At Military Underdog, that wayward wag Eric Mayer writes an occasional post he calls Azimuth Check.  Most of us wouldn’t know what to do with  an azimuth if it bit us in the butt, which is just Eric’s way of lording over us that he learned how to use a variety of contraptions on the government’s dime that the rest of us can’t.  Aren’t you special, Eric, rubbing our noses in your azimuth.

But in his April Fools edition, Eric provided a list of books he would like to see written:

Practicing Law Alone In Your Mom’s Unfinished Basement By Choice, by Carolyn Elefant.

Social Media For Lawyers (2nd Ed), by Nicole Black, with special forward by Brian Tannebaum.

Forget Clients: Pathways to GenY Self Entitlement, by Dan Hull.

Guaranteed Early Success: Approaching Trial Like the British Conducted Operation Market Garden, by Antonin “The Trial Warrior” Pribetic.

How to Write 15 Blog Posts a Day In Less Than 15 Minutes, by Scott Greenfield.

Everything in This Country is Fair and Makes Me Happy, by Gideon.

Depositions with a Doo: Hair Care for Lawyers, by Rick Horowitz and Norm Pattis.

Hidden Behind The Podium: Memoirs of a Short Lawyer, by Mirriam Seddiq.

How To Smuggle A Condemned Man Out of Prison In Your Mustache, by Jeff Gamso.

On twitter,  Jason Wilson added some of his own :

“In Defense of Comic Sans,” by @typogforlawyers

“How I Learned to Stop Worrying and Love Publishers” by Joe Hodnicki.

“Getting Back to the Billable Hour” by @gnawledge

“How to Achieve the Ultimate Work + Life Balance” by @scottgreenfield

And  Greg Lambert sent one back at Jason:

“The Subtle Art of Blog Post Titles” by @jasnwilsn

Not to cast too wide a net, but does that cover all the books that need to be writ?

As for Eric, please note that, due to copyright litigation, his practice will henceforth  no longer be referred to as “Small Law,” but “Fun Sized.” This is not subject to discussion.

A heartbreaking story, just for the utter pointlessness of it, via ABA Journal.

A new lawsuit alleges a fired employee hacked into his former company’s networked computers and deliberately destroyed an entire season of a syndicated children’s TV show.

 According to the suit, Jewson was fired from Cyberlynk, an Internet service provider, for an undisclosed reason in February 2009. The suit asserts that on March 26, one month after his firing, Jewson went on a data-wiping rampage.

The show’s creator, WeR1 World Network, names both Jewson and CyberLynk, in the lawsuit. The suit says that CyberLynk, which was assigned to store two years worth of work, should have done more to protect its data. Fragments from 14 episodes of Zodiac Island, a children’s series that airs on TV stations across the U.S., were lost, and reproducing or reassembling the deleted data from the series is impossible.

The money lost can be recaptured, perhaps, but people worked hard to make those shows happen, and now they will never be seen.

But lawyers use the Clouds to store files, documents, the product of our labors and the work upon which our clients’ hopes rest.  And nothing could ever go wrong, provided you are diligent in making sure that there are multiple servers, backup electric, firewalls, fire extinguishers.  All the sorts of things that could protect our files from damage, destroying years of work and perhaps someone’s life in the process.

Except a disgruntled ex-employee who knows how to get inside the system and wipe out data because he’s pissed at the company.  Not your company.  Not mine.  The company who owns the cloud.  Yes, the object of his anger will suffer, but so will others.  The employee won’t care.  People who are angry and want to lash out don’t stop to wonder about the innocent third parties who will suffer.  The employee probably had an iPad, but that didn’t save your data from being wiped clean.

No matter how much care is taken, there is no way one can stop an unhappy, crazy, person who you’ve never met from doing terrible harm.  There will be recriminations afterward about what you could have done to protect the data, but it is just a matter of shifting blame.  The sad truth is nothing is perfectly safe. 

It’s just a matter of different risks, issues that are outside your control, giving rise to problems that were never on our radar.  Is the risk of some cloud computing company’s angry employee worse than the risk of fire or flood, or any of the other risks of paper files kept in our offices or at temperature controlled warehouses?

This isn’t to suggest that the cloud is unsafe, or at least any more unsafe than your own office, where this could happen as well as a host of other things that could damage or destroy files.  It’s just a reminder that stercus accidit.  Even in the clouds.

News reports of incidents between the police and, well, everybody else, are the fodder of commentary, meaning that we’re constrained to rely on what we read when blawgers blawg.  You know that, of course, as do I when I hope that whatever I’m writing about has been reported with at least a modicum of accuracy. 

I will often decide not to write about something because the reporting strikes me as wrong or dubious, and rather than run with it, I prefer to let things flesh out a bit until I know whether there’s really something of interest there. It turns out that stories that smell at the outset often aren’t stories at all, just squiggly black marks use to fill newspaper space until something real comes along.

Every once in a while, however, a reports comes along that is either outrageous or absolutely insignificant, according to the report, and there are two conflicting reports that can’t even begin to be reconciled.  The story of Joey Tucker in Salt Lake City is such a story.  From the Courthouse News:

Police officers responded to a family’s complaint that their diabetic son may have been in danger from driving without taking his medicine by running him off the road into an interstate highway median and shooting him to death, the family says.

Joey Tucker’s father, Perry Tucker, and his fiancée Brieanne Matson say they were “concerned about his health” when they called Salt Lake City Police. Joey Tucker had not taken his diabetes medication and “had possibly taken a sleeping pill,” according to the federal complaint.

The family claims a Highway Patrol trooper rammed Tucker’s pickup into a concrete barrier as Tucker drove on Interstate 80, then Salt Lake Police Officer Louis “Law” Jones shot him to death while he “was simply sitting,” all of which was recorded on officers’ dashboard cameras.

Salt Lake City police Officer Louis “Law” Abner Jones shot Tucker on the highway after Tucker led authorities on a low-speed chase, rammed a police vehicle and threatened another swipe at officers with his car, according to police reports and a review by the Salt Lake County District Attorney’s Office. The office ruled the shooting justified.

Tucker was suspected in two hit-and-run crashes the day he was shot, the reports state. Jones spotted him near 2600 West and 1500 South in Salt Lake City and pursued him onto State Road 202, before following Tucker onto I-80, where the Utah Highway Patrol took up the chase, the reports state.

UHP unsuccessfully tried to stop the vehicle. Both police agencies then followed Tucker west on I-80. UHP Trooper Lawrence Hopper used a PIT maneuver to bring Tucker’s Chevrolet pickup to a stop, the reports state, though the vehicle swerved across the highway.

Tucker then rammed the truck into the trooper’s car, reversed and turned the wheels toward the officer, the report states. Jones then shot three times into the truck, hitting Tucker in the neck and torso. Tucker died at the scene.

The District Attorney’s Office ruled Jones was justified because his actions were “necessary to prevent death or serious bodily injury to the officer or another person.”

At almost every turn, and with some allegations thrown in such as “two hit-and-run crashes,” the story is very different.  While much about the “official” story emits the typical odor of the police spinning their story to simultaneously justify, and absolve themselves of, the killing of Joey Tucker, it remains a bit difficult to understand why a police officer, having already immobilized his vehicle, would then execute a person who was doing nothing.  Yes, it could happen.  No, it doesn’t happen often.

There is supposedly a police dashcam video which, according to the complaint filed by Joey Tucker’s family, supports their cause.

“The dash cam videos reveal that Joey did not take any action, make any threats, or do anything to cause any immediate or [im]minent threat of harm to any of the officers. Joey was simply sitting in his vehicle.”

If true, this should prove damning to the police version of events.  But no video has been released, and it seems quite inexplicable why the police, knowing that there is a video, would allege as they do, and determine that it was a righteous shoot, if their own video proves the opposite.  Given that the family hasn’t disclosed the video, preferring instead to say what it shows rather than let the video speak for itself, the natural assumption is that it’s not nearly as helpful as suggested.

This means that the problem going forward is that this becomes a he said/she said case.  There will be a bevy of police officers swearing in unison that they were only trying to help, and then prevent themselves from being killed by this guy who was about to run them down.  It’s not that they wanted to shoot, but a question of who makes it home for dinner that night.

Like it or not, and many of us don’t, the argument that a cop acted to protect his own life or the life of another police officer from harm is a winner.  Even the most cynical among us will cut a cop a break if we believe that he believed harm was imminent.  This means that sometimes they get away with murder.

The takeaway here isn’t a new story, but one that bears remembering.  All interactions with police have the potential to go bad.  It may say “to protect and serve” on the side of their patrol car, but that’s just marketing.  To make it home for dinner is the prime directive.  It’s awfully easy to call 911 when you need a friendly, helping hand in an unfortunate situation, one where a loved one could potentially do harm to himself unwittingly.  And yet, the potential remains.

It’s unclear what happened to Joey Tucker.  It’s unlikely that anyone will ever know what really happened on the road, whether he rammed the cops or they rammed him.  Whether he was just sitting there in a diabetic stupor or was about to run down a police officer who was there to help him and preferred not to die in the process.  The only thing that is clear is that Joey Tucker didn’t make it home for dinner.

H/T Turley

It happened last year.  You would think that they wouldn’t be that easy to fool again. You would be wrong.

Last year it was the  Turk as White House Blogger prank.  A great one indeed, and scarfed up by the cutting edge newshounds at the New York Times.

But the New York Times didn’t bother to fact check. Not with me. Not with the White House. And not with Google, which already had the stories from both the ABAJournal and the WSJ by the time they ran the story at 2:05. The Paper of Record blogged in its City Room this piece on When Lawyers Blog :

…After all, as Mr. Turkewitz, a Manhattan lawyer, writes on his New York Personal Injury Law Blog, he is about to be sounding off on all manner of legal issues as the Obama administration’s new White House law blogger.

“Excited about new blogging gig as White House law blogger,” he tweeted this morning. “But hope I don’t have to spend too much time in D.C.”

Spoken like a true New Yorker.

But they don’t like to get punked.  They don’t like it when some blogging lawyer like Eric Turkewitz makes them look just a teeny bit foolish, even if only because they jumped blindly into the abyss rather than do that fact-verifying thing that reporters are supposed to do.  

But they can’t help themselves.  Dangle a “hot” bit of news in front of a reporter and it’s like bloody meat in front of pitbulls.  There’s just no stopping them, and they get drool all over the carpet.

There’s a question of the ethics of a lawyer being the source of information that serves to fool a newspaper.  After all, as some argue, a lawyer is supposed to be honest and forthright, kinda like an overwrought  boy scout in pin stripes who is never allowed to go to parties with the fun kids.  Think of the harm, the newsprint murdered, the reporters’ time wasted, the humiliation of perfectly nice people just trying to do their job.  Get a life.  Even lawyers are allowed to have a little fun once in a while.

So what was the prank this year?  How did the New York Times get taken yet again?  Since I can’t take credit, I leave the glory to those who did the dirty deed and deserve the credit. And no, it doesn’t involve naked pictures of Sarah Palin, rumors to the contrary notwithstanding.

Check it out for yourself at Patterico’s Pontifications. 

I haven’t written anything mean about the Republic of Texas in a while. That stops now.

It seems that a judge down yonder named Clinton has come up with an easy way for defendants to cut some time off their sentence.  Via Mark Bennett :

Judge [John] Clinton, who has been on the bench since January, has been asking probationers if Jesus was their savior;** if they do has been offering them credit for sixteen hours toward their community service for reading a Christian religious tract: this Christian self-help book, to be specific.

By his own acknowledgment, he was trying to help people. He expressed frustration at seeing young defendants turn down probation, which would help them avoid a conviction, in favor of a conviction and a fine. 

No doubt, this action appears to violate the first amendment’s prohibition of government establishing religion. But it is not violative of the fifth or sixth amendments, neither or which say anything about religion. There is no phrase “separation of church and state” in the Constitution. Government is only prohibited from establishing religion and from prohibiting the free exercise of religion. Further, the Constitution specifically limits “Congress,” not the courts.

Eric is right, it wasn’t the worst thing that’s every happened in a courtroom.  It was likely well-intended.  The judge relented and apologized for inserting religion into the performance of a secular function.  And it was Jesus, for crying out loud.  It’s not like it was Mohammed or Buddha or something.  Sheesh.

Murray Newman (who apparently is not an orthodox Jew despite his appearance), agrees that Judge Clinton was wrong, but takes issue with Bennett and Kennedy extrapolating from his ignorance about the First Amendment to the Constitution that he might be less than adequately familiar with a few of the others.

Both Mark and Paul, who ironically both have the names of Apostles (and to my knowledge, there was no Murray the Baptist), have expanded on Judge Clinton’s misstep by casting doubt on his ability to be a judge at all.  Mark points out:

“If the Judge is so unfamiliar with the First Amendment that this seemed okay to him until the judges’ counsel told him otherwise, what hope is there in his court for the Fourth, the Fifth, or the Sixth?”

Okay guys, let’s not entirely freak out here.  I’m not here to get into a debate about how many wars have been waged in the name of religion or the potential for the End of the World if we still include the words “Under God” in the Pledge of Allegiance, but are we really insinuating that because Judge Clinton let his religious beliefs bleed into a probation condition that he’s going to be cool with violating all aspects of the Constitution?

Isn’t that kind of akin to saying that each and every one of our shoplifting or DWI clients is inevitably going to turn into a serial killer?

Well, let’s consider that argument. No.  No it’s not the same.  The issue isn’t whether ignorance of the First Amendment is the gateway to total Bill of Rights failure, but rather whether a person educated in the law, then sworn to uphold the Constitution, can so completely misunderstand a part and yet be presumed fully cognizant of the rest of it.  No, this was not a gateway drug. 

But this whole megillah was largely a matter of making a mountain out of a Texas molehill, since judges having boneheads in Texas is neither particularly unusual nor a problem for a large swathe of the electorate.  It wasn’t until  this comment by Thomas Griffith that this matter grew legs.

Mr. B., good morning. He must have jumped ship – because in 1984 he worked for the Devil. When I met Mr. John W. Clinton Employee #055725 on 03/02/84 (Friday) around 10:00 AM as he conducted a Show-up at Station #4725. HPD Incident Report page 2.007 shows he worked the back and page 2.008 shows he willingly ‘worked’ the Show-Up. As Satan’s lil helper, he knowingly picked a 31 year old & a 27 year old to stand next to two 20-year-old suspects. The Show-Up consisted of (5) five people, which leaves one 5’ 07 17 year old.

On page 2.009, he is shown rightfully confronting the crime victim after a “positive’ identification was made on myself as the gunman where he mentioned the Report having ‘Black’ haired suspects. He allowed the crime victim an opportunity to change his Original description(s) where the gunman’s straight ‘Black’ hair & no mustache was changed to straight ‘Brown’ hair & the other person’s straight ‘Black’ hair was now straight ‘Blond’ hair.

Those keeping track of description(s) should know that I had wavy light brown hair and a mustache. The person test-driving my father’s vehicle had short blond curly hair. Despite these gross descrepentcies being caught by Mr. Clinton, despite his attempt to do the “Right’ thing, page 2.007 (last paragraph) shows that he had already “called the DA’s Intake and talked to the DA and told him about the line-up and the DA stated he would take charges.”

Detective turned Lawyer/Attorney turned Judge and now at some point he embraced Christianity in which he forced fed inmates Bible lessons hoping for better or lighter probation. I call bull-shit on the bayou and the hypocrite in #4. Thanks.

Now that’s an epiphany.  I wonder how many bible books detective turned lawyer turned judge John Clinton will have to read to make amends? 

Thanks for clearing things up about Judge Clinton’s religion, Mr. Griffith.

It’s not just the schadenfreude aspect, but the hope that some small part of the message sinks in to those zealots who belief that prosecutors sit at the right hand of God.  From the Chicago Tribune :

McHenry County State’s Attorney Louis Bianchi says he’ll never forget what it’s like to be falsely accused.

And there were other lessons learned.

The day after his acquittal, he said, he told a grand jury hearing unrelated cases, “I want you to know how easy it is to indict someone. … I also remind the grand jury it can be a very manipulative, abusive process, as I have experienced … that it’s an important part of the process. It’s not just a rubber stamp.”

In addition to insisting on corroborative evidence, Bianchi said, “We have to be recognized for our courage not to indict people.”

Sounds fine.  Certainly better than the opposite, that they wouldn’t present if they weren’t sure the defendant was guilty. 

I had once suggested that all prosecutors ought to spend a week in prison, just to gain a little appreciation of where it was they condemned others.  In a  comment,  David Tarrell wrote:

People who cut down criminal defenders should one day face charges and have to realize that the rights of the best people are only secure so long as those of the most wretched are protected.

People who insist in the presumption of guilt should be accused of something and thus realize the immense power of government and the reason the presumption of innocence was adopted.

It was a good addition.  Bianchi seems to have gotten that message.  But it now seems as if the lesson isn’t adequate.  If Bianchi thinks it’s humiliating and embarrassing to be tossed into a holding cell with a bunch of guys in orange jumpsuits, then he has a lot to learn about embarrassing.  Try  Hope Steffy embarrassing.  Try being stripped naked and deloused, just because.  Or maybe a nice cavity search every time you have a lawyer visit.  Perhaps the feeling when your kid has to talk to you through a plexiglass wall after having been frisked on the way in.  There’s a lot of stuff that can be embarrassing, and that’s all before the acquittal.

The issue for me is that Louis Bianchi got only a taste, a tiny bite, of the problem.  He was acquitted.  That’s great, and kudos to his lawyer Terry Ekl, for a job well done.  But his acquittal also means he missed a big part of the experience, the joy of being convicted when he’s innocent.  The pleasure of hearing witnesses testify about what happened in some alternate universe.  The squeeze of his lawyer’s arm as a witness lies on the stand, and everyone in the courtroom just nods their head in blind acceptance.

And the wonder if your conviction is going to be one of the three out of one hundred that result in reversal, staring at a future of imprisonment in order to perpetuate the myth that this is the best system ever devised.

I should be appreciative of the fact that Louis Bianchi has learned from his experience, one that few prosecutors ever share.  And yet I can’t help but feel that it wasn’t good enough.

Isn’t it bad enough that courts have proven themselves incapable of coming up with an adequate instruction on “beyond a reasonable doubt?”  Lesser standards, at least, have always been susceptible to generally universal comprehension.  Standards like, oh, probable cause.

Probable.  More likely than not. Nothing to see here, right?

Leave it to Orin Kerr to muck things up.

I have just posted a first draft of a very short essay, Why Courts Should Not Quantify Probable Cause, which is forthcoming as a book chapter in a volume dedicated to the late Professor William Stuntz. (I first presented the idea at the Harvard conference in his honor.) Here’s the abstract:

Probable cause is one of the fundamental concepts of Fourth Amendment law, but the Supreme Court has refused to quantify it. The Court has described probable cause as a “fair probability,” but it has declined to explain just how likely a “fair” probability might be. Does a “fair probability” mean a 50% likelihood? A 40% likelihood? And why won’t the Justices say? Are they just afraid of math?

Nice how he got that “Harvard” piece in there, to make sure we all know that this is the sort of thing that deep-thinkers ponder.  But a “40% likelihood?”  Where the heck does that come from?

My initial reaction to the fact that anybody, even Orin, spent a few minutes thinking about this question, falls under the women’s hemline theory.  If they don’t move it up and down occasionally, dress designers will have nothing to do.

Lawprofs are constantly vigilant for things no one has ever considered before, thus providing them with fodder for doing lawprof stuff.  So what if there was never an issue because there was never an issue. Create a controversy and resolve it.  Write a paper (or a chapter in a book) and it can forever thereafter be known as the Kerr Theory.  If you’re really lucky, new lawprofs for generations will discuss and debate.

Orin goes on to argue that the courts are right to refuse to quantify probable cause.  Here’s why:

This essay argues that courts should not quantify probable cause because quantification would produce less accurate probable cause determinations. The core problem is that information critical to probable cause is often left out of affidavits in support of warrants: Although affidavits say what techniques police tried that added to cause, they generally leave out both what the police tried that did not add to cause and what techniques the police never tried. Determining probable cause accurately often requires this information, however. By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause.

He’s killing me.  I agree wholeheartedly that the courts shouldn’t quantify probable cause.  My reasoning is that there’s nothing to quantify, the word “probable” having a very clear, easily explained and communicated meaning.  Probable. More likely than not.  If pressed to use math for a reason other than adding up the bill, then consider it more than 50%, though such an exercise is silly since probable cause is a qualitative rather than quantitative inquiry.

While we use words like “weighing” evidence and “balancing” tests, we don’t actually use scales except as metaphors.  We also don’t require judges to wear blindfolds or togas draped so that one breast (at least) is showing.

But then Orin dredges up some very peculiar words to describe what judges should use in lieu of quantification:  intuition and situation-sense.  Does that make your spidey sense tingle?

Are we back to the old myth that cops have a “sixth sense,” that magical, mystical innate knowledge of who is guilty, who is lying, who is evil, evidence notwithstanding?  You know what I mean, the nonsensical introduction to every B-grade cop movie, film noir type, thereby eliminating any need to first gather evidence and then, and only then, decide which defendant to send to the electric chair?

It would seem that Orin’s choice of words to describe his controversy-creation is merely unfortunate, except that he justifies it based on the omissions in a warrant.  My head is about to explode.  Does this suggest that judges should use their “intuition” to fill in the gaps of a warrant to reach probable cause?

First, what makes judges so law enforcement/street savvy that they have “situation-sense?”  They are cloistered.  Sure, they did their time as prosecutor, which is as close to omniscience training as it comes, but they only know the streets second hand, basking in the stories of cops’ and agents’ sixth sense.  Of course, neither the cops nor agents tell the stories about the 90% of people they stopped that had no contraband on them and were cut loose.  Those aren’t good stories to tell if you want to impress young prosecutors.

Second, what’s wrong with requiring law enforcement to set forth in writing everything they rely upon in support of the warrant?  If they’ve got more evidence and chose not to use it, that’s up to them. If the showing falls short, they can redo the application or walk away.  But why would it be up to the judge to fill the evidentiary void with his “intuition”?  It’s not the judges’ place to compensate for lousy policing.  Remember that whole neutral magistrate thing?

And when our quasi-mythical neutral magistrate reads the application for a warrant, she will ask herself whether it persuades her that it is more likely than not that it meets the requirements for issuance.  Is that so hard?

I get it.  It’s hard, given all the law reviews, hornbooks and nonfiction bestsellers, to come up with novel legal issues to write about.  Hemlines up. Hemlines down.  Pedestrian stuff to argue and reargue the same old stuff.  Finding virgin territory is a coup.

But we’ve got enough muddy waters in the law.  While lawprofs are busily trying to stir things up for their own benefit, there are a bunch of real people sitting on hard wooden benches who are never sure whether their hemline is at the proper height for the season.  Don’t make their lives any harder than it already is.

Probable cause is one of the handful of standards we can all understand.  Please keep your mitts off of it. Please.

Seven years on the internet is a very long time.  To provide context, many of the young lawyers who read blogs were either worrying whether Brad would ask you to the sock hop or Suzie would let you get to second base seven years ago.  You lost no sleep over the law, employment opportunities, social injustice or loan repayment.

Mike Cernovich wasn’t like you.  Instead of quaffing beverages of dubious alcoholic content, he chose to spend some of his free time writing. He created a blog called Crime & Federalism.

It’s been just over seven years since the first post appeared at Crime & Federalism. It’s been a fun and fucked-up seven years.

The blog first started when there weren’t many law blogs. I was a law student looking to engage others, and the blog achieved some measure of legal success. 

Mike significantly understates the influence and importance of his blog in the early days.  There were others, even in criminal law, but they didn’t compare.  Either the writing was mediocre (at best), the content was weaselly or self-aggrandizing (even then lawyers couldn’t help but try to paint themselves as heroes) or just plain bad.  Being an early adopter doesn’t preclude being a moron.

Describing his experience over the years, Mike makes it sound a lot like a 12-step program. There were the “highs”:

American Lawyer Media contacted me, asking me to be one of only eight official law blogs. Soon, my blog was one of only a dozen to be cited in federal judicial opinions. I built a huge readership of lawyers, serious legal scholars, and federal judges. Sounds great, right? And then things got better.

Norm Pattis joined the blog in 2005. Traffic was up, and C&F was one of the most widely-read legal blogs – and certainly the most widely read criminal law blog. Kindred souls, Norm and I went our separate ways. I stopped blogging for a while, as legitimacy comes with a price.

After several months of co-blogging, Norm and I started exchanging e-mails. “That post got a lot of hits. We should write more like it.” We started thinking about what others wanted to see. To build a readership, that is what you should do. Yet that makes the endeavor seem soulless and placid rather than vibrant and bold. He and I both got writer’s block.

And then the lows:

I came back and completely self-destructed, alienating nearly every regular reader. After a post about religion, the Law.com people asked me if it wouldn’t be a good idea for me to leave their house of legitimacy. I loved the idea, and seemed bent on self-destruction.

And the demands:

People today ask why I don’t blog much about the law. It’s not that I don’t care about the law. It’s that there are are several-hundred article-length posts about the law. I used to fastidiously categorize posts. Whatever you want to know is already in the Archives. 

Until finally, the come to Jesus moment:

The blog will always be a reflection of me, because no one tells me what to post (or not to post). Whatever I post, therefore, is being driven by conscious or subconscious forces. I am me, but also part of everyone else. We are all plugged into the collective unconscious.

While I’ve got a couple decades on Mike in real life, he’s got the same on me in internet years.  Following Mike’s travails has given me insight into what was ahead of me and how decisions on which forks to take would work out.  We’ve shared many of the same experiences, and I’ve avoided some because of what Mike went through, saving me some of the anguish that he endured along the way.

I’m told all the time what I think, feel, and do, right and wrong, by people I don’t know and who think they know me because they read a post or two of mine.  They inform me that they disagree and expect my world to rotate on its axis to accommodate their disembodied views.  I’m told I should write more about one subject and less about another, or that my rhetoric is too inflammatory or tepid.  And they get angry with me because I don’t meet their expectations.

In a comment to his post, a guy named Mel feels it worthwhile to let Mike know that he agrees with him 75% of the time, and disagrees the remainder.  Mel doesn’t write this to diminish Mike, but to praise him.

Even when you say something I completely disagree with, you’re funny, witty, engaging and worth reading.

That’s a very thoughtful compliment, and one I’m sure Mike appreciates.  The reason this is significant isn’t that Mel argues that Mike should change his 25% wrong ideas, which is what the vast majority of readers argue, but that Mel realizes that Mike is writing what Mike wants to write.  Mike is saying things that Mike needs to say.  And if anyone, Mel, you, me, doesn’t agree with it or like it, that’s our problem, not Mike’s.

Newcomers to the blawgosphere, or to SJ, are rarely shy about telling me what to do, how to behave and what to write about.  Some even try to tell me that the blawgosphere is doing everything wrong, and I should change my evil ways to suit their sensibilities.  Some who are critical think they are so consequential in my world that they have “nailed me” or “gotten to me” when they’ve done no more than make me shrug, if I even notice them.

My laissez-faire attitude toward the haters and even the well-wishers comes largely because of what I learned from Mike.  If you don’t care for Mike, that’s fine.  Neither Mike, nor I, give a damn.

Lawyers whose practice focuses on suing the government for the deprivation of civil rights, what is known as §1983 actions, have long tried to explain that they are some of the most difficult to pursue.  With the Supreme Court’s decision in Connick v. Thompson, it just got harder.

Here’s the background from the case summary:

Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge.

What stands out is that the prosecution concedes that it concealed the Brady material.  They didn’t argue mistake or accident, but that the prosecutor who handled the case, Gerry Deegan, completely and intentionally failed to disclose to the defense that there was a swatch of blue jeans with the perpetrator’s blood on it and a report showing that it was Type B.  Deegan didn’t know if the swatch matched Thompson’s blood, but he made sure the defendant would never know either.

Thompson was convicted, and via the ramifications of the conviction, chose not to testify at his subsequent murder trial and was convicted again.  He spent 18 years in prison, including 14 on death row.  When defense investigators learned of the swatch and determined that Thompson’s blood type was O, his conviction was reversed and he was freed. 

He then sued the District Attorney, under §1983, for violation of his civil rights under the theory that they prosecutors were not adequately trained in their duty to disclose potentially exculpatory evidence under Brady.  A jury awarded Thompson $14 million.  In a 5-4 decision by Justice Thomas, the Supreme Court took it back.

Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.

The burden isn’t to show that a defendant’s constitutional rights were violated in the particular instance before the court.  That would be far too easy, and provide redress to any poor shmoe who spent 18 years in prison because a prosecutor screwed him.  He can’t sue the prosecutor who did the dirty, as he’s got qualified immunity and is untouchable, lest prosecutors feel afraid to do their job of screwing people in the process of convicting them.  No, the path that must be taken is “deliberate indifference.”

Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights.

And how does one prove such a thing?

A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference. Without notice that a course of training is deficient, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.

So what if Deegan buried Thompson’s Brady material.  So what if Thompson spent 18 years in prison as a result.  So what if Deegan, not to mention his boss, Harry Connick, are lawyers and hence supposed to have some inkling of what the duty imposed upon them by the Constitution means.  The key question is what would be fair to the decisionmakers, who “can hardly be said to have deliberately chosen” to violate constitutional rights.  What about the children decisionmakers?

In dissent, Justice Ginsburg wrote:

Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office.

What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish. That evidence, I would hold, established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.

Notably, the dissent is predicated upon the argument that Thompson proved deliberate indifference, albeit through his own case over nearly two decades of concealment.  There’s no contention that an “aberrant” single incident of constitutional deprivation gives rise to a cause of action.  

Ginsburg does note that Brady violations “are not easily detected,” meaning nearly impossible to find and almost always a matter of pure kismet that someone stumbles upon them.  No one seems particularly concerned about the incentives to conceal Brady material, since the only downside to doing so is that the defendant, maybe 18 years later, may have a one in a hundred chance of finding out and then have his case dismissed, as it would have been 18 years earlier if they complied. 

For individuals, people who have suffered the indignity of their constitutional rights being violated by those given the authority to do horrible things to others, there is a message here:  Who cares?  Most people believe that there is a way, a place, where you can turn if someone in government screws with your rights, that every American has a right, a RIGHT, to go to court to seek a remedy for the harm done them.  Surprise.

For those other individuals, the ones who decry the remedies like suppression that let the guilty free, under the guise that if the police or prosecutors do wrong to any particular person, there must be another way, there isn’t.  This isn’t about enforcing individual constitutional rights.  This isn’t about providing a remedy to an individual for a conceded violation of their constitutional rights.  This is about protecting the government from its own victims by making it nearly impossible to meet the proof demanded.

Do the judges who think Brady is just another joke, that constitutional rights are someone else’s problem down the road apiece, feel even a twinge of concern for the 18 years Thompson spent in prison?  What about the fact that Thompson would have been executed had his investigators not fortuitously found the blood swatch?  Or do they take comfort that the majority of the Supreme Court couldn’t care any more than they do?

The ABA did a survey.  Don’t laugh. At least they didn’t form a committee to do a survey.  Nope. They used a pre-existing committee, the Standing Committee on the Delivery of Legal Services.  The first conclusion of the committee was that pony express would never work.  But it’s moved forward since then.

This survey was intended to figure out how people find the lawyers they hire.  And the survey said:

 People with personal legal matters are far more likely to turn to trusted sources instead of impersonal sources to find a lawyer, yet impersonal sources have a substantial and stable place in providing access to legal services.
 Use of print directories, such as the Yellow Pages, as the primary way to find a lawyer for a personal legal matter appears to be eroding and is now about the same as online searches.
 Younger adults are more likely to rely on online searches as the primary way to find a lawyer for a personal legal matter, but the extent to which online searches will expand as this population ages is unclear.
 People are not showing a great enthusiasm for the use of online models to assist in finding a lawyer for personal legal matters.
 Innovative online models, such as those that enable an exchange of questions and answers with lawyers and those that provide consumer feedback about lawyers are most likely to be used to assist in finding a lawyer for personal legal matters.
 People would not use social media avenues to a substantial degree to assist in finding a lawyer for a personal legal matter, but relatively few lawyers market their services through these avenues at this time.

And that’s just part of the summary.  This caused war to break out between Kevin O’Keefe, who sells blogs to lawyers for a living, and Will Hornsby, staff counsel for the ABA, who was constrained to explain why the ABA survey was done via landline telephones (answer: because telegraph is no longer a viable method).

Kevin  spun this to mean that blogs are where it’s at, since people find lawyers through “trusted sources” and

How do you, as a lawyer, get referrals through other people’s ‘trusted sources?’ Through relationships with others and having a strong word of mouth reputation.

Where’s does that leave blogs and other social media when it comes to how people find a lawyer? Near the top of the list.

A long and winding road, that Will Hornsby refused to travel. As there was a caveat in the survey report, suggesting that a potential reason why people don’t turn to blogs is that “a higher percentage of people are interested in turning to blogs to help find a lawyer than the percentage of solo and small firm lawyers who have blogs,” Kevin and Will called a truce.

Because the shift in blame turned to “solo and small firm lawyers,”  Carolyn Elefant jumped in to cut through the empty rhetoric.

There are other reasons why only seven percent (according to the ABA Survey) of solo and small firm lawyers blog. Some are busy and can’t find the time. Some simply don’t like to write. Some take the position (erroneously in my view) that by blogging, they’re giving away the cow, so to speak. Others prefer to engage in other marketing activities such as speaking engagements and seminars or bar events (not my cup of tea, but different strokes).

But at the end of the day, most solos don’t blog because they simply do not see it benefiting their bottom line – and the ABA survey results, at least the actual numbers, tend to corroborate that instinct. Indeed, it may be that consumers are hungry for information, but most solos and small firms aren’t willing to provide it without some assurance that those consumers will convert into clients. Saying that consumers want more information from blogs doesn’t tell me that they want to hire a lawyer. Rather, it suggests that they just want more free information.

Icy cold water splashed on the faces of the faithful.  No matter how many well-turned phrases are used to explain away the inability to calculate ROI, or how trusted sources can somehow be traced back to a blog. 

A commenter here once questioned whether lawyers were supposed to be capable of sorting through the nonsense, the meaningless rhetoric, the meritless contentions.  Well, yes, they are.  Do they?  Not so much.  It’s a problem.

There’s a theory among the social media marketers that people hire lawyers they like.  The point is the create a likeable online persona and people will like you for it, thus causing them to hire you.  Having read a lot of lawyer blogs, it seems that this theory has been embraced by lawyers who market, along with the shameless self-promotional belief that the internet is a truth-free zone where ascribing non-existent awards, honors and miscellaneous kudos to oneself is par for the course. 

This theory is also at play at various other social media venues, where lawyers collect twitter followers, LinkedIn associates and Facebook friends to show others how much they’re loved and admired.  I read as much as I can take without going into insulin shock.  They are all very likeable.  Some even approach lovable.

But there’s a hitch that remains troubling.  Most of what I read doesn’t make me think they’re “thought leaders” or “trusted sources.”  The better ones are just obvious marketers.  The worse ones are people who didn’t heed the maxim, it’s better to let people think you’re a blithering idiot than prove it beyond any doubt.  The internet has a lot of really bad writing about the law.

Carolyn has offered some sound theories about why this is.  Other theories are not as kind.  But the  empirical evidence is that too many lawyers aren’t using the critical thinking skills the public expects us to possess, and it’s just plain embarrassing. 

Blog all you want, and Kevin O’Keefe’s Lexblog platform is an excellent choice.  I would use it if he would give it to me for free.  But if you think that 10,000 personal injuries lawyers posting on their blogs about how each is the greatest thing since slice bread, won the biggest award ever, or cares more deeply about the welfare of a brain-damaged baby than the lawyer down the hall, then you’re just fooling yourself. 

There’s no magic bullet here.  If you want to get more business, spend your free time watching a great lawyer do a cross and become the lawyer you want to pretend to be on the internet.  Clients will like you for it.  Trust me, because I have a blawg.