Between  Mark Herrmann’s thoughts on how he, as an inside guy, perceives the old elevator pitch, and  Kevin O’Keefe’s advice that one’s LinkedIn summary ought to be one’s elevator pitch, it got me thinking about it.  The elevator pitch.

It was probably ten to fifteen years into practice before I ever heard the phrase uttered.  From what I understand, it’s the most basic element of “rainmaking” in law, the ability to sum up who you are, what you do and why anyone should want to hire you, in the course of an elevator ride.  The closest I ever came to offering such a pitch was when someone at a party asked me what I did. 

But then, it wasn’t directed at getting their business, since not too many people at the parties I attended were sufficiently serious criminals, likely to face prosecution.  I hung out with the wrong crowd.  When I made my occasional trek to where my clientele like to hang, they already knew who I was and no pitch was needed.

The crux of the elevator pitch is to distinguish oneself in the few seconds between the question being asked and the questioner’s complete loss of interest.  If the pitch doesn’t grab someone right away, it’s lost.  Get off on the next floor as you’re not going any higher.

As my practice transitioned from drug conspiracies into financial and corporate crime, I’ve given the elevator pitch a good deal of thought.  The potential range of clients expanded orthogonally, and unlike the guys hanging out at a bar called Zapatas in Fort Washington or on Grand Street in the Bronx, the suits didn’t have a clue who I was.  They knew from biglaw names, and would always ask me what firm I was with upon learning that I was a lawyer.  I got a blank stare when I said that it was my own firm, before they turned away to talk to someone else.

Over time I learned.  My “of counsel” association with firms in other places gave me a modicum of credibility to a group inclined to appreciate quantity over quality.  But that’s just a threshold question, allowing you to move forward to the gist of the pitch.  The discussion about how solos and small firms beat the crap out of  a biglaw partner who never touches the case and work being done by snot-nose associates with slightly less experience than a fruit fly is for another day.  The elevator ride doesn’t take that long.

The notion of “pitching” someone has never sat well with me.  It smacks of glibness and self-promotion, and for those of us who prefer to wear a suit and tie rather than hot pants, it’s unseemly.  But if someone asks, then what are you going to do?  There was a time, many years ago, when I used to tell women in bars that I bred armadillos for a living.  “I like to bring a little happiness into their lives,” I would say.  It was cute, and beat the heck out of telling them I was a lawyer, like every other guy in the bar.

The same problems exists today.  What can I say in 30 second that would distinguish me from the tens of thousand of other lawyers doing pretty much the same thing, without making me seem like a self-promoting slut?  What can I say that will be sufficiently interesting to grab someone’s attention, and brief enough to get through it before we reach the penthouse?  What can I say that’s true.  What can I say that won’t conflict with my views about personal integrity?

As Kevin explains:

You only get one chance to make a first impression. What do you want people to walk away thinking about you?

I’ve never been any good at the elevator pitch.  I can’t imagine I ever will. 

The kidnapping, murder and dismemberment of 8-year-old Leiby Kletzky is a story of truly horrific proportions.  The accused, Levi Aron, is likely a monster.  And the pressure on a lawyer to defend a monster in such a case is almost unbearable.  Almost.

Levi Aron’s lawyer, Gerard Marrone, announced that he is withdrawing from the Aron defense.



In one sense, I can sympathize.  The nature of the crime, being against a child, would have precluded me from taking the case in the first instance.  I have the ability to pick and choose my cases, and I would not have chosen this one.  But then, had I chosen this one, I would never quit.

According to Eyewitness News reporter N.J. Burkett, Marrone says “he simply could not, in good conscience, continue to represent” the defendant. 

The allegations were too horrific and it’s not something I wanted to be involved in.

“A little piece of me died when I got this case,” he said.

That’s when the gut-wrenching tragedy hit me on a whole new level. Criminal defense attorneys are tough guys; it comes with the territory. I’ve never seen someone in that line of work so openly repulsed by his client that he’s forced to not only drop the case, but to drop all legal pretense and publicly react on a strictly human level: I’m too horrified by this man to defend him. 

What did Marrone see in Aron’s eyes that shook him so badly? Those were the last eyes Leiby Kletzky ever looked into. To think that a perfectly innocent child had to spend the final moments of his life under that cold, empty stare makes me doubt the very order of the universe. So I completely understand what Marrone meant when he said, “Before I got involved I believed in the divinity of human beings, and when I got involved I questioned the divinity of human beings.”

Of course he had to give up the case. As parents, how can we carry on raising our children if we don’t harbor even the faintest hope that there’s some meaning behind human life? I admire Marrone’s honesty and his decision to put his children first.

In a recent post, I noted that the prosecutor’s solution to inane application of laws was that they were people of intelligence, good will and sound judgment, who would never prosecute a person for some absurd offense.  Yeah, well, not all prosecutors feel the same way.

Take, for example, the prosecution of a guy who was thought to have burgled his own home.  While they couldn’t make the burglary charge stick, that didn’t stop them from going after him for resisting arrest.

On March 15, 2009, a neighbor reported seeing a black man kick in the front door of the home at 111 Finley Street. When police arrived on scene, they repeatedly told 30-year-old Marco Saucedo, whom they believed to be the burglar, to come out of the home. Saucedo, who doesn’t speak English, did not comply and police entered the home, finding that he had locked himself in the bathroom, according to county prosecutor Gary Taylor. Taylor on Tuesday played dashboard camera video for the jury of five men and a woman in County Court-at-Law No. 2 Judge Derek Flournoy’s courtroom.

“Now you’ve got nine officers here. Come on out,” Lufkin Police officer John Davis says on the video, followed by the sound of knocking.

“Come on out with your hands up,” the officer says.

According to testimony, the officers sprayed pepper spray under the crack in the bathroom door and Saucedo came out of the bathroom and resisted arrest, at which point police shot him multiple times with a pepper ball gun. Police then tackled Saucedo, who was fighting being taken into custody, to the living room floor, Davis said. In the process Saucedo suffered a large gash to the top of his head, according to testimony in his trial Tuesday.

The good news it that they used a “pepper ball gun,” rather than spraying the bathroom door with hollow point rounds.  But isn’t it enough that a guy, in his own home, in his own bathroom, had the cops enter his home, spray him and end up with a gash in his head?  Nope.  Prosecutor Gary Taylor found it critical that he be punished for being uncooperative.

For a bit of balance, it’s worth noting that Judge Flournoy had this to say at sentence :

“I haven’t heard from you and I have no idea why you didn’t speak. That causes me some trouble. I don’t agree with the notion you are a victim in this case,” Flournoy said. “I think your actions put you and the officers in harm’s way. This could have been easily avoided.”

So the homeowner’s actions within his own home put the officer’s in harm’s way?  Something to certainly bear in mind.

And then  there’s the case of two 14-year-old Jersey boys, one of whom stuck his naked butt in two 12-year-old kids’ faces, resulting in their being branded lifetime sex offenders.  The appellate court, upholding this because the law left them no other choice, noted its absurdity but was nonetheless constrained by Megan’s Law.

Call it bullying or call it horseplay. Either way, a state appellate court panel says roughhousing with a sexual connotation by a pair of 14-year-old Somerset County boys was a crime that requires them to register as sex offenders for the rest of their lives.

In a decision handed down Monday, the three-judge panel acknowledged the severity of its decision, but said it was bound to uphold the law. “We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated,” Judge Jose Fuentes wrote.

One of the boys, whose case went to trial, said he had sat on the faces of a pair of 12-year-old schoolmates with his bare buttocks in November 2008 “cause I thought it was funny and I was trying to get my friends to laugh,” he told a family court judge.

But an act is considered criminal sexual contact if it is done for sexual gratification or to degrade or humiliate the victim, and punishable by lifetime registration — even for juveniles — under Megan’s Law, which requires a person convicted of a sex crime against a child to notify police of changes of address or employment.

The 14-year-old definitely needs a damn good smack for engaging in this conduct, but lifetime sex offender status?  The prosecutor wanted it and got it.  He must have known it would mean they would be subject to Megan’s Law, destroying their lives for this teenage stupidity, but no doubt felt that he was protecting society from their perpetual threat of naked tushies and dumbass schoolboy pranks that would be best fixed behind a woodshed.

We need not fear the unintended consequences of our law-a-day reaction to outlier circumstances, producing absurd and bizarre results, for we have prosecutors who will exercise discretion to not allow this craziness to happen.

Or not.

Why get our panties in a twist over the absurd application of law when we have prosecutorial discretion to save us?  Because of cases like these. 

There was a time when juries were routinely sequestered to protect them from influence outside the courtroom.  But sequestration is expensive, and so the courts decided to pretend it wasn’t necessary, because nobody would ever tell a juror something they shouldn’t hear, and no juror would disregard the judge’s instruction not to pay attention to outside influence.

Yet J. Michael Flanagan has a concern. In the upcoming trial of Conrad Murray, the doc who personally “oversaw” Michael Jackson’s medical regimen,  Flanagan has requested of Los Angeles County Superior Court Judge Michael Pastor that the jury be locked in the cloisters. Why?

A lawyer for Michael Jackson’s personal physician said Wednesday that in light of the uproar surrounding the verdict in the recent Casey Anthony case, jurors in the doctor’s upcoming manslaughter trial should be sequestered round-the-clock, or at least “during the hours Nancy Grace is on TV.”

The attorney for Dr. Conrad Murray told a judge he was concerned that biased commentary of the televised proceedings, set to begin Sept. 8, would affect the panel’s ability to render a fair verdict in the Jackson’s death.

Whether Nancy Grace has invented some insipid yet derogatory name for Dr. Murray is unknown, but that her ignorant yet virulent spewing of such lawyer-like gems as, “where there’s smoke, there’s fire,” might undermine the potential for a thoughtful verdict. 

The judge’s reaction was curious:

The judge said the defense was free to file a formal motion for sequestration, but that he did not feel it was necessary and that in any case, the financially strapped court system could not afford it.

Pastor, who said the O.J. Simpson case was the last time a county judge had sequestered a jury, said he would order jurors be kept away from the general public inside the courthouse but believed it “unhealthy” for panelists to be isolated for the entire trial, which is expected to last six weeks.

Sure it’s costly.  Sure, jurors hate sequestration.  But reference to the last time it happened, the O.J. trial, reminds us of why it serves a larger purpose.  While lawyers are uniformly disgusted by that fact that the media puts people like Nancy Grace on air to poison the minds of anyone who hears her, it’s clear that someone out there thinks she’s the ginchiest.  In fact, there are a great many who think that people who spew ignorant vitriol speak the truth.

There was a reason why the O.J. jury was sequestered, as there was no doubt that the case would generate massive media coverage, and that there would be a coterie of lawyers dying to handicap the trial.  After all, trying to make trials into sporting events makes for great television ratings.  The only thing lacking is enough trials that anyone cares about to keep a cable network in business.

This trial, however, is likely to get the star treatment.  The death of Michael Jackson was huge, and the trial of his doctor will endure the intense focus of an O.J.  Or a Casey Anthony.

We can’t stop networks from giving air time to people like Nancy Grace.  We can’t stop people like Nancy Grace from doing everything in their power to make people stupider for having heard their shrill voice.  That’s the nature of a free press, and the Constitution doesn’t command it be limited to people who enlighten rather than disgust.

But the court can prevent the jurors from hearing, whether directly or second hand, the things that make a fair trial impossible.  As the air fills with noise, almost all of which will conflict with the jurors’ duty to render a verdict solely on the evidence admitted in court, and to follow the instructions of the judge rather than the rantings of pundits of dubious merit, the minds of jurors rot. 

The phrase we use, that the bell once rung cannot be unrung, remains as important as ever.  Once a juror hears the outrageous, ridiculous, utterly wrong nonsense that is used to fill the air time between commercials, they can’t get it out of their heads.  Whether it influences them is never clear, but the potential for influence is omnipresent.  They should not be influenced, at all, by this outside noise.

Nancy Grace has become the poster girl for a diseased view of the law in this country.  She’s not the only TV lawyer selling nonsense to the public, and she’s not the only voice from which the jury needs to be protected.  She’s just one of the loudest and most awful.  And she has made a career of doing everything in her power to screw with the public’s understanding of the legal system.

It would be nice if the defendant could be assured that jurors wouldn’t be influenced by this media parlor trick, but he can’t.  He’s entitled to a fair trial, and Grace and her ilk are dedicated to making sure he doesn’t get one.  This may be a very sad reflection of the world today, and the manner in which high profile criminal trials have to be conducted for as long as there are networks happy to sacrifice propriety in the name of ratings, or lawyers who want to make their bones by leading the townfolk with torches and pitchforks, but that’s where we are.

Sorry that it’s going to cost Los Angeles County a boatload of money to assure that Conrad Murray gets a trial untainted by the likes of Nancy Grace, but as long as we’re a society that watches this shrew, there is no other choice. 

H/T Bad Lawyer

When Lanny Breuer was a baby prosecutor at 1 Hogan Place, the side entrance to the Manhattan criminal courthouse, which was renamed in honor of the “legendary” New York Count District Attorney, Frank Hogan, no one could have suspected that he would one day end up in Washington, D.C. as the Assistant Attorneys General of the United States of America, in charge of the criminal division.

It’s a big job.  It’s a powerful job.  Lanny made good.

He started working for Bob Morgenthau in 1985, a few years after I started working against Bob Morgenthau.  It was the year that Bernie Goetz shot some black kids on a subway train. Lanny had nothing to do with that, as far as I can remember. 

Between gigs putting people behind bars, Lanny became a partner at Covington & Burling doing (ta da) white collar criminal defense.  His wiki page explains:

Breuer was best known for his work representing the subjects of Congressional investigations. He represented the University of California in an investigation of Los Alamos National Laboratory, Moody’s Investor Service in the wake of Enron’s collapse, and Halliburton/KBR in a hearing conducted by the House Committee on Oversight and Government Reform.

Breuer made headlines when a friend from the White House, Sandy Berger, asked for representation after an investigation disclosed Berger’s theft of classified documents from the National Archives.

These are guys just like the ones he fought to put in jail as a New York ADA.  Except they’re wealthy and powerful, and don’t smell bad because they’ve spent the night in the holding cell.  And the President Obama plucked Lanny from his leather office chair to head up the DOJ criminal division, because the president wanted change.  And Lanny talks about change.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations.   These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward.   And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago.   And I suspect that is true for many DA’s offices across the country as well. 

Justice used to unethical back when those other guys ran the show, but not now with Lanny’s hands on the wheel.  So why isn’t everybody applauding?

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct.   This kind of gamesmanship is unfortunate.   The steps we have taken go further than what the Supreme Court requires.  And they go well beyond what any prior Administration has done.   That’s a fact.   Do we need to remain vigilant?   Absolutely.   At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

It’s those nasty, opportunistic defense lawyers, trying to make hay out of the honest mistakes of prosecutors.  It’s not misconduct.  They would never engage in misconduct (unlike the AUSAs working for the last administration, who were evil and unethical scum with a leader like Lanny at the helm). 

But to characterize “certain ‘opportunistic’ lawyers” who challenge prosecutorial misconduct as “gamesmanship” Lanny?  Bob Morgenthau would never use such harsh language.  He might say it was an “honest mistake,” but never gamesmanship.  He would know that defense lawyers can’t assume away error as accidental, and that the failure to abide constitutional rights isn’t the sort of thing defense lawyers can or should ignore.

Didn’t you learn anything from your days at 1 Hogan Place?  Didn’t you learn anything sitting in your leather chair at Covington & Burling?  It’s our duty to “make hay” out of prosecutorial “mistakes,” and “certain defense lawyers” won’t shirk from our obligations either. 

That’s a fact.

Upon reading the  Hinky Meter post explaining the details of why the testimony of the prosecution’s witness, Sgt. Kevin Stenger, that Casey Anthony visited a page on a website about chloroform 84 times was false, I was clueless.

When hearing of this discrepancy I and most others were left with the impression that CacheBack was wrong and NetAnalysis was correct. Furthermore, that the discrepancy came out at trial seemed to me to be a public-relations nightmare for the Cacheback product. As it turns out, both programs produced erroneous results. But worse, OCSO appears to have known about the discrepancy and did not follow-up with the authors of either CacheBack or NetAnalysis. Continue reading →

The foundation of the argument, as I’ve been told, is that content is perpetually replicable, so that taking a copy doesn’t deplete the stash. It’s not stealing, because the “owner,” to the extent anyone can own an idea, still has his content.  The idea has superficial appeal.

But it’s wrong.  And getting caught hacking into a system from a closet at MIT, where no one permitted you to go, ought to clarify, for those whose political views cloud their grasp of the problem, that Aaron Swartz went too far.

From the New York Times :

Aaron Swartz, a 24-year-old programmer and online political activist, has been indicted in Boston on charges that he stole more than four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment below.)

In a press release, Ms. Ortiz’s office said that Mr. Swartz broke into a restricted area of M.I.T. and entered a computer wiring closet. Mr. Swartz apparently then accessed the M.I.T. computer network and took millions of documents from JSTOR.

If Aaron Swartz could have gotten his hands on copies of JSTORs content without having to sneak into a closet, it would have been wrong.  It charges for its content.  It’s allowed to charge for its content.  The content isn’t free for the taking.

Swartz, apparently, thinks it should be.

Demand Progress said on its site that it appeared Mr. Swartz was “being charged with allegedly downloading too many scholarly journal articles from the Web.” It quoted the group’s executive director, David Segal, as saying, “It’s like trying to put someone in jail for allegedly checking too many books out of the library.”

According to the indictment, the plan was to download whatever he could get his hands on so that they could be offered free to the world.  Swartz would take what JSTOR had to sell and give it to all.  Robin Hood of the internet.

From the technical point of view, this is a classic, straightforward violation of the Computer Fraud and Abuse Act, 18 USC 1030, with the fact that he had to physically sneak into a closet to gain access to the wires.  Ordinarily, there’s no need to physically break in to manage to digitally break in, putting an IRL cherry on top of the prosecution’s case.

End of story?  Apparently not. From Wired :

“It’s even more strange because the alleged victim has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” [Demand Progress Executive Director David] Segal said.

JSTOR doesn’t go quite as far in its statement on the prosecution — though there are clear hints that they were not the ones who wanted a prosecution, and that they were subpoenaed to testify at the grand jury hearing by the federal government.

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.

When asked about this, Christina Sterling, a spokeswoman for the U.S. Attorney’s office said, “I can’t speak specifically about this case, but fundamentally speaking, the U.S. Attorney’s Office makes own independent decisions regarding prosecution based on the merits of a case.”

It appears that Swartz, having gotten nailed during his attempt to steal the content of JSTOR,  had his hand smacked and, feet a’shuffling, promised not to do it again.  JSTOR was satisfied that the matter was resolved.  The Feds, on the other hand, were not.

While criminal prosecution does not personally belong to the aggrieved party, despite the wails of victims’ rights advocates who think they ought to do their own sentencing, they are usually shown a great deal of deference in the foundational determination of whether a prosecution is needed. 

Assuming the facts as related are accurate, there is little doubt that Swartz was a very bad boy, and that his conduct was precisely what the CFAA was intended to criminalize.  That some hold dear the belief that theft that doesn’t deprive someone of physical possession isn’t really theft can dispute the merit of the CFAA all they want, but had Swartz gotten away with it, he would have deprived JSTOR the revenue it would earn from its service.  That’s real.

So why would the Feds ignore JSTOR’s benign stance toward Swartz, having thwarted the plan and made the decision not to aggravate those who don’t think Swartz is such a bad guy?  The most likely motivation is that they’ve neither forgotten nor forgiven Swartz for the PACER caper :

The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.

Despite the FBI’s best efforts, they weren’t able to figure out a way to nail Swartz for doing what he was allowed to do, just so much better than anyone thought it could be done.  Despite some very real and very serious efforts to get him, the investigation busted and nothing came of it.  Until now.

By no stretch of the imagination do I believe that Swartz’s attempt to download the JSTOR content was acceptable or lawful.  He’s no Robin Hood, and the ideologue’s belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.

At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR’s agnostic, at worst, stance toward Swartz.  They worked it out and the story should have been over.  It’s just that the government can’t let it go, given that they finally have a case against a targeted individual.  Vindictive prosecution, no matter what the underlying wrong, is a due process violation.

Amazingly, the government has managed to turn the bad guy into the victim, and itself into the bad guy.  As for Swartz, he should stay out of closets.

Update:  On January 11, 2013, Aaron Swartz, still under prosecution by the United States of America, committed suicide at the age of 26.  This eulogy by Cory Doctorow speaks volumes. A very sad loss.

Too often, the reaction to reports of police misconduct is condemnation of all cops.  Those who have been harmed, or feel hatred, will impugn every one of them, and every thing they do.  It’s understandable, and maybe deserved in the way that even “good” cops stand idly by as bad ones do as they please, but it tends to skew our understanding and reinforce the one dimensional image of the evil cops.

The problem is that it’s not that simple.  The worse problem is that from time to time, we need police to assist us, and they do.  The same cop who does something truly awful one day will save a child’s life the next.  The point is to eliminate the former and appreciate the latter.  With that in mind, it’s worth noting when a police officer comes out and takes a stand that runs contrary to the norm.

The June edition of American Cop Magazine has an editorial arguing in favor of citizens videotaping cops.

Aren’t we known for saying, “If you’ve got nothing to hide, what are you worried about?” This same mentality should also apply to us. If we’re doing our job professionally and within the law, what’ve we got to worry about if someone’s filming us — especially if they’re doing so without getting in our way? If we decide we don’t like being filmed and take our attention away from what we’re doing, we are the ones delaying ourselves, not the person filming us. If the person is making snide comments, ignore it unless the comments are inciting a riot, but there again it will all be caught on film, right?

Should we ever expect to have a right to privacy when we’re in public? I don’t think so; cops are public employees. We can record comments and statements made by suspects/arrestees sitting in the back of our police cars where there’s no expectation of privacy. Thus, there should be an even lower standard of privacy outside the police car. We routinely record and surveil citizens without their permission, so why should there be a separate set of rules regarding them recording or filming us? If a bad guy doesn’t have to consent to being filmed, cops shouldn’t either. Should Internal Affairs be required to get consent to film or record from a cop suspected of criminal or unprofessional conduct?

Simplistic perhaps, but direct: if they’re doing nothing wrong, so what?  The argument has been made before, with the reaction that citizens don’t understand the job of police officer, and their expectations and demands, upon seeing its performance happen, place unreasonable and dangerous limitations on a cop’s performance.

The editorial writer, unnamed from what I can tell, doesn’t seem to care (in similarly clear language):

I think back at the number of times I was made aware I was being taped and I can’t recall ever giving a rat’s ass about it. I was also never hauled into IA to watch a video of me misbehaving either. So maybe those of us getting our skirts up over our heads about this should take a long hard look in the mirror before crying foul.

The reality is, cops have very public jobs, like it or not. We’re expected to behave professionally even when faced with overwhelming challenges. The public generally knows we’ve got a tough job, but no one is forcing us to do it. Some people have an axe to grind with police tactics, there’s no changing this mindset, and they’ll do their best to catch us making mistakes, misbehaving, abusing our authority or losing control. It happens sometimes to the best of us. It’s best to admit our mistakes and take our lumps.

What this reflects, from my perspective, is the cultural shift that needs to happen before any real change is going to turn the perception of police as an invading force into trusted protectors.

This editorial isn’t a sappy, hand-wringing, “what about the rights of poor citizens” sort of thing that might be written by a criminal defense lawyer, or a victim of police misconduct, but rather what appears to be a regular cop’s way of expressing that police need to “man up” and stop their whining about being filmed.  It acknowledges misconduct, which is more than can be said of many judges, though it doesn’t seem to recognize its seriousness.  “Admit our mistakes and take our lumps” hardly seems to cover some of the more heinous things captured on video.

Still, in its simplicity, it reflects a change at the baseline of at least one police officer’s view of where they fit into society.  They are public employees. They have a tough job, but the job is to do it “professionally,” even when faced with “overwhelming challenges.”  It may not be clear what he means by “professionally,” but it is clear that he doesn’t think concealing it from the public, prevent it being documented on video, is the way to protect cops from scutiny.

What makes this editorial fascinating is that it’s not a Pollyanna vision of police work, and I would suspect that he would be quite willing to argue that half of what we see as misconduct is proper police procedure, the sort of argument that makes us nuts.  And yet, he’s willing to bear up to the scrutiny of video and hash it out later.

It’s a gutsy editorial, and a move in the right direction.  And it’s the right thing to do.

H/T Radley Balko

Lawprof Jonathan Turley, of late  with four wives and five clients, has been the target of a neo-con nutjob. 

Two of my clients in the pilots litigation flagged an article by conservative Republican activist and attorney Debbie Schlussel reporting that I am funded by the Bin Laden family and using the Brown family as a front for an Islamic radical agenda.

The article is entitled “EXCLUSIVE: “Sister Wives” Lawsuit is Front for Islam, Sharia Bigamy; Lawyer Got Big $s From Islamic Terrorists” published on July 13, 2011. In addition to the false headline, the article contains repeated false statements, including but not limited to:

“Make no mistake, Turley–sleazebag lawyer for Islamic terrorists, including Islamic Jihad founder and convicted terrorist, Sami Al-Arian–is filing this one for his Muslim friends and patrons and using these bozos from Utah as his cover for what he’s really seeking here. Reportedly, the Bin Laden family paid for Turley’s failed defense of Al-Arian, just as the Bin Ladens reportedly paid for the Al-Arian kids’ expensive college and grad school educations.”

And so Turley’s having a great laugh over this insanity?  Nope.  No, he’s gone from big time high profile lawyer to defensive, oversensitive academic.  Some wacko wearing a tin foil hat said mean things about you, Jon.  Oooh, poor baby.

The question is whether people of good faith should simply walked away from such libelous and malicious statements or whether we have a duty to bring such people to the courts for judgment. A defamation action against Ms. Schlussel may serve the public as a pro bono effort in maintaining the minimal standards of civility and accuracy in public debate. I will be discussing such an action with friends and colleagues.

The article remains posted and Ms. Schlussel has not issued a retraction or an apology, as requested.

Since you asked, here’s my two cents.  There is a whole wide world of nutjobs out there who will say and write mean things of all stripes.  Some are worthy of concern, as they come from credible people who raise credible claims.  Then there are the Debbie Schlussels of the world. 

This is a gift.  This is a toy for you to play with, to enjoy and to ridicule unmercifully.  How the hell can you take this seriously and get upset for even a second over something so ridiculous?

DO NOT SQUANDER THIS OPPORTUNITY!!!

Do you think anyone, a…n…y…o…n…e, of above-brick-like intelligence isn’t laughing at this one?  Have them laugh with you, not at you.  For you to get your panties in a twist over this is not merely insane, but suggests that you feel threatened by these assertions.  Do you?  Is this closer to the truth than I suspect?  Are you interested in sharing some of that bin Laden money?  Only kidding, unless it’s true.

The nature of high profile work, especially in an area of such high emotion and politicization, is that nuts are going to come out of the woodwork and smear you with the craziest stuff.  Didn’t you realize this when you started the suit?  This is how it happens, and it’s a lot worse when the New York Times writes something incredibly wrong and stupid than when some neo-con nutjob does so.

Get over it.  Laugh at it.  Enjoy the gift that’s been handed to you on a silver platter and have some fun.  Whatever you do, resist the lawprof urge to get all upset and demand retractions and be all lawyerly.  It won’t help. It won’t happen and you just look foolish for trying.

And for God’s* sake (*your mileage may vary), don’t sue for defamation.  It’s a lot cheaper and more effective to down a PBR and thank the Lord you ain’t her. Unless, of course, she’s got a point, in which case take her seriously, give the rest of us a reason not to ridicule her and raise a doubt in everyone’s mind that Turley has something to fear.  But if not, don’t be a weenie.

The New York Times, which has suddenly discovered that law schools are a rich source of story fodder and, given enough time, will ramp up its production to the point where it has a firm grasp on the subject matter, offers a lengthy article about New York Law School’s outgoing dean, Richard Matasar.

On the one hand, he’s a hero:

For more than a decade, Mr. Matasar has been one of the legal academy’s most dogged and scolding critics, and he has repeatedly urged professors and fellow deans to rethink the basics of the law school business model and put the interests of students first.

“What I’ve said to people in giving talks like this in the past is, we should be ashamed of ourselves,” Mr. Matasar said at a 2009 meeting of the Association of American Law Schools. He ended with a challenge: If a law school can’t help its students achieve their goals, “we should shut the damn place down.”

Tough talk from the dean of New York Law School, right?  And yet:

N.Y.L.S. is ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800 a year, it charges more than Harvard. It increased the size of the class that arrived in the fall of 2009 by an astounding 30 percent, even as hiring in the legal profession imploded. It reported in the most recent US News & World Report rankings that the median starting salary of its graduates was the same as for those of the best schools in the nation — even though most of its graduates, in fact, find work at less than half that amount.

David Segal, the author of the Times article, not one to miss a chance of demonstrating his mastery of the obvious, writes:

Asked if there was a contradiction between his stand against expanding class sizes and the growth of the student population at N.Y.L.S., Mr. Matasar wrote: “The answer is that we exist in a market. When there is demand for education, we, like other law schools, respond.”

This is a story about the law school market, a singular creature of American capitalism, one that is so durable it seems utterly impervious to change. Why? The career of Richard Matasar offers some answers. His long-time and seemingly sincere ambition is to “radically disrupt our traditional approach to legal education,” as it says on his N.Y.L.S. Web page. But even he, it seems, is engaged in the same competition for dollars and students that consumes just about everyone with a financial and reputational stake in this business.

Unfortunately, it escapes Segal’s notice that this provides no answer to the obvious question.  While Dean Matasar may really, really want to do right by the students, the lure of money in a market exempt from reason comes first.  It’s not an answer. 

Talk is cheap. Law school isn’t. And as long as fools are desperate to separate themselves from their money, law schools will humbly assist.

Can one blame law schools, deans, for playing Hoover and sucking up all the loose change they can get their hands on?  What of the responsibility of law students to have a clue what they’re throwing away?  What of the ABA’s compulsion to accredit new law schools in storefronts formerly housing tattoo parlors?  What of the profession’s willingness to use and abuse young lawyers to do scut work and then toss them out on their ear when they demand a living salary?

The article ignores that existence of a massive market disconnect, a bubble if you will, that we have all contributed in making.  In a lousy economy, students persist in seeking graduate education in the hope that they may have a half-marketable skill while avoiding the hard work of finding a paying job.  They hide in their new classrooms in the expectation of waiting out the bad times and cashing in on the good.  And law schools are only to happy to help.

And we let them do so.  No, we are complicit in their doing so. 

How many practicing lawyers tell kids intent on going to law school that being a lawyer is hard work and no guarantee of wealth or prestige?  How many explain the basic economics of how much they need to earn to make the law school investment pay off?  How many even know the words “opportunity costs?”  The ABA isn’t made up of gnomes in the backroom of some mystical lawyer village, but of lawyers who work for a living.  Why then does it not come to grips with reality and both raise the bar of what is required to become a lawyer while simultaneously slicing and dicing the numbers to come to terms with society is willing to accept? 

I recently had a nice email exchange with Dean Matasar following what I deemed a particularly ill-advised move on his part.  He explained his purpose, which was fairly noble, and I explained that the road to hell was paved with good intentions.  I like him, and accepted his sincerity.  But then, it changed nothing.

The job of a law school dean is to make enough money to fund the school and perpetuate its existence.  Ironically, it has probably become easier to do at the bottom end of the law school spectrum than the top, as applicants with top grades and great LSATs have a choice of schools, while those at the bottom are constrained to take whatever seat they can get.  That leaves the bottom tiers as cash and carry law schools, and any dolt with the will to assume massive debt or a wealthy daddy can be a lawyer too.  More or less.

But this isn’t a “creature of American capitalism,” as Segal contends.  This is gouging, just like the gas station in the middle of an oil crisis.  And we’ve all got a finger in it, whether by participating or keeping our yaps shut when integrity would compel us to speak. 

Of course, few want to be the bad guys who tell the other players and the inchoate lawyers that it’s a lousy deal, a sucker bet, unless you’re crazy enough to truly want to be a lawyer.  After all, nobody like the person who gives up the secrets.  And besides, the pay sucks.