BadLawyer sums it up:

It’s interesting that local men and women who sat through the trial, heard the evidence, and the testimony of Mr. Ersland felt compelled under the Oklahoma law to find the pharmacist guilty but are now vilified by their family and neighbors.

Maybe there are problems with the jury instructions in this case (not that I know one way or the other,) but these Oklahoma jurors were serious-minded folks doing the job required of them under the law.  Criticizing them without seeing or hearing the evidence is moronic.

Jerome Jay Ersland, 59, was found guilty May 26 of first-degree murder for shooting a wounded robber five more times inside a south Oklahoma City pharmacy. Jurors rejected the Chickasha man’s claim that he was defending himself and two female co-workers.

Thousands have criticized the verdict, signing petitions that state “our Justice System has let us down” or making their opinions known on Facebook and media websites.

Ersland was working in the pharmacy when two men entered to rob the place.  Two female employees ran to the back while Ersland, a Gulf War veteran with PTSD pulled out a gun and shot one of the robbers, 16-year-old Antwun “Speedy” Parker, in the head.  The other fled, and Ersland tried to follow but lost him.

Within a minute, Ersland came back into the drugstore, walked by the fallen robber and got a second gun. He then walked back to the fallen robber and shot five more times.

The prosecution wasn’t for the first shot, but the last five bullets.  Ersland claims he was still moving, which was why he felt he had to continue shooting to defend himself and the two women.

A key issue is whether Parker was moving when he was shot again. He cannot be seen on the video recordings after he falls. Prosecutors said the evidence proves Parker was unarmed, unconscious and not moving. Defense attorneys contended he could have moved even while unconscious.

The jurors watched the security camera videos over and over.  They could see a pool of Parker’s blood.  According to the jurors, it never moved.  Not a ripple.  Parker never moved.  Another juror said that Ersland never even glanced at Parker’s body when he came back into the store and got the gun, his favorite as he said during the police interview, and shot five more times.  The convicted him of murder.  Outrage ensued.

I stand by my verdict,” she said. “You just see it in the media, on Facebook, everywhere. Everybody has a comment and everybody knows about it.”

She said she wants critics to know that jurors had to go by what the law said.

She said, “There are laws and they’re set. And we had to follow the laws. As a jury we had to follow the laws. … I think it was a good decision. It was the law.”

Of the critics, she said, “People don’t know what they’re talking about. … They don’t know the laws. They weren’t there.”

Cases like Ersland’s become a focal point for political gloss,  Rather than separate the first shot, one that no one has questioned was Ersland’s right in self-defense, from the last five, the issue is reduced to its lowest common denominator:  Doesn’t a law-abiding business man have a right to put a stop to some punk robber who would have murdered him in a flash if he didn’t happen to have his own gun at the ready?

The jury of public opinion knows neither rules nor limits.  It doesn’t bother with the nitty gritty. It won’t listen to reason or nuance.  Right and wrong, in the broadest sense, are at stake.  So what if Ersland took a few more shots than he should have, then he needed to.  They won’t cry over the death of Antwun “Speedy” Parker.  They are more likely to make a joke that Antwun wasn’t speedy enough.  The public sees this as a fight between good and evil, and good won.  Now good has been convicted for murder.  And the public is outraged.

The reaction to Ersland’s killing of Parker is very reminiscent of the old New York case of Bernhard Goetz, the Subway Vigilante, which came to characterize the sense of outrage against crime that permeated the City back in 1985.  As with Ersland, it had little to do with the facts of the case and all to do with the broad sense of good and evil, of anger and retribution.

Despite the public’s sense of outrage, its reduction of sensibility to its simplest form, courts aren’t supposed to indulge in appeasing the bloodlust of the masses.  This jury didn’t, and did its job as the law required it to do.  While one might suspect that criminal defense lawyers would blindly back the defendant, and indeed some respond exactly that way, it’s wrong.

Confronted with an armed robber in his drug store, Ersland was lawfully entitled to defend himself from the threat of deadly force.  And he did.  Once that threat is over, so too is his entitled to shoot. Whether Parker was as evil as assumed isn’t the point.  Ersland doesn’t have to know of his childhood or whether Parker would have actually pulled a trigger before taking action.

But when a person, even a person engaged in heinous criminal activity, is dropped to the ground and lies there in a pool of blood, he is no longer a threat to anyone.  It’s not even an argument that Ersland, in the heat of the moment and without reflection, continued to pump bullets into the body until the magazine was empty.  He stopped shooting.  He had an opportunity for reflection.  He got a different gun.  He returned to the body on the ground, lying in a pool of blood, and made a decision to fire five more bullets into it.  This he could not lawfully do.

Parker is no hero.  Parker is not even a sympathetic victim. Parker was a young man engaged in criminal conduct, a robbery.  But Parker is dead.  You can’t shoot people lying on the ground in a pool of their own blood.  Not even bad guys.

Just as public opinion frequently vilifies a defendant without constraint of facts, it can vilify the victim and support a defendant whose conduct may have been very wrong, but who embodies public sentiment that he reflects the triumph of good over evil.  Neither position reflects what the law is or what it should be. 

The public doesn’t bother with the details.  The jury must, and did. 

One of the most routine tools in the police officer’s arsenal is the query, “you don’t have anything to hide, do you?”  It’s amazing how well that works, striking fear in the hearts of law-abiding people and criminals alike, causing them to throw open their doors, trunks and mouths.

But once again, don’t ponder their question too long, when one need only see how the police handle the question when they’re the ones under scrutiny.

For example, consider the reaction of Miami Beach cops, after nine cops pumped a bunch of bullets into unarmed 22-year old Raymond Herisse.

After killing Herisse, the officers chased down bystanders, including Narces Benoit and a photographer for a local news organization, and confiscated their cameras and cell phones.



Benoit hid his cellphone’s SIM card in his mouth when cops seized and smashed his phone. 

Or maybe you prefer a healthier video, say bike riders perhaps,  where they go after the video after beating the cyclist?

And then there’s the “glitch” that was used to conceal the beating five Cleveland cops gave an arrestee who had the audacity to have his belt buckle touch a cop (a vicious assault to the face, as officially described).



Could there be a theme developing?

Don’t blame the cops.  Neither the public nor the courts understand how very difficult their job is, the risks they face to keep us safe from criminals, and watching them make sausage (of people) could have the unsavory consequence of reducing public confidence in our trust in law enforcement.  Plus, it doesn’t help their ability to tell the story their way, you know, with the cops being the hero and not merely beating and shooting people whenever they feel it’s a good idea, if we can actually see what occurred.

To spell out, yet again, that the sanitized versions told in court, emphasized by dreamy eyes prosecutors who believe every word a cop says, and adamantly refuses to believe that a police officer would ever lie about what occurred on the street, seems unnecessary.  The cops tell their own stories in these videos.

Nothing to hide?  Sure.

And they come courtesy of the chronicler of such matters, Huffington Post/AOL rockstar Radley Balko, who does the dirty work of collecting and collating the never-ending stream of horribles that were disbelieved for generations until the advent of video.  Rumors, by the way, of Balko’s being in a bidding war for the  Aaron Spelling estate in Hollywood are unsubstantiated.

Always liberal.  Always available for comment.  And now, the pushy-bottom of the banking industry, shoving Alabama Senator Jeff Sessions off the bed so he can have them all to himself. New York’s Senior Senator, Chuck Schumer, shows that a Dem can be just as sleazy as anyone else when it comes to endearing himself to the banking industry.

From the New York Times :

After years of fighting Mr. Ballard at the federal Patent Office, in court and across a negotiating table, the banks went to see one of their best friends in Congress, Senator Charles E. Schumer of New York, who inserted into a patent overhaul bill a provision that appears largely aimed at helping banks rid themselves of the Ballard problem. The Senate passed the bill easily in March.
The proposal would allow banks to get a federal re-examination of certain patents that they have been accused of infringing, specifically limited to “a financial product or service.”

Yet again, the banking industry would rather lobby politicians than have to pay for infringing the patents of DataTreasury, Claudio Ballard’s company that created the now ubiquitous process of imaging checks.  This is hardly new, as they’ve been  trying for years to get Congress to  pass a law to  relieve them of their liability.  It’s just the darn Patent Office and courts, in case after case, keep holding the big banks liable for stealing the tech they use to save billions of dollars in processing costs.  But really, we love big banks and want them to make money, don’t we?  And who really cares about some company in Plano making big bankers unhappy?

Chuck Schumer doesn’t.

Mr. Schumer said he believed he did the right thing. “This is a case where one company has made a cottage industry out of extracting legal settlements by exploiting a fuzzy part of the law on patents,” he said. “When New York institutions are in the right and under assault, I will support them all the way. If these lawsuits are legit, the company should have no problem letting the patent office do an independent review.”

Cool story, bro.  So what if DataTreasury’s patents have passed scrutiny already.  So what it they’ve passed scrutiny twice already.  What’s a third “independent review,” if they’re legit?

DataTreasury patents have already been reviewed and validated by the patent office, but the bill would allow for an expanded consideration of other elements in a new review format.

Now there’s a neat trick, changing the rules after the fact.

Calling a company that created the process used by every bank in the nation to save, and hence earn, untold billions of dollars a “cottage industry” for trying to recapture the loss from banks shamelessly stealing from them is just a bit disingenuous, Chuck.  Same with saying big banks are under “assault,” though one might hope they would be under assault from the government for a wealth of shenanigans in mortgage markets and derivatives, but that would hardly get any senator a campaign contribution from appreciative corporate constituents.

It’s said that a conservative is a liberal with a mortgage, and a liberal is a conservative under indictment.  So what’s the right thing to call a New York Democratic Senator who lies in bed on silk sheets awaiting the love of the banking industry?  We need not stress too much over the description, as can just call him by name. Right, Chuck?

The less information available, the more likely courts will circumscribe constitutional rights because dire predictions and rhetorical flourish can make the future seem far worse than reality.  Of course, the obverse is that reality often shows that it was no big deal to begin with, and that preservation of constitutional rights isn’t the end of the world.

The 3d Circuit’s en banc decisions in two school free speech cases, where students were disciplined for creating online parody pages on Myspace in the names of their principals, out of school speech that was juvenile, crude and offensive to the principles involved.  Such disrespect could not go unpunished.

In Layshock v. Hermitage School District, high school student Jason Layshock put up a photo of his principal and answered questions as follows:

Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg . . . .

Vicious stuff, right?

In J.S. v. Blue Mountain School District, a middle school student used a photo and filled the page with “vulgar sexual references and profanity,” as only a middle schooler can.  In both instances the pages were created outside of school.

As Avery Doninger learned, the exercise of speech outside the school house gates is hardly an assurance that the school won’t exact it’s pound of flesh.  As  Dan Solove explains:

The prevailing standard for when schools can impose discipline for off-campus speech was developed from the U.S. Supreme Court’s decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  When off-campus speech causes a material and substantial disruption of the school environment, the school can impose discipline.  Otherwise, off-campus speech would receive full First Amendment free speech protections (unless it were a threat). This is known as the “substantial disruption” standard.

Tinker is another in a long line of cases that rewards the party who has the least amount of proof available.  In both of the cases before the 3d Circuit, the schools lost.  As it turned out, neither of the Myspace page parodies amounted to much of anything.  A few kids giggled and snickered, and then everybody went back to class and did their school work.  Whether it wasn’t that funny or students understood it to be a joke, ridiculing the principle because that’s what students do, it barely made a ripple in reality.  The only person who suffered a “substantial disruption” was the target of the speech, the respective principles, whose egos were bruised.

Had reality not interfered with a darn good argument, however, the decisions would have easily done a Doninger and gone the other way.  Lawyers for the districts would argue at length, in vivid color, how any characterization of the beloved and respected educator would wreak havoc with the functioning of the district, leaving hundreds of students to wander the halls, bumping into one another, learning nothing and becoming bums and drug addicts; a generation lost to the parents of the Hermitage School District and children gone bad in the Blue Mountain schools.

Except both school districts were constrained to concede that there was no “substantial disruption.”  In fact, aside from the school’s “reaction,” there was no disruption at all.  Speech was had.  Sexual references were made.  A quick giggle, then . . .  nothing. 

Still, the court couldn’t bring itself to reach the obvious conclusion, reaffirming the pre-emptive incentive of ignorance in Tinker:

The court did, however, agree that a substantial disruption need not actually occur and that a reasonable forecast of a substantial disruption would have been sufficient to impose discipline:

Although the burden is on school authorities to meet Tinker’s requirements to abridge student First Amendment rights, the School District need not prove with absolute certainty that substantial disruption will occur. Doninger v. Niehoff, 527 F.3d 41, 51 (2d Cir. 2008) (holding that Tinker does not require “actual disruption to justify a restraint on student speech”); Lowery v. Euverard, 497 F.3d 584, 591-92 (6th Cir. 2007) (“Tinker does not require school officials to wait until the horse has left the barn before closing the door. . . . [It] does not require certainty, only that the forecast of substantial disruption be reasonable.”); LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”).

From the perspective of school administrators, any speech that doesn’t please them will most assuredly cause a substantial disruption, thereby justifying their stifling of student speech and imposition of punishment in advance of the world ending. 

In the olden days, before the internet, this wasn’t nearly as much of a problem, as speech outside the school yard gates could more readily be distinguished, and hence protected, from what happened in the hallways.  But the line isn’t as clear anymore.  Solove sees the Tinker standard as a viable compromise:

The Internet is making the line between off-campus and on-campus speech is increasingly more blurry.  But a line is important to maintain, or else a school’s power to regulate student speech would extend way too far beyond the schoolhouse gate.  The substantial disruption standard is a meaningful compromise, where school officials must make a compelling demonstration how off-campus speech interferes with life on campus.  School officials do not have to wait for an actual disruption if one is reasonably predictable.  But the lesson drawn from these cases is that schools must document a really compelling case, one that is not based on standard speculations or very loose linkages between the speech and on-campus activities.  Real disruption, beyond occasional chatter and beyond the ridicule of school officials is required.

Both the caselaw, and life in the courtroom, suggest that this is naive.  It’s hardly difficult to cobble together allegations of dire consequences stemming from online speech, where the student body rises as one and ridicules a school administrator, refusing to follow their command, trashing the school and ultimately devolving into some Lord of the Flies fantasy.  All it takes is a compelling story, unconstrained by evidence that none of it ever happened.  Telling a good story is a lawyer’s stock in trade, Refuting a story that never happened is much harder.

Given the nature of the internet, coupled with juvenile sense of humor, crude and vulgar speech directed at school officials on a social media website isn’t likely to go away, and indeed, as each no class of students discovers that they can string together a bunch of curses and sexual references directed at teachers, principals, superintendents, the typical objects of school children’s ire and rebelion, this can only get worse.

Considering the sort of stuff that kids are seeing online from the moment of puberty onward, they realize all too well how lame most of this is, and utterly inconsequential as far as disrupting the functioning of schools.  It’s the elders, from principals to judges, who don’t grasp how little this matters to kids, how trivial the impact will be to education and their lives.  There are a million “funny” and vulgar things online, and growing by the moment.  Free speech parodies by kids are a quick chuckle, if that, before they move on to the next FunnyJunk video or meme.

Yet the Tinker standard, persists, empowering school officials to punish students for disruption that only exists in their hurt imagination, backed up by judges who refuse to question dire predictions that never seem to bear out in reality. 

Just in:

Return phone calls.

Respond to emails.

Transfer the file immediately.

Transfer the complete file, with papers intact.

Sorry that the client decided to fire you and go elsewhere.  But you were paid for your services, even though you are now out of the case. It happens. There is a guy sitting in jail expecting a lawyer to be doing his job, working on his case, doing everything he can to represent him.  Except the old lawyer can’t be bothered to cooperate.

Your feelings are hurt?  You’re too busy?  You just don’t feel like it?

You are depriving the defendant of representation.  Every day you delay is a day that work cannot be done on the case.  The government may be prosecuting, but you are hindering the defense.  It’s wrong. It’s unethical. It’s unprofessional.  Maybe if you demonstrated greater concern for your client, you would still be on the case.

But you’re not.  Get over it and get the file into the hands of the new lawyer.  Everyone is waiting for you.

When I learned that I was used in a post at the  Lawyerist by some SEO marketer, I was less than flattered.  It’s not just the fact that I think the Lawyerist is just about the most insipid website for lawyers around (it is), devoid of substance and catering to readers who have difficulty counting to 21 with their pants on. It’s that I don’t care to be used as somebody’s fluff.

Aaron Street, boy-wonder of the Lawyerist,  came back at me on twitter with his challenge:

@ScottGreenfield Well-reasoned analysis as always.

So what is excellent client service and how do you provide it? Here are some thoughts from people that know what they’re talking about:

My respect for copyright notwithstanding, putting a little power in the wrong hands tends to give rise to mischief.  Assistant Deputy Director of ICE, Erik Barnett, proved this truism in  his announcement that government seizures of websites involved in copyright infringement have been a huge success:

“People told us that we will fail if we seize these domain names, and that we’ll look foolish,” said Erik Barnett, assistant deputy director of the US government’s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year. “People said [that the infringers] would come back. But the reality is they didn’t – that was surprising.”

Separately, Barnett spoke to The Bureau of National Affairs (BNA) for an interview about the seizures…He kicks it off by again thanking Congress for passing the ProIP Act, which snuck the seizure bit into law, with most people believing it meant seizing actual tools of infringement, not domain names. From there, he discusses how ICE decides what to seize:

The popularity of the website, because how popular a website is tells us how profitable. We look at a website’s Alexa rankings, because the lower the Alexa ranking–meaning the more traffic a website receives–directly correlates to higher proceeds from sales, or to more revenue from advertisements.

Alexa?!? My goodness. Alexa is perhaps the least accurate website ranking system out there and is considered a total joke.

Barnett also makes this highly questionable claim:

“The notice says that you can challenge the seizure, but no one has yet,” he added.

Yeah, that’s because the US government has made it incredibly convoluted and difficult to actually challenge the seizure. While Barnett notes that the notice says you can, there is no process, and the Justice Department has done everything it can to avoid letting anyone challenge the seizure.

What was really incredible was how everyone I spoke to involved in these cases (even though not at all connected with one another) had an identical story: they’d all love to take their cases to court, but they’re waiting for the government to actually get in touch with them.

I can’t tell if Barnett is just totally and completely uninformed here… or lying. As plenty of people have noted, at least on the copyright side, the vast majority of the sites have reappeared, often within hours.

The government has never shown finesse at dealing with technology, and the courts even less so.  The heavy hand of law enforcement, which will attest whenever possible to its omniscience in all things under the sun, could make the effort to use a scalpel rather than a bludgeon.  Yet it fails to do so with remarkable frequency, and rarely shows much concern for its failings or interest in doing it better.  But this isn’t limited to a domain seizure, but all things tech. 

In the past, I’ve written  harsh  words about  lawyers who were only too happy to run down to the local TV station to appear on the news on any subject under the sun, wholly oblivious to the fact that they neither know the subject about which they’re supposed to opine nor care.  Anything to be able to tell people you’re a television hero.  This conduct was as disgraceful as it came, I wrote. I’m forced to eat my words.

It’s not the the conduct isn’t disgraceful.  It most assuredly is.  It’s that there is now a new, lower step, a new cliff to fall off of, that makes this conduct pale in comparison. 

Apparently, an email went out to some lawyers.  If I received one, I didn’t read it, but I suspect it never came to my box.  But Houston criminal defense lawyer  Mark Bennett got the email.

Hello,

As the Casey Anthony trial is taking place in your backyard, our media contacts (whom we have great relationships with) have let us know that they are actively seeking Criminal Defense Attorneys to comment on the case.

If the thought of appearing on National & Local Television & National & Local Radio Shows has ever crossed your mind – This moment is yours to take.

If not, simply write back REMOVE because you’ll never again be the midst of a press frenzy like this – CNN, NBC, and Fox will be covering this 24-7.

When you appear as a guest on national media, millions of eyes across America are on you and traffic drives to your website and ultimately can increase your bottom line.

Of the many issues with the Casey Anthony case, and  there are more than one can shake a stick at, this wasn’t one that I saw coming.  True, commentary during the OJ Simpson trial made darlings out of a few lawyers who were at their best in a studio, far away from a courtroom.  They got gigs on talking as if they had a clue, as if they could read minds or had even a vague familiarity with law and practice in far away jurisdictions.  No one seemed to care, as long as interesting sounds emitted from their mouths.  More importantly, no one seemed to remember what they said the day before. They only cared that people remembered their name.

But these people, time fillers in stories run by people selling TV commercials, had at least one virtue.  No, they weren’t paid for the their time.  Not a dime.  They made themselves perpetually available, just in case Larry called, for free.  Being close to celebrity was payment enough.  They did not, however, pay for it.

That once was sufficient to earn the title media whores, a pejorative description for lawyers who would say anything to get on television.  Given the next step down, below the gutter (into the sewer?), they no longer look so disgraceful.

Would you pay someone to place you on television as a talking head?  Are you so desperate for attention, for faux prominence, that you would hire a publicist to make you a “star?”  Bear in mind, if you had any virtue, any, that would give rise to a media outlet calling you directly, a youthful producer thinking to herself, I want this lawyer, Joe, to provide analysis on my broadcast, they would call you directly. 

The usual scenario, where the producer asks around for the name of a lawyer to do commentary, who might either have some bit of knowledge that could add to the broadcast or at least know how to speak in interesting sound bites and make chatter that adds to the show, never runs short of lawyers.  Lawyers love to be on TV.  Lawyers adore being treated like “experts,” even if their only role is to answer a five minute question from the anchor with a two second response.

So Joe the lawyer, having watched the cross-examination where the sheriff said he was forced to put the gun in her mouth, and of course he really had no choice but to taser her in order to get her mouth open wide enough, and the judge screaming at the defense lawyer, blah, blah, blah . . .

Well . . .

We’re out of time, but thanks to Joe the lawyer for his fascinating insight. In another story, a new mousetrap has been developed that coddles the little critter. Here to report is . . .

So what if it cost Joe half a day to do this segment, waking up for his black car ride at 4:30 a.m.  He got a donut and coffee in the green room, and now has a video to put on his website proving that he is, indeed, a renown media pundit.  What client doesn’t want a lawyer who is so special that he’s on TV?

That lawyers and firms have publicists is nothing new. As a blawger, I get a never ending stream of ridiculous emails from PR firms hyping stories about some unknown firm having scores some inconsequential case, and would I like to speak to the lawyer who is available 24/7 for an interview.  They’re laughable, and the lawyers who do it become the targets of scorn and ridicule.

But this is different. This was a blind email, sent to any lawyer willing to pay for the privilege of being the freebie lunchmeat in the media sandwich, filler with no nutritional value.  At least the media whore didn’t pay for it.  The next time some unknown lawyer who has neither the knowledge nor chops to do commentary dresses up in his best suit and a clean white shirt to pretend that he’s a celebrity, this email will come immediately to mind and the only thought running through my head is “how much did he pay to get on TV?”

Don’t blame the PR company.  Don’t blame the 6 o’clock news.  Don’t blame cable TV with 24/7 coverage of things that only happen 9 to 5.  No one makes lawyers take that leap off the abyss.  Lawyers do this to themselves.  And pay for it.

The old days, when the worst that could be said of the media whore is that he has nothing to offer but won’t let that stop him, is beginning to look relatively dignified.  If it can get worse, it will.  I wonder how many lawyers were only too happy to pay for the service?

On the internet, nobody knows you’re a gay girl in Damscus.


But why worry about it?  After all, it’s not like any idiot can manufacture a completely false internet persona and get away with it, right?