It was a reasonable question:

Maybe it’s just me because I am working on my first federal criminal appeal for a defendant, but is anyone else alarmed at the ease by which the government can get into evidence incriminating material relating to uncharged crimes and bad acts under F. R. Crim. Pro 404(b)? I mean, everything and the kitchen sink can come in to prove “intent” as long as it doesn’t touch character? I’m not an expert like some of you here, but my research so far reveals that admission of 404(b) material as evidence is never reversed (if you have a case, let me know . . . ) and there is no question in my mind that the jury will have no trouble hearing that bell ringing in every case.

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

The sort of question with accompanying observation one sees with some regularity on criminal defense listserv, reflecting the dismay of the rookie that years of studying the law has failed miserably to prepare her for the harsh reality.  So many fine platitudes turn out to be empty, meaningless words.

The problem isn’t that there is anything terribly unusual about the either the question or the epiphany, but that it comes from Deborah Borman, an assistant professor of law at Northwestern Law School, and was posted at PrawfsBlawg.  Don’t be fooled by her attractive, youthful appearance.  She didn’t pop out of law school yesterday.

Prior to her appointment at Northwestern, Professor Borman served as a career clerk for a Justice of the Illinois Appellate Court from 1991-2008, drafting more than 300 opinions in all areas of civil and criminal law, and as an Illinois Assistant Attorney General in the Consumer Fraud Bureau. Ms. Borman is a Panel Contributing Editor to the 9th Edition of Black’s Law Dictionary as well as an Assistant Editor of the Journal of the Legal Writing Institute.

Borman spent 17 years of her career as a clerk for a Justice of the Illinois Appellate Court.  According to her CV, she “researched and drafted over 300 published opinions and unpublished orders addressing civil and criminal issues.” She is now charged with training the next generation of lawyers at Northwestern, having previously been an adjunct at John Marshall and DePaul law schools.

After all that, she vents the common frustration,

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

Putting aside the unanswerable question of why, now, she’s doing her first federal criminal appeal and what qualifications she possesses to take a person’s life in her hands, it is unfathomable that she spent 17 years writing decisions that brought tears of joy and sorrow to others, that made or ruined lives, without ever having realized that the playing field was a little out of level.

It’s wonderful that Borman has come to the realization that Rule 404(b) can be unbearably unfair, though it appears that she may still believe that the rest of the criminal law is working swimmingly well.  Until she has to do her second, then third, appeal, where she will learn that it’s not just 404(b).  Given enough time and appeals, she may eventually come to the grander epiphany that the defendant is always fighting an uphill battle, barefoot and in the snow.  Hopefully she will get there eventually.

Hidden within her growth spurt, however, is a lesson for those of us who write briefs and argue causes before appellate courts, where we want to believe that whoever is in the backroom researching and drafting has at least a little idea of the reality in the trenches.  We presume they aren’t so totally isolated, disconnected from reality, that they actually believe the black letter law dressed up in grand platitudes, and take comfort in their decisions knowing that the law is a wondrous thing, the best it can be.

Having bent an elbow or two with people whose careers were spent making decisions, or helping others to make decisions, I’ve been told that they get it, they know what really happens in the trenches.  Some do, as they were in the trenches themselves.  Others have to be taken on faith, since the only basis to believe them is their own word.  We hope they aren’t lying to themselves and us.

After 22 years of transition from law student to lawyer, Deborah Borman has come to the realization that at least one rule of criminal procedure isn’t nearly as fair in practice as it would appear from the caselaw.  That’s good.  It would have been a whole lot better, though, had she reached this plateau about 300 decisions earlier.   Still, better to learn this life lesson later than not at all.

When the  Supreme Court held that “honest services fraud” wasn’t some amorphous sinkhole where prosecutors with no business acumen could pound “common sense” arguments to jurors with no business acumen about how honest corporate executives should make complex decisions with wildly competing influences and interests at stake, but instead just plain vanilla bribes and kickbacks, it was a great day for rationality.

As it turned out, it wasn’t nearly as good a day for Enron’s Jeffrey Skilling.  

Doug Berman calls it a “Pyrrhic victory,”  Ellen Podger questions whether appellate courts should engage in post hoc verdict rationalization.   Tom Kirkendall says it’s not over yet.   Bill Otis says the fat lady sang, and her pitch was perfect.

On remand, the Fifth Circuit did the unthinkable just about what one would expect: they  affirmed Skilling’s conspiracy conviction despite the Supreme Court’s ruling under harmless error.  Of the many curious asides, this renders the ruling by the Supreme Court rather immodest, deciding an issue that was of no consequence to the case before it.  They don’t like to do that, limiting their efforts to question that demand answers, whether they actually answer them or not.

The Circuit’s ruling came down to a rather nifty switcheroo between standards of review and the parsing of the facts of the case, as only one can do by selectively cherry-picking that which supports a position and then squinting really hard so that the big mess looks wonderfully neat, clean and obvious.  To their credit, this is what appellate courts do best, turning confusion into clarity by ignoring everything that doesn’t conform.

With the caveat that the decision applies only to the conspiracy count, and that Skilling remains convicted of a bunch of substantive counts that are more than sufficient to remind us that he’s not quite an innocent fellow, the government argued at trial that guilt of the conspiracy was predicated upon a mashup of nefarious intent and conduct, part of which was that very honest services fraud that the Supremes rejected. 

The Circuit now concludes that it played a trivial role in the government’s argument, despite its  prior decision that suggested it was a critical component of the conspiracy conviction, and in its absence, the conviction must fall.  But that was then.

The trick was the 5th Circuit’s reliance on a case called Hedgpeth v. Pulido, which provided that a general verdict, one that convicted for a crime based on a mix of theories because the judge charged the jury that they could convict on a constitutionally infirm basis, was not a “structural error” but a trial error, and therefore subject to harmless error analysis.  This is where it gets interesting.  From footnote 1:

Before Pulido, we often applied an “impossible to tell” harmless-error standard to alternative-theory errors. See United States v. Howard, 517 F.3d 731, 736 (5th Cir. 2009) (cataloguing cases). This standard had its origins in Yates v. United States, 354 U.S. 298 (1957), which states that a general verdict should be set aside when it “is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 312 (emphasis added). The impossible-to-tell standard is more stringent than the Neder standard; it is closer to the “absolute certainty” standard that the Supreme Court invalidated in Pulido. See Pulido, 129 S. Ct. at 533 (holding that the absolute-certainty standard is similar to “a finding that no violation had occurred at all, rather than that any error was harmless”). Because the impossible-to-tell standard is inconsistent with harmless-error review, we hereby abandon it.

It went from a reasonably close facsimile of reality, that the court couldn’t possibly know what evidence, what proof, what wrong, formed the basis for the jury’s conviction on a general verdict crime based on multiple theories, to the beloved legal fiction, harmless error.  The former acknowledged that appellate judges lack the powers of Karmac to read the minds of jurors, while the latter acknowledged that the basis upon which a jury reached its verdict doesn’t actually mean squat.  The appellate court will simply superimpose its view of how guilty the defendant is, then pretend that it’s the same thing as the jury’s.

The rest of the decision is merely the 5th Circuit’s characterization of the evidence and argument at trial in such a way as to conclude, as of course they did, that the evidence of Skilling’s guilt was overwhelming and untainted by the constitutionally infirm honest services fraud, a question of such magnitude that it required the attention of the Supremes.  It has to be correct because the court said so.

There is perhaps no theme more fundamental to the viability of the legal system than respect.  As my pal  Mike Cernovich notes on a completely different subject:

When Chief Justice John Marshall of the United States Supreme Court issued an opinion Supreme Alpha Male Andrew Jackson didn’t like, Jackson replied, “John Marshall has made his decision, now let him enforce it!” Jackson controlled the armies and federal police. What would the Supreme Court do – issue him a contempt citation?

Courts have no armies to enforce their will.  Its authority derives from society’s acceptance of the legitimacy of its decisions, the validity of its reasoning.  This decision has not been well received, despite the nearly universal agreement that Jeffrey Skilling isn’t a nice guy, and did vast harm to many.  Tossing reason into the vast sinkhole of harmless error, particularly after the Supreme Court determined the issue of sufficient magnitude to do some big time revisions to Congress’ make-crime handiwork does not instill confidence.  The decision is a pig, and no amount of lipstick makes the 5th Circuit’s effort look beautiful.

As for Skilling, my money is on Bill Otis, that he gets resentenced to pretty much the same sentence as already imposed (24 years) and the various applications for rehearing and cert will quietly fade into oblivion.  After all, it was just harmless error.

The Supreme Court has granted cert in a case that presents both an issue that demands resolution, and that has to anger anyone who isn’t a badgelicking apologist.  A very odd combination.  It’s the case of Albert Florence, whose crime was payment of the fine for a traffic ticket.

From the Philly Inquirer :

On Monday, the court agreed to hear the case filed on behalf of Albert Florence, who spent six nights in the Burlington County Jail and a night in the Essex County Jail in 2005. He was strip-searched at both facilities before a judge confirmed that he had been arrested in error and let him go.

Florence was a passenger in a BMW being driven by his pregnant wife, and the registered owner of the car.  When it was stopped for speeding, a warrant for Florence popped up for nonpayment of an old ticket.  The problem is that not only had Florence paid the ticket, but he had certified proof of payment in hand.  So what?  The cop hauled him in to protect the children. 

It took seven days to figure out the warrant was issued in error.  You can’t rush these things, you know.  After all, if they let him out and later determined that he should have been arrested, think of the children put at risk of fine-nonpayment in the interim.  Get your priorities straight.

But the issue before the Supremes isn’t the arrest, the error in issuing a warrant for a paid fine, the seven days to figure out the obvious. No, those are the regrettable side-effects of the new professionalism.  The issue is the propriety of conducting a full strip search, with extreme prejudice, of Albert Florence and others like him, arrested for a minor infraction and for whom there is absolutely no reason to suspect the possession of weapons or contraband as he enters the correctional system.

While most appellate courts have held that such searches are unconstitutional, citing the 1979 Supreme Court decision Bell v. Wolfish, four recent decisions have upheld the practice as a way of maintaining prison security, concluding that other decisions improperly interpreted Bell.

“The Third Circuit is now the law of the land” throughout that circuit, said attorney J. Brook DiDonato, who represents Burlington County. DiDonato said that the finding and confiscation of weapons during strip searches protects people like Florence. Most violence is directed at other inmates, he said.

Security of correctional facilities is a curious problem.  It’s true that it protects those inside from the introduction of weapons into the facility that are more likely used against other prisoners.  Don’t prisoners deserve to be protected?  Wouldn’t there be justified outrage if Florence had been murdered inside the jail (allowing for the detail that he never should have been there in the first place) because of the failure to search and locate a weapon being brought in by another person?

You bet there would be outrage.  And yet there is also outrage at the idea that everyone, no matter how trivial their offense or utterly lacking in reason to suspect they possess a weapon, is subject to a terribly demeaning, intrusive search.

At the New York Times, Adam Liptak wrote about the petition for cert, detailing some of the less than obvious arguments in favor of searching everyone, no matter what the reason for their custody (like violating a leash law or non-payment of child support).

Although the judges in the majority in Mr. Florence’s case, the one heard in Philadelphia, said they had been presented with no evidence that the searches were needed, they nonetheless ruled that they would not second-guess corrections officials who said they feared that people like Mr. Florence would smuggle contraband into their jails.

It was suggested that people might commit trivial offenses to get themselves put into a facility without a search in order to smuggle contraband to people already inside.  No, really.

“It is plausible,” Judge Thomas M. Hardiman wrote, “that incarcerated persons will induce or recruit others to subject themselves to arrest on nonindictable offenses to smuggle weapons or other contraband into the facility.”

But the most disingenuous argument was that others, similarly situated to Florence, would want to endure a cavity search.

But jails are dangerous places, the brief said. “It might even be argued that those arrested on nonindictable or other ‘minor’ offenses would be particularly anxious,” the brief reasoned, to make sure that everyone around them was thoroughly searched.

To my knowledge, no one has ever demanded a cavity search when the screws decided to take a pass.  Just in case.

The fact that people can, and do, hide some rather remarkable things within their body cavities is undeniable.  Short of a ’57 Bel Air, it’s perpetually amazing what some people are willing to insert in their bodies.  The problem isn’t theoretical and presents very real concerns about the introduction of contraband into the system. It’s not like that doesn’t mean searches work, as contraband gets into jails constantly anyway, but it similarly not like they don’t manage to intercept a significant amount of contraband in the process.

The problem is risk/reward, whether there is a point at which concerns about the nature of things done to an undeserving person on the off-chance that it may offer some marginal potential for safety.  Despite the absence of meaningful statistics, should 10,000 litterers be strip searched in order to find one person with a dime back of marijuana in his rectum?  Or a shiv?  Or 100,000 litterers?

The Third Circuit’s decision in Albert Florence’s case, refusing to impede corrections officials decisions to search ’em all, reflects an abdication of its duty to safeguard the public from the government.  It’s not that they can’t make the choice of holding that cavity searches are constitutional, but that they’ve merely deferred to the judgment of others. 

The problem is that the court acquiesced in the decision to use extreme intrusive measures for an extremely low probability problem.  The notion that people walk around littering in the hope of smuggling weapons concealed in their rectum into the jail may be “plausible,” but is hardly reasonable. 

On the other hand, the court utterly failed to recognize the extent of harm caused by cavity searches, treating it as some mere trivial rite of passage into the jail.  It’s demeaning and humiliating, an experience not to be treated so cavalierly.

Of course, it’s plausible that a federal judge might be nuts, say bipolar, and have a hankering for guns and hatred for blacks, causing him to robe up and take the bench with a weapon concealed on his person.  It could happen.  Perhaps, in the interest of safety, if judges were subjected to the occasional body cavity search, they would have a greater respect for a person’s right to bodily integrity in the absence of a reasonable suspicion to believe otherwise.

Safety is a wonderful thing.  But if a strip search is not a big enough deal to require a reason for it, then let the judges who happily defer to the judgment of those doing the searches rather than being searched get a taste of what they impose on others.  If they are less than thrilled at the prospect of being searched for the combination of a  traffic infraction and a warrant issued in error for themselves, then the rationale is no stronger when it’s our butts on the line.

Brian Tannebaum posts about a  remarkable decision from the District of Massachusetts by Judge Michael Ponsor, dealing with the always perplexing problem of what to do with defendants caught in the hiatus between a change in law and its effective date.

Antoine Watts is charged with possessing with intent to distribute five grams or more of crack cocaine. The judge in his memo questions whether the court will be compelled to impose a minimum mandatory sentence of at least five years on him, or will have the discretion to impose a lower sentence as permitted by the recently enacted Fair Sentencing Act of 2010.

A few more introductory words. The government’s contention that the General Saving Statute (“Saving Statute”), 1 U.S.C. § 109, demands this result — that is, that the Saving Statute makes perpetuation of obvious injustice a regrettable but necessary expression of respect for the law, however harsh its consequences — cannot survive a close examination of the Saving Statute itself or its legal context. The Saving Statute is simply not the straitjacket the government has tried to tailor.

Before any non-lawyer reader’s head explodes, a bit of explanation.  The Saving Statute addresses the inevitable problem of retroactivity caused by the fact that there are people in the pipeline at the time of passage of a law, but who were arrested, prosecuted and even convicted under the older version.  A new law addressing the same matter as an old law will invariably include a repeal of the old since there can’t be two conflicting laws applying to the same conduct at the same time, but that means the law for which the person in the system was convicted has since been repealed.  Then what? 

There’s where  1 U.S.C. § 109 comes in.

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. . . .

This constitutes the “default” position, subject to change by Congress when the “repealing Act shall so expressly provide.”  In enacting The Fair Sentencing Act of 2010, Congress did not “expressly provide.”  While the new law eliminated the mandatory minimum, Antoine Watts was convicted under the old law that still had a 5 year mandatory minimum.  Bummer.

That provides the generic, lawyerly context to the situation, but fails to address the particulars of the government’s argument.

. . . the Saving Statute makes perpetuation of obvious injustice a regrettable but necessary expression of respect for the law, however harsh its consequences . . .

This phrase may reflect the single most offensive argument ever proffered by a government.  There is no suggestion that the outcome the government proposes is not unjust.  Indeed, all concede, Congress included, that it is absolutely unjust, wrong, unfair, discriminatory.  There is universal agreement that an injustice will be done.  And that’s what our government argues for.

The rationale is that injustice is a “necessary expression of respect for the law.”  Respect, in this sentence, means adherence.  If you’re a stickler for stuff like law, the government’s argument is legally sound.  Congress could have expressly provided for its application to those in the pipeline (and we’re not going to touch further retroactivity, like the guy who was sentenced to the mandatory minimum the day before the law was enacted), but it didn’t.  Congress knows (or should know) about  1 U.S.C. § 109, could have accommodated the problem by providing for it, and didn’t.  Boo Congress. Boo President Obama. 

Then again, the prosecution didn’t have to raise the issue.  There’s a quiet detail that sometimes, the prosecution has a sound but disingenuous argument, and somebody decides not to mention it, while everybody else lets out a deep breath, winks all around, and life goes on.

And we thus return to the perpetuation of an obvious injustice.  Our government calls it regrettable.  Judge Ponsor refuses to allow himself to be compelled by the rigid rules of statutory construction to impose what everyone conceded to be an injustice.

There is a concept that doesn’t quite apply but could, called the Rule of Lenity.  Only where the law is ambiguous are the courts, according to the law, required to apply the least onerous law to the situation.  The Rule of Lenity isn’t used with great frequency, but it should be. 

Of course, there really was no ambiguity here.  Congress had the chance to address the situation differently, and decided to leave Antoine Watts blowing in the wind, perhaps the last man to be sentence to a mandatory minimum under a law repealed because it was fundamentally wrong and discriminatory.  That would have been our government’s choice.

But Judge Michael Ponsor decided that he would not be the judge to sentence that last man to an obviously unjust sentence.  Injustice is never regrettable but necessary.

My guess is that  Jay Shepherd never met Joseph Rakofsky.  If so, then he bears no responsibility for what happened.  But the irony that Shepherd, who writes a “column” about Small Law at Above the Law, posted Six Steps to Becoming an Expert at the same time the Rakofsky fiasco went viral can’t be ignored.

It’s not that Shepherd deliberately seeks to push young lawyers into a life of deceit and misery, but that he, like so many who have nothing to offer but still feign expertise, can’t stop himself from spouting crap.  The message, delivered in the obligatory list format favored by marketers trying to sell simpletons, is worse than Menckian.  It’s dangerous.

1. Win a case.
I’m not going to tell you how to do that; you’ll have to figure it out on your own. But eventually, the odds are that you’ll end up on the winning side of a case. Ideally, there will be something inherently interesting about the case. If there isn’t, find a way to make it sound interesting.

2. Get some ink.
After you’ve won a case (or handled a transaction) about which something notable can be said, you then need to get in touch with a reporter. . . Then pitch the story.

Reporters just love being pitched the mundane and self-promotional.  Heck, I get a dozen press releases a week about how lawyer Sammy Schmuck just won a $10,000 verdict in a wrongful death case, and he’s available for an interview.  Just don’t mention the dead bodies you left along the road to your eventual win when the odds swung in your favor.

3. Do a CLE.
Bar associations and local continuing-legal-education organizations are always looking for new programs, and new speakers to put them on.

There is nothing a room full of lawyers, compelled to be there because of well-intended but worthless CLE requirements, want to hear than some undistinguished n00b talk about a subject where everyone in the room knows more about the subject than the speaker.  And trust me, they can tell.

4. Write an article.
Write an interesting, plain-English article on your chosen topic. Reference your case (or transaction) if it makes sense to do so, but don’t do it in a way that makes you out to be the hero of the story. Otherwise it will come across as overtly self-promoting.

This step has gotten much easier than it was ten years ago. Back then, you were pretty much limited to writing pieces for bar-association journals and legal newspapers. Now, blogging and social media make it much easier to quickly write an article and get it out there for the world to read.

Some lawyers get hung up on irrelevant stuff, like credibility or substance.  Don’t sweat it.  Write a blog post and lawyers around the country will immediately swoon at your feet.  Can’t manage to amass that many words at one time, just craft a really good twit and you’re in like Flint.

5. Help your colleagues.
When you learn that another lawyer is handling a case similar to yours, offer to share your research or even the brief that you wrote.

Everybody appreciates unsolicited offers of help from people they don’t know.

6. Repeat.
Keep doing the previous five steps, and people will come to see you as an expert.

If it works for shampoo, why not lawyers?  And really, isn’t it all about people seeing you as an expert?

These six steps will help establish you as an expert in your particular area, which will lead to more cases in that area, which will allow you to repeat the process. Pretty soon, you’ll be a bona fide guru. That’s exactly how I became known as a noncompete expert. After several years of following these steps, beginning with a single, obscure case, I was getting noncompete referrals from lawyers around the country. In time, I actually did become an expert in the area.

The last sentence is the killer.  Everything up to that point, assuming Shepherd’s self-assessment that he eventually became an expert, is relatively accurate, was a lie.  One big old scam to garner attention.  This is the modern path to success in the law, just lie your butt off to everybody who will listen, feign expertise you don’t have and see how many fools will let you slide in along the way.  Cover up the dead bodies of your incompetence and when you get lucky, promote the hell out of yourself as if you’re the real thing.

And this is what is being promoted as the route to success in the law?

In the aftermath of the Rakofsky fiasco,  lawyers unfamiliar with social media were shocked that this could happen.

The conduct of this person, I cannot bring myself to call him a lawyer, is without doubt reprehensible. But I am forced to a much larger question. How did he get to this point? Measuring my professional life now in decades, I cannot comprehend his apparent lack of comprehension of his situation. To be told by a judge that you are not competent to the extent you are being dismissed from a case would be mortifying (an old dinosaur term) to me.

Is there some fundamental flaw which is afflicting our profession by which young lawyers are unable to see such clear problems, whether it is a Murder I as your first trial or representing two defendants with conflicting needs?

You bet there’s a fundamental flaw at work here.  The game they are learning has only six steps, none of which include become competent.  As  Keith Lee explained, young lawyers aren’t playing the game, but being played by it. 

Great lesson, Jay.  Thanks for sharing your expertise with your colleagues.

The judge looked up at me, smiled and said “Is Mr. Defendant now your co-counsel?” I smiled back, “no, judge. He is not.”

On the other hand, more often than not, the client begins to think he is also a lawyer. This causes a lot of problems. It forces me to spend huge amounts of time explaining why they are wrong about issues pertaining to their case. I sometimes get letters from clients laying out some legal theory that has no basis in the law. And then I have to spend an hour writing a reply letter correcting them. I suppose it’s part of the job.

I have had a couple of clients that found case law that helped me prior to a motion hearing. I am not afraid to admit I don’t know everything or have read every case on any given topic. Thus, in a few instances, the extra help was appreciated.

Because a non-lawyer thought he knew the law better than his lawyer. From here on out, I am going to cringe when a client informs me he’s been to the law library. Rarely does anything good come from it. Please let the lawyers be the lawyers.

When we need co-counsel, we’ll ask.

On the one hand, it’s a trivial matter no matter how you look at it.  On the other hand, it’s representative of the problems we face in raising precocious children into productive adults.  In the middle is mass media Professor Frank J. Rybicki at Valdosta State University, charged with the battery of his student.

From the VSU Spectator :

The altercation occurred when Dr. Rybicki allegedly closed a laptop computer on the hands of a student, said Dorsena Drakeford, a student in the class and Spectator sports editor.

 Dr. Rybicki closed the laptop because he thought the student was on non-class related websites. The student began to argue with Dr. Rybicki about closing the laptop and about the websites she visited while in class. Class was dismissed early because Dr. Rybicki seemed upset by the incident, Drakeford said. 

A few additional facts come from the student comments to the story, that the student involved was indeed busy using Facebook, Twitter and Youtube during class, despite her denials, and that her classtime enjoyment of social media was her norm.  The professor appears to be very well regarded by students as being one of the best they have.  The student isn’t as well regarded, her Facebook page revealing her self-assessment, “yep, I’m basically perfect,” an attitude which other students found off-putting.

There’s an argument to be made that Rybicki’s shutting her laptop computer was just beyond the line.  There’s an argument to be made that Rybicki’s telling her to stop using social media in class and to close her computer on her own should have been sufficient, thus avoiding any need to push harder.

After class, the student ran to the campus police and complained of the professor’s crime against her person.  The school, of course, has suspended Rybicki and removed him from the classroom, thereby denying the students their teacher and disrupting their course of education.  But charges have been levied, and the school has issued a generic statement in explanation:

All employees are expected to perform their obligations and responsibilities in a professional manner,

Like the Slackoisie Litmus Test, a division of thought exists as to what went wrong here.  From Gawker,

Yes, he closed the laptop of a student who was slacking off in class, and that student pressed assault charges against him, and he was literally arrested, and now he’s suspended, and the police have ordered students in the class “not to talk to anybody about the incident,” and the university is taking it all very seriously. Meanwhile all of the student feedback on the school paper’s website is in support of the teacher.

Your blueprint for success has been laid out, rude student jerks.

On the other hand,  Josh Blackman blames Rybicki’s handling of the matter.

Really, this is why Profs shouldn’t snoop and get involved with what a student is doing on his or her computer. Well, I think this result is absurd, but interesting nonetheless.

Wouldn’t it have been better if the Prof engaged the student on his computer, as I suggest, rather than slamming it shut?

Regardless of where fault is seen, reactions are fairly universal that pursuing criminal charges against Rybicki is wrong, whether because it’s seen as overkill or because viewed as generically absurd.  De minimis non curat lex, a maxim uttered too rarely these days.

The larger issue is the ongoing competition between entitlement and authority, one which presents a far more serious concern.  We’ve seen  instances of students asserting their right to challenge the authority of their professors to control the course of education and behavior in the classroom. 

At some point, they have decided that they “deserve” to be treated as equals, that the teacher’s authority comes from the student’s approval and largesse.  As with government, the power resides with the People, and only by consent of the governed is the authority recognized.

Is the analogy valid?  Does the teacher’s authority stem from the consent of the students?  Can any (and every) individual student decide for herself where the line ends, where the teacher’s authority exceeds that individual student’s right to do as she pleases?

Indeed, another analogy, the inmates taking over the asylum, seems similarly applicable.  While the days of teachers smacking knuckles with a yardstick may be gone, for better or worse, it’s unfathomable how anyone can effectively teach people who believe they are entitled to reject the teacher’s authority to dictate the norms of conduct in the classroom.  Not only would it put the power to disrupt education in the hand of every self-important student, but it would spell the death of education for those who desire to learn but, as here, find their teacher handcuffed by the limit unilaterally imposed by a student who has decided that her right to do as she pleases is superior to everyone else’s right to be educated.

The question isn’t whether Rybicki’s shutting of the student’s computer was the best way to handle the situation.  Let’s assume that it wasn’t, but rather an act of frustration on the part of the professor. Of course, it begs the question of what method of handling the student’s abject refusal to comply with the teacher’s direction would have been appropriate as well as effective.  Under modern notions of educational correctness, the likely “best practice” would have been for Rybicki to let it go during the class and complain about the student to his department chair afterward.  Of course, there’s nothing better than a professor ceding control of his classroom to a student on Facebook, but that’s correctness for you.

Whether the student was a “rude jerk,” or whether the professor was a “snoop” who stuck his nose where it didn’t belong and precipitated an incident that would never have happened if he minded his own business, the question presented is whether the terms and conditions of the classroom are dictated by the teacher or subject to the consent, perhaps the whim, of the student. 

To put it another way, are students freedom fighters or inmates in the asylum?

Remember “wilding?”  It was the hot word in crime in 1989, after the police and media announced that youthful predators were running amok and taking over the nation, all coming from the  Central Park Jogger case.  It became one of the driving forces in the 1990s movement to prosecute youth like adults and imprison them in adult institutions, where they would rot like the predators they were. 

Except they weren’t.  Turns out that the “wilding” youths in the Jogger case were innocent, and their convictions were vacated in 2002.  The word “wilding” hasn’t been uttered in a decade.  What remains, however, is the detritus of bad law and policy.  Naturally, politicians rushed laws onto the books, and prosecutors charges babies like grownups, and judges boomed harsh words as they condemned them to eternal damnation for their evil youthful predator ways. Except it was nothing more than a fashion trend.

The  New York Times has an editorial on the changing vision, the recognition that legislatures made a “tragic mistake.”

Prosecutors argued that harsh sentencing would protect the public from violent, youthful predators. But it has since turned out that most young people who spend time in jails and prisons are charged with nonviolent offenses. As many as half are never convicted of anything at all. In addition, research has shown that these young people are vulnerable to battery and rape at the hands of adult inmates and more likely to become violent, lifelong criminals than those who are held in juvenile custody.

Why the times chose to cherry pick prosecutors is unclear.  Prosecutors don’t pass laws.  Prosecutors don’t impose sentences.  Shouldn’t there be someone else in this system, maybe a neutral person, to stand between the prosecutor and an excess of zeal or myopia.  I know, we could call that person a “judge.”  But I digress.

A new study by the Campaign for Youth Justice, a Washington advocacy group, shows that state legislatures across the country are getting the message. In the last five years, the authors say, 15 states have passed nearly 30 pieces of legislation aimed at reversing policies that funnel a quarter of a million children into the adult justice system each year.

It’s important that there be a good, solid study in support of this cause, because without it, legislators, judges and those particularly evil prosecutors would be wholly unfamiliar with the concept of youth.  Young people.  Children.  How would anybody know that they aren’t just smaller versions of “violent . . . predators” likely to be raped and abused in adult prisons and to come out, at best, worse.  Who would have suspected?

Is it really 250,000 children a year who are shuffled through the adult criminal justice system?  Children. Kids.  Since the juices started flowing in our child predator mythology in 1989, we have finally begun  to realize that this great system, the best mankind has ever created, is pointlessly and ineffectively destroying the lives of 250,000 a year in 2011? 

What do we tell all these kids who did something stupid, something childish, because they are children who think like children, behave like children, and yet get punished like adults, whose lives have been ruined? 

Sorry?  Never mind?  My bad? 

Who gives them back their lives, the chance to realize what they did was wrong, and go back to school and become nuclear physicists, physicians, prosecutors?  Where is their chance to grow up and have a wonderful life?  It’s gone.  Go to prison for being a dumb kid and that’s it.  Game over.

And what do we learn from following knee-jerk fashion changes in the criminal justice system?  Who is today’s bogeyman, the hemlines go up and it’s sex offenders, or down and it’s drunk drivers, or pants are back style and it’s school children who point fingers as if they’re guns.  Wait, are we back to violent child predators again already?

For crying out loud, do we never learn about leaping blindly into the next baseless trend in crime, finding some new target upon whom to heap our frustration with our own lives and blame for the end of civilization?

The misery of life compels people to find someone to hate, to blame for all the bad things we suffer.  It never seems to solve anything, and almost invariably makes things worse, once we get past all the inflammatory rhetoric that makes us hate them in the first place.  All too often, as with the Central Park Jogger case, the impetus turns out to be complete and total nonsense, a lie that was too easy to grab hold of and use to generate fear, loathing and votes.  As soon as complacency sets in, we find a new group to hate and blame.

Maybe, if the New York Times editorial is correct, we can go back and undo the damage that we’ve caused over a generation by admitting that we totally blew it.  But what about those quarter of a million kids who we’ve condemned to prison in our zeal to find someone to blame?  We can’t give them back their lives.  We can’t give them back childhoods to enjoy, laughing and playing.  Even though no one has yet said it, maybe a nice sincere apology will help?

We can’t change the fact that their first kiss was from a 43-year-old man in the next cellblock, or that it didn’t stop at a kiss. 

Does that image disgust you?  I hope so. Maybe it will provide a reason to pause before the next hemline is raised and someone else is pointless harmed to prove conclusively what a great system we have.  There’s nothing we can do to undo the damage after the mistake has been made.

The rationale for why the State of Maine needs a law  establishing a drunk driver website is the same given for every registry and variation on a theme. 

More than 8,000 Mainers were arrested for drunken driving in 2009, the most recent statistics available, and Rep. Rich Cebra, R-Naples, says Mainers should know who those drivers are.

“I want a website at [the Maine Department of] Public Safety that will have their names and addresses and their picture,” he said. “People need to know about drunk drivers that might be living next door and taking their kids to soccer practice.”

Cebra said his measure would establish the website so that Mainers could search their community to see if any neighbors are convicted drunken drivers, and whether they are multiple offenders. He said it would be similar to the state sex offender website but would not be a registry.

Blah, blah, blah.  Do it for the children.  After all, should the neighbor’s know that they guy two houses down blew .08 BAC?  You can be they won’t lend him the riding mower any more.  And Rep. Cebra’s even figured out the perfect way to pay for it, since everything government does is very expensive.

“This would depend on the conviction information that is already being collected,” he said, “and I am proposing a $25 surcharge on every OUI conviction to pay for the website construction and operation.”

Thankfully, no one has figure out yet that if they impose a $10,000 surcharge on everyone convicted of drunk driving, they wouldn’t have to lay off teachers.  But I digress.

The proposal is hardly a surprise, as the fashion of returning to the stocks in the village commons, on top of whatever criminal penalties are imposed, offers vast opportunity for the enterprising politician.  Toss in some child welfare argument and, no matter how tenuous the connection, it’s usually good for re-election, at least for one term.  Nothing to see here, folks.

But what disturbs me far more is where the support comes from for such headlong dives down slippery slopes.  It’s not MADD or SADD or BADD.  We expect them to mindlessly support any initiative designed to penalize drunk driving.  That’s why they exist.  No, they aren’t the problem.  This is the problem.

Regular readers know that I have long been troubled by the threats posed by drunk drivers and have long believed that communities ought to be as worried about drunk drivers as they are about sex offenders.  I am generally agnostic concerning the use of any crime registries unless and until research effectively demonstrates that they foster public safety.  But it seems to me that if they make sense for sex offenders then they also should make sense for drunk drivers.

These aren’t the words of some political websites frequented by readers wearing tin foil hats.  These are the words of lawprof Doug Berman.

There is nothing that better supports, better emboldens, political thought than academics and scholars.  When it comes to sentencing, there is no scholar more persuasive than Douglas Berman.  No matter what the penalty or harm to be imposed, Doug’s backing can mean the difference between success and failure. 

It’s possible that this is just a throw-away comment, tossed out thoughtlessly and without the hard work of deliberation.  Or it’s possible that Doug Berman means exactly what he says, having given this subject intense scrutiny and purposefully offering his deepest thoughts on this subject for Cebra and any other politician looking to make a name for himself to use. 

Having much respect for Doug’s efforts, as well as his focus on a very narrow area of scholarship, however, his lack of distinction between sex offenders and drunk drivers, as well as his agnosticism, which in effect works out to support, toward crime registries, is shocking.

Does this suggest that a drunk driver is the same, or even remotely similar, to a sex offender?  And I’m not talking about the absurdly overbroad inclusion of people convicted of public urination on registries, but the real, hard-core, out-of-control child molesters?  It strikes me that neither the nature of the offense, nor the nature of the harm, has any similarity.  The sole factor is that both are crimes.  Aside from that, there is nothing to connect the two, and no rationale that suggests the concern for an out-of-control child molester living next door to one’s child to the Mainer who had two glasses of chardonney with his lobster.

Compounding the problem is the laissez faire attitude toward registries in general, that if they’re going to exist, why not have a registry for everything?  Where is the critical thinking?  Where does it end?  Does it end?

This is an invitation to slide down the slippery slope.  There may be no justification for a sex offender registry, but as long as we’re being stupid, let’s be really stupid.  Can this possibly be a sound basis for another registry?

It wouldn’t matter if this position was espoused by someone of lesser reputation, lesser credibility.  But when it comes to sentencing, which includes the pseudo-civil, extrajudicial penalties of being tainted with the scarlet letter so all the neighbors can hate you, so employers will fire you, so no one will rent you an apartment or let their kids play with yours, there is no one whose opinion matters more than Doug Berman’s. 

Are all crimes the same, all deserving a registry because judicial sentencing, zero tolerance, mandatory minimums, three strikes laws, aren’t doing enough harm to our society?  If one registry exists, is that a reason to have a registry for everything?  Why not? 

We’ve already learned from the sex offender registry concept how quickly is devolves into overbreadth, how devastating and inappropriate the scope of harm it causes, how it’s created a second class citizen whose life, and the lives of family members, are pointless harmed beyond repair.  So let’s do more of the same?

I don’t get it.  But then, my opinion doesn’t count.  It’s Doug Berman’s opinion that counts, and he doesn’t seem to have a problem with it.

Jeff Gamso posts about a young lawyer named Joseph Rakofsky, who did nothing more than a hundred legal marketers and youthful lawyer advocates urge every unemployed lawyer to do.  Be all that you can be on the internet. 

There are  whole conferences whose purpose is to teach legal marketers how to create more effective lies be more persuasive in social media.  The painted smiles and group love are dedicated to turning sow’s ears into silk purses. 

Don’t sweat the details. Don’ be afraid to make yourself appear to be something, many things, you’re not.  And don’t ever turn away a client, no matter what the case or what your qualifications to handle the case.  It’s all about making money, and anything a young lawyer has to do to make money is fair game.  That’s how things work in the law these days. 

Gamso, who learned of the story via Jamison Koehler, provides a bit of Rakofsky’s self-proclaimed background, which is enormously impressive for a guy who graduated law school in 2009.

Per Keith Alexander in the Washington Post :

Rakofsky’s Web page on lawsearch.net says he specializes in criminal law, DUIs, traffic law, malpractice law and negligence. He lists his firm’s address as 14 Wall St. in Manhattan, but the New York state attorney registration offices have no record of Rakofsky being licensed in New York. Rakofsky, who received his law degree from Touro College in Brooklyn, N.Y., in 2009, has been licensed in New Jersey since April 29, 2010.

His lawyersearch profile tells us more.

Mr. Rakofsky has worked on cases involving Murder, Embezzlement, Tax Evasion, Civil RICO, Securities Fraud, Bank Fraud, Insurance Fraud, Wire Fraud, Conspiracy, Money Laundering, Drug Trafficking, Grand Larceny, Identity Theft, Counterfeit Credit Card Enterprise and Aggravated Harassment. Following graduation from law school, he worked for one of the biggest civil litigation firms on the east coast and has worked for boutique white-collar criminal defense firms in Manhattan. During law school, Mr. Rakofsky interned at the Legal Aid Society (in Suffolk County). Prior to studying law, Mr. Rakofsky studied Economics and interviewed at a well-respected investment bank with branches all over the world.  Prior to law school, Mr. Rakofsky earned a Bachelor of Science in Biology, concentrating his attention on DNA.

Impressive, huh?

“I was astonished someone would represent someone in a murder case who has never tried a case before.”