To underestimate the pervasiveness of grocery clerks with checklists controlling every facet of life, law included, is a terrible mistake.  Even the 10th Circuit Court of Appeals, masters of their domain when it comes to keeping drug dealers convicted and imprisoned, will jump as high as need be to appease the grocery clerk.

Consider what happened in United States v. Ortiz, a sweet little drug appeal where the court found that the prosecutor engaged in misconduct, your improper questioning to reveal that the defendant’s expert had testified on his behalf in his previous trial. Oops, did that reveal defendant’s propensity toward crime. Sorry, judge; it just slipped out. Let’s pretend it never happened, and we’re sure the jury will ignore it. 

First iteration of the decision, prosecutor committed misconduct, so the court found . . . wait for it . . . prosecutorial misconduct.  It seemed appropriate at the time.

But then came the grocery clerk.  Via the Tenth Circuit Blog :

U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub’d) – This amending of a prior decision provides an interesting insight into how the US Attorney’s Office works, or doesn’t. In the original decision, the 10th Circuit said an AUSA’s improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial.

Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder’s folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: “the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct.” Problem solved.

And the sheer quantity of drugs, with an estimated wholesale value of nearly $400,000, “might also, and legitimately, lead a jury to consider it less likely that the drugs would be transported without the driver’s knowledge.” Id. The evidence was more than sufficient to permit a rational jury to find that Ortiz knowingly transported the drugs found in his trailer.

This is not a case in which the prosecutor engaged in a few minor incidents of improper conduct. Rather, the prosecutor engaged in a pervasive pattern of inappropriate questions, comments and argument, throughout the entire trial, each one building on the next, to such a degree as to undermine the fairness of the proceedings. Although we are not convinced that any individual instance of the prosecutorial misconduct of which Higgins complains would, by itself, require reversal, we conclude that the cumulative effect of all of the misconduct does require reversal.

Brian Tannebaum twitted that he was putting the finishing touches on his presentation about online ethics.  This is the twitter version of a firebomb, as he’s neither inclined toward subtlety nor tolerance for deception.  It was only a few days after a  full day program by the Practicing Law Institute in Manhattan, the mood set by Steve Rubel, described by the program’s moderator,  Kevin O’Keefe :

Steve is a true digital media thought leader, having blogged actively since 2004 at  Micropersuasion and now at The Steve Rubel Lifestream. He joined  Edelman, one of the world’s most respected public relations firms, as EVP/Global Strategy and Insights in 2006 to help the firm use blogs more effectively, and works with clients to unify their communications strategies across traditional and new forms of media.

Ethics and Online Marketing – Brian Tannebaum, Lawyer – (1hr CLE)

Social media and online marketing have brought a variety of ethics concerns into question for lawyers. This Ethics of Online Marketing session is designed to help lawyers and legal marketers understand the professional ethics rules and state bar regulations governing online advertising, websites and social media.

Just when you thought the backlash to  watching  children molested by government employees might return a little sanity, moderation at least, to air travel, we are staring at the next great devolution of civil rights instead.  The irony is astounding, as it comes from our great victory against the terrorists, the killing of Osama bin Laden, where information was seized showing a plan to attack a train. 

As if nobody thought that possible, despite it having been part of the original 9/11 Commission recommendations because it was obvious from the outset.  But now that we have confirmation from within the million dollar mansion, it’s the new horizon of security.  Naturally, New York Senator Chuck Schumer wanted to be ahead of the curve.

A senator on Sunday called for a “no-ride list” for Amtrak trains after intelligence gleaned from the raid on Osama bin Laden’s compound pointed to potential attacks on the nation’s train system.

Sen. Charles Schumer said he would push as well for added funding for rail security and commuter and passenger train track inspections and more monitoring of stations nationwide.

“Circumstances demand we make adjustments by increasing funding to enhance rail safety and monitoring on commuter rail transit and screening who gets on Amtrak passenger trains, so that we can provide a greater level of security to the public,” the New York Democrat said at a news conference.

Amtrack has been having a field day advertising that its passengers only take off their shoes if they feel like it.  Advocates of air travel safety have snarkily responded to complaints about the TSA by saying, if you don’t like it, take a train.  What’s next, walk?  It might have been “drive,” but who can afford that luxury?

There was little question that the “relief” felt after the killing of bin Laden didn’t spell the end of the War on Terror and the return of American freedom.  The real question was how would our success in the War be bootstrapped to justify yet further intrusions.  The argument wasn’t hard to figure out: the equation had previously been tempered by our lack of accomplishment in “winning” the war on terror, showing that while we made life more miserable and less free for all Americans, we hadn’t done a thing to the terrorists. 

And now we have.  Proof that our methods work.  Best not to think too hard about it, and just bask in the glow of success.  Now that we have enjoyed a huge accomplishment, particularly since almost ten years have elapsed with exceptional Americans looking rather impotent, we can be proud of ourselves again.

Yesterday, there was a discussion on twitter, to the extent such a thing is possible, brought about by two assertions: First, that no tear should be shed over the killing of Osama bin Laden.  Second, that we should trust the judgment of Seal Team 6 in having killed him.  Neither of these propositions is particularly controversial.  While there are some nagging questions for nit-pickers, they conform with the sensibilities of most Americans.  As people who, at least to Americans, are better off dead, OBL was top of the charts.  And as dedicated, well-trained, trustworthy military operatives go, Seal Team 6 performed spectacularly.  Certainly, no American would trade the life of a member of ST6 for that of bin Laden.

The discussion wasn’t about whether these assertions were right or wrong, but about how we explain the support for them.  The problem, as I saw it, is that the paradigm shift from war over sovereignty to war against shadows rendered all the principles upon which we historically relied too fuzzy to work.  This means that we can believe what suits our sensibilities, but we cannot offer a rational justification that doesn’t similarly apply to the methods being employed by our own government with which we don’t agree.

If OBL’s killing is justified because “we” believe him to be evil, then killing people “we” believe to be evil is justified.  Who the evil person is depends on who the “we” is, and if we are each permitted to choose one person we believe deserves to die, then we are likely to find a lot of dead bodies littering the landscape.

If ST6’s decision as to the need to kill OBL should be trusted (and assuming they weren’t under orders to make sure they didn’t return with a live body) because they are dedicated, well-trained and trustworthy, then what of the actions of police officers and SWAT teams who are similarly placed in life and death situations, forced to make split second decisions, and who shoot an unarmed person through the head?  Sure, ST6 has better training than police, but there are many who believe that police training and trustworthiness is more than sufficient to let them make the call without being second guessed.

The discussion was enlightening only to the extent that it shows how we substitute our personal sensibilities for logic when we reasoning fails.  Whenever the logical extension of an argument ran into a brick wall, it lapsed back into the irrational, “well, I think so.”  We’re a nation of people who can’t distinguish between personal feelings and reason.  We’re a nation of people who don’t want to be forced to think.

And this is how Chuck Schumer’s terrorist train list will meld with the feelings of a grateful nation, seizing the opportunity of minds muddled by feelings so strong that they preclude many, even criminal defense lawyers on twitter, from realizing that they can have valid feelings that defy reason.

For those of us who watched with dread when Congress passed the USA Patriot Act without any thought whatsoever following 9/11, a law filled with every hare-brained wish-list law enforcement initiative previously rejected as outrageous and unacceptable to a freedom loving nation, we see ourselves sliding further down a slope from which we will never recover.

It’s not that there is significant disagreement about either the killing of Osama bin Laden or that Seal Team 6 did a spectacular job on its mission.  But we recognize that not everything with which we agree can be rationally justified.  We realize that the failure to understand that sometimes, only under the most unique of circumstances, can lead us to accepting lists of people who can’t fly, can’t ride on trains, and don’t deserve to live.  And when these bad things happen, and the very same people raise their voice in outrage, those same sensibilities will prevent them from realizing that it’s nothing more than the natural product of their desire to explain their personal sensibilities.

Schumer is wrong.  This no train list takes a horrible idea and makes it worse.  Security does not enhance freedom.  And you need not have a rational explanation for why you will shed no tear for Osama bin Laden, or applaud Seal Team 6.  Sometimes, events transcend explanation, and that’s what saves us from making more terrible mistakes.

Don’t blame me if this seems unfair, as I neither know Florida criminal defense lawyer  David Joffe nor have any reason to believe that he’s not a fine lawyer.  But the  South Florida Lawyers blog made the point, and who am I to ignore it?

Joffe, like many lawyers, sees the future of his business growth coming from social media marketing.  But getting the word out is, well, difficult.  And so, Joffe got help, thus violating  Turk’s First Rule: Outsourcing Marketing = Outsourcing Ethics.  Here’s some of the gems from the  international press release about the greater glory of Joffe:

People running helter-skelter to find the best criminal attorney in Fort Lauderdale do not have to worry now, as David J. Joffe is an expert best criminal lawyer in Fort Lauderdale to give a strong advocacy to your case.

Certainly everybody wants the “expert best” lawyer, as opposed to some expert, middle of the road, lawyer.  But just how much of an “expert best” lawyer is he?

Advocate Joffe also has a listing in the Martindale-Hubbell Bar Register of Preeminent Lawyers making him one of the top five criminal attorneys in the US. For the past 90 years, this register lists the most renowned professionals in the legal community.

As they say at South Florida Lawyers, top five is not too shabby.  But I’m AV Preeminent too, and nobody told me I was in the top five.  Maybe I’m number 6?  You’re probably saying to yourself now, “sure, he’s top five, but why Joffe and what’s he going to do for me?”

Moreover, you will come across many advertisements in Fort Lauderdale for hiring a criminal attorney, but it is crucial not to depend on them because for a fort lauderdale criminal attorney what counts the most is experience.

Advocate David J. Joffe makes strategies for cases keeping in mind the minimization of effects and consequences of criminal cases, so that clients can have more of their concentration in their professional and personal lives.

All these along with the experience of various cases make Advocate Joffes credentials undisputable. You can stay completely satisfied with your case once Advocate Joffe takes your case in hand.

If you have an accusation registered in any criminal litigation, then it is in your best interest to consult Advocate Joffe and Joffe and his staff will devise an effectual defense plan.

What more could you want than an effectual defense plan?

The sad part about this is that David Joffe is likely a fine lawyer, trying to bring in business like many others.  For whatever reason, he bought into the belief that spending money on social media marketing is the wave of the future, and no doubt he expected the money spent to produce results.  What he likely didn’t expect is that the people using his name and putting together words on his behalf had barely a passing familiarity with the English language. 

This is just too funny for words, on the one hand, but no doubt not terribly funny for Joffe, who has become a laughingstock at the hands of his marketer.  Not only are the claims made in his name ridiculous, but this press release makes him appear to be functionally illiterate.  At the very best, Advocate Joffe has been turned into an international fool.  And paid for the privilege.

Whether David Joffe’s performance as a criminal defense lawyer deserves this sort of public approbation, his turning over his name to a marketer most assuredly does.  When you hand over your good name to a marketer to dress you up in hot pants and parade your down the boulevard, you have no cause to complain when you end up looking disreputable.

Never forget Turk’s First Rule: Outsourcing Marketing = Outsourcing Ethics.  No matter how sweet the marketers’ pitch, it’s your good name on the line.  Do you want to be the “expert best” “top five” lawyer who devises “effectual defense plans”?  Do you want to pay to turn yourself into a joke?

Building stuff is hard.  Try finding someone who actually does what he says he’s going to do, does it well and does it for the price agreed upon.  Anyone who has endured construction knows the story, but you would think that the problems faced by mere mortals wouldn’t be shared by the chosen Nine.  You would, however, be wrong.

Via Tony Mauro :

U.S. Supreme Court Justice Antonin Scalia was making a presentation to foreign dignitaries at the court a few years ago when the sound of a hammer drill erupted nearby.

In 2006, Chief Justice John Roberts Jr. was in the midst of a filming session when a noisy construction worker interrupted.

Vignettes like these from the long-running $75 million renovation of the court’s majestic building in Washington are central to a sharp dispute that has broken out between the construction company doing the work and the government agency overseeing the project.

Renovating the Supreme Court brings a somewhat unique problem to the fore.  How, exactly, does a contractor make his case when the witnesses against him are the justices?

And yet, this hasn’t stopped the contractor, Grunley Construction, from pointing the finger at the justices and blaming them for $40 million in overuns and delays.  The reason?

But the court placed one major condition on the project: The justices and court staff would stay in the building. Even the government acknowledged in a brief that the continued occupation of the building was “the critical factor giving rise to this dispute.”

At the outset, Grunley, which has participated in many major government renovation projects, pledged “zero tolerance” for interruption of the court’s activities. The company prides itself on “stealth contracting.” One project document stated, “The Grunley project motto will be, ‘No interruption to the court.’??”

That, apparently, didn’t give mean that they couldn’t do work during oral argument.  The original contract provided that the contractor should anticipate that work would be interrupted for 16 days during the calendar year.  But once Grunley got rolling, the special sense of entitlement that comes with a hard hat kicked in.

In another incident in 2006, Grunley workers were found using a hammer drill and pouring concrete while the court was in session.

“When questioned, Grunley’s superintendent was not even aware that it was a court day,” according to a report from the Architect of the Capitol.

The Court Marshall, Pamela Talkin, started issuing memos about when work could not be done, and anyone familiar with the words “change order” knows that such a memo can only lead to one thing: More Money.

The idea that a contractor could unwittingly shut down the function of a branch of government like they do a public road when their big truck needs it more than the rest of the driving public seems almost comical.  They aren’t doing a kitchen reno on a split level, where Mom can scoot out to McD’s if the stove doesn’t get installed on time. 

On the other hand, the building was in desperate need of repair, and construction work requires that you let the contractor do his job.  It gets loud and ugly before it gets better.  That’s the nature of the work, and it doesn’t change because the locals wear black robes.

For those who wonder whether the isolated, sanitized existence of a Supreme Court Justice interferes with his or her ability to understand and appreciate what us groundlings go through in our mundane lives, at least we can take comfort in one thing.  They know what it’s like to live through construction.

Still, the question remains whether an originalists’ view of the Supreme Court renovations would compel the conclusion that the Grunley crew be paid for the time lost while the court droned on, or flogged in the public square for their inability to grasp that the public welfare comes before trapezoidal windows.

A phenomenon occurs in court where a person appears before a judge who seems to be on top of their case, aware of the issues, interested in the arguments and, maybe, even dubious of the prosecution.  To a defendant, it’s an exhilarating experience,  Hope, dreams of a positive outcome are lit, and the defendant walks out of the courtroom with his head held high and his spirit soaring.

This was experienced by  Joel Rosenberg, my pal Jdog, after his court appearance last March.  Judge Todrick Barnett ordered the parties to brief a critical issue, one that cut decidedly against the prosecution’s theory that because there was a spare courtroom on the third floor on City Hall, which also housed the office of the Chief of Police, an order prohibiting the carrying of guns in courthouses applied to the building as a whole.

With this big issue on the table. Joel’s lawyer, David Gross, prepared a bang-up memorandum.  The prosecution did a yeoman’s job.  The stars were aligned, a judge who grasped the issue and demonstrated not only an interest in getting to the heart of the matter, but the strength of intellect and will to hold the prosecutor to the law.  This judge wasn’t about to let the state wiggle its way around the law to nail Jdog when no crime occurred.

And with hope and trepidation, Joel returned to court on May 2nd.  The story is told by a fellow named Rob, a witness to the proceedings, though not necessarily in agreement with Joel’s methods.

The Judge Barnett I saw yesterday was much more apathetic about David Gross’ defense. To me, it appeared that he had just crammed through the briefs in the moments before the hearing.

The city did not meet the requirement to prove that the court has authority over the entire building, and Judge Barnette didn’t care. The judge did not consider the different signage, and was not able to make any strong statements (like he did at the March hearing).

The Judge Barnett I saw yesterday seemed afraid to make any interpretation of the law, the court order, or the court’s authority. He was all too happy to throw the case to a jury, over making any statements, or judgement that would set a precedence for anything, or be anything notable.

He simply wants to fly under the radar.

With Judge Barnett’s 180, Joel could be in trouble. This is an important case, with serious potential ramifications for permit to carry holders.

What happened?  It could be any number of things, from someone “reaching out” to Judge Barnett to remind him that getting along with the cops and prosecution would make his job easier going forward, to having had a lousy breakfast that morning and being unduly concerned about his fiber intake.  It’s impossible to know.

What is clear, however, is that the phenomenon that happened is hardly new, though one that seems to mysteriously elude judges since the dawn of the legal system.  They knew it when they were lawyers, and had every intention of avoiding it when they took the bench, yet it happens. 

The phenomenon is quite obvious, and one that’s experienced by every lawyer who has ever stepped foot in the well of a courtroom.  The judge who was so knowledgeable and focused, who seemed poised to take the bold step of deciding a hard issue against the might of the state, is nowhere to be found the next time you appear.  In his place is some disinterested, thoughtless and lackadaisical weenie who appears to have no clue why you bothered to put in forty hours of work on the memorandum he directed you to provide.  Indeed, he has no memory of even asking for it, and seems annoyed that you’ve handed him more work to do.  Who is this person in a robe that sits where my judge should be?

It’s heartbreaking to a defendant, to find that the hope you held gently in your chest the last time you appeared is gone.  It’s the same for the lawyer, who thought maybe this time, just maybe, the judge would do the right thing, would show the courage to smack their smirking faces in their ridiculous prosecution. 

Sure, one gets used to adverse rulings even though no reasonable person learned in the law would anticipate it.  The law is wonderful when discussed in theory, but it can be ugly, nasty and stupid in a trial court where all those fine appellate decisions gets watered down to a single word, denied.  They don’t teach this in law school, but it’s the first thing you learn in practice.

There is a very simple reason why a judge would much prefer a jury to rule in a defendant’s favor than to do the dirty work for which he’s paid.  It removes the onus from him and places it one twelve fools.  He can’t be held responsible, so when he goes to parties with other judges and important government officials, no one will look askance at his betrayal of the forces of justice.  The pressure can be powerful, often overwhelming, especially to a young judge who has a great future ahead of him if only he doesn’t blow it by siding with the wrong types. 

Or maybe he just had a lousy night’s sleep, or a fight with his wife, or trouble with his bowel movement.  All of these things can interfere with his performance in court on any given day.  So what if he wears a robe and is expected to remember on one day what he did on another.  Judges are only human.

Then again, defendants are only human too.

The email from Tom was as routine as could be, an unintended consequence of being a blawger.  There are a thousand, maybe ten thousand, Toms out there, each of whom comes to work every morning in the basement of their parents’ home with the hope that somehow, some way, the target of their desire who hasn’t succumbed to the lure of their thousand, maybe ten thousand, predecessors, will be weak today and, maybe, just maybe, bite.

Hi,

My name is Tom and I am a link builder. I sell blog comment links for website owners at low price.
Blog comment links can help you in a number of ways. Here are three major advantages:
 – Increase link and IP popularity
 – Direct traffic to your site
 – Higher rankings in search engines
I can do thousands of blog comment links for your site in a couple of days, and they get indexed very fast. If you would like more details about my offer, or would like to ask me anything you’d like regarding this matter, feel free to reply with a YES to the following email address: tsandersxxx @gmail.com

Best regards,
Tom

So what if its not personalized.  Sometimes the program screws up.  I’m sure Tom would love me if I reply YES.  Oh, and paid.  I could keep him in Cheetos for a week, and that would be awesome.

But Tom is no fly by night SEO bandit.  He’s got a confidentiality warning at the bottom of his email, showing how serious he is, and likely to overcome any aversion I might have to his using a gmail address as a sign of his tech savvy.

———————–DISCLOSURE———————————–
Confidentiality, Privacy, and Security Notice:
The content, materials, and accompanying attachment(s) contained within any eMail (electronic mail transmission) is intended solely for the individual or entity to which it is addressed [authorized recipient(s)] which may be confidential, exempt from disclosure under the Electronic Communications Privacy Act, and/or legally privileged. The message facilitates a previous agreement of the transaction/service of a transactional relationship for which the intended recipient explicitly has double confirmed agreement to be contacted and informed in an ongoing capacity. If you are not the intended recipient(s), responsible for delivering partially or in full any transmission to the intended recipient(s), and/or have received the transmission in error, you are hereby notified you are strictly prohibited from reading, copying, printing, distributing and/or disclosing any of the content, materials, and accompanying attachment(s) contained within. If you have received any portion of the transmission in error, please notify the original sender by forwarding all transmissions to replytotomsanders @seo-links.com and delete the original along with all copies of the transmission to include any accompanying attachment(s). Any views, commentary, and/or opinions presented within are solely those of the author(s) and do not necessarily represent those of any other company(s) or parent entity(s).
At anytime you may stop further transactional communications by letting us know by emailing us at unsubscribeyouremailfromtoms   @gmail.com and you will no longer receive communications from us.
Tom Sanders | 1211 S. Main St, Chico, CA 90119
This advertisement is in complete Compliance with the FEDERAL CAN SPAM ACT of 2003. You may unsubscribe at anytime by simply clicking the http://clients.automateyourlist.com/z/r/?LOxMnExstCzsHIxMHJyctEb0nMwubCzMTA== here within the email.
To Report SPAM ABUSE Please Email The Hosting Company at: [email protected]
———————–END of DISCLOSURE————————

It’s fortunate that Tom put “end of disclosure” so that I didn’t feel constrained to keep his secret, even though his belief that I  “explicitly . .  double confirmed agreement to be contacted and informed,” which I guess would mean that I replied “YES, YES” to his email, though that wouldn’t be possible since his email was the first I’ve learned of Tom and his SEO magic.  And then, there’s no such address in Chico, California, but that doesn’t matter since on the internet, nobody has to actually be anywhere to be real.

Most meaningful to me is that Tom can “do thousands of blog comment links for your site in a couple of days.”  You see, last week, SJ was spammed overnight with 748 comments from a single person.  This week, one fellow has been working feverishly to get a spam comment through over the past couple of days, providing me with about 500 comments as of this writing saying very nice things about me and my posts.  I apparently inspire him.  And, I might add, I respect his tenacity, though it isn’t going to help him get a comment to see the light of day.

But there would no need for Tom, or last week’s spammer, or this week’s spammer, or the ordinary spammers who leave me ten, or fifty, or even a hundred, spam comments if there wasn’t some fool on the internet who thought this was his path to wealth and success.  Many, sadly, are lawyers, and there is no shortage of lawyer spam being left for me from such exotic locales as Russia.  Of course, the lawyers involved know nothing about what their flavor of Tom is up to.  They only know that they wants thousands of comments left in a couple of days so they can be instant internet successes.

What occurs to me as well, however, is how many bloggers enable this “industry” by allowing, even loving, spam comments.  I understand, you get no comments otherwise and you feel very lonely, very unloved.  I realize that spam comments often say very nice things about you, and who doesn’t appreciate a complement, even if it’s written in Cyrillic.  I get it.

And you aren’t alone, as I pointed out to none other than  Legal Blog Watch’s Soaring Lone Eagle Bruce Carton the other day.  And then there are the lawprofs, who prefer to intellectualize the possibility that they really do have fans in far away places who deeply respect their scholarly writings, and just happen to sell used cars and Dubai real estate on the side.

It’s understandable that some bloggers can’t manage to find the time to clean up the spam in their comments.  Lord knows they didn’t put in much time copying a post from a newspaper article and adding their plea to the end to “buy me.”  And then there is the ego issue, how wonderful it is that people all over the world think you’re truly special and adore your posts, who use commenter names like Akron Auto Supply and Cleveland Surplus Underwear.  What blogger doesn’t want a long thread of adoring fans?

Yet, imagine a blawgosphere that wasn’t replete with spam.  Imagine a morning when there wasn’t a hundred, a thousand, spam comments to delete.  If you don’t let your adoring fans use your blog as their personal dumping ground, then they might have to get real jobs.  I hear McDonald’s is hiring.

No, I don’t think today is going to be Tom’s day.  At least not here.  In fact, I don’t even think there is a Tom, any more than there is a business operating in the park where his address should be.  It’s the internet, and it’s only as much of an opportunity as we make it.  Not for us, mind you, as legitimate folks are the ones paying money to the scammers and spammers because they know something we don’t.  This is all part of a plan to empty the pockets of desperate foolish people.  That they make our lives miserable in the process is just a side benefit.

Bite the bullet and deal with it on your blog as well.  Don’t make Tom’s day.  And don’t feel bad for Tom.  He doesn’t exist.

Not the usual sort of book I review, but the memoirs of former FBI Special Agent  Jack Owens, Don’t Shoot, We’re Republicans, struck me as the sort of book that might hold some special insight for criminal defense lawyers.  Indeed it does.

Like almost every law enforcement officer, state or federal, I’ve ever known, Jack Owens seems like a guy with whom you want to hang out and have a beer.  He started with the Bureau back when J. Edgar Hoover ruled with his iron fist inside the white lace glove, though he never saw him in high heel shoes and refuses to accept that Hoover and Clyde Tolson were more than good friends.

Owens tells the stories of the tensions of law enforcement from the perspective within the Bureau, bucking the petty rules and being “mavericky” in a place where wearing a blue shirt rather than white was deemed pretty radical.  The book is a series of anecdotes of Owens’ life in the FBI, and what is clear is that the FBI was his life, quickly supplanting his first marriage and two children with barely an explanation.  His dedication toward his fellow agents, his pals, never goes unmentioned, while his children are barely given a thought.

The vignettes are humorous, not in a laugh-out-loud sort of way but in more subtle, more SNAFU approach.  For those raised on the myth of the FBI from Efrem Zimbalist, Jr., this will put an end to any belief that they were the supermen of law enforcement, above and beyond mistake or miscalculation.  Much of the time was spent circumventing their own rules and procedures, and tripping over the criminals they were sent out to capture.  It seems that the Bureau’s success was more a matter of dumb luck than skill.  Yet Owens never doubts that he was on the right team, and that anyone he collared was both guilty and deserving.

While it’s never expressed in the stories, what clearly emerges from Owens’ anecdotes is the belief that the rules, whether imposed by armchair bureaucrats within the FBI or the law, were anything more than a minor stumbling block to circumvent whenever they stood in the way.  There’s never any sign of malice or venal intent at all; If anything, you’re rooting for Jack all along and find yourself enjoying his charming efforts at doing the right thing.

In one story, where Owens is out to capture notorious Vietnam war era Army deserter, Jerry Dale Watkins, he tells of his ride in the wee hours of the morning to a rural house where Watkins is believed to be hiding.  Driving his personal 1964 Volkswagon Beetle with one headlight out, all alone, he’s already skirted enough rules to get him in a serious jam, but he manages to do what no one else could, get to the house undetected.

I drive into Jerry Dale’s yard and kill the engine.  It’s eerily quiet.  The Watkins clan is not stirring. I ease out of the Bug and walk up to the house. There’s a screen door to receive what little breeze the hollows offer in summer. I look inside the house through the screen.  Three bare-armed adults lie asleep on a mattress just inside the front door, a man between two women, a sheet loosely covering them, comfortable as hell.  Clothes and shoes are strewn about the wooden floor.  I try the screen door.  It opens and I quietly step into the house.  There’s a wonderful smell of collard greens.  Standing over the mattress, I get a good look at the guy. It’s Jerry Dale Watkins.

In the Age of Acquiescence, a corporation willing to do anything other than bend over when the government comes a’knocking is a shocking welcome.  After all, if one can buy a bit of good will with the powerful, whether from cash on hand or mere back scratching, odds are that your former federal prosecutor Biglaw specialist advisors will tell you there’s no other route to go.

But Firefox’s mother, Mozilla Foundation, took a different path.  Via Patrick at Popehat :

Harvey Anderson, Mozilla’s lawyer, in response to a demand from the Department of Homeland Security to remove a browser add-on which re-directs traffic from domains seized by the government to the original owners’ new domains:

• Have any courts determined that the Mafiaafire add-on is unlawful or illegal in any way? If so, on what basis? (Please provide any relevant rulings)


• Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.


• Can you please provide a copy of the relevant seizure order upon which your request to Mozilla to take down the Mafiaafire  add-on is based?

Imagine, asking why?  How bold!  Maybe not for you or I, but for a corporation in the Age of Acquiescence?  This is the very definition of bold.  What would it have meant to Mozilla to just go along to get along, to rid itself of an add-on that made the government’s job more difficult?  It’s not like it cost Mozilla anything.  And yet, Mozilla asked “why?”

It’s not that the incentive to be agreeable with anything the government requests only applies to corporations.  How often does a driver open the trunk when a cop asks, “you don’t have anything to hide, do you?”  We know that we really ought to tell the cop to take a hike, yet open the trunk anyway.  It’s just so much easier.

And so it goes for corporations as well, who are only too happy to take what they’re told by their Biglaw specialists is the most cost-effective route, complete subjugation to the will of the government.  What could they possibly gain from fighting or being disagreeable?  So what if they have no duty to comply; do you want an investigation or to make an enemy?  Nooooo, you want to make friends with power.

They don’t want to sell out their integrity and customers, but what can they do?  Here’s a thought: Grow a pair.  Until the day when corporations stop being the patsy of the government under the guise of being good corporate citizens, they government won’t stop asking for your to do its bidding. 

And so, like Patrick, my hat is off to Mozilla Foundation for taking a stand by asking the very simple question, why?  If only more corporate executives and their counsel had the guts to do so.

Via Antonin Pribetic, who stays on the  cutting edge of hip-dom and lets curmudgeons like me know what we’re missing, comes the latest cool place for lawyers to hang, the Legal Playground.  Here’s the new cool:

Who says lawyers aren’t hip? Attorneys have historically been known as stiff and old-fashioned, but today’s generation is an entirely new breed.  They are innovative, open-minded and in sync with the latest technology.  Instead of running to a law library to search for a court case decision, today’s lawyer just picks up their iPad or iPhone and has an array of case law at the touch of their fingertips…literally.  Although some may try to resist change, the truth is that textbooks and journals are soon going to be obsolete.  Nobody is going to thumb through a book to find a lawyer.  Instead they will utilize a browser on their phone.  LegalPlayground.com is the next wave of technology for lawyers.  I may be biased but the facts are the facts.  Members can create a personal profile that displays their professional information for clients and the public.  Similarly, anyone can simply search the website to locate a lawyer by state or practice area.  Whereas a Bar Journal prints a lawyer’s name, address and contact information, LegalPlayground.com provides lawyer with the opportunity to post photos, publications, videos, webouts and blog.  The site also gives each member their own USL that can be included on business cards and websites.  For many solo practitioners and young lawyers working for outdated firms, this is a sigh of relief.  And what’s more…you can download the app on your iPhone to follow your favorite (or most dreaded) lawyer by setting your app to follow that attorney’s blogs.  The stereotype of lawyers as old, stuffy men is about to change.  Meet the lawyers of the 21st Century.  See the lawyers of the next generation.  Catch them all…in the Playground.

Alana Cappello was confirmed as an attorney in good standing with the bar in the following state(s): Florida on April 23, 2011, New York on April 23, 2011