth is gone, when “God is dead” so to speak, can the courts regain legitimacy?   All the rhetoric of neutrality, of calling balls and strikes — even more realistic claims — might not be able to resuscitate the myth of the rule of law.

Many in the public have reached this conclusion.  Many more continue to believe, their faith unshakable until the day they have the misfortune of becoming participants rather than onlookers.  Myths erode when reality sets in.  Perhaps the greatest believers in the myth are the elites themselves, who need to believe that they serve a higher calling because they refuse to see what they do through cynical eyes.  I’ve never met a judge who can’t excuse and explain his decisions to his own satisfaction, comforted by his self-assessment that he’s contributed to a better system no matter what.

The Constitution is incredibly hard to amend, and we’ve twisted it into interpretive pretzels in order to build our current system of government.  But our institutions are in need of a wake-up call.  They need to be refreshed, rethought.  Will that happen?  I don’t know.  I want to have faith that we’ll muddle through and revitalize our system of government.   But I’m no longer so hopeful we will.  The problem is not just caused by We the People — it is also based on how our structure of government has evolved and the way that structure has shaped politics.  We might be able to break free from that structure to reform the system, but I fear we might view the Constitution as too sacred for the more dramatic reforms we need.

Dan challenges the tacit belief that some magic hand will reach down from the sky and fix all the incredibly poor choices and problems that ensued and save us from ourselves.  We were handed a document that provided a roadmap of extraordinarily vitality and we ripped it, little by little, to shreds in order to serve whatever transitory end seemed like a good or necessary idea at the time.  But now, our paper is in tatters and we can’t get the pieces to fit anymore.  And still we pretend that we can use it to get where we’re supposed to be.

Dan has lost faith in the efficacy of the Constitution because of both its structural evolution and the nice men and women entrusted with its execution having usurped its ownership for their own purposes.  He questions whether it really scales as well as we think, as our nation and its political institutions have grown.  He doubts the people entrusted with its faithful execution are worthy of our faith.

From my lawyerly perspective, the myth of the law, enshrined in the platitudes carved into the courthouse lintels, are empty words.  They consist of a rule riddled with exceptions.  They consist of procedures that add to our misery, even when we approve of the end result.  There seems to be a sound rationale for each baby step, but we always seem worse off for having made the trip.

The efficacy of the Constitution depends on our faith that it ultimately prevails over the mess we’ve made of it, regardless of how we play the interpretation game.  One of the most dangerous platitudes, that it may be flawed but is nonetheless the best system man has created, keeps us muddling through in the hope that its true. 

What if we’ve made such a mess of it that it’s no longer true, that we’ve so screwed it up that there’s no hope for the Constitution to be anything more than an old piece of paper under glass that reflects what a great nation we might have been if only we hadn’t blown it?  What if our slavish adherence to the paper, which we’ve dishonored over the centuries, now prevents the best of us from making the changes needed to save its soul and our nation from our carefully crafted morass?

Dan Solove has lost faith in our ability to make the myth real, and challenges whether this sacred document has become a yoke that constrains us from undoing the damage.  He has strayed from the flock because he no longer believes in fairy tales. 

Stories of cops arresting folks for taping them in the performance of their duties have become legend, well documented and frequent subjects of exposure and ridicule.  Even  other cops have had enough of it.  But my view of this silliness has always been from a safe distance, the closest being upstate Rochester, viewed from the safety of my sophisticated Long Island window as New York’s version of hicks.

My world has been shattered by the actions in my own backyard.  Via Newsday :

Suffolk police on Friday arrested a news cameraman in Bohemia who was trying to videotape the aftermath of a police chase, officials said Saturday.
The cameraman, Phil Datz, was charged with misdemeanor obstruction of governmental administration, police said. The department said it is investigating the case.
Datz said he was standing on a public street open to pedestrians and vehicles…

Seriously?  Has this Suffolk County sergeant not been paying attention at all?

There’s nothing to investigate.  There’s nothing to explain.  This can’t happen.  Phil Datz can videotape the police in the performance of their duty, and no cop, not even with 30 years experience, can decide otherwise.  I mean, not lawfully, anyway.

True, you didn’t beat Datz or tase him.  You didn’t pull your weapon and put his life at risk.  But you arrested him because he didn’t obey you?  Did you think nobody would notice?  Did you think that Suffolk County was sufficiently distant from the metropolis that no one would notice your abuse of power?

I can’t help but wonder what good things this 30 year vet might have done during his career as a police officer.  I can’t help but wonder how many people he arrested for contempt of cop.  But what I can’t fathom most of all is that this happened in my own backyard.

I’ve known many local police officers, whether working the job in Suffolk or Nassau County.  I’ve known many who are city cops, all of whom live on Long Island because that’s the natural progression of New York City police officers.  They know that being a cop here is different than in some backwater.  They know they are being watched, and that we’re not inclined to let something like this pass unnoticed.

And I won’t let this pass unnoticed.  Not in my backyard.

Update:  Suffolk County settled the case for $200,000.

There is strong evidence and weak evidence.  And then there’s the jailhouse snitch, without question the worst evidence possible.  Cops and prosecutors know this, but love it anyway. Having concluded someone is guilty, but being unable to find evidence to support their belief, it’s like manna from heaven to the starving.

That it’s bad evidence, the sort most likely to falsely convict an innocent man, can’t shake their faith.  Adding to the unsavory mix is that the jailhouse snitch gives up his fellow prisoner, already inside because he’s a bad man.  Since the target already lives in a cell, and must by definition be a criminal, there’s neither sympathy nor concern about false accusations.  Bad people do bad things, and always more bad things than they will ever pay for.

Yesterday, Gov. Jerry Brown, who always seems to be governor in between the odd other governors of California,  signed a bill that goes a long way to prevent the jailhouse snitch from putting innocent people in prison.  The  LA Times describes it:

The new law requires prosecutors to present forensic evidence or uncompromised testimony that corroborates information provided by in-custody witnesses who claim to have been told or overheard incriminating statements by the defendant.

Dozens of Los Angeles County criminal convictions based on the testimony of jailhouse snitches have been overturned over the last quarter-century because appeals courts found the key witnesses to be  unreliable or self-serving.

The new California law, similar to Texas’ though with more specific corroboration requirements, makes a specific point about a specific problem.  The word of the jailhouse snitch, a person who has every reason to fabricate testimony that will aid him in obtaining release or some other material benefit, and no reason to concern himself with truthfulness or the harm he causes others, presents a clearcut instance of unreliable evidence.  The law is essentially the same as one passed in California in 2008, but vetoed by the interim governator because it made convicting more difficult.   Some stats make the point clearer:

This survey [PDF] from the Center for Wrongful Convictions at Northwestern Law School found that fully 48% of wrongful convictions were brought about by jailhouse testimony. The Innocence Project states that 15% of DNA exonerations were in cases of convictions that featured snitch testimony. Here’s a   Pew Trust report [PDF] on the problems with this kind of testimony.

Yet this just scratches the surface of the problem of low quality testimony.  As everyone knows, the threshold for the admissability of evidence is materiality and relevance.  The next step, most often observed in the breach, is that it be more probative than prejudicial.  It all sounds fine, but it fails to address the quality of the evidence, its reliability.  This is where things get sticky.

The best quality of evidence is an image of the perpetrator of a crime in its commission, with a posse of priests observing it coming in a close second, though the latter happens rarely except with child molestation cases.  The quality of evidence after that descends rapidly.

A peculiar phenomenon happens as the quality of evidence deteriorates.  Evidence that a judge would reject, laugh at, ridicule, when good quality evidence exists, suddenly becomes acceptable, even reliable, when no better quality evidence is available.  Come on, judge. You know exactly what I’m talking about.

It’s often slid in through the side door, rationalized as background evidence, or through the misapplication of Molineaux.  It’s explained as showing “motive” even though motive isn’t an element of the offense, and it can only bear up to scrutiny in terms of relevance by the most gymnastic of rationales.  The same evidence that is called “inconsequential, prone to abuse and of little value in showing anything more than mere coincidence” is suddenly “critical in proving that the defendant, three years before the disappearance of his wife, engaged in an angry exchange demonstrating his proclivity toward violence and animosity toward his wife.”  Same exact evidence.  Completely opposite characterization.

As California takes a giant step toward eliminating the testimony of the jailhouse snitch in an effort to prevent the uncorroborated use of evidence so unreliable, so prone to abuse, let’s not forget that it’s not the only bit of “proof” that tends to degrade the virtue of the system.  The point isn’t that people who are criminals are incapable of telling the truth, but that people who have an incentive to lie and no incentive to be truthful provide evidence that is inherently unreliable.  If it’s unreliable, it doesn’t become more reliable because there isn’t any high quality evidence available. 

From the perspective of the judge, the putative gatekeeper of unreliable evidence, the reason why this phenomenon is permitted is easy.  If the evidence is of low quality, then the defense lawyer will expose it and the jury will reject it, acquitting the defendant and being responsible for the loss to the prosecution.  Far better that the jury take the weight than the judge by refusing to permit the prosecution to make its case and putting the likely criminal back out on the street to pillage.

Except the experience is that both the defense and prosecution know the failing of low quality evidence, and each has well-rehearsed arguments to present to the jury.  The jury, on the other hand, hasn’t got a clue about low quality evidence, as most people use the ugliest of evidence to reach the most important decisions in their lives because it’s the only evidence they’ve got.  They’re instructed by the court to assess the weight of the evidence as they would in making decisions for themselves, while the reality is that people make decisions all the time based on wild speculation. If there’s any evidence at all, it’s a windfall.

That’s why so many innocent people are convicted on the uncorroborated testimony of the worst quality evidence around, the word of the jailhouse snitch.  That’s why California is right to pass a law that prohibits the conviction of a person on such uncorroborated testimony.  That’s why its a step in the right direction.  Now we need to keep walking down that path to end the phenomenon of allowing low quality, unreliable evidence just because there’s no decent evidence available.  It’s a good start. Keep going.

H/T Billy

Some of the crazier, angrier people on the internet believe that there is a vast conspiracy afoot among lawyers and judges to cover up our failings, to conceal our wrongdoing.  Sadly, these crazy, angry people are lawyers.

In a post plumbing the depths of incompetence by lawyers that still satisfy Strickland’s test for ineffective assistance of counsel (essentially limited to maintaining a post and occasional respiration), Gideon at  A Public Defender included video number 4 of a drunk lawyer in Las Vegas.



While the video is quite interesting, the relevant portion here is the first ten seconds, where the judge says, “I have no desire to ruin your reputation.”  The lawyer is defending a human being facing life in prison, not that a lesser punishment should make a difference, and yet the concern is for the reputation of the lawyer.  If he appeared in court for trial drunk, or stoned, or in any way incapable of performing his duty to his client, his reputation deserves to reflect it. 

The public has awfully good reason to hold lawyers in contempt, even though it’s often for the wrong reasons.  Regardless of whether people think we’re overpaid, underworked or merely incapable of accomplishing magic upon demand, within the legal community, we understand what our responsibility is and when we fail to live up to it.  If we sold women’s dresses, our failings would be cured by exchanges and refunds.  But we’ve chosen a life that requires us to put the welfare of another ahead of our own, and we damn well deserve to have our reputations at stake every time we fail to fulfill our duty.

Why is this controversial?  Because our very own brothers and sisters, at the bar or on the bench, assume a position that’s indistinguishable from one of the things we hate the most, the Blue Wall of Silence.  We have the pinstripe wall of silence, where we ignore or conceal the failings of other lawyers.

Some rationalize this by claiming that it diminishes the legal profession to reveal, or worse still, affirmatively disclose, other lawyers doing wrong.  We all look better if we sweep the ugly lawyers under the carpet, they say.  It’s utter nonsense.  We can certainly do our utmost to help those who fail to show either the competence or integrity to be a lawyer, but we lie to ourselves when we turn a blind eye and believe that it’s for the common good.  The next client to lose his freedom, his fortune, even his life, to the lawyer rests on our shoulders because we were too cowardly to say or do something.

Over the years that I’ve written Simple Justice, I’ve named names and called out lawyers, generating no shortage of animosity from those who didn’t want anyone to know.  My flank is more exposed than most, and there have plenty of lawyers who have disagreed with me, whether in specific instances or in general, for having broken the silent pledge of the brotherhood and revealed the secret underbelly of lawyering.  For the most part, I leave it to others to decide whether my calls are right or wrong.

Yesterday, I was again called a bully and threatened with a lawsuit for defamation by a lawyer who is quickly becoming a caricature of Rakofsky-esque stature, Arthur Alan Wolk.  It seems pretty likely that he’ll follow through on his threat, as he’s demonstrated his litigiousness if not his sanity in his latest, most bizarre complaint against the  vast right-wing conspiracy he believes is out to destroy him.

Even frivolous suits are a pain in the butt, but that’s a risk one assumes when one undertakes to write about the law and do so without fear or favor.  The choice becomes clear, to write the things that need to be written or hide from the challenge. 

Over at Solicitor Brian Inkster’s The Time Blawg, he’s run a trio of posts testing the nature of blawging, rationalizing its virtue as a business development method without being overtly scumming and self-promoting in the process.  The second post, I thought the Blawgosphere was a friendly place , reflects his belief that we can write about the law in a way that is interesting and informative, but without speaking ill of anyone or creating controversy that might impair our brother lawyers.  Whether the purpose of getting clients is primary or secondary, Brian would have us keep our mitts off others so that we can all write, be happy, be fruitful.

Along with a few other lawyers, like  Brian Tannebaum and Mark Bennett, who have been doing this for as long (if not longer) than I have, we seem like terribly mean, maybe even cruel, people.  We keep writing things that impair the ability of others to earn money.  When a lawyer shows up drunk for trial, our concern isn’t to protect his reputation.  When a lawyer files an idiotic complaint, our concern isn’t to fear being sued.  When a lawyer lies through his teeth, our concern isn’t to hold hands with him in the happysphere.  

Lawyers have no qualms about calling out cops, prosecutors and judges for doing what we perceive to be wrong, but they are the agreed-upon targets and there’s no risk in attacking the mutually agreed-upon perpetrators of evil.  In fact, it’s damn good business, since potential clients similarly despise those whom they perceive to be the sources of their misery.  It’s not bold. It’s not brave.  It may well be called for, but it’s not enough.

The second we shy away from saying what we believe must be said, we become the enablers and apologists for all that has gone terribly wrong with the legal profession and system.  One recurring question about our system, that most of us feel has failed miserably to live up to its platitudes, is how do we fix it.  While I have no magic bullet answer, there is one thing we can do in the meantime.  Expose what’s wrong with the system, including the failings of our own, and face the consequences of being the most unpleasant person in the blawgosphere. 

Or say nothing of consequence and never fear being called a bully by a litigious fool.  This isn’t the way to win popularity contests or become wealthy and successful on the internet.  You will have to go elsewhere to learn those tricks.  But I’m a lawyer and I cannot ignore or conceal the wrongs done by other lawyers.  You will have to decide for yourself who you are.

It’s anything but clear what would happen if executions were shown on prime time.  Would the public be horrified to see in living color what becomes of a human being put to death?  Would they believe it to be kind, like a dog put to sleep.  Would they be disappointed that there was no blood?  Would it be the next top rated reality show?

David Lat and Zachary Shemtob were given space in the  New York Times to opine on the subject of making executions public.  Yes, the same David Lat whose kept a close eye on what was happening underneath judges robes. 

It’s a horrible thing that Andrew DeYoung had to go through,” [Brian] Kammer said, “and it’s not for the public to see that.”

We respectfully disagree. Executions in the United States ought to be made public.

Not because they believe it will show the horrors of execution.  Nor because they believe it’s likely to show how peaceful they look as they fade into oblivion.  They just think it ought to be shown.

Cameras record legislative sessions and presidential debates, and courtrooms are allowing greater television access. When he was an Illinois state senator, President Obama successfully pressed for the videotaping of homicide interrogations and confessions. The most serious penalty of all surely demands equal if not greater scrutiny.

Why they would call the public broadcast scrutiny is unclear, given that it suggests a searching examination rather than a popcorn and beer opportunity.  There is no comparison with legislative sessions or presidential debates, both of which involve some element of scrutiny, to the extent the viewing public is capable of it.  Nor does comparison bare out for interrogations and confessions, which serve to provide a record so that the defense isn’t left to argue with a cop’s recollection at trial.

Ultimately the main opposition to our idea seems to flow from an unthinking disgust — a sense that public executions are archaic, noxious, even barbarous. Albert Camus related in his essay “Reflections on the Guillotine” that viewing executions turned him against capital punishment. The legal scholar John D. Bessler suggests that public executions might have the same effect on the public today; Sister Helen Prejean, the death penalty abolitionist, has urged just such a strategy.

That is not our view. We leave open the possibility that making executions public could strengthen support for them; undecided viewers might find them less disturbing than anticipated.

How the public will receive executions in their living room can be debated all day long, but no answer will be forthcoming and there may well be strong reactions going both ways.  While the authors’ agnosticism toward the punishment itself is disappointing, if not incredible, their argument that it could just as easily bolster support as undermine it makes great sense.  

As an opponent of the death penalty, my greatest fear is that the public will adore watching it on television, turning it into the greatest reality show ever with commercials rivaling the Super Bowl.  I can see networks paying off the families of accused to turn away from appeals to keep the flow of warm bodies coming.  I can see the public screaming for increasingly graphic methods of execution, because there just isn’t enough blood and guts in a three drug cocktail to juice up a kid who’s watched all the Jackass movies.

But this is real.

A democracy demands a citizenry as informed as possible about the costs and benefits of society’s ultimate punishment.

While true, a bit too simplistic.  Watching a man die doesn’t inform the public about the costs and benefits of the death penalty.   Whether it informs anyone of anything, if it’s just showing the public the insertion of an intravenous tube and a guy fading to black, is dubious.  The problem is this doesn’t go anywhere near far enough to make it meaningful or informative.   It would be one thing if we still used Old Smokey Sparky, but the current regimen is hardly designed for spectacular visuals.  Television is a visual medium, and watching a three drug cocktail administered lacks a certain sizzle.

How about showing the life of the victim of the underlying crime?  How about showing the public the life of the man about to be executed?  Their families, their days, their upbringing and the problems.  The hopes that died with both. 

How about showing the investigation and trial, the means by which they got to the point where a needle was put into a man’s arm?  How about the sentencing phase, where the mitigating evidence is presented to remind the jury that this is a human being before them?  If this is all about transparency to enable the public in a democracy to be informed about how the sausage of execution is made, then let’s see the process from start to finish.

Besides, the network needs to fill at least an hour to milk the top commercial money from its advertisers, and the execution itself will take about as much time as announcing who will not be the next American Idol.

According to the note on the wall, this happened a mere 7 hours ago and already it’s up. 

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  City of Utica, NY Police Department

  
  

  ‎***News Release***
  
  On Sunday morning, July 31, 2011, at around 5:12 p.m., Utica police responded to 310 Columbia Street, in regards to suspicious activity. When police arrived they met with the handy man for the apartment building, who told them that he heard banging on the front door, and went down stairs to see what it was. The handy man said he saw a black male, who had cracked the top glass portion of the door and removed the bottom paneling portion of the door saw well.
  
  The handy man pointed out to police, the person who damaged the door and was now walking in the middle of the roadway on Columbia Street.
  
  After a brief foot chase Officer Eric Weir would arrest Quandell O’Neal (age 21, of Summit Place, Utica) and he would be charged with:
  *Criminal mischief in the fourth degree,
  *Having a controlled substance not inits original container, and
  *Pedestrian walking in the roadway, not using sidewalk.
  
  Note: All crimes described in this press release are allegations, and suspects named are innocent until proven guilty in a court of law.

  
  

  
  

  
  

  
  

 Not exactly the crime of the century, criminal mischief in the fourth degree, but enough to put 21-year-old Quandell O’Neal on the Utica Police Department’s wall of shame.  It’s provides some details of his wrong together with his photograph.  At the bottom is the obligatory note that there are merely “allegations, and suspects named are innocent until proven guilty in a court of law,” but that doesn’t give the Utica cops pause to make sure everybody knows about it.

Social media is the one where we make friends.  Is O’Neill feeling loved by having his picture on the wall?  Not likely. Anti-social media is the one where we use it to gain advantage by smearing someone with unproven, untested allegations and making sure everybody knows who the bad guys are.

The Facebook page doesn’t limit itself to the trivial, but the serious as well.  No need to persuade some local reporter to write the story that makes the bad guy bad and the good guy good when you can broadcast it on your own.  Since we’re all self-publishers these days, why not the cops?  Why not use the means available to take every arrest, from the most serious to the most trivial, and lay out your view on the internet before anyone else can contradict it.

The Utica Police Department may see its wall as a way to let the public know that it’s doing its job, protecting them from criminals.  But these are people merely arrested, as noted, innocent people.  By jumping ahead, the cops get to characterize every person they nab as the bad guy, without the bad guy having his say.  They get to frame public perception that every person arrested committed the crime, despite the caveat done to appease the lawyers.  They put the face of a person on the internet and explain why he’s a criminal, without proof or challenge.

Will jurors at trial wonder what evidence the nasty defense lawyers are forcing the court to conceal from them?  No need to wonder any longer, as the information is readily available on the wall.  What about the statements, maybe even a sweet confession?  There it is, spelled out word for word.  You can suppress all you want, judge, but you can’t keep the jurors in the dark from the truth anymore.  The internet will give up all the secrets.

And what of young Quandell, who might someday give up his life of criminal mischief and seek gainful employment as a United States Senator.  Google his name and the first thing that pops up is the Utica PD Facebook page about his arrest.  He may be acquitted later, or perhaps have the charges dismissed, but that page will haunt him forever.  His rap sheet can be cleansed and his prints destroyed, but the law doesn’t make the cops take his mug shot off the wall.

Did you suspect social media would be limited to teenagers and desperate lawyers flawging their wares?  Not only has it proven to be a rich source of information for all sides in litigation, but it’s affirmative by the Utica police, much like Nassau County created its  Wall of Shame for unconvicted drunk drivers, to let the public know of all the bad guys in its midst, is a testament to its power and ability to circumvent all the ordinary means of the legal system.

Sure, television and newspapers report on crimes, putting the picture of the suspects on the air and telling the story as related by the cops.  Usually, it’s limited to more serious offenses, and subject to a certain degree of scrutiny.  Often, it provides an opportunity for the other side to add in its two cents, though not always.  Whether people alleged to be criminals ought to be held out to the public as bad guys while presumed innocent is an issue, but it’s an American tradition to report first and prove later.

When even the most trivial arrest becomes part of the perpetual public record, however, it’s time to question whether the potential for harm, the ability to undermine the legal system by unfiltered police claims and pre-empting public smearing, has taken the authority of the cops and the public’s desire to know too far.

But then, it’s social media, the newest, coolest, shiniest thing around, and it was bound to be used by the cops just as it’s used by teenyboppers and the slackoisie.  Just pray you don’t get nailed for criminal mischief in Utica, or the first thing on Google about you, even if you’re innocent, might nail you to the wall.  Forever.

H/T Oneida County PD Cory A. Zennamo

No lawyer is entitled to walk with as much of a swagger as Baker Hostetler’s Irving Picard, the man charged with suing the wealthy and poor alike to recapture the monies lost to Bernie Madoff’s Ponzi scheme.  He and his team of thousands of hourly charging lawyers seemed omnipotent, unstoppable, in their quest to find funds and claw them back, maybe even leaving loose change for those who suffered in the scheme.

But not even Irv, the most powerful lawyer on earth, is strong enough to beat the banks.  From the New York Times :

He has sued the feeder funds that funneled money into Madoff’s firm. He has sued people who were close to Madoff and likely knew he was a crook. And he has sued many innocent Madoff investors, who had the misfortune of taking more money out of their accounts than they put in. Although these latter lawsuits have been extremely controversial, “clawing back” money from net winners to create a pot of money for the net losers is something bankruptcy trustees do all the time after a Ponzi scheme is exposed. After all, the gains reaped by the net winners came from money the net losers put in. That’s how Ponzi schemes work.

What trustees don’t generally do, however, is sue big financial institutions like HSBC or JPMorgan Chase on the grounds that they either looked the other way or helped enable the Ponzi schemer. As we discovered during the Enron scandal, the courts frown on “aiding and abetting” suits, even though to a nonlawyer, they can seem more than justified.

Curiously, such conduct is more than sufficient to put a man in prison forever, whether for actively helping some schemer get away with it or consciously avoiding knowledge while the schemer does his dastardly deeds.  But those rules that apply to mere mortals do not affect institutions of finance.

[I]n throwing out Picard’s suit against HSBC — and strongly implying that every other bank the trustee has sued is also likely off the hook — Rakoff may have used sharp language, but he was really just interpreting the law as most judges would. You can’t read his opinion without being impressed with his legal logic — and the difficulty of mounting a successful appeal. You also can’t read it without shaking your head in dismay: Even as innocent Madoff victims are being sued to pay back other innocent Madoff victims, the enabling banks get to walk away. Sounds familiar, doesn’t it?

Don’t blame Southern District of New York Judge Jed Rakoff for doing his job, determining whether even a giant like Picard has the juice to square off with the titans of finance; did Picard have standing.

In this case, he said, he was being asked to determine whether Mr. Picard, as the trustee for the defunct Madoff firm, had standing to sue “third parties who allegedly violated a duty to Madoff Securities’ customers by failing to detect Madoff’s fraud.” He said his answer was no.

In a sharply worded dismissal of Mr. Picard’s “convoluted theories,” Judge Rakoff rejected all the various arguments the trustee had put forward.

It was not at issue that the banks, big, powerful banks, had awfully good reason to know they were complicit in Madoff’s scheme, from overlooking its nature to laundering its proceeds.  The question presented was whether the victims could take the banks to task for enabling Madoff all those years.  The legal answer came as no surprise.

Still, don’t feel badly for Irv and his band of merry men for having been dealt such a crushing blow by the banks, without whom Bernie Madoff could never have perpetuated his scheme and sucked in feeder funds and individuals who thought that he had to be legitimate or someone would certainly have known.  They can still round up all the Madoff investors who took their profits and render them destitute.  They can still undermine baseball teams and hedge fund operators.  It’s not that Irv doesn’t have plenty of juice to unravel the fabric of polite society.

It’s that nobody, not even Irving Picard, can hold a bank responsible for anything.

And you thought Chuck Schumer’s lying prostrate on the floor when it came to DataTreasury was unseemly?  Neither law nor politics can surmount the might and control of the banks, because that’s where the money is.  Willie Sutton knew it.  Now Irv Picard knows it. You might as well know it too.

While older lawyers continue to resist the inevitable, unconditional surrender to social media as our Overlord, Kevin O’Keefe at  Real Lawyers Have Blogs explains why we must capitulate, give ourselves over to the unstoppable tide.  At the moment, 54% of companies block access to social media, the lifeblood of our youth.  Why, oh why, he asks.

On the one side, there is the fear of corporations and law firms that opening their computers to social media will mean that their younger personnel, digital natives, will spend all day watching twitter and facebook, chuckling at cute kitten pictures and updating their status.  The HR types say this could impair productivity.  The clients might be concerned that young lawyers might not find enough time between twits to represent them before heading out for work/life balance at Happy Hour.

Kevin counters these specious concerns with hard, cold facts.  While he lists five reasons, two struck me as particularly critical.

More of your lawyers are relying on social networks to do their jobs. How often do you turn to friends and colleagues online for advice? How often do you read blogs to keep up with industry trends? Data suggests 25 percent of employees rely heavily on social networks in the workplace. It’s probably higher for your star lawyers and other professionals.

You’re staring down the clock, a minute to midnight, with a critical issue to be addressed that spells life or death for your client.  You draw a blank.  Nothing.  Come the morning, some partner who can’t write an email by himself is going to either slap you on the back for a brilliant job, or point you to the door for having blown the biggest case on the firm’s docket.  What to do?

An old codger might think, research!  Hit the casebooks, the statutes, maybe even law reviews if you’re desperate enough.  Think.  Think hard.  Aw, you foolish codger.  The young lawyer knows the solution that eludes you.  Ask all your friends on Twitter!!!  So what if you don’t actually know them, and can’t say for sure that they’re really lawyers, or have more than 12 minutes experience, or just spend all day blowing off steam on social media to be such a happy person, complimenting everyone else’s witty twit and deeply empathizing with those suffering pain and sorrow.

Crowd source. Bleg. Whatever.  The internet can’t be wrong.  And everyone you’ve ever met on the internet, your true friends, are invariably authentic and brilliant, just like you.

You’re going to lose lawyers and other professionals to competitors. Per a study by American Express, 39 percent of younger workers won’t even consider working for a company that blocks Facebook. Facebook has become the communication tool of choice for many young professionals. Why would they work for a law that’s going to block its use?

Charles Johnson looks very happy, and why shouldn’t he. He can spam twitter all day long with no effort at all and, if the  Wall Street Journal is right, this is how lawyers go from zero to hero.

[Matthew] Galluzzo’s law partner, Zachary Johnson, 34, said the web isn’t just a space for pointed commentary. “It’s a very cost-effective way of marketing,” he said. “Facebook and Twitter are becoming so prevalent amongst consumers of all services, we would be doing ourselves a disservice as a law firm to not use these channels to reach people.”

It’s also intended to draw clients and attention from the media, others said.

“I’m writing about a topic that people are looking into or investigating,” said Jeremy Saland, 36, a criminal defense attorney who runs a blog and Twitter feed for his practice, Crotty Saland. “This is no different, at the end of the day, than the Yellow Pages back when the Yellow Pages were relevant. It’s just another vehicle.”

If they’re using social media as their new Yellow Pages ad, then Johnson wants to own the back cover of the Dallas book.  And it seems he couldn’t be happier.

Every few minutes, there’s another twit from Charles which covers a different crime and is keyed to anyone searching twitter for a criminal defense lawyer.  After all, if you can’t trust your life to twitter, what use is social media.

I found Johnson by accident yesterday, having decided to see what a twitter search for “criminal defense lawyer” brought up.  There were a few others, like Johnson, spamming twitter with advertisements, and some crazy things like why  whites make better criminal defense lawyers than any other ethnicity:

Even jews, who aren’t ethnically white, refuse to become criminal justice defense lawyers (especially ones that work with the government). Do you know why whites excel in this field? Because they have absolutely no emotions, who is better to trust a job that requires apathy than a race of people that have mercilessly slaughtered billions of people including mostly women and children in the name of white supremacy? No real human being can put their heart into defending a child molester or murderer as a living.

See all the great information you learn on twitter?  But back to Johnson, who had much to say as well.



Twitter gurus tell us that in order to become a trusted agent and thought leader, we need to authentically engage.  What they don’t realize is that left to their own devices, that’s exactly what happens.  This is the real Charles Johnson, happy, smiling, spamming the living crap out of twitter in the hope that some poor, misbegotten fool with give him money.  Nothing could be more authentic.

At least that was true until I read a post by Radley Balko, coincidentally coming right on the heels of my discovery of Johnson.  It seems that Radley, now that he’s a huge media star in his own right and therefore a star-maker, got pitched via email:

As a Celebrity Criminal Defense Attorney, Former Prosecutor, Law Professor, and Judge Pro Tem, Attorney [Jeffrey] Steinberger can provide expert legal commentary regarding any story involving any Celebrity Arrests, Conviction or Sentencing (i.e. Drug Rehab; Jail Time; Alternative Sentencing, etc.).

Attorney Steinberger is available to discuss all civil matters as well and any other legal matter not mentioned above.

Attorney Steinberger is able to take a position on either side of any case– defense or prosecution.

In Attorney Steinberger’s 15 years of doing “hits” for all the major news channels, I have provided legal commentary for CNN, MSNBC, FOX News and ABC, NBC, CBS news networks, as well as CourtTV, Inside Edition, Access Hollywood, Entertainment Tonight, and Showbiz Tonight.

So  Jeffrey Steinberger can provide expert legal commentary on any story on any subject.  He must be just about the smartest lawyer ever, since most lawyers can only be experts on stuff they know.



While Radley called Steinberger a whore (with apologies to actual whores), he’s being unfair.  This is what being a lawyer is all about these days, using whatever tools present themselves to make oneself into the most alluring presence possible, whether because of the desire for fame or success, as written in the WSJ,

“We were getting so many phone calls about the case from the media, we decided to tweet about it and have people follow us for updates,” Mr. Galluzzo said.

And yet, somehow, I have no clue who Mr. Galluzzo is.  Or, for that matter, Messrs. Johnson or Steinberger.  But I already know a lot about them.  And they tell us a lot about how the race to the bottom is going.  So what are you going to do to make yourself authentically stand out?  The bar is already incredibly low, and it’s going to be very hard, very hard indeed, to scream louder than these fine criminal defense lawyers.

And if you could only be one of these two lawyers, would you be happy Charles Johnson or important Jeffrey Steinberger?  I know, it’s a very hard decision.