Tag Archives: Cross

Cross: Nick Selby, A Cop At The Crossroad of Tech and Reform

September 7, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Nick Selby, a Dallas-area police detective, co-author of In Context: Understanding Police Killings of Unarmed Civilians and CEO of StreetCred.

Q. Before you became a cop, you spent twenty years at a bewildering array of jobs. You were a sound engineer for CBS, wrote guidebooks for Lonely Planet, consulted with businesses and governments on information security, became a pilot and co-founded businesses, including a publishing firm in Russia and the information security practice at The 451 Group. Where were you heading? Did you have a plan or did you go where the wind blew you? You certainly had an interest in IT security from the early days. Did you ever consider becoming a lawyer, a prosecutor?

A. Well, to hear me tell it, the arc of my career is really smooth and predictable: I specialize in helping people understand highly complex systems. Doesn’t matter if your network’s been hacked, you’re lost in Syktyvkar, or you’re trying to figure out officer performance. And yet, I admit that on paper, I have the world’s weirdest resume. You left out that in 1987 I designed the sound for Penn & Teller on Broadway.

So it wasn’t about going where the wind blew, it was about doing what my dad always told me, which was, “Do what you love and the money will follow.” That’s pretty great advice, and I’ve tried to do it. I can honestly say I have the best job in the world, because it’s the one I created to take immensely deep dives into things that fascinate me: can data, through statistics, data-mining and basic math mixed with sociology, philosophy and a basically scientific approach, actually explain how the criminal justice system works in the same ways that it has allowed, for example, retail or car sharing to work? I think that it can.

The challenge I address is the asymmetric understanding among people in and outside of the criminal justice system of law enforcement process, procedure, workflow and dataflow. We are at a very strange time in our country: people are trying to apply statistical analysis to law enforcement data without the fundamental understanding that law enforcement data is a siren song, urging people to aggregate that which cannot be correctly aggregated due to intrinsic flaws in the data. I talk about this a little later in some detail.

One thing my wife and I are thrilled that we did was our concept of “pretirement.” When we were in our 20s, supporting our travels around the world through writing books for Australia-based publisher Lonely Planet, we decided that most people work a lifetime and hope they’re healthy and wealthy and of sound enough mind to book tickets to someplace fantastic. We decided that before we get fat and sick, we should take that time. For the next couple of years we bounced around South East Asia, Australia, Eastern and Western Europe and South America. A quarter-century later I can’t say I think we made a mistake in that decision, and it looks as if we may even stay thin, healthy and (one hopes) wealthy enough to do it again when we’re old.

My mom is a writer. My dad was a corporate and securities attorney in New York, and I worked in law firms on information technology for a couple of years. The only thing that would make me consider law school would be the opportunity to be a prosecutor. I have a whole lot of respect for prosecutors, and just as much for public defenders (my friend John Cannel was a public defender in Hudson County for years before becoming the Commissioner of the New Jersey Law Revision Commission – John has done so much for the people of New Jersey).

Public defenders and prosecutors are so necessary to our system of justice; they are treated so badly by our system, and required to give so much more than the job description calls for. I always have time to hear of ways that technology might be of use to prosecutors or defenders and I stand ready to help. I am working right now with a partner on getting training in cyber crime (economics, logistics, laundering) to state attorneys. This is a hugely important thing that has been ignored for years, and I look forward to helping there in a significant way. Stay tuned.

Q. You founded StreetCred in 2010, to help police make sense of the mass of data now being collected. One product gives cops easy access to information about people with outstanding warrants, and another is supposed to help chiefs and administrators evaluate their cops’ performance. It was the same year you became a cop. Did you become a police officer because of StreetCred, or was StreetCred the result of your interest in law enforcement? Do you consider StreetCred part of the legal tech movement, with its attendant problems in getting its target demo to use it? Are street cops open to new tech? Are they willing to use it? Do they use it the way it was intended? Is there an issue with databases being misused, abused or sold? Is privacy adequately protected?

A. I first became interested in solving law enforcement data problems in 2008. I was consulting Fortune 500 corporations and governments (both US and foreign) on technology issues (like identity, persona, semantic search, data exfiltration, and data theft) and realized that the only time we ever hear of data and technology in law enforcement in our country is when it relates to terror. That’s really silly, because America’s cops spend about a tenth of a percent of their time on terror.

Having spent years in the tech industry, I recognized that a big problem in police technology was that people create technology for other markets and then try to repurpose it to sell to cops – that’s one reason why police tech is so bad. Another is that police take a long time to adopt technology; the excuse is they need to understand the way it works under all conditions, and more importantly, make policies for its use. That takes years. Police are about 15 years behind the mainstream. After almost two years of work, I started to find problems that were acute in law enforcement but which had been solved – really, solved – in the private sector.

That’s when I came up against the one thing that is very true about the popular perception of cops: cops generally trust cops, and distrust non-cops. Especially if it is a non-cop telling a cop what the cop should be doing to solve a problem that the non-cop has never personally faced, in the sense that it was his ass on the line.

That is one of the biggest challenges: it is all fine and good for civilians to discuss, in the comfort of their homes, cars, offices or even courthouses or statehouses, what they think the cop should have done in a given situation. It is quite another to be standing alone on the street at night facing someone who is angry, bigger than you, pumped-up and ready to fight or flee based on the fact that he’s done something illegal. Or when you happen into a situation in which there is a body on the floor, and the family is screaming, and the children are terrified, and the neighbor is shouting. At these moments, the theory flies out the window.

Now, tell me how your iPhone app is going to change my life.

It was that understanding that got me to the point that I needed to go to the academy and get a job, but it was also something else: I am one of a small percentage of cops with training and experience in information technology, and we have a growing cyber crime problem in this country. I am writing now about how this all comes down to training of prosecutors (in a nutshell, they won’t take a case they don’t think they can win, and how can they win if they don’t understand even the basic economics of how cyber crime works), and I felt I had a civic responsibility to lend a hand.

In 2010, I found an agency that would tolerate my unique situation and sponsor me to the academy, and I’ve worked part-time as an officer since. For the past three years, I’ve been a part-time (paid) detective, and my work is almost entirely organized retail crime (centered on credit card theft and fraud against point of sale systems) and child pornography.

Your question raises some of the set of problems I have been working on since joining up, that has gotten worse since Ferguson: there is an exquisite temptation on the part of non-statisticians and even some statisticians, but usually reporters with the thinnest of statistical training (and no sociological training), to mix and match police, crime, court, jail, prison and corrections statistics and then reach a general conclusion. This is a huge mistake, and it leads to really, really bad conclusions and worse social and policing policy decisions.

Anyone can easily make broad statements about broadly aggregated statistics. Here’s an example: there was a substantial reduction in 2014 in seizures by the Drug Enforcement Administration (DEA) of hallucinogens (to 48,970 doses, from 119,507 doses in 2013 and 872,366 doses in 2012), and methamphetamine (to 2,946 kg in 2014 from 4,227 kg in 2013 and 4,813 kg in 2012). Seizures in the same period of heroin and cocaine were relatively flat: heroin seizures were at 1,020 kg in 2014, 1,044 kg in 2013, and 1,010 kg in 2012), and cocaine seizures were at 33,770 kg in 2014, from 24,103 in 2013 and 36,736 kg in 2012[1].

The thing about those kinds of statistics is that they feel really detailed. And in a way, they are: they are indeed the fodder for a lot of completely valid analysis about a lot of things, from the efficacy of the drug war to the consideration of racism in its lopsided prosecution. Consider that, despite widely stated “epidemics” of heroin and opioid overdoses and methamphetamine overdoses across the country, at the level of the President of the United States, actions against traffickers of those narcotics are flat over time. It is also interesting to note that, despite DEA marketing and promotion of its continuance of classification of marijuana as a dangerous drug, marijuana enforcement in the United States is down significantly: seizures of marijuana fell in 2014 to 74,225 kg from 270,823 kg in 2013, 388,064 kg in 2012, 575,972 kg in 2011 and 725,862 kg in 2010[2]. This is a pattern that belies the agency’s rhetoric.

Okay, so all that is excellent, and it seems incredibly detailed. Yet it has nothing to do with criminal justice statistics at the ground level. At the ground level, of the 40 million people who had a face-to-face interaction with a police officer in 2008[3], every single encounter was unique. Sure, we can extrapolate by use of some very clumsy pivots: incidents with use of force by the officer versus those with no use of force; incidents which ended in an arrest or citation, versus those that ended with a verbal or written warning. But in each and every face-to-face interaction, human beings interact, and things are never the same.

Was the cop in a bad mood, and being a dick? Was the person being stopped in a bad mood and getting lippy? Did the cop ask the person, “Where are you coming from?” and expect an answer? Did the person express their stern conviction that the officer has no right to stop them, because they are a free citizen? Were the police called to the scene by a concerned neighbor, who gave a report of a crime and a description of the suspect, or did the officer self-dispatch? Was the suspect high? Mentally ill? Drunk? Sad? Maudlin? I don’t care how good you are with statistics, you can’t answer these questions just as I can’t answer them, because the method of data capture is hopelessly shabby and inconsistent across our nation’s nearly 18,000 agencies. And remember – about one in four people who come in contact with a cop do so more than once in a year. That skews statistics, too.

So, while the temptation is tantalizingly strong to draw conclusions when a white officer shoots dead an unarmed black man, there is always more to the case than “race,” “armed status” and “dead.” We count more than 70 such data-points[4], and each point is a pain in the ass to get.

When Muhammad Youssef Abdulazeez[5] opened fire on military personnel at a Chattanooga recruiting station, I don’t think anyone thought the cops shooting him to stop that deadly threat were not justified. That, statistically, is the majority of cases in this country, no matter what source you look at (more on this later). But I am absolutely interested when a cop shoots someone like Walter Scott[6] in the back.

I challenge you to find a reasonable person who thinks Officer Slager was justified.

My concern, my goal, is to accurately count the Walter Scotts of the world.

This stuff is controversial. I am absolutely, positively certain that the numbers of Walter Scotts are dramatically lower than people think. As in, significantly less than 10 percent of all people killed by police are killings that are not legally and even ethically justified.

Getting people to look at data when the police data to date has been so dirty, so badly gathered and analyzed, so seemingly dishonest, is really difficult. It serves us damned right as police that now we are the ones having to defend against shitty work by charlatans or well-intentioned but incorrect reporters. But that is where we are.

But – and this is a huge ‘but’ – unless you are operationally familiar with the nuance and order of every single step in the workflow between first contact and ultimate disposition, you simply don’t know what happened by looking at the stratospherically high-level statistical aggregations available about law-enforcement interactions in America.

I’ve assigned myself the job of helping. Wish me luck.

Q. You’re one of a very few cops willing to publicly support police reform. But when you do speak out, you’re careful to express admiration for the police, praise their heroism, and you more often try to gently nudge cops in a certain direction than outright criticize conduct. Your average Black Lives Matter protester would probably call you a cop shill. Why are you being so careful? Your co-bloggers, like Peter Moskos – himself a former cop – reject the notion that there’s a problem with police culture. Do you? Are you a believer in the “one bad apple” view of police misconduct?

A. I’m going to push back on several aspects of this question. I don’t think that there are so few cops willing to publicly support police reform. As I have written[7], it is my genuine belief that when experts on law enforcement critique the work that police officers do, cops listen. Many police reform issues raised during the past five years have led to profound[8] changes[9] in departments[10] across[11] the country[12]. But cops, like anyone else, don’t like hearing that they’ve done a bad job when they have done a good job[13], and that (like cops testifying against other cops[14]) happens more often than you might think.

I do think that there is a tide of very poorly informed media reporting on the actual division between police and the community. This generation of reporters doesn’t work the police beat, doesn’t learn the streets, doesn’t understand the law, doesn’t have contacts like the last one or two ago – that is not a bad thing at all. Those generations never held the cops to the kind of scrutiny that this one rightfully does. But for every great scoop, there’s a load of dung to sift through, and people are getting really poor civic understandings from this generation of clickbait-headlined, bullshit coverage[15].

I think there is a lot, too, that I don’t understand about Black Lives Matter protesters – and I’ve reached out. In my personal experience, those to whom I have reached out have remained aloof and unengaged. It takes all my control to not get cynical about that. All I can do is, once again, say I remain willing to talk and learn more.

One of the most interesting things we found in our research on police killings was that it was members of the community who called the police in almost all the non-traffic incidents (and such calls comprised the vast majority). They described the person the police actually confronted. This is actually evidence that the police did not select those people on the basis of race – they responded to calls. This is a very important finding. We cannot tell you (no one can) whether the police treated black people differently in these cases. The data does not exist. But we can definitely say that the police were not targeting based on the race of the decedent. That’s huge.

In the just over 50% of the cases, there were non-police, civilian witnesses present. Most witnesses gave a story that was consistent with the official police account – and in the very small minority that did not, they often did not dispute the actions of the decedent, but rather the level of force used by the officer. People do not understand use of force, or deadly force policy or case law, and they make really uninformed assumptions – like, “Why didn’t they shoot him in the leg?”

There’s a huge disconnect between perceptions and reality, and I think that is largely responsible for tensions between police and communities. Another part is that police are uncommunicative and tend to clam up when people accuse them of things. Rather than explain, the police retreat to one certain redoubt: no one gets in trouble for saying nothing. That’s a problem, too. We have one side with misinformation and another side with negative incentives to speak. I’ve said repeatedly that a “conversation” on policing means that both sides listen, and both sides talk[16].

Second, I don’t think my words have been ‘gentle nudges,’ and anyone who thinks I’m a shill can meet me behind the bicycle racks after school. In one recent interview[17], I said of things cops have to do to reform:

It begins with honesty, transparency and a timely release of information, which includes a timeline, recordings of 911 calls, a narrative, any video. Without that, the public has nothing but the word of police to go on. And as we have seen, police sometimes lie. Not always, not even a lot, according to our research. But consider again the Walter Scott case and the lies that Officer Slager told. That makes it easy for citizens to lose faith in the system. Sunlight is the best cure.

I also said:

Police agencies have been uniformly terrible at releasing information and data on officer-involved deaths. That must stop. Don’t tell me about integrity of the investigation. When a citizen dies and we don’t have a chief explaining within the first 48 hours everything he knows, then the public and media are rightfully skeptical. They fill in the blanks.

I’m gentle? Not so much. And I don’t think your characterization of Professor Moskos (with whom I have written an article for the Washington Post[18]) is accurate.

As for comments about ‘police culture,’ again, this is something we think we know more about than we actually know. Consider this 2004 article in George Washington Law Review by Barbara E. Armacost. It contains two important things: first, Armacost refers to “police culture,” and second, she states something I find remarkable:

In the face of outside criticism, cops tend to circle the wagons, adopting a ‘code of silence,’ protecting each other, and defending each other’s actions. If the misconduct is found to be true, moreover, their departments deem the miscreants ‘rogue cops’ whose conduct does not reflect negatively on the organization from which they came[19].

Let me review: In a scholarly paper that contains 445 footnotes, that was printed in Georgetown Law Review, a paragraph fundamental to Armacost’s thesis is presented without a single supporting citation.

It is a concept, but it is presented entirely without substantiation. There is not only very little empirical evidence of the code of silence about which she speaks, but there is also no evidence whatever of a pervasive and homogeneous “police culture[20].”

That said, I had a conversation on this the other day with Seth Stoughton, a former cop and an assistant professor at USC Law. Stoughton said that he, sadly, didn’t have the same experience with cops showing solidarity with the prosecutor. He was more used to seeing them show up to support the defendant cop (including recently with Slager, the guy who shot Walter Scott). All this is par for the course – police cultures change depending on where you are, the presence or absence of a union, rural or urban… You get it.

In fact, I submit there are perhaps as many police cultures as there are police departments; there are more than 12,000 of those in the United States, not including county sheriffs, state police and federal agencies. To me, it really seems that Armacost can, through her work on that article, be the tail that wags the dog: academic statements that, if you ask me, were founded in Armacost’s regular viewing of Starsky & Hutch.

And because of where it exists, and academia’s dirty little secret about law reviews, it is itself citable. Meaning that one can now say, in an academic work,

“…cops tend to circle the wagons (Armacost, 2004)”

and be accurate! That’s bullshit.

There is a huge difference between what we know about policing and what we think we know about policing. The fact is that, despite our certainty that we understand policing and how we are policed, most of our truth is lost in a blur of confirmation bias. Our work shows very clearly that the number of truly unjustified killings of unarmed people is dramatically lower than citizens think, and is significantly higher than cops would think. This means that both cops and citizens are being led by narrative, not data. It’s not being helped by bad research conducted by journalists and shouted by CNN and Fox and repeated by politicians.

Consider the widely reported statement by The Washington Post that unarmed black men are “seven times more likely to die” at the hands of police than are white men[21]. In that statement, the Post reporters have leaped to some rather sophomoric statistical conclusions. This statement has been repeated by many well-intentioned journalists and by Secretary Hillary Clinton, and it is demonstrably misleading and unhelpful.

The figure was arrived at through a ham-fisted attempt to control for the population disparity in the United States between black and white people: While the raw number of white people shot dead by the police is higher than the raw number of black people[22], remember that black people only comprise about 13 percent, and black males only 6 percent, of Americans. The reporters (after the release of a report by ProPublica that claimed black males were 21 times more likely to be killed by police than were white males[23], written by reporters I happen to know were warned before publication by scholars that their numbers were inaccurate and misleading) sought to adjust the numbers to represent a count.

The mistake here, of course, is that by leaving out the context of what the decedent was doing at the time of his death, the calculation becomes truly meaningless. In the words of Joseph Cesario, director of the Social Cognition Laboratory at the Michigan State University, “To adjust the raw shooting numbers on population proportions assumes that … an officer buying a cup of coffee is as likely to shoot the cashier selling him the coffee as he is to shoot a citizen with an outstanding warrant who has just been pulled over for speeding. Not only does common sense suggest this is wrong, the data do not support this assumption[24].”

Now, I didn’t choose Stoughton at random to speak with about this. His recent papers – in the Harvard Law Review and in a forthcoming paper in Wake Forest Law Review (properly cited, I might add) – reveal tremendous thoughtfulness on these very issues that make my anecdotal stories somewhat less compelling. Stoughton takes great care in mentioning that there is no “universal” police culture, but also avers that is not the issue:

…[A]lthough I attempt to distill a coherent set of principles from modern policing, policing is not one dimensional. I make no claim that the whole of modern policing reflects a universal approach to law enforcement or that the principles I identify, both those that I contend are problematic and those I believe are curative, are either overwhelmingly present or entirely lacking at any given agency or within any given officer. Despite what I acknowledge are very real variations between agencies and officers, there is a coherent and identifiable set of principles that pervade modern policing; it is those principles that concern me here[25]…

Yet Stoughton also believes that the warrior mindset of police, as opposed to the guardian mindset, has taken the kind of toll that your question raises. He does a great job of describing why the cops feel as though they must be warriors:

Officers take an oath to protect society and view themselves as part of the thin blue line, but they are exposed to situations that leave very little room for faith in human decency or the value of society itself. They see families turn on each other. They see the most vulnerable members of society brutally victimized. They also see their efforts to fight crime and disorder undermined by what they perceive as legal technicalities—the rules that a corrupt society has adopted to protect the very criminals who prey on it[26].

Remember, officers see the thin blue line as a very good thing – we are the line that stands between good people and chaos; between good citizens and the sociopathic, and yes, predatory, criminals; and all of this butch imagery “…[depicts] law enforcement as standing alone, the only barrier that protects an otherwise helpless society[27].”

And in that culture, which I admit is damned near universal in law enforcement, we see the unintended consequences. If we are warriors, then we are at war; if we are at war, there is an enemy. And if we are not careful, the enemy becomes everyone who is not us.

This is all pretty metaphysical, and the fact is that I don’t have the data to argue it other than to say I recognize it can exist, I think that current thinking in the popular press is as bad as current thinking in the police press (that is to say, data-free), and I welcome the work of professors like Stoughton and Moskos and Kennedy and others who are helping us think about these things in the context of police service.

Q. You’re steering a difficult course. Your support of police reform isn’t strident enough for critics of the police, but the fact that you’re doing it at all can’t be winning you many friends among your fellow cops. How have they reacted? Do they see you as a traitor, or has there been more tacit support than we’d expect? In Chicago, cops have turned on their own when they blow the whistle on misconduct. Do you count as a whistleblower? Are you afraid of being “Serpicoed”? What are the risks a cop takes when he suggests there might be ways to change the way law enforcement functions, and it doesn’t sit well with the blue team?

A. Do I get relentless crap about being on CNN, where they called me a “Manhunt expert?” Oh, absolutely. But the conversations I have had with my fellow officers as well as cops from around the country have been very, very positive.

But the question presumes an answer that’s actually unsupported – that police think that admitting problems and pointing out bad behavior is something bad. I have literally never met that guy. I think that Americans get so much of their information about police culture and police behavior from police shows that they forget that they got their information from police shows.

Not for nothing, but I happen to know Frank Serpico a little – he is a neighbor of mine in a small town in upstate New York where my wife and I own a house. When I told Paco that my police academy in Texas taught about him with nothing short of hero worship, he literally didn’t believe it. I told him several times. Times have changed since he was a cop (I also find it very funny that the thing that seems to bother him most after all these years was the incident in which he was accused of committing a homosexual act in a precinct toilet). You will be pleased to know that he’s still a massive flirt, with a twinkle in his eye, and he still scores with young and highly attractive women.

Not only am I winning friends among my fellow cops, I have the full support of my chief, assistant chief, commanders, lieutenants, sergeants and colleagues. I circulate my articles and media appearances among a group of almost 1000 officers in North Texas, as well as the International Association of Crime Analysts, and I have literally never heard a negative word – in fact, I most often get praise and encouragement.

Wait! I just remembered a negative word. A Deputy Chief in a mid-sized city excoriated me for saying that his agency had a culture that led directly to the death of an unarmed person in 2015. He was furious at me, and treated me in the worst possible way: he treated me like a journalist.

Q. When Moskos reviewed Radley Balko’s “Rise of the Warrior Cop,” he took particular offense at the claim that cops have been known to lie. From “testilying” to making false reports, from misleading judges about Stingrays to outright planting drugs and weapons on innocent people, there are many ways for police officers to fudge the facts. Are these the outliers, as apologists would have it, or is bending the truth an endemic problem? If the former, what about the cops who bear witness to the lies of the “bad apples” and say nothing? If the latter, what can be done to stop it? Or is this just the “price” of getting the bad dude off the street?

A. So maybe we read a different review, but Peter Moskos and I both thought that Radley’s book is excellent and important. That was probably why Peter troubled to say at the beginning of his review that the book is, “fascinating and sometimes terrifying.” That is a high compliment. I’ve said publicly things very similar.

I’ve worked with Radley Balko on one large article[28] that I guest-wrote for his Washington Post column, and we’ve communicated and collaborated on others, despite fundamental differences in opinion. What Moskos said about the lying was actually quite similar to my critique about Armacost, above:

Balko asserts that most police officers regularly commit felonious perjury. Lying, he writes, is ‘routine,’ ‘expected,’ and ‘part of the job.’ He supplies little evidence for this claim – an absence that is particularly notable because the rest of his book is so meticulously researched and thoroughly footnoted.

That is a pretty darn reasonable statement – what he said was, “There’s no data.”  You know why? Because there’s no data. The idea that it is routine and expected and part of the job is, to me, an insult. My agency considers lying a fireable offense, and I support that. I know of agencies in which that is not true.

Do cops lie? Of course they do, because they are human beings. There are many occasions in which it is acceptable for a cop to lie.

Widespread systematic perjury? Please.

Q. Why are so few cops willing to even mildly criticize the state of American policing? Is there a fear that any acknowledgement that cops are less than perfect will open the floodgates? What, then, makes you willing to stick your toe into waters that are off limits to other cops? Is it your diverse experiences? Your education? Or are you just a radical by nature? Are you hoping your fellow cops will follow suit, join you? Is there any movement growing within law enforcement to sincerely change course?

A. I think this is really the same question again, sorry. In other words, I think it’s repetitive, redundant, asking the same thing.

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Q. In the last twenty-five years, the Supreme Court has given cops a great deal of leeway to mess with people without violating the Fourth Amendment. Thanks to Whren v. United States, Heien v. North Carolina and Utah v. Strieff, the police get to seize people on a pretext, a reasonable mistake of law, or even conduct that’s unlawful but not “flagrantly” so. And thanks to Graham v. Connor, they enjoy exceptional deference when it comes to determining whether they used excessive force. Have the Supremes gone too far and enabled bad cops? Is it good for cops, for society, when the Fourth Amendment is this squishy? Is it a good thing that the ostensibly objective reasonableness test at the heart of Graham v. Connor hinges on the testimony of a “cop expert”? Is it just too easy to be a bad cop?

A. I recently said that policing involves small and heroic acts every day that never make the news. Have you ever considered the danger inherent in moving a vomiting, spitting intravenous-drug user from a dangerous place, giving them Narcan and bringing them to the hospital[29]? Fifty-two percent of unarmed people who died after a police encounter last year were on drugs, suffering from mental illness, or physical disability, or two of those, or all three[30]. Chief Brown’s comments after Dallas[31] were spot on: the collateral duties thrown upon cops mean we are animal control, hospitals, firefighters, mental health counselors, and cops all at once. And it’s never enough. That makes this job very tough.

To answer the question about the reasonableness test, let me talk about what we found in our study of unarmed civilians who died after police encounters.

We selected unarmed cases because they were the most likely place we would discover malfeasance.  We determined that citizens who were unarmed were the most likely group to contain unjustified use of deadly force by the cops—or at least that is the impression of the layman. As cops, we know that unarmed doesn’t mean not dangerous, but this was the best group to start with to maximize our chances of finding unjustified killings.

Based on our independent review of information available in the public domain at the time of writing our book, using the standards you just described, of the 153 cases in the database, we independently concluded that the same ten (6.5%) cases appeared to involve the unjustified use of deadly force by a police officer. We found that an additional number of cases – 9 (Singleton), 12 (Selby) and 14 (Flosi) – involved police actions that either were “partially justified,” or were considered justified but we expressed some reservations about aspects of the case or the information available for review. These are preliminary opinions, based on the limited amount of information that has been released publicly, and the authors reserve the right to return to each case should more information become available[32].

The cases with unjustified or partially justified use of deadly force highlighted for all of us the inherent value of this kind of data-driven examination of police behavior. Unless officers, administrators, civilian oversight commission members, city leaders, policymakers, journalists and activists can examine data in an open and transparent way, we can’t learn the lessons of incidents, whether they were mistakes or “by-the-book” incidents that confirm the value of, or suggest a needed update to, a policy or procedure.

That’s not a lot of cops going bad. As I said above, it’s between 6 and 7 percent. And before you say I’m biased, consider that our numbers jibe really closely with those of the Washington Post. They’re not exactly the Patrolman’s Benevolent Association. The Post said of its own research that 74 percent of those fatally shot by the police in 2015 had already fired shots, brandished a gun or attacked a person[33]. Another 16 percent of the shootings came after other potentially dangerous threats. These shootings were most commonly of individuals who brandished knives and refused to drop them[34]. Note that these analytical conclusions were not a featured story on their own in the Post’s coverage of police shootings[35], but rather buried in another.

But to get back to my point: According to the Post, that’s nine out of ten. These numbers are about right. So no, I do not think for one second that the Supreme Court has made it easier to be a bad cop, nor do I think that expecting that there actually can be a “reasonable officer” is a bridge too far. In fact, what I believe is that you can take it to the bank that more than nine times out of ten, in the worst case scenario – deadly force situations, which are the most rare in policing – we have cops doing the right thing. These numbers add up quickly on both sides of the equation: let’s ask ourselves whether 100 questionable incidents (out of the about 1000 people counted by the Washington Post) in a nation of 321 million people[36], in which there are 40 million annual encounters[37] between citizens and the 800,000[38] police from 18,000[39] agencies, rises to the level of epidemic that some have claimed.

But let’s also not forget that there are incidents in which cops do the wrong thing, through training or through malice. And let’s work on it.

Q. One of your specialties is busting received wisdom in the police reform movement, like the idea that cops racially profile when they choose whom to stop or maliciously fine black and Hispanic drivers more. In a WaPo op-ed, you contended that the first claim relies on a faulty metric (most drivers stopped come from outside the city, so comparing them to the ethnic breakdown of the city’s residents makes little sense). You also argued that higher fines for minorities is due to factors outside the cops’ control: as a result of their poverty, blacks and Latinos are more likely to be stopped for more serious offenses like driving on a suspended license than their white counterparts.

So what about stop-and-frisk, the tactic, not the legal doctrine? In cities like New York, blacks are disproportionately stopped and frisked. Because they’re pedestrians, the resident metric makes sense. And even allowing for the fact that stops and frisks are more subjective than speeding, the failure rate is immense and cops’ justifications are consistently flimsy. Is there a legit explanation for this?

A. I think that Stop and Frisk as a tactic was fatally flawed but well-intentioned. It is true that in New York, black people have been stopped and frisked disproportionately to their representation among the racial composition of the city’s population. Here’s something else: black people in New York are described as suspects by 911 callers at a disproportionate rate to their representation within the city’s racial composition.

So my question to you is, under what science have you determined that racial representation should remain proportionate to criminal actions? That’s based on too few variables. How many lawyers mug someone? How many dentists or college professors jack someone on the street?

To go back to your question: Is there a legit explanation? The court found that the practice was unconstitutional, so the program was not legit in any way. Now that they’ve stopped it, I think it’s important to recognize that at the outset, they had the best of intentions. I think that the NYPD, led by CompStat – which did help save lives and reduce crime in New York City throughout the 1990s and early 2000s – thought that it would be effective. They were wrong – despite getting guns off the street, it was unconstitutional, so the juice was not worth the squeeze.

I want to widen the aperture through which we view problems like stop and frisk. Throughout most of the neighborhoods in which there was stop and frisk, there was also crappy mental health care, very limited pre-K and early childhood care and education, highly limited resources for public education, horrible nutrition, obscenely bad health care and dental care, a prevalence (still) of lead paint, dangerous parks and declining music and art training in schools – in short, there was stop and frisk and all the conditions that sociologists have been telling us since the 1960s lead to crime.

These are not police problems, they are problems in our society. To blame the police may make us feel better, but is certainly won’t solve inequity and injustice at levels of government including education, welfare, health, parks, infrastructure and other areas.

To make a difference we really need to better understand and make more nuanced analysis of data around poverty and crime and race and policing. Writing about the connection between race and poverty and poverty and crime, Ben Singleton found[40] that, “while not all Americans who live in poverty commit crime, it is interesting that if only the demography of impoverished Americans (70 percent white, 30 percent black) is compared to the demography of criminals (69 percent white, 28 percent black), there is little disparity. Such data lends credence to a hypothesis that poverty leads to crime.”

Singleton compares the median income of the nation’s most dangerous cities ($31,775) to that of the safest cities ($84,879). And then he looks at race, and finds that in the five most dangerous cities, African Americans make up 50 percent of the population, whereas in the safest, they make up 3 percent.

Is Singleton conflating correlation with causation? Quite possibly – but he does say it is only a hypothesis. But everywhere we look, we find this same correlation – and as Eric Olson[41] says, correlation does mean correlation – each year, corporations in America make billions of dollars correlating Zip code, web pages you view and what kind of laundry detergent you buy to determine what products to send you coupons for.

It needs more study. It is nothing near as simple as, “Police are stopping too many black people,” because they compare the percentage of the population to the percentage stopped, as if the only things that matter are, “race” and “being stopped.” Those are not the only things that matter, and until we as a nation stop looking at everything as a matter of race and black and white, we simply will keep repeating our mistakes.

You want justice? Ask uncomfortable questions, use science and get the nuanced answers. They make shitty sound bites, but they work.

Q. You’re an aberration: a cop who can write about the doings of the police without resorting to the passive voice or word jumbles. Are you as frustrated as everyone else by the way police spokespeople obfuscate? Would plain speaking to the media and public mean a little more comity? Or would it lead to mindless anti-cop anger? Whether at StreetCred or in the articles you write, you try to make the processes that make cops act the way they do transparent. Should police departments themselves embrace transparency? Do they fear the public knowing what they’re up to? Is it that nobody understands a cop except another cop?

A. Look (again) at how Chief Brown handled the shootings in Dallas. I wrote in the New York Times the next day that, “Even as his officers fought terror in the streets — the worst loss of life for law enforcement since Sept. 11, 2001 — Chief Brown maintained his commitment to transparency, briefing reporters while the bullets were still flying[42].”

But another thing that I included in that article was this hugely important paragraph:

Friday morning, after our brothers were assassinated for being white and for being officers, the word was sent out: more protests are expected, and we must not interfere with them. And that is the way it should be.

I think police departments absolutely are embracing transparency, and I think that body-worn video and dashcams are helping. I’ve been calling for more transparency as loudly as I can, and the important thing is that we do it quickly, because sunlight is the best disinfectant. But I think that police communications has gotten tremendously better. I disagree that they are obfuscating – I go to public information officer conferences and I see genuine efforts to be more open, through online tools, social media and other outreach programs.

Again, I think this comes to a perspective uninformed by appreciation for the role of police in our society. It is highly important to remember the pressure that police are under when asked a question about an ongoing investigation.

Mistakes in law enforcement are not well tolerated. The wrong words can destroy a life. The wrong words can destroy a case.

The cost of wrong is awesome, in the true sense of the word. That’s why cops are not good at speaking about things until they are 100% certain of their facts – and that is exactly as it should be.

Think about any press conference you are complaining about and ask yourself whether the cop was being difficult, or whether he was trying to navigate through a set of highly complex facts and make statements that will not blow a case or destroy a life, and then we can talk more.

Q. You’ve got an unusual approach, to say the least, to the police reform movement – taking on the cops’ outdated technology as well as the outdated parts of their mentality. Do you ever feel you’ve got too much on your plate? Could departing from police orthodoxy have negative consequences for your business? Are there circumstances under which you’d shut up, fall back in line? What’s in your future? Are you a cop for good, or have you got an exit strategy? Is Dallas-area detective where you end up, or just one more step in your journey?

A. If we want to improve things, we need to invest more in law enforcement technology, especially in data capture, normalization, access, storage and collaboration in the CJIS[43] environment. We need open standards across the law enforcement, court and corrections information technology fabric, and should require vendors to provide open application programming interfaces to allow data to get out of silos and into consideration. We need to ensure that officers have the data capture tools to provide contextually relevant and accurate data about the interactions between police and the public. And we need new laws about data in law enforcement to encourage police departments to discover new patterns of data without being penalized through immediate open record requests and demands for a fix to new problems that are uncovered through more sophisticated use of data.

As for me, I will never shut up and never fall in line as long as I see that either side is lying about how we are policed. This is the best opportunity in my lifetime to change fundamentally the relationship between police and the communities they’re sworn to protect, and wasting it with a bunch of meaningless shouting about narrative is such a hindrance.

And how long I stay in policing is unknown. Six years of public service is a lot more than most people accomplish in a lifetime. I have no intention to quit at all – not while I can be valuable in helping to curb human trafficking and child abuse; not while I can be helpful in creating or evangelizing for great new technologies to change the way we explain how police do what they do. I am blessed with the opportunity to be paid to police and paid to do other things at the same time.

This is a hugely rare gift. I don’t intend to squander it.

[1] Drug Enforcement Agency, United States of America (2016) “DEA Domestic Drug Seizures.” Resource Center, Statistics & Facts, Drug Enforcement Agency, United States of America. Accessed 4 September 2016. Available: http://goo.gl/rBz3Rm

[2] Ibid.

[3] US Department of Justice (2011). “Contacts between Police and the Public, 2008.” Office of Justice Programs, Bureau of Justice Statistics, Rep. No. NCJ 234599 at 1. Accessed 5 Sept 2016. Available http://www.bjs.gov/content/pub/pdf/cpp08.pdf

[4] http://streetcredsoftware.com/PKIC

[5] https://en.wikipedia.org/wiki/2015_Chattanooga_shootings

[6] https://en.wikipedia.org/wiki/Shooting_of_Walter_Scott

[7] http://thecrimereport.org/2016/07/08/national-conversation-on-policing-means-everyone-listens-too/

[8] http://www.nydailynews.com/new-york/stop-and-frisk-continues-cops-don-reforms-article-1.2533429

[9] http://wspa.com/2016/03/14/greenville-police-chief-changes-use-of-force-policy-in-wake-of-national-outcry/

[10] http://www.latimes.com/local/lanow/la-me-ln-lapd-rules-change-20160315-story.html

[11] http://newsok.com/article/feed/1002499

[12] https://www.minnpost.com/politics-policy/2016/03/avoiding-lawful-awful-how-minneapolis-and-st-paul-police-officials-are-looki

[13] http://tucson.com/online/video/graphic-content-another-angle-of-tucson-police-shooting/youtube_068a704b-fc69-51ff-b0f0-8724bfd84b40.html

[14] https://www.washingtonpost.com/news/true-crime/wp/2016/06/24/ex-fairfax-police-officer-who-killed-john-geer-returns-to-court-friday-for-sentencing/

[15] See, e.g., my critique of The Guardian’s The Counted and its attack on Kern County police, calling them the deadliest department in the country, at https://medium.com/@nselby/kern-county-s-murderous-raping-stabbing-criminals-and-the-lethal-cops-who-stand-between-you-fc15853abdb5#.ftc4e4663

[16] http://thecrimereport.org/2016/07/08/national-conversation-on-policing-means-everyone-listens-too/

[17] http://thecrimereport.org/2016/05/31/doing-the-right-thing-2/

[18] https://www.washingtonpost.com/posteverything/wp/2016/01/15/just-counting-people-killed-by-police-wont-fix-problems-we-need-better-data/

[19] Armacost, Barbara E., Organizational Culture and Police Misconduct (2004). George Washington Law Review, Vol. 72, No. 3, 2004; UVA School of Law, Public Law Working Paper No. 03-6. Available at SSRN: http://ssrn.com/abstract=412620 or http://dx.doi.org/10.2139/ssrn.412620

[20] I don’t know how it worked out for you when you arrested a cop, but when I helped do it, the entire department stood at the trial behind the prosecutor to send to the jury the unmistakable signal that we stood against the cop we had arrested and testified against. I wrote a lot about this at https://nselby.github.io/Are-You-Certain/

[21] Somashekhar, S., Lowery, W., Alexander, K., Kindy, K., & Tate, J (2015). “Black and Unarmed: A year after Michael Brown’s fatal shooting, unarmed black men are seven times more likely than whites to die by police gunfire.” Washington Post, August 8, 2015 (Online). Accessed 4 Sept 21015. Available: http://www.washingtonpost.com/sf/national/2015/08/08/black-and-unarmed/

[22] That number refers to killings by police overall; in fact, in terms of unarmed people, the numbers are different: more blacks were killed by police than whites. One hundred and fifty three cases fit the criteria for inclusion in the StreetCred Police Killings in Context Database in 2015. Of these, two (1.3%) were Asian or Pacific Islander; 59 (38.56%) were black or African American; 22 (14.37%) were Hispanic or Latino; 5 1 (0.65%) was Native American; 2 (1.3%) were Semitic, 12 (7.84%) were of unknown race; and 55 (35.94%) were White.

[23] Gabrielson, R., Grochowski Jones, R., Sagara, E. (2014). “Deadly Force, in Black and White.” ProPublica, October 10, 2014 (Online). Accessed 4 Sept 2016. Available: https://www.propublica.org/article/deadly-force-in-black-and-white

[24] Cesario, J. (2016). “Are Black Americans killed by police more than we would expect?” Social Cognition Laboratory, Michigan State University. Accessed 5 Sept 2016. Available http://goo.gl/cAzXR8

[25] Stoughton, Seth W., Principled Policing: Warrior Cops and Guardian Officers (August 26, 2016). Wake Forest Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2830642

[26] Ibid.

[27] Ibid.

[28] https://www.washingtonpost.com/news/the-watch/wp/2016/06/20/guest-post-the-low-hanging-fruit-of-police-reform/

[29] http://thecrimereport.org/2016/05/31/doing-the-right-thing-2/

[30] https://www.washingtonpost.com/news/the-watch/wp/2016/06/20/guest-post-the-low-hanging-fruit-of-police-reform/?utm_term=.4e76c777f314

[31] http://dfw.cbslocal.com/2016/07/11/dallas-police-chief-were-asking-cops-to-do-too-much-in-this-country/

[32] Selby, N., Singleton, B., and Flosi, E. (2016) “In Context: Understanding Police Killings of Unarmed Civilians.” p. 66. St. Augustine, FL: Contextual Press/Calibre Press.

[33] http://www.washingtonpost.com/sf/investigative/2015/10/24/on-duty-under-fire/

[34] Ibid.

[35] If you were among the millions of Americans who missed this important analysis, I don’t blame you; The Washington Post didn’t say this loudly. The story that announced this analysis was not by-lined by Wesley Lowery, the reporter behind the Post’s coverage of police shootings. It was almost as if Lowery didn’t want us to notice. In fact, this analysis was fairly well hidden in the tenth paragraph of an article about something else. It was, in fact, so well hidden that my own Post editor couldn’t find the reference – he challenged my assertion – until I gave him the specific URL—but there it was:

74 percent of those fatally shot by the police in 2015] had already fired shots, brandished a gun or attacked a person with a weapon or their bare hands… These 595 cases include fatal shootings that followed a wide range of violent crimes, including shootouts, stabbings, hostage situations, carjackings and assaults… Another 16 percent of the shootings came after incidents that did not involve firearms or active attacks but featured other potentially dangerous threats. These shootings were most commonly of individuals who brandished knives and refused to drop them.

[36] https://www.census.gov/quickfacts/table/PST045215/00

[37] http://www.bjs.gov/content/pub/pdf/cpp08.pdf

[38] http://www.bjs.gov/content/pub/pdf/nsleed.pdf

[39] http://www.bjs.gov/content/pub/pdf/csllea08.pdf

[40] Singleton, B. (2016). “North Texas police officer explains why poverty is the missing link in our discussion of race and police.” Dallas Morning News, August 3, 2016. (Online) Available: http://www.dallasnews.com/opinion/latest-columns/20160803-ben-singleton-missing-link-in-discussion-of-race-and-police-is-poverty.ece

[41] https://digitalwaterblog.com/about/

[42] Selby, N (2016) “Police and Protesters can Co-Exist” The New York Times, July 9, 2016, page A21. Print. Available: http://www.nytimes.com/2016/07/09/opinion/bad-guys-win-if-the-police-reject-protests.html

[43] Criminal Justice Information Services, the security framework under which law enforcement data is managed

Cross: Julie Stewart, Founder of Families Against Mandatory Minimums

August 24, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Julie Stewart, the founder and president of FAMM, who is retiring after spending 25 years leading the fight to for sentencing reform. Here’s FAMM’s 25-year anniversary video:

Q. In 1990, you were two years out of college and working as the Cato Institute’s public affairs director. How did you end up at Cato? Why Cato? Was it just a job or a cause? Then you got a call from your brother, who told you he’d been busted on charges of growing pot and learned he was being prosecuted by the feds and looking at a five year mandatory minimum. During those early years at Cato, were mandatory minimums on your radar at all? The War on Drugs? What about federal involvement in what was traditionally a relatively low-level state crime? You could have done nothing. What made you decide to take up arms on behalf of your brother and others like him? What’s wrong with mandatory minimums anyway? Isn’t it fair for Congress to determine the lowest sentence to be imposed for a crime?

A. In 1988, I graduated from Mills College in California with a BA in international relations and no idea what to do with myself. I was a “nontraditional” student – my “gap year” between high school and college lasted 10 years. So, at age 31, I moved to DC for a summer internship and ended up with a job at the Cato Institute.

I knew Cato’s president, Ed Crane, because he was a fraternity brother of my brother-in-law’s. But I knew very little about Cato’s philosophy when I started working there, even though I leaned libertarian in my thinking. At Cato, I was exposed to many new free-market ideas, though sentencing policy was not among them. The drug war was, though. Cato was an early and consistent opponent of the “war on drugs” and the discussions I had there deeply influenced my thinking about drug policy.

I didn’t fully appreciate the impact of America’s drug war until my brother, Jeff, was arrested for growing marijuana in his garage. While I thought Jeff was stupid for growing pot, I didn’t think his punishment would amount to much. That’s why I was so surprised when his case was given to the federal prosecutors and he faced a five-year mandatory prison sentence. I was incredulous that the judge who had been on the bench a quarter of a century could not give Jeff the sentence he thought was appropriate (two years). It defied my basic understanding of the justice system – that judges judge.

When I learned that members of Congress, who had never laid eyes on my brother, had predetermined his sentence based solely on the amount of marijuana he was growing (365 plants), I was appalled. Although Congress has the power to create sentences, that doesn’t mean they should. They are far too removed from the courtroom to know what the appropriate punishment should be for any given defendant.

My brother’s case was small potatoes compared to the thousands I’ve read since then, but it illustrates many things that are wrong with mandatory minimum sentences. Among them is the question of why someone arrested for growing marijuana in a garage in Spokane, Washington should be prosecuted by the federal government. This was clearly a crime that the state could handle. But it was 1990 and the drug war was in full swing and, although I can’t prove it, I suspect his case went federal because the sentence was longer than the state’s.

Everything I learned during Jeff’s ordeal made me mad enough to want to do something to change the law. I had the naïve notion that if members of Congress knew how their laws were being applied, they would smack themselves upside the head and say, “Wow! We need to change them!” Clearly, it hasn’t been that easy…

Q. Families Against Mandatory Minimums, FAMM, started off small. In 1991, just you and a couple of D.C. attorney friends. Your first act as founder was to convene a meeting with people from across the country whose loved ones were serving often incredibly lengthy prison terms as a result of mandatory minimums. What did you know about starting an organization, starting a movement? What came out of that first meeting? Did it crystallize your resolve or make you afraid of the scale of the undertaking? Did it make you realize that an emphasis on compassion might work, at a time when politicians from both parties, the media and the public were clamoring for ever higher, more draconian sentences? Did you think to yourself, “this is nuts”?

A. I started FAMM nine months after my brother went to prison. I didn’t intend to start an organization, but I couldn’t accept that my brother had to spend five years in prison and that there was nothing I could do about it. I’ve never been very good at taking no for an answer, so I suspect some of what drove me was the desire to prove that I could change Jeff’s sentence. (Unfortunately, I failed at that.)

I was also very motivated by the family members of prisoners I met at a meeting we convened in June, 1991. Their loved ones had it so much worse than my brother – many were spending decades in prison – and the pain in the room was palpable. By the end of the meeting, everyone agreed we needed to start an organization to change sentencing laws. Because I lived in Washington, DC, and had made some contacts by then, I was the natural person to get it going.

I knew nothing about starting or running a nonprofit. Thankfully, I had assistance from some wonderful attorneys, especially Scott Wallace and Eric Sterling, who gave me the guidance and contacts I needed to get started. That included steering me to an attorney at the law firm of Caplin & Drysdale, who filed our 501(c)3 paperwork pro bono. At no time did I ever think what I was doing was crazy. I am staunchly opposed to mandatory minimum sentences and believe that FAMM’s work increases sentencing justice. I’m also a huge optimist and have faith that the truth wins in the end. In retrospect, I think my idealism, and a certain amount of ignorance about how hard it is to change laws, were invaluable in starting FAMM.

Q. In the wake of that meeting, you worked out a double-pronged plan of attack: put a spotlight on the stories of sympathetic prisoners, typically those condemned to serve decades behind bars on a first-time drug offense, and work to change state and federal laws providing for mandatory minimums. Since you weren’t a lawyer, or even a lobbyist by training, how did you figure out your approach? Were you entirely self-taught, or did you have help? Did Cato provide any guidance or support? Where did the funding come from?

A. When I started FAMM, what I lacked in training I made up for in common sense. Basically, you’re selling a product so you need to believe in the product and know your audience. My product was sentencing reform and my audience was Congress. I needed to make members of Congress understand how their laws were being applied and to whom, so they would change them.

To do that, I had to appeal to their heads and hearts. That required solid data about the cost of incarceration and the numbers of people impacted, while humanizing mandatory sentencing laws. Humanizing the laws meant telling the prisoners’ stories and that of their families, clearly, simply, and with photographs, if possible. This was in the days before everyone trotted out a “victim” for their cause, so it was relatively innovative and caught people’s attention.

I also understood how important it was for family members of prisoners to meet with their legislators and share the stories of their loved ones in prison. Early on we held “lobby days” in Washington and encouraged people to visit their legislators in their districts. I also learned quickly that the media was FAMM’s best friend in circulating prisoner stories nationally. Within a month of starting FAMM, I heard from ABC News. They wanted to do a 3-minute piece on mandatory sentencing and asked me for prisoners and experts to interview. I was ready for them and thrilled that the piece aired so soon after launching FAMM. It generated national attention for FAMM, which brought more prisoners to us and more stories to tell.

One organizational decision I made from the get-go was that FAMM would not charge prisoners or their families any money for anything. Even though it cost us to produce and mail a quarterly newsletter (the FAMMgram) as well as run the office, I didn’t want to charge a membership fee because I felt so many of our members had spent their last dimes on attorneys. I wanted them to trust FAMM. I wanted them to know that FAMM existed only to help change the laws, not to make money off of them.

Of course, we have always sought donations from everyone because the biggest challenge to starting – and running – an organization is funding. When I left Cato, Ed Crane generously gave me the names of Cato’s supporters who were opposed to the drug war. That list provided FAMM with its seed money. One man deserves particular accolades – Rich Dennis – who sent FAMM a check for $25,000 (a huge sum of money then!) before he had any idea whether I could make a go of this start-up organization. His faith in me was inspiring. And, ultimately, it was justified.

Q. One of the first laws FAMM targeted was Michigan’s infamous “650-lifer” statute, which imposed a mandatory life sentence on anyone convicted of possessing, delivering or intending to deliver over 650 grams of cocaine or heroin. It proved a tough nut to crack; in 1998, after seven years of advocacy, you managed to persuade then-governor John Engler, a Republican, to reduce the mandatory minimum to 20 years after his predecessor publicly declared it a failure. Five years later, you turned that incremental success into a big one when Michigan enacted sweeping sentencing and parole reform in drug cases.

Was it your plan going in to take the long view, play the long game? Did you realize when you started FAMM how difficult and prolonged it would be to accomplish anything? Was it a matter of chipping away, or did you wait for less intransigent politicians to be elected and the national mood to change? Were you ever frustrated by the slow pace of things? Did you consider giving up?

A. Actually, the first laws FAMM targeted were federal drug mandatory minimum sentences. Just two years after starting FAMM, I was invited to testify at the first congressional hearing on sentencing since the early 1980s. My panel consisted of myself, the mother of a prisoner we profiled, and one of the prisoners whose story we shared widely: a 19-year old girl serving 10 years for telling undercover cops where her drug dealer boyfriend was. That hearing led to the introduction of the “safety valve,” which we lobbied hard for and was passed in August, 1994.

Unfortunately, retroactivity of the safety valve was bargained away in 11th hour negotiations of the 1994 crime bill. But, as imperfect as it is, the safety valve has provided shorter sentences for about 25 percent of those sentenced to federal prison for drug crimes each year (roughly 100,000 defendants since 1994). At the time, I had no idea how rare it was to win a sentencing reform so quickly. It was 16 years before we would see another statutory reform to federal drug sentencing; this time for crack cocaine. Had I known it would take so long to win another federal statutory reform, I probably would have been discouraged. But the good news was that sentencing policy reform could be accomplished elsewhere: at the U.S. Sentencing Commission and in the states.

Our sentencing victory in Michigan in 1998 was also relatively quick. In 1994, FAMM hired Laura Sager as our Michigan director to tackle Michigan’s 650 Lifer Law. Using our standard MO of collecting the data, telling the stories, gathering the families to lobby, and engaging the media, we successfully reformed Michigan’s 650 Lifer Law in 1998 so those serving life sentences became eligible for parole after 15-20 years. In Michigan, we also honed our skill at reaching out to unlikely allies. We worked with law enforcement groups and prosecutors to forge a bill that everyone could support. And we befriended the governor who signed the 650 Lifer Law in 1973, and no longer supported it.

I’ll never forget meeting the prisoners who were granted parole as soon as the law was signed. They were the first people who were given freedom as a result of FAMM’s work. And not just freedom but given back their LIVES – these people would have died in prison otherwise. That was unbelievably motivating! Once we had the 650 lifer win, it made sense to keep going and see if we could get further reforms to the lesser (but still severe) sentences in Michigan. In 2002, we succeeded in getting rid of almost all of Michigan’s drug mandatory minimums. The law became effective March 1, 2003.

When I started FAMM, I thought I could “fix” the sentencing problem in about five years and then go on to do something else with my life. Obviously, it didn’t work quite like that. But each year brought some progress and that progress kept me going. I’m a big believer in chipping away at a problem. Having said that, I never thought it would take this long.

Q. To work against state as well as federal mandatory minimum laws, you had to turn FAMM into a national organization. How did you find qualified people nationwide? Did you coordinate everything from a perch in D.C., or did you let the various branches of FAMM do their own things? In a time of superpredator rhetoric and near-universal crime panic, how were you able to attract enough volunteers and capital to not just survive, but grow and expand? How did you keep them motivated?

A. FAMM was national in scope from the very beginning because our members (prisoners and their families) lived all over the country. As FAMM became known, spouses and parents of prisoners would volunteer to become FAMM “coordinators” in their area and host meetings to introduce FAMM to others in their communities. This network of volunteers was hugely helpful in getting information to families and prisoners before the internet made information-sharing so accessible.

Most of these chapters looked for direction from FAMM headquarters, but some were very active without much input. That can be both good and bad because a renegade chapter could damage FAMM’s reputation. Luckily, we never had serious problems with that. By the time the internet took off, FAMM chapters faded away. They weren’t needed as much, although I missed the personal contact of seeing people at the monthly meetings we held in DC.

Today, interacting through social media, it is sometimes hard to keep FAMM members motivated because we’ve been asking them to do the same thing for so long: meet/email/call your legislators to tell them your story, or support or oppose a bill. That seemingly boring lobbying actually has an impact, but it’s hard to feel it when you’re sitting at home in front of your computer. Still, people are encouraged and hopeful by the sentencing changes that have been happening around the country for the past few years.

FAMM has never had a very big paid staff but we’ve had no trouble hiring. People who want to work at FAMM are true believers: they have to be, because no one is getting rich at FAMM. Fundraising is never fun, no matter the organization. But trying to raise money to change criminal sentencing laws to help guilty people get fairer sentences… is a real challenge. There were many years when I woke up in a sweat sometime around September, worrying that we would not have enough money to pay everyone for the rest of the year.

Our natural constituency for funds is the prisoners and their families. But I know they often have very little money. That’s why I am so humbled when grandparents send $20 with a note that says they are on social security and this is all they can afford but they really want to help me. Or prisoners send us stamps because that’s all they can afford. In contrast, I am also extremely grateful to FAMM’s very wealthy supporters who annually send us big checks. Among those are my favorite bedfellows: George Soros and David Koch. The growing interest in and national attention to sentencing reform has made fundraising much easier in the past few years. I sleep better at night, not that FAMM will ever be rich.

Q. You led FAMM through one of the darkest times for federal criminal defendants. From 1984 to 2005 (when the Supreme Court decided Booker), judges adhered to the Federal Sentencing Guidelines, which put enormous power in prosecutors’ hands to determine the length of sentences. While the Guidelines are now advisory, have they had a lasting impact on sentencing? Isn’t consistency in sentencing worthwhile? Would a Guidelines-inspired system providing for consistency be a good thing if the sentences were lower, or are there moral and civic reasons to oppose this kind of sentencing guidance?

A. The idea behind the sentencing guidelines was understandable: give similar sentences to similarly situated defendants. Unfortunately, human behavior doesn’t fit neatly into a grid. No two people are alike, no two crimes are alike, and no two sentences should automatically be alike. I would rather see justice delivered at sentencing than consistency. As my friend and FAMM board member Scott Wallace once argued, “Unwarranted uniformity in sentencing is no better than unwarranted disparity.” That judges are “departing” more post-Booker is a good thing. It means they are taking into account the myriad factors of each case and defendant, and determining the sentence that is most appropriate for that individual. If the sentence is wildly outside the norm, either side can appeal. That’s what a healthy sentencing system should look like.

I would also add that not long after starting FAMM, I realized that convincing seven U.S. Sentencing Commissioners to change sentencing guidelines was easier than persuading the majority of 535 members of Congress to change sentencing statutes. At a time when most advocates weren’t paying attention to the sentencing guidelines, FAMM was using prisoner stories to convince the Commission to change LSD and marijuana sentences, make the safety valve guideline retroactive, drop crack guidelines by two levels, and more.

The coup was the 2014 “drugs-minus two” retroactive guideline reform that led to over 46,000 drug prisoners becoming eligible for sentence reductions. We’ve heard from dozens of prisoners who were serving life sentences until that reform passed. Afterwards, their sentences were reduced to 30 years and, with good time credit, they were released. Those are the stories that make you know you’re doing something good.

Q. Beyond mandatory minimums and Sentencing Guidelines, the federal government and the states have other tools to ensure long and inflexible sentences. First, the feds eliminated parole. Then, in 1986, a 100:1 sentencing disparity for possession of crack vs. powder cocaine was passed, because reasons. You’ve been opposing that law for decades, first unsuccessfully in 1994 and then successfully in 2010, when Congress reduced the disparity to a mere 18:1. Is there reason to believe it will be corrected to 1:1? Are we doomed to keep repeating the mistake of formulating sentences based on hysteria rather than accurate information? Will empiricism in sentencing help or hurt?

A. I doubt seriously that Congress will change crack sentences to 1:1. If it happens, it will be decades from now. As much as I’d like to think we have learned from our sentencing mistakes, it is discouraging to see members of Congress continue to introduce bills with mandatory minimums. It’s as if they have no impulse control when an emotional crime occurs. Their Pavlovian response is to pass a stiff mandatory sentence.

The latest examples are “Kate’s Law,” introduced after the murder of Kate Steinle in San Francisco, and the “Back the Blue Act,” introduced after the murder of five police officers in Dallas. Both bills carry long mandatory minimum sentences. On the upside, not many bills with mandatory minimums make it through Congress. The last big batch was in 2006 (sex offenses). I credit this to the younger, more junior, more libertarian and liberal members of Congress who recognize that mandatory minimum sentences are an expensive failure. That number is growing while the old-time hard-liners are shrinking.

Q. In the past year, noises of reform have been heard from all quarters. What’s driving this sudden talk of reform? Is it purely a budgetary concern, because money is tight and prisons are expensive? Is it a small-government message? One of compassion? Or perhaps a pragmatic argument, that tough-on-crime has failed to live up to its promise? Despite all the talk and the coalitions favoring sentencing reform, not a lot has changed, even in Grassley-approved watered down versions. Is this reform talk real or will it fade away with the next wave of hysteria?

A. I think the main reason for progress is that people from different ideological backgrounds have begun to see prisoners as human beings. That might not sound all that exciting, but I really think that’s what’s happening. Until you believe people who break the law might not be that different than you or someone you know, you are not likely to care how long they are sent away, what kind of conditions they are kept in, and what happens to them when they are released. But the culture is shifting – finally – and so I think that has helped those of us pushing for reform.

As for the lack of progress, I think that only relates to Washington and, more specifically, Congress. The states are moving forward with reforms, including some fairly bold reforms, such as repealing drug mandatory minimums. Even in Washington, I think it would be a mistake to be disappointed that Congress won’t pass anything this year. First, election years are the times we usually see bad criminal justice ideas move, so it’s a sign of progress that those bad ideas – such as new mandatory minimums for opioids – aren’t going anywhere. In addition, keep in mind that the Grassley bill enjoys broad bipartisan support and would pass easily in any year but this presidential election year.

Q. When FAMM singles out somebody’s case as an example of why reform is needed, it’s usually a small-time drug offender: a nice kid caught in possession of a little coke and charged with conspiracy to distribute. In other words, someone a lot like our last two presidents, although they didn’t get caught. But Obama, like Bush before him, is a very unenthusiastic pardoner and commuter of sentences. FAMM helps highlight cases that deserve clemency. How do you do it? Are you responsive to the national mood – pro-drug reform and anti-gun, at least for the moment? And should the president do more, give clemency more often? Are you disappointed that over two terms of office, the president has accomplished almost nothing in criminal justice reform?

A. I have been outspoken in urging the president to act more boldly. I am impatient for change. But an honest assessment of the president’s record, even if he were to do nothing else, would have to give him credit for commuting more sentences than the last nine presidents combined.* His administration came out in strong support of eliminating the indefensible crack-powder disparity. His Justice Department is charging fewer mandatory minimums against low-level offenders, a unilateral move that reminds us of the important role prosecutors played in overfilling our prisons.

With regard to our profiles, I think you will see that we highlight cases that show exactly why mandatory minimums don’t work. We don’t pretend that the people involved were saints or innocent. These are all people who broke the law and deserve to be held accountable. Our goal is just to get people to see that even people who make bad mistakes deserve a punishment that fits their crime.

Q. Despite FAMM’s many successes, you’re retiring as head at a time when the national mood is precarious. Sentencing reform bills, like the tepid Fair Sentencing Act, languish in Congress and fail despite supposed bipartisan support. And thanks to “sexual assault on campus” hysteria and the outrage generated by things like the relatively mild sentence Judge Aaron Persky gave Brock Turner, mandatory minimums are very much back on the table for new crimes, even when the old ones have yet to go away. What can FAMM do to keep pushing things in the right direction? And with a well-deserved retirement to look forward to, what does Julie Stewart plan to do with all that free time?

A. I take your point. I am always worried that one high-profile crime could stop our progress. But for all the reasons I mentioned already, I think support for reform will stay high and continue to grow. We simply can’t and shouldn’t keep doing things the same way we did them 30 years ago. So we will continue to highlight the problems with our sentencing laws in a way that people can understand and hope we can motivate them to demand that policymakers act.

As for me, I sound like every disgraced legislator forced from office when I say I want to “spend more time with my family…“ But it’s true (other than the forced from office part). I really do look forward to savoring every moment before my two teenaged daughters tackle the world. I will also remain on the FAMM board as chairman and I suspect that after a time, I will probably get involved in criminal justice reform one way or another. After 25 years, sentencing reform is in my blood.

* President Obama, it should be noted, has granted fewer pardons than any other president.

Cross: LegalZoom Founder Eddie Hartman, A Lawyer’s Best Friend

August 10, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Eddie Hartman, one of the founders of LegalZoom, lawyer and either your best friend or worst nightmare, according to what the future brings.

Q. You’re a ‘92 Yale grad, with a BS in computer science and a BA in anthropology, which won’t be held against you. That was fairly early for an interest in CS, before the World Wide Web was a “thing” and personal computers were doubling in speed every couple of years. What made you go the CS route? While Yale’s not a bad school, why not someplace serious, like MIT or Cal Tech? Did you have the entrepreneurial spirit in you from the start, or was that something that came along the way? And how does anthropology fit into this?

A. My dad, who is the smartest man in the world, introduced me to computers early. He was a physicist at the Murray Hill, NJ, Bell Laboratories facility, which allowed him to take home a computer terminal. This, in turn, allowed me to play a bunch of early computer games. How early? To give you an idea, we had no monitor; instead there was a traction-feed printer. When you moved your knight or whatever, it would print out an entire new sheet of paper, showing you how the “screen” had changed. All this over a modem that required you to actually plug in a phone handset, like in WarGames.

I think a suitable punishment for misbehaving teenagers would be to replace their iPad with a setup mirroring the one I had.

MIT and CalTech are great schools. Two of my closest high school friends went to MIT, and one of them won the Nobel in Physics in 2011, meaning every conversation with my dad begins with the question, So how’s Adam Riess?

But I wanted something a little more balanced with, you know, girls. Beyond computers, for a while I wanted to be a writer. And for a while I struggled with a delusion you can get if you spend too long in a darkroom, which is the delusion that you can make a living as a photographer.

Anthropology because, like any young man with a shred of common sense, I wanted to be Indiana Jones. Once again, few tribes will pay you to study them. You gotta eat.

Q.  From New Haven, you went to Philly, where you did your MBA at Wharton (and were a Palmer Scholar, which is kind of a big deal). What made you decide to not go the coder route? Certainly, coders were in demand at the time, and a lot of the cool kids saw a huge future in creating the internet. Why more school?  And if school, why not a graduate degree in computer science? Was it your plan from the outset to go start-up, given that anything with an “e” in front of it was crazy in the irrationally exuberant 90s? Did you have any idea what that start-up might be? Was Legal Zoom even a twinkle in your eye?

A. One of the really hard truths you learned as a Bell Labs brat is that the smartest people, and often the hardest-working people – here, the scientists – often get the short end of the stick. They do not have the control over their destinies that they, by rights, ought to. The way we compensate people is not equitable, but I don’t see it changing. So I wanted to run things, or at least be on the team that runs things.

To do that, to start something and run it well, you generally need capital. And that means speaking the language of capital. I don’t know if I could have gotten into Harvard for business school, but I really wanted Wharton because that is what they teach: how to speak finance. It is the Berlitz of capital. And to be 100% clear, I did not attend until later in life, when we’d already attracted investment and were taking on still more.

Q. While you’re obviously well educated, you’re also a lawyer, admitted in California. Except there is no indication from any of your bios that you ever went to law school. Did you? Did that detail somehow slip through the cracks? And if not, how did you manage to sit for the bar? Worse still, how did you manage to pass, given that less than 50% of law school grads today manage to accomplish that feat? Were you that smart that law oozed into you by osmosis?

A. Fortunately for me, there are three states (to my knowledge) that still allow their citizens to “read for the bar”: Washington, Vermont, and California. That does not mean you show up for the bar exam one day. California has a multi-year program, administered by the state bar that allows you to fulfill your educational requirement without going to law school. If you are thinking about trying it, dear reader, may I first suggest trying to eat and pass a roll of sandpaper as a means of acclimating to the requirements.

You know, it’s funny. England, from which much of our law descends, does not ask its lawyers to obtain a graduate degree in law. Instead, they limit bar membership through apprenticeships, where aspiring lawyers are forced to actually learn something before being admitted to the guild. Some of the luminaries of our profession – Clarence Darrow, Abraham Lincoln – never graduated from a law school. But in the early 1930s, right after the Great Depression dealt a terrible blow to the economic prospects of the existing bar membership, the ABA and the AALS got together and decided three years in an ABA accredited institution would be a dandy way to qualify all future lawyers.

Again, it’s funny. Unless, you know, you are carrying $132K of law school debt and are struggling to find a way to pay it off. Then it’s less funny.

Q. You were admitted to practice law in 2011, well after your prior tech jobs and founding LegalZoom. Why did you want to be a lawyer? Did you ever intend to practice law? Have you ever practiced law? Was this admission to further LegalZoom? Was this to give you legal cred? You’re entitled to call yourself an attorney, but is it fair to compare yourself with lawyers who actually practice, who earn their living by representing clients?

A. My respect for the law – for lawyers, actually – started slow but came on strong.

At first, I thought of LegalZoom as just a way to provide a service. No different, really, than allowing people to book their own airline tickets or trade stocks from their living rooms.

The change came in talking to the customers who came to the website. You could hear the emotion in their voices. I imagine you’ve had this experience yourself. Law is rarely, if ever, a neutral transaction. People seeking legal help are frightened, angry, desperate. Many of our early customers came to us because they had nowhere else to turn, or because they needed something immediately. They were going into surgery the next day and needed a will, because they did not know if they’d make it out. Or they had just lost their job, but had someone willing to pay them for an engagement – if they had an LLC.

You came to realize that a dollar spent on law punches above its weight. It is not the same as a dollar spent on gas or peanut butter. It matters much more, because it protects much more.

I realized the only way to honor this relationship was to actually become a lawyer. And now I am one. But I reserve great respect for lawyers who actually practice. My eldest son is named after Clarence Darrow. That doesn’t mean we all have to be litigators. But every army has those who actually take the field, and those who wear the uniform without being in harm’s way. I feel a special debt to the former.

Q. Prior to LegalZoom, you were Chief Technology Officer at TROON Ventures, and Senior VP of Tech and Marketing at Xceed International. Did you ever have a job with a title like, “guy who fetches coffee” or “guy who digs ditches”?  Was your focus on anything tech? Did you have any particular goals at this point, or was it just to find a place for yourself in the business of technology? Was there any inkling in your mind that there would be law in your future?

A. I have had a colorful mix of jobs. I was a journalist in Memphis, Tennessee. I wrote a series of kids’ books for the same publishing house that did Choose Your Own Adventure.

And I was a temp for a long time. I did data entry. It was a great way to learn that renting your nervous system out by the hour is no way to live.

Q. In 2000, LegalZoom was founded, and you were one of the founders. How did that happen? Who decided to take the age-old idea of using legal forms and offer them to the public directly online?  What was your role as a founder? Did you know anything about law at that point? Did it matter? Did you buy in to the concept right away, or was it a struggle to leave job security behind and shoot for the moon? The year 2000 was a scary one for tech startups, as the world of money being thrown at tech shifted to the bubble bursting. Did you wonder if this was the biggest mistake you ever made?

A. By the time we finally quit our jobs, the three of us – Brian Lee, Brian Liu, and myself – had batted around a number of business ideas for LegalZoom (it was called Law Garden at the time), all around the central theme of legal services. I credit Brian Liu with nailing the core concept. We all had a hand in shooting down some of the zanier plans; a “1-900” number for legal advice stands out as an idea I’m glad we avoided.

“The Brians,” as we called them, were the lawyers. I was the guy with experience building web businesses. TROON and Xceed had given me solid training in how to bring a business online, from promising startups to Fortune 500s. Of course, advising others is very different than taking the advice yourself.

The hardest thing for me was stepping away from a non-profit I’d built with some friends, called Servicity. It was a charity established to support military families, meaning spouses and children of service members. We don’t do enough to support our soldiers, it’s true, but boy do we come up short on support for the families. Servicity had gotten some traction – we had started by wiring community centers on Air Force bases for Internet access – but LegalZoom’s needs grew much faster. I couldn’t do justice to both and had to choose. That said, one in seven non-profits in the US are now formed through LegalZoom. So I concentrate on trying to do a great job for them.

Q. You are now the Chief Product Officer, which sounds great but doesn’t exactly explain what you do. What do you do? Do you create products, create new products, manage the products already being sold?  Where do you fit in with LZ?

A. Early in our relationship with Permira – who are really great guys, by the way, cannot say enough good things about them – one of the partners told me the following. He said, “I can see you have people to make sure the trains run on time. Who is building the airport?” That’s my team’s job, cracking into new areas. We have a pretty big vision. The defining moment came late last year, when we became the first US corporation in the nation’s history to own a law firm. It’s a huge responsibility; we have to step up to the challenge.

Q.  Now for the tough stuff. You’ve written quite a bit about lawyers being a guild, using rules that preclude innovation and that the lawyer system is broken. You’ve been quite the advocate for Access to Justice. But let’s be honest, LZ is a for-profit business, and it’s not generating revenues by giving its forms away. Why bother to go to law school, suffer debt, lose three years of opportunity costs, and end up unable to earn a decent living? You know most lawyers aren’t driving Teslas, so where do they fit into this “guild” paradigm? When you undercut their ability to practice by promoting the DIY law concept, it comes at a price. Do you really believe we would be better off without lawyers?  Are ethics and competence too old school to keep alive?

A. Lawyers aren’t a guild, but we belong to a guild. (I can’t take credit for the term; note, for example, that the top alternative [Ed. Note: Top? Alternative?] to the ABA is the National Lawyers Guild.) Lawyers are some of the best, smartest people we have. Unfortunately, our guild has let us down. Lawyers have become prisoners of the machine that our legal ancestors created, and that a few lawyers in positions of power perpetuate. Think about this: Based on the tax returns of attorneys in the last census, many lawyers could not afford to hire themselves.

Let me be a bit more specific. Bars should reduce regulation to allow small firms and solos to be more competitive. They should dramatically reform advertising regulations. They should encourage lawyers to accept credit cards. They should allow lawyers to accept equity investment, which would give them the capital to invest in technology and management.

LegalZoom is every bit as for-profit as Wachtell or Skadden, or the newly-minted lawyer trying to set up her practice. I mean, the biggest law firms on the planet rank themselves annually based on the amount of profit they generate! LegalZoom is a market solution. I believe in market solutions for market problems: they create jobs and reduce the strain on the scant resources we have for non-market problems, by which I mean the issues faced by people who cannot and should not pay for a solution, like victims of domestic abuse or kids left at our borders or the desperately poor.

As a market solution, LegalZoom wants to make legal help accessible to many, many more people. We’ll do that by creating a reliable brand, making access convenient, and offering transparent pricing. That requires powerful technology and top-notch experts in operations, management, and logistics – areas where law firms refuse to invest.

I personally don’t see “DIY law” as the desirable solution (see below). The question is, how do you get people the great legal help they need? It is going to take many, many more lawyers. The bulk of these new lawyer jobs will not pay partner-track salaries. But then, as you note, most lawyers are not driving Teslas to begin with.

I want to be clear: the world would NOT be better off without lawyers. Nobody at LegalZoom believes that. People often quote Shakespeare (“The first thing we do, let’s kill all the lawyers”) as proof that lawyers are inherently not good. But the line is often taken out of context. If you read the lead-up to this famous line, the character Dick the Butcher thought that if he could do away with the people that enforced law and order (lawyers), he might be able to become king.

The world needs lawyers, but it also needs more lawyers to focus on the unmet needs of the middle class and small business, not just the rich, powerful and injured. Right now, the math doesn’t quite pencil out. Again, based on census data, we estimate most small firms bill one out of four hours, or fewer. Not quite ten hours of a 40-hour work week. We think that the demand is there to change that equation. You have to figure out how to engage those who have given up on getting legal help, or do not even realize it’s available – not easy, but that’s kind of what we do.

Ethics and competence might seem “old school” as you put it, but they have their place in law and in the future of legal services. But the profession must balance these important ideals with access to law. A legal solution that places ethics above all else, but that only a small part of the population can afford, is a terrible solution.

Q. The primary business of LZ is selling do-it-yourself forms, the madlibs of law. It sounds easy and harmless, but for the experience that most people aren’t capable of filling out a form correctly, thinking through the various considerations necessary to make a basic decision, such as whom to name as executor of a will. Are you concerned that your products are a legal time bomb, waiting to blow up and destroy the lives and fortunes of people who save a few bucks at the expense of having a clue what they’re doing? How can you know how well, or how poorly, your forms are being used? Are you helping people or contributing to their doom? Does it matter?

A. Actually, our fastest-growing service is legal advice, which we offer through a pre-paid legal plan backed by our network of independent law firms. It’s true that for a decade we were known as a place to get DIY services, like registering a trademark or incorporating a business. But these days, we strongly encourage customers to sign on to our plan to get the advice they need and deserve.

I’m not going to stand in the way of freedom of choice. If you’d like to write your own Last Will and Testament without the help of a lawyer – whether through software at Staples or the will forms you can get from most state governments – I won’t stop you. But if you come to LegalZoom, I will urge you to sign on to our plan, through which you can get the help of an independent attorney.

At LegalZoom, we take legal quality very seriously. We have an internal and external team of attorneys, professionals and software that are always on the lookout for a change in the law, or a form, and are always looking for ways to improve LegalZoom’s service. Lawyers have tried for a long time to claim that “since a lawyer did it, it’s quality” but that claim is not actually backed up by any facts. We see celebrities that die without wills, or with out of date wills all the time – access to the lawyer was still not guarantee of quality. We all know that experience, not licensure, is the hallmark of quality service. The lawyers – both in the company and our independent attorneys – are all extremely experienced in the issues that our customers routinely face. We stand behind our offerings with a satisfaction guarantee. I’d like to see BigLaw do that!

And we want to keep getting better, and see more lawyers involved in LegalZoom services. Honestly, isn’t it time that the US follow the example of the UK and allow us to provide legal help outright?

Q. For criminal lawyers, LZ has been little more than a mild curiosity, since it has yet to touch our world. But why not? What does LZ have in store from criminal law? Is it out of the question that form motions to suppress will eventually be available? What about legal arguments for memoranda or briefs, say on the Automobile Exception? Are criminal defense lawyers immune from technology? Is there anything in the works deep in the bowels of Legal Zoom that will “disrupt” our world? What does the tech future hold for criminal lawyers?

A. We like legal services where we can simultaneously improve quality and reliability, while using technology and process to bring down the expense. At first blush, criminal law does not seem like a great fit to those metrics.

The biggest disruption you might see, if you want to call it that, is a willingness to be reviewed – publicly – by clients that come through LegalZoom. We will never tell you how to do your job. Lawyers need to be truly able to give the best legal advice without interference.

But when LegalZoom sends a customer to an attorney in our network of independent law firms, we insist that each and every interaction is able to be rated and reviewed by their client. Yes, we are aware that clients may not be the best judge of a lawyer’s competency, but think of it as bringing a little light to a previously dark room. That’s why we invite every customer that consults with our independent attorneys to review the experience – not just on the advice, but also on more objective measures, like being on time for meetings and explaining complex legal issues in terms that are easy to understand.

Requiring reviews and ratings gives us a view on the lawyer’s willingness to be more customer-centric when dispensing advice. We also conduct secret-shopping and testing to measure quality legal competency, but view that as the “ante” – meaning that “giving a good and accurate answer” is not quality – it’s the bare minimum!  If any lawyer doesn’t like the sound of that, then he or she doesn’t have to serve our customers. Of course, that may not be the best move. Remember, those clients will be going to someone. The question is whether it will be you.

Cross: Derwyn Bunton, Fighting For The Poor Of New Orleans

August 3, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Orleans Chief Public Defender, Derwyn Bunton, who has taken a stand by refusing to take on defendants his office cannot adequately represent due to inadequate funding.

Q. You did your undergrad at San Diego State, where you majored in political science and wrote for the school paper, the Daily Aztec. What was the plan going in? Was poli sci a placeholder or a goal? Was law in the plans? Did you have political aspirations? And then there was the journalism, where you wrote a column about politics at a school Playboy magazine called “one of the top 10 party institutions” in America. Where were you going to be ten years later? And was SDSU really that big a party school?

A. I was fascinated by politics and the political process, so I chose political science as my major. The plan was to earn my degree and go to law school or graduate school (or both), so law was always in the plans. I wanted to be a lawyer. SDSU did (does) its fair share of partying, but SDSU is also the flagship institution for the California State University system – a leader in research with a strong teaching mission.

Q. From the left coast, you headed to NYU Law, where you worked in legal positions throughout law school. Did you go in planning to be a criminal defense lawyer? Did any of your job experiences, such as working for Dershowitz & Eiger, influence your choices? In the summer of ’97, you headed back west to clerk at the San Diego Federal Defenders office. Had you already decided that indigent defense was where you wanted to be? Your last job before graduating was with NYU’s renowned Brennan Center. By this time, you had a great deal of experience, far more than the typical law student. Was your future cast? Were there any areas of practice you also considered? Was there ever a prosecutor lurking inside you?

A.  Each of my experiences before, during and after law school, shaped my future. I went to law school with three interests: community economic development, labor and employment and social/criminal justice.

NYU is an amazing place to study law. NYU’s resources allowed me to gain experience in every area for which I had an interest. Criminal justice and civil rights, however, sparked my passion and allowed me to perform authentic and meaningful work.

My goal, as law school was coming to an end, was to find a way to work so that the distance between who I am and what I do is as small as possible.  Public defense and social justice work accomplished that goal for me. Prosecution did not.

Q. Coming out of NYU Law, you headed to New Orleans to work in the Juvenile Justice Project of Louisiana. Did you specifically seek juvenile defense? How did you end up in New Orleans, of all places? Were you thrown right into the trenches? Many defense lawyers find representing juveniles exceptionally painful. What was your experience in the trenches next to a child? Was it what you expected coming out of law school? Did you ever wonder what the point of it all was? Did you consider finding an easier way to spend your days?

A. I chose to work for the Juvenile Justice Project of Louisiana (JJPL) because I was excited about their organizational vision and mission for change. JJPL wanted to not just represent children in one of America’s most brutal juvenile justice systems, but wanted to change the system altogether – from representation to incarceration to rehabilitation.

They recruited at NYU Law; I interviewed; and JJPL hired me. I immediately became part of a team suing Louisiana due to their unconstitutional conditions of confinement for children – a suit the Department of Justice also joined.

Then for the next decade I represented children throughout the state. The work was difficult and emotional, but only strengthened my resolve and desire to do justice reform work while also representing the poor from at-risk and targeted communities.

Q. At the Juvenile Justice Project of Louisiana, you led the Post Disposition Project, designed to protect the constitutional rights of children. What gave rise to this project? What was happening within juvenile facilities that raised constitutional rights issues? Since the basic justification for incarcerating kids is to rehabilitate them so they can go on to lead productive lives, was that being accomplished? Is there any similarity between what you experienced in Louisiana juvenile facilities and what people are told, believe is happening?

A. The Post-Disposition Project (PDP) was negotiated as part of JJPL’s legal settlement with the state in our conditions case. What we found while monitoring the juvenile prisons and investigations was a real need for stronger individual representation of children in the juvenile justice system. We reviewed many files with adjudication errors and files where children were eligible for early release but had no lawyers working for them.

In addition, appellate representation was almost non-existent – a casualty of an under-funded public defender system. I (and JJPL) found this situation unconscionable, and of course, with access to justice a fantasy, the outcomes for children in Louisiana’s juvenile justice system were predictable terrible. Children were returning to the juvenile or adult criminal justice system at a rate of 65% to 70% before we sued.

I don’t know what the perception is today, but when we sued Louisiana in 1998, more than 2,000 children were in juvenile prisons around the state. When Louisiana was released from the suit, fewer than 400 children remained.

Q. You rose to the position of legal director, then associate director, of the Juvenile Justice Project. Was this a conscious decision to leave the trenches and go into management? Did you have goals you wanted to achieve as a director? As this was a non-profit, were you also involved in fund-raising? What were the demands of trying to fund juvenile defense? Was there money available? Were there donors interested in supporting the work? Was the Project surviving hand to mouth? Was this good enough to provide effective representation to children?

A. What I learned at JJPL was a model for reform. I learned how to be a reform lawyer, and moving through varying positions of leadership allowed me to strengthen those skills – designing, implementing and assessing reform strategies. Of course, accepting more and more responsibility ultimately meant responsibility for fundraising as well as managing projects and grants.

Funders were very generous, interested and excited to support innovative programs for children in the juvenile justice system, but as an organizational leader you still have to cultivate relationships, generate ideas and develop a successful reputation in order to receive funding.  JJPL maintained funding at levels allowing for excellent and innovative representation and reform.

I think today, things are tougher. The Great Recession made funding scarce for many doing social justice work. Additionally, shifts in priorities for some funders made support scarcer for juvenile justice work recently.

Q. In August, 2005, Hurricane Katrina struck New Orleans. Beyond the physical destruction and personal suffering, what was the impact on the legal system? Between widely circulated images of looting and what appeared to be lawlessness, how did the police respond? Was there a viable legal system? Did anyone care about the rights of juvenile defendants? Did anyone care about much of anything beyond surviving? In the aftermath, when stories like the Danziger Bridge killings became known, it’s hard to imagine a more dangerous place than New Orleans post-Katrina. Was it that horrible?

A. I’m biased. New Orleans is home, and I never fell out of love with my city. At the same time, we New Orleanians were all a little afraid our city (as we knew it) may be gone forever.

The status of our legal system immediately post-Katrina provided no comfort or reassurance otherwise. The New Orleans criminal justice system was in full collapse.  The storm literally and figurative laid bare the entire system. Command and control structures for the New Orleans Police Department broke down, resulting in multiple high-profile federal prosecutions police officers.

Probably worst hit was the public defender system. Depending largely on court fines and fees, the public defender system immediately shut down. Fueling the criminal justice system on fines, fees and costs from poor people caught in the system yields inadequate, unpredictable and unreliable revenues. When the city is evacuated with only a few able to enter, the user-pay system yields no revenue.

Q. In January, 2009, you took command of the Orleans Public Defenders Office, already regarded as one of the hardest working, worst funded, indigent defenders in the country, facing off against a prosecutor’s office with perpetual integrity issues. Did you seek this job or was it thrust upon you? Did you go in realizing the financial problems facing OPD? Was it worse than you expected? What was it like leading public defenders carrying untenable caseloads? Did you ask yourself, “what have I gotten myself into?”

A. I applied for the job of Chief Defender in Orleans, hoping I could be part of an access-to-justice revolution in our criminal justice system. Perhaps more ambitious, I believed I could help add more fairness and justice into an unjust system aimed at largely poor people of color.

Secondarily, the Orleans Public Defenders Office (OPD) was a challenge where I felt I could apply the lessons I learned as a reform lawyer. The reform work and team that turned a 2,000-bed juvenile system into a 400-bed juvenile system gave me hope I could put together a team and achieve similar success at OPD.

I knew all the struggles facing OPD, indeed, my previous work required study and participation in many criminal justice reform discussions. OPD is today an award-winning public defender office, but when I started work in 2009, such an outcome was far from certain.

It was and remains incredibly difficult work. OPD has to navigate and survive resource shortages and political battles – all while representing clients and ensuring their rights are vindicated. At times, I feel I am constantly moving from crisis to crisis with little time in between to actually manage and grow the organization.

The OPD staff is my salvation.  It is easy to lead gifted, courageous mission-driven staff.  Without our staff, I don’t think I could conjure up the nerve to act with integrity when it comes to many organizational decisions.

Q. The conundrum facing your office, as you explained in a New York Times op-ed in February, 2016, was that your lawyers could no longer handle the caseload, could no longer provide adequate representation, and so you made the decision to just say no, what might be called the “nuclear option.” Since no public defender wants to leave a poor person standing alone before a court, what drove you to this extreme? Had you not made this call, would your lawyers have been reduced to warm bodies besides defendants whose names, whose cases, they didn’t know? Where is the line where you reach the point that you can’t take on another case? How does a person whose life has been dedicated to indigent defense let a poor defendant stand before court alone?

A. For the past 9 years, OPD has worked to strengthen its practice. We are committed to operating within the “triangle of defense:” on one side of the triangle are constitutional mandates, on another side are ethical requirements and on the other side are professional standards. Our cases have to fit in that triangle, and to the extent our cases don’t fit in the triangle, our representation is compromised, ineffective or non-existent.

For the past 7 years of my tenure, OPD has worked with stakeholders to strengthen structure and funding, yet we remain under-resourced. At the same time, workloads continued to climb. I came to two conclusions. One, the evolution and improvement of the office was not just stagnant but trending downward with no real end in sight. Two, the access-to-justice revolution I referred to earlier was not going to happen (and I was going to lose the confidence of my staff, clients and client community) without taking some meaningful action.

I chose to begin refusing cases after reading about Joseph Allen. Mr. Allen is a 32 year-old African-American new father who was arrested and held on a $1.7 million bond after shootings last November at Bunny Friend Park, here in New Orleans, left 17 people wounded.   He immediately asserted his innocence, but police said an eyewitness identified him as a shooter. Mr. Allen’s family hired a private lawyer who went to Houston and located the video footage of Mr. Allen shopping with his girlfriend at the very time of the shooting. The charges were dropped.

Reading about the Allen case, I realized my office could not guarantee the timely retrieval of this important evidence before it was erased or otherwise destroyed.  This would have left an innocent man to face trial for his life for what was labeled an act of “domestic terror” by the mayor of New Orleans.  I did not want my lawyers or my office complicit in that kind of injustice.

Q. While some see the “nuclear option” as an easy fix, what about the role private lawyers play in filling the gap for a pittance by enabling the failure to fund indigent defense? If they’re just serving as poorly paid warm bodies, are they undermining the effort to obtain meaningful indigent defense funding? What do you say to those lawyers who put a few bucks ahead of the good of their clients? Will there always be lawyers to make this fight harder? Is there any way to prevent unethical lawyers from undermining the efforts to force the system to take Gideon seriously?

A. The private bar needs to get more involved, not just to take cases but to help reshape our system. Many private lawyers and law firms have resources to apply to this problem. Specifically, private lawyers ought to be questioning a user-pay criminal justice system that relies on the private bar to handle cases because decision makers do not want to respect or acknowledge the 6th Amendment to the U.S. Constitution.

At the same time, when private lawyers “put a few bucks ahead of the good of their clients,” those lawyers undermine the reform effort. More obscene, however, lawyers who practice in this fashion are harming poor people – irreparably at times.  The best way to insure against lawyers operating as “paid warm bodies” is to first, maintain a fully-resourced public defender office that takes seriously the obligation of public defenders to protect innocence, defend the Constitution and demand fairness and justice throughout the criminal justice system. Second, judges and practitioners of good faith need to take leadership roles calling out unscrupulous practices and providing input for solutions.

Q. Following your decision to refuse cases beyond the capacity of your office to handle, you were sued by the ACLU. Was this a “friendly” suit, another laboring oar in trying to compel Louisiana to change its funding methods, or do whatever had to be done to fund indigent defense in Orleans Parish? While the suit produced some beneficial individual outcomes, did it have any success at forcing the state to comply with its constitutional obligations? Was the nuclear option the right decision? Will it change the way your office is funded? Is there any method, short of politicians actually wanting to, to obtain adequate funding to meet the constitutional mandate of Gideon? We’re now 50 years post-Gideon, and you’re still fighting the battle. What will it take to win the war?

A. I believe the best and longest-lasting change comes at the legislative level. So ultimately the best solution is the one where OPD and other system stakeholders and decision makers reform our user-pay criminal justice system in Louisiana. At the same time, activists often assert power concedes nothing without a demand.  This is also true, and many times litigation serves as the demand upon the system.

The ACLU lawsuit is not so much friendly as it is unsurprising, and refusing cases was never viewed as the nuclear option at OPD so much as it was viewed as the only option faithful to the Constitution, ethics and professional standards.  Since OPD began refusing cases, we’ve received increased support and resources at the state and local level.

OPD remains underfunded, however. In the end, I believe victory will come with a court order and the slam of a federal judge’s gavel or with the stroke of the Louisiana Governor’s pen after the gavel slams to mark the close of the legislative session. Only time will tell.

Cross: Maggie McNeill, Making Law Sexy

July 27, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Maggie McNeill, sex worker advocate, blogger at The Honest Courtesan and unapologetic whore.

Q. You’re a Louisiana girl from a Catholic family, educated by nuns. No doubt, the sisters would be . . . surprised by your career choice. You make it even harder to reduce you to a stereotype by being exceptionally well educated, with a bachelor’s degree in English and a master’s in library science. That would seem to be a pretty weird background for a sex worker, at least if you believe the media. How did you go from librarian to escort? Were you rebelling against convention? Against the convent? What made a Catholic school alumna and professional librarian consider doing sex work, let alone actually go for it? Was there a freethinker under all that orthodoxy? Were you in fact rebelling against anything, or was there a more prosaic reason?

A. Actually, you’d be surprised how many escorts are well-educated. Among my friends are one with a degree in fine arts, one with degrees in theater and interior design, one working on her PhD in astrophysics, one with a PhD in forensic pathology, two with JDs and an autodidact who has more knowledge of psychology than most professors of the subject.

And those are just the ones I can think of off the top of my head. Though modern people tend to think of harlotry as a profession of last resort, for most of history we were the most educated of women; in fact, there were a lot of times and places in which any learned woman could pretty much be assumed to be a whore. Men don’t just see us for sex but for companionship as well, and most professional men want a woman who can hold an interesting conversation with them.

As for me personally, I was never exactly conventional, despite the efforts of parents and nuns; I was always a freethinker and never managed to absorb any negative attitudes about sex. I was fascinated by whores from the time I understood what the word meant, and as a young teen I counted several famous courtesans among my heroines. My very first D&D character at the age of 14 was a cleric who was a sacred prostitute, and I took money for sex for the first time just a little over two months after turning 18.

I sort of dabbled in it for the next two years, not enough to call it a career but enough to keep the rent paid. So when I went full-time over a decade later, it wasn’t exactly a new idea for me; my closest male friend reacted to the news with, “I was wondering how long it was going to take you to get around to that.”

Q. You didn’t jump right into escort work: in 1997, you started off as a stripper. At the time, you were pretty heavily in debt in the wake of an acrimonious divorce. Although you were new to the business and competing against girls who were ten years younger, you made such a success of it you were able to whip your finances into shape in no time. What went through your head that first time you went on stage? Was the librarian in you good with this? And what sort of mad skillz did you have to be such a success? Is there a support network for new strippers, or were you on your own? Is sex work generally, and stripping specifically, such a goldmine any pretty girl should consider it, or does it take a certain mindset? Would you recommend this as a way of paying for law school?

A. At the time, business was booming in New Orleans; a lot of girls were making a lot of money, and my income was really pretty average. Though I’m not really a very good dancer – I’ve often said nobody would pay to see me dance with my clothes on – I’m generally considered an exceptionally attractive woman, with considerable charisma. So while I probably made less money than the young girls while on the stage, I absolutely cleaned up in the VIP room. There’s not really a support network for new strippers; in fact, a lot of the girls are very competitive. But though I’ve never done pageants, I’m the type who would’ve often been named “Miss Congeniality” if I had; I make friends easily, and it didn’t take long before the more experienced ladies were showing me the ropes.

I wouldn’t go so far as to say any pretty girl should consider sex work; it does take a certain mindset (which is a bit different for escorting than for stripping). But I’d say that any attractive girl who’s not afraid of men, her sexuality or her body should at least consider it, especially as a student income (the pay is good and the hours flexible). As for law school…well, the two JDs I mentioned before both worked their way through via sex work.

Q. One day into the new millennium, you became an escort. You started working for an agency run by a madam who preyed on her girls’ emotions, tried to manipulate them, made no effort to ensure their wellbeing and had a not-so-secret crack habit. Behind her back, the girls called her “Pimp Mama.” What made you take the leap? Was it a leap? Did you hear nun voices in the back of your head? And why go to work for Pimp Mama? Are pimps – abusive managers – common in the world of sex work, or a Hollywood fantasy? What were the formative experiences from your first escort job? How long did you stick it out with Pimp Mama? Did you ever ask yourself, “what the hell am I doing here?”

A. The problem with abusers is that they’re often extremely charming; after all, if they weren’t, who would stick around to be abused? When “Pimp Mama” interviewed me she was friendly and reassuring, and it took a little while for her to show her true colors. In all fairness I have to say that she really wasn’t too bad when I started with her; of course, she wasn’t smoking much crack then. It was after she started using it more heavily that her behavior degenerated dramatically. I didn’t stick it out long; I started with her on January 2nd and opened my own agency a few days before Easter (I’m an extremely fast learner).

Abusive managers aren’t nearly as common in sex work as the prohibitionists would have you believe, but they’re more common than they would be if our industry wasn’t forced into the shadows by criminalization. But even the abusive ones are less like caricatures from cops’ fantasies and more like bad managers in any business; they’re not generally beating women, but rather exploiting their ignorance, extracting excessive fees, playing fast-and-loose with the books, pressuring girls to do work they’re not comfortable with, etc.

The number of sex workers with managers whose behavior resembles the cane-wielding, funny-hat-wearing stereotype is very small; most good estimates place it at around 2% in developed countries, as high as 5% among migrants and about 10% for underage girls. But in the past two decades, the number of sex workers who have any kind of management, good or bad, has dwindled; in the US, I’d put the fraction of sex workers who fall into the “escort” category at about 60%, of whom at least 80% (and growing) are independent.

Q. You started a new business in a trade that, to put it bluntly, is illegal. It’s not like opening up a Taco Bell. Along with the established competition, you were (and still are) facing down the law, and the police who enforce it. How do you advertise when selling sex could land you and the buyer in jail? How do you find trustworthy employees? For that matter, why should anyone come work for you when they could be working for themselves? How do you provide security when your business model’s built on twenty-year-old girls carrying wads of cash while breaking the law? And then there’s the potential harm at the hands of clients. Do you vet clients, and if so, how? Can you reliably navigate around law enforcement? In a nutshell, how does an entrepreneur in the sex business handle the countless pitfalls that come with illegality?

A. A lot has changed in just the few years since I started my agency; though there were already independent escorts advertising online then (the successors to those who’d advertised in the back pages of alternative newspapers for at least 30 years before that), there were no smartphones yet and the average businessman still wasn’t carrying a laptop. And since most of the business in New Orleans comes from visitors to town, that meant most of the business came from the Yellow Pages, which meant either working for an established agency or starting one up oneself.

It’s changed a lot since then, which was one of the reasons I closed my agency in ’06; nowadays I advise would-be escorts to set up a website and go independent, because why give someone else money to do the advertising & administration one can do for oneself? Some girls do use bookers to handle that, but they charge a lot less than agencies & are definitely employees of the girls rather than pseudo-employers as agencies are.

Sex workers’ ads take advantage of the fact that paying for company isn’t illegal, only paying for sex. Now, you and I both know that the line between those two isn’t remotely a bright, clear one such as the law pretends it is; lots of clients don’t want what most cops would call “sex”, and lots of sex doesn’t involve the body parts prudes code as “sexual.” And by the letter of the law in most places, it isn’t “prostitution” unless there’s an explicit agreement to trade x sex act for y amount of money, which absolutely no whore in her right mind will ever do. So in a sting the cops either lie and say that such an agreement was reached, or else rape the sex worker and use that as “evidence of prostitution.”

Some people are uncomfortable with my using the word “rape” to describe this interaction; to them I say, “If the shoe fits…” Consent given under false pretenses isn’t true consent, and if non-consensual sex entered into for the specific and intentional purpose of harming the woman (by leading to her arrest, confinement, public shaming, loss of liberty and potential loss of income, housing, child custody and any “straight” job she may have) isn’t rape, I’d like to know what the hell is.

The way I used to find good independent contractors (they’re not actually employees), and the way we used to vet clients before the internet, and the way we avoided cops, were all the same way: intuition. I would not advise anybody who feels she can’t trust her intuition to even consider doing this work under criminalization; it’s just not worth the risk. And even though we have screening methods now which we couldn’t have dreamed of in the ‘80s, there’s still no substitute for good instincts. Mine have only badly failed me a single-digit number of times in almost two decades, mostly in the first year.

Oh, and the idea that sex workers are mostly very young is a prohibitionist wanking fantasy; the average age for starting sex work is about 25.

Q. Are you sure you weren’t sex trafficked? If there’s one thing the government, media and feminists agree on, it’s that you couldn’t possibly have chosen sex work because you made a mature, reasoned choice. If the social justice warriors are to be believed, you were forced into this brutal and demeaning business, either at gunpoint or by the mysterious influence of the patriarchy. On the other hand, the Right thinks you’re a living, breathing affront to Christian values who must be deterred from seducing innocent men. What are you? Victim or siren? What about other girls? Do they lack agency? Are they being exploited? Is abuse as commonplace as the media would have us think? Should our society pity or look down on the women of the night?

A. As I said in my Reason TV interview two years ago, our society “still pretends that there’s some magical, mumbo-jumbo, taboo energy about sex that makes it different from all other human activities.”

I am continually amazed that over a century after the end of the Victorian Era, supposedly educated adults, especially people who call themselves “feminists”, actually believe (and expect others to believe) that all women are passive, childlike creatures with such a naïve, romanticized view of sex that our fluffy, pink little brains couldn’t possibly conceive of doing it for any reason other than loooooooooooooove or animalistic pleasure.

This is especially absurd given that these same “feminists” pretend that it’s better for women to be valued for our intelligence than for our beauty, while at the same time pretending that sexual motives deriving from the hindbrain (love & pleasure) are morally superior to those deriving from the frontal lobes (profit motive). It’d be quite a fascinating case study in cognitive dissonance if it weren’t for the fact that these Froot Loop notions are used to justify sending armed thugs out to deceive, rape, brutalize, rob & cage people.

Because when all is said and done, when all the nonsense about sin and violence and “patriarchy” and whatever is stripped away, that’s what prostitution laws are: the criminalization of a motive for an activity, adult consensual sex, that would be totally legal if performed for any other reason. And in a society where entrepreneurship is held up as the ideal, that’s nothing short of bizarre.

Sex workers often give each other referrals and ask our friends along when a client wants more than one lady, and at such times we sometimes joke about which of us is “trafficking” the other, because the dominant paradigm requires one “victim” and one “exploiter”, even if we’re peers and close friends. Unfortunately, if the cops manage to interfere that joke can become a reality, with one or both women charged with “pimping” the other.

Q. According to feminists, prostitutes are the helpless, hapless victims of men like their johns and the half-pimp, half-slave driver guys who traffic them. Some of the world’s most progressive nations have come up with an elegant fix for this problem: criminalize buying sex, but not selling it. This is known as the Nordic Model. Great idea, right? Arrest the guys who profit off the girls’ sexual slavery. Arrest the guys who buy their slave labor. And as for the girls, they can be rescued and put to work in a clothes factory or something. Are there any flaws with this plan, or is it as foolproof as it seems? What part are you skeptical of? The premise? The execution? Or is this all nonsense?

A. One doesn’t need to be a lawyer to recognize that in treating the two sides of a consensual transaction asymmetrically, the Nordic model tacitly assumes that one of those two sides is unable to give legal consent; i.e. she’s somehow morally or intellectually inferior to the other participant. Compare statutory rape laws, for example: when I was 16 I was sleeping with guys in their 20s who didn’t realize how young I was (I was a university freshman, so they assumed I was 18). If we’d been caught, THEY would’ve been charged but not me, because the law still considered me equivalent to a prepubescent child, unable to give sexual consent.

Under the Nordic model, women of ANY age are unable to consent to pragmatic sex; there was a case in which a 17-year-old boy was prosecuted for trying to buy sex from a worker in her 20s. So basically the law stated that a minor boy is morally superior to a woman of any age. This is called “feminism.”

Q. Should prostitution be legalized or decriminalized? Legalization is an opportunity for the government to regulate a free-market industry. As in Germany, governments that go the legalization route tend to impose lots of expensive, patronizing requirements, including things like mandatory registration or even supervision by social workers. A lot of prostitutes aren’t happy about paying tax, either. On the other hand, they get access to benefits like health care, and the government claims it’s all being done to protect the whores from things like abusive clients or STDs. Do prostitutes need or want this kind of protection? Is the tradeoff worth it? German prostitutes overwhelmingly refused to sign up for a state-sponsored health care program. What’s more important: protection by the state, or protection from the state?

A. Decriminalization, decriminalization, decriminalization. Everyone who’s actually studied the issue and doesn’t have a political agenda to push agrees. Sex worker rights groups, health officials, human rights organizations like Amnesty International, a number of UN agencies, and academics of many different fields all say the same thing.

“Legalization” creates a two-tiered system because the majority of prostitutes (over 99% in Nevada) prefer to work illegally than comply with the always-draconian requirements, and that opens the door to police corruption. In decriminalization, sex work is treated as work (and yes, that includes taxation); in legalization, it’s still viewed as a “crime” for which the law makes exceptions. I described the arguments for decrim, and the arguments against various forms of legalization & criminalization, in my essay on Cato Unbound three years ago.

Q. You’ve been very candid about your experiences with rape. In addition to being victimized by two clients, you were raped by three police officers in 1995. You said it was terrifying, though not the most traumatic experience of your life. Most mainstream Americans see cops as guardians of the community, but the experience of prostitutes has been very different. At your blog, The Honest Courtesan, you’ve written a lot about the horrible frequency and casualness with which cops rape sex workers. They’re a uniquely vulnerable population, and all too often, cops are practically untouchable. What’s to be done? Does America need to fundamentally rethink its trust in cops? When you were raped, you weren’t even a sex worker yet, but an ordinary, law-abiding citizen. How can prostitutes protect themselves against abusive cops when society holds lawbreakers in general, and prostitutes in particular, in such contempt? Why are we so willing to overlook nonconsensual sex crimes when the perp is a cop, but condemn sex workers for freely selling their services?

A. I’m a minarchist, one who believes that while humans aren’t quite ready for anarchy, we should get as close to it as possible. However, that’s probably a much more radical position than most of your readers hold. So while I personally believe the only way to solve police brutality is to completely abolish professional policing (as it is currently practiced) as an institution, I realize that most people aren’t ready for that idea yet.

So in the meantime, I’d really urge Americans to, as you put it, fundamentally rethink the nigh-absolute power cops have been given. If we’re not going to abolish the institution itself, we at least need to abolish the police unions who have made cops invulnerable to all consequences for their actions.

We need to de-militarize them; take always all that damn military hardware and stop teaching them they’re in the world’s most dangerous job, when in fact garbage collectors suffer much higher risks. We need to be willing to prosecute them when they commit crimes, and fire them for offenses that fall short of crimes but are still a breach of the public trust. And most of all, we need to take away all the damn excuses they’ve been given to initiate contact with ordinary citizens, from consensual crimes (such as drug use, gambling and yes, prostitution) all the way down to traffic violations that don’t actively threaten to harm anyone (broken taillights, expired tags, etc.)

If nobody actually complains about something, the cops shouldn’t be driving around looking for trouble. Firemen don’t rove around looking for fires, and paramedics don’t rove around looking for injuries, yet we don’t see huge numbers of buildings burning down & accident victims dying because nobody got there in time.  Let the cops stay in their fucking police stations until called out, and they’ll have a lot fewer opportunities to murder black men, execute dogs, rob bodegas and rape women.

And decriminalizing sex work will remove the number one excuse cops use for imposing their unwanted attentions – which can be terrifying even when they fall short of actual rape – on women who have done nothing to hurt anyone.

Q. You’re a highly educated woman, white, from a “privileged” background. What qualifies you to speak on behalf of sex workers? Feminists routinely say you’re not qualified to talk about black prostitutes, transsexual prostitutes, people who outrank you in the victimhood hierarchy. Is your positive experience with the sex trade representative of others? Are you guilty of whitewashing the misery of the profession? Should we dismiss your writings as an unfortunate data point and focus on the story prohibitionists and the media want to tell, or are you a legitimate voice?

A. As I said in that Reason interview, I’m no more or less representative than anyone else. The people who speak out on behalf of any marginalized group who are being denied their rights tend to be those who are more eloquent and have more forceful personalities; that’s just human nature, especially when you consider we don’t get paid for this (unlike prohibitionists, many of whom make quite a nice living telling authoritarians of all stripes what they want to hear).

But I don’t recall anyone ever criticizing prominent voices in the struggles for the rights of black people, queer people or other minorities being dismissed as “privileged” or “unrepresentative”; that asinine accusation is unique to sex work prohibitionists, because their entire argument rests upon the myth of this vast population of enslaved, emotionally-devastated women which simply does not exist.

Women whose stories even remotely resemble the tragedy porn so popular these days are few and far between, and as I argued in my research paper “Mind-witness Testimony,” there are many good reasons to distrust even those narratives as told (for example, the fact that they often change over time to conform more closely with the tragedy porn pattern). There are indeed many people who had a bad time in sex work, but most of those suffered largely due to criminalization; there are a number of very vocal activists among them, though of course they’re ignored by the prohibitionists because their stories, though unhappy, do not conform to the pro-criminalization agenda.

And as I say in practically every single interview or public speech, both sex workers who hate the work and those who adore it are minorities; for the vast majority it’s a job like any other job, with good points and bad points, which people choose because it’s the best option open to them at the time. Sometimes it’s the best of several bad or limited options, in which case how the fuck is it supposed to help someone to take the best of those options away?

Note I said “people” and not “women”, though prohibitionists pointedly ignore that in favor of their “prostitution as male violence against women” dogma. Though it’s true that most sex workers are cisgender women (and indeed, that’s probably why this issue receives the obsessive attention it does from “authorities”, prudes & other busybodies), many are transgender women, transgender men, cisgender men or people who identify as non-binary. And though most clients are indeed cisgender men, yep – you guessed it – a lot of them aren’t. In my New Orleans days I used to see an average of one couple a week, i.e. about 50 female clients a year. That’s a small fraction of all my clients, but it’s hardly minuscule.

Finally, I think it’s rather absurd that people sometimes accuse me of “whitewashing” when, as you noted in the previous question, I do nothing of the kind. I’m very candid about the dangers faced by sex workers, and also about the serious social problems (such as my mother not having spoken to me since 1997, or people losing jobs when a sex work past is outed); it’s just that prohibitionists don’t want to talk about those actual problems because they either result from, or are exacerbated by, criminalization and stigma.

Prohibitionists only accuse me of dishonesty because I won’t support their ridiculous wanking fantasies of international cartels of magical ninja pimps with mind-control powers abducting screaming white girls from shopping malls and bus stops, transporting them around the country in dog crates, and serving them up to hundreds of salivating sex maniacs per week until their genitalia collapse and the diabolical monsters then dispose of them, presumably by flushing them down hotel toilets like unwanted goldfish.

Q. You went on hiatus from the profession after you married your second husband. Since you and he split up, you’re back in the saddle. At this point, you have twenty years of experience behind you. You been through a lot, like surviving Hurricane Katrina (and were the only whore left in town after the storm). You’ve been raped, arrested, dealt with problem clients and employees, run your own business and gone on countless outcalls. Despite it all, you find the time to be one of the foremost advocates on behalf of sex workers and legal reform. What’s in your future? Law enforcement is cracking down on the sex trade, closing down important resources like Internet escort boards and leveraging Big Data to make sex workers’ lives hard. How are you going to “future-proof” the business? And If America decided to stop legislating morality, what would you do?

A. A few years ago I found that my time perspective had receded to a really unusual degree; what I mean by that is, I started looking at things in a more geological time scale. I guess it was partly age, partly philosophy, partly a lifelong fascination with astronomy and partly reading far too much H.P. Lovecraft, but history began to seem like it was going by really quickly to me, and I started saying stuff like “only twenty years or so” in the same kind of tone most people say, “only a few weeks”.

This is a good perspective for an activist, because when one is trying to change the world, absolutely nothing happens quickly and impatience with the glacial pace of events leads to burnout. The sex worker activists of today are working to make the world a better place for our daughters and their daughters; I’ll be delighted if I live to see the kind of massive social shift toward sex work that gay and lesbian activists got to see in their lifetimes, but I don’t expect it. The long view also helps me to stay calm in the face of rising state violence against my sisters and brothers and our clients; I look at history and I realize that such crusades are fads, terrifying and destructive while they’re going on, but ultimately short lived.

The “sex trafficking” hysteria is already starting to collapse and will be over well before the decade is; unfortunately, the laws it spawned will continue on just as the criminalization spawned by the last “sex trafficking” hysteria (which ran from roughly 1905 to 1929) continued on for the rest of the century and beyond. But I don’t think Americans have the patience or gullibility to put up with another crusade of Drug War proportions; though the government is already shifting its resources and rhetoric toward preying on sex workers and clients instead of drug sellers and users (even to the point of mouthpieces making the nakedly-transparent claim that “gangs” are changing from drug trafficking to “sex trafficking” so as to justify using a new excuse to persecute the same minorities), I just don’t see that as having the kind of 40-year legs the Drug War did.

And while virtually nobody wanted to defend drug use until the beginning of this century, sex workers are already building an impressive coalition of allies, especially since Amnesty’s statement last year made it socially acceptable to say in public what many have been saying in private since the ‘70s. Whores will outlast our persecutors; we always have, and we always will. If the cops close down one means of advertising, we’ll find another; I already get just as much business from my social media presence as I do from traditional escort ad sites (which, by the by, are all moving overseas where Uncle Sam and all the little tin “law enforcement” gods will have a much harder time getting their host servers to cooperate in their nasty takedown spectacles).

I don’t have to future-proof sex work because it’s already future-proof; it will exist for as long as men have cocks. And though I don’t think the US will ever stop legislating morality until Washington is as ruined as Nineveh, there will always be whores and other sexual outlaws willing to flout that legislation and fight to bring it down.

Cross: Eric Mayer, Lawyer, Military-Grade

July 20, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Kansas-base military criminal defense lawyer, Eric Mayer, head of the Mayer Group and blogger at Unwashed Advocate.

Q. You’re a Kansan born and raised, and an Eagle Scout, so it’s not surprising you decided to join the military. But you weren’t just any recruit. You qualified for the most prestigious education the Army has to offer when you were admitted to West Point. To get in, you had to demonstrate mad academic skillz and be in peak physical shape. This was a lifetime commitment, to be a West Point man. Why did you choose the United States Military Academy? Was getting in as tough as the admissions stats lead us to believe? And when you got in, what was life like for a cadet? Did West Point live up to the legend? West Point is as much about honor and discipline as it is about education. How did that frame your view of yourself and your world?

A. The judge said to me, “Son, you can go to West Point or go to jail.” So, I chose West Point. The rest is history.

I’ve repeatedly been the beneficiary of dumb luck. While being a Kansan with a background in the Boy Scouts may lend itself to a perceived patriotic calling, the larger influence for me was my father, a veteran of the European Theater of WWII. Up to my generation, every male in my family served in the military at some point.

Having said that, I entered West Point on a relative whim. Summer 1995, I attended Boy’s State, a program sponsored by the American Legion. There, a cadet and former Boy’s State attendee visited to tell us about West Point. I thought, “That looks cool.” In the fall, I applied. In the spring, I was accepted (though, as I later discovered, Bob Dole’s first couple of choices declined appointment and decided to go elsewhere).

I’d like to say that my thought process was more complex than “that looks cool,” but it wasn’t. What else can we expect of a 17-year-old? They all make strange decisions. I was no exception. Sometimes, those decisions work out well and you’re a West Point graduate. Other times, they don’t work as well, and you become the unfortunate client of a West Point graduate.

Being a Cadet was a huge challenge for a kid from small-town Kansas. Back home, I was a big fish in a shallow puddle of mud. Going to West Point was like being the same fish dumped into the ocean. I wasn’t prepared for it, but I stumbled through somehow. It was tough—physically, academically, and emotionally.

Frankly, I’m still in awe of the United States Military Academy and have no idea how I graduated. I guess they had quotas to fill. It was a great place, and I got extremely lucky.

One thing it taught me is that one should never expect privilege based on achievements. Instead, achievements give us the tools necessary to demand more of ourselves, and others should expect more from us.

Q. After graduating in 1996, you were commissioned as a second lieutenant. In addition to picking up some seriously impressive awards, including the Ranger Tab, you were deployed to Bosnia and Saudi Arabia. You were an infantry officer, trained to lead men into combat. What were the demands of Ranger School? Tell us everything, including the stuff you’re not allowed to say. And if you won’t do that, tell us how the trials of becoming a Ranger — and officerhood — prepared you for your future in the courtroom. Is an officer’s responsibility to his troops anything like a lawyer’s duty to his client?  Endurance, split-second decision-making, knowledge of strategy and tactics. How well do your military skills translate to representing people?

A. Ranger School is a rite of passage for Infantry officers. All of us were expected to attend and graduate. I started in November, 1996 at 6 feet tall, 175 lbs. After I completed the final phase in March, 1997, I weighed-in at a whopping 125. To this day, I still can’t feel one of my big toes.

I kept a log each day during the final phase. One of the things I recorded was the amount of sleep each night. In 10 days, I slept an aggregate of 7 hours.

While this sounds bad, the school taught me to understand my limits. Most people don’t—considering themselves “starving” because they missed a mid-afternoon snack.

So, after Ranger School, I reported to Ft. Drum, New York, where I served the balance of my time as an Infantryman. There, I was subjected to several classified briefings. After each, I walked out of the room thinking, “That was it? Where’s the stuff about aliens and big government conspiracies.” Nothing in the military is more of a letdown than your first secret briefing.

Being an Infantry leader was an immense privilege for me. Every day, you’re expected to show up and do things that make a difference to the Soldiers with whom you work. Looking back, working under such a mandate was an amazing opportunity.

The two most important lessons I learned from those formative Army years were that you work to a standard, not to a time, and that high standards are an achievement, not an obstacle. I think those translate into what is necessary to represent clients fully.

Q. After your infantry career ended in 2001 (you left at the rank of Captain,) you went home and studied law at the University of Kansas. Did you go in with the plan to become a military lawyer, or were you looking for a change of pace? Was it difficult to readjust to civilian life after five years in the Army? What was it like for an experienced soldier to rub elbows with soft, squishy 1Ls? Did U Kansas do a good job of preparing you for practicing military law?

A. I had no intention to go back into the Army. The 90s Army was stuck in a training and maintenance rut. So, I decided to attend law school on a similar whim to the one I rode on my way to West Point. Going to the civilian world took no adjustment for me. Then again, I was not (and am not) a combat veteran. I don’t have PTSD. My service in Bosnia and Saudi Arabia did not injure or disable me.

I was going to get my degree and work for some fancy-schmancy firm in Kansas City in order to develop a sense of entitlement and a high degree of self-loathing.

The question reminds me of a problem I have with a lot of veterans. They leave the military and immediately assume that they are better than their civilian counterparts. Entitlement reigns supreme. Let me be clear, we are not better than others, and there are plenty of civilians who are just as tough or tougher. Our experiences may be different, but that doesn’t mean we are more capable or aware. In some cases, our experiences blind us to the worth of others, and that’s a shame.

Military service should not entitle me or anyone else to special privileges. If anything, it should cause others to expect more of us. We should be held to a higher standard and looked upon to carry a heavy load. In short, the guys who run around farting about their military service and demanding discounts in coffee shops are not friends of mine.

I was actually humbled by the skills, abilities, and potential of my law school classmates.

Having said that, I appreciate getting 10% off at Golden Corral. Please don’t take that away, despite what I just said.

Q. When you were done with law school, you re-upped in the Army and became a member of the Judge Advocate Genera’s Corps, a military lawyer. JAGs wear many hats; one day, they’re prosecutors. The next, they’re defense attorneys. You even instructed military police on the finer points of the law. Did your varying roles ever conflict? How hard was it to juggle your responsibilities? Did you feel drawn to any one role? Did the breadth of your military criminal law experience give you a leg up over less versatile, or more “passionate,” attorneys? What do they not get that you do because of your experience?

A. People who are “passionate” are not attorneys. They are activists. I’ve never been an activist, as I’ve always been able to see issues from multiple, logical perspectives—not just the one that made me happy.

The roles never conflicted. Each duty assignment I completed had a different mission. My goal was to accomplish each mission to the highest possible standard.

I love what I do right now, but I could just as easily enjoy prosecuting cases. I just like the freedom that my current business model provides.

Q. Most people are unaware that America has a two-track legal system. There’s civilian law, and then there’s military, literally a legal system unto itself. They both derive their authority from the Constitution, but the law of the military actually predates it. To what extent are they comparable? Is persuading a civilian jury the same thing as persuading a military judge and jury? Constitutional protections apply to military defendants, but it doesn’t work quite the same way (For example, soldiers don’t have a right to bail). Are there instances where soldiers enjoy stronger protections than their civilian counterparts? What challenges do military defense lawyers have to contend with that don’t come up in the civilian world? Given the two, which in your experience is the better system? Are there lessons from one that ought to be learned from the other?

A. There are a lot of folks who see military justice as completely different from its civilian counterpart. I don’t.

If you consider the important, constitutionally-necessary aspects of criminal prosecution, there are procedures within military justice that fulfill those mandates. The path is merely a bit different. Sure, service members do not have the right to bail, but they have a right to a hearing if they are being considered for pretrial confinement. At this hearing, the government must prove that the accused is a flight risk or that they are likely to commit future misconduct. This is by no means a rubber stamp. As a military magistrate, I found several occasions where pretrial confinement simply was not warranted.

One of the biggest benefits to being in the military is that counsel is provided at no charge, regardless of income. Knowing this, should they hire a civilian? The answer is that it depends. In some cases, that one free lawyer may be all that is necessary. What I think matters is that the accused feels that they have the defense they need. That may mean one free attorney. That may mean a team. It all depends.

I think the differences in systems cancel out over time. For instance, a court-martial only needs 2/3 to convict (as opposed to unanimous), but there also is no such a thing as a hung jury. If fewer than 2/3 vote to convict, the accused is acquitted. The differences are striking, but when they are weighed as a whole, it comes out pretty even.

If you told me that I was going to be prosecuted for a crime, I’d want to be prosecuted in the military. The process is transparent, lawyers are less burdened by caseloads, and the panel (think jury) is almost always highly educated and professionally accomplished.

One of the biggest benefits to being in the military is that counsel is provided at no charge, regardless of income. Knowing this, should they hire a civilian? The answer is that it depends

Q. Many lawyers are too shy to ever stand in the well, but you were a paratrooper. Tell us about your first trial. Did you get an adrenaline rush, or did your history of doing cool stuff in the Army inure you to that? What side of the courtroom were you standing on? Did you have backup? Were you sufficiently prepared? In retrospect, were you the lawyer you thought you were? What would you have done differently if you knew then what you know now?

A. If I were the lawyer I thought I was, I’d be Chief Justice of the Supreme Court by now. Instead, I’m the lawyer I am, which is, well, not Chief Justice.

First, I was not a paratrooper. I did graduate from Airborne School, but I only have 10 total jumps and was never assigned to one of the Army’s Airborne units. To be considered a paratrooper, you must serve in a unit with an airborne designation. Semantics, I know, but it is important to military folks and is akin to the fact that, while I have a Ranger Tab, I was never a Ranger (someone who serves in the Army’s Ranger Regiment).

My first panel (jury) trial was as a prosecutor. The Soldier I was prosecuting was accused of molesting three girls, all under 10-years-old. Procedurally, I was fine. The JAG corps does a great job of training young attorneys to perform in courts-martial.

The toughest part was preparing three child witnesses to face the man who abused them. All the advocacy and moot court training cannot prepare you for that. As a human, it was tough. As a parent, it was excruciating.

I did have help in the form of a very detail-oriented co-counsel. I need that. I’m a big-picture guy. I want to distill everything into big central themes and just a few talking-points. My weakness is that this is sometimes done at the expense of details that need to be addressed. For this reason, I try to always have co-counsel who are highly skilled at breaking down the minutiae. Luckily, in this case, I had one of those. Based on that experience (and confirmed by everything since), I think the perfect defense team consists of two attorneys, but they must each have complementing skills and abilities. Yin and yang, I suppose.

As a young attorney, I felt that there were things I could just wing. That’s a horrible thing to do, and I’m lucky that it didn’t bite me hard in the ass. I got lucky. I don’t wing it anymore.

Q. Representing military personnel is a unique challenge, in part because of their struggles with mental illness. How frequently do you defend soldiers or veterans who have been diagnosed with PTSD? How does the diagnosis complicate things? Do military judges understand? What about prosecutors? Is the Army doing enough to help mentally ill soldiers? What about the Department of Veterans’ Affairs?

A. In my experience, everyone in the military is very sensitive to mental illness, especially when it is clear-cut and properly diagnosed.

The problem is that everyone is trying to get on the PTSD bandwagon, and the new DSM-5 errs on the side of diagnosis. Consider this: A Soldier may be involved in a horrific firefight. This person may have PTSD, justifiably. However, you also have basic trainees who claim PTSD because their drill sergeant yelled too loudly at them. They want to be treated the same as that Soldier who was in the firefight. Because of people like the basic trainee, PTSD and traumatic brain injury face an increasingly skeptical audience.

At one point, I could say, “My client has PTSD,” and everyone would respect that (judges, prosecutors, the VA, etc). Now, I have to prove it to a higher and higher standard—all because everyone is claiming PTSD.

Well, except for the VA. They diagnose someone with PTSD if they stubbed a toe and felt sad about it. (I might be exaggerating, but not by much.)

Q. Until 2011, when the military repealed its “Don’t Ask, Don’t Tell” policy, homosexual conduct was grounds for a discharge. You’ve practiced military law for twelve years. Have you represented soldiers facing separation for homosexuality? In the civilian world, gay rights advocates decried DADT for decades. Did it seem quite as outrageous from within the military? Was the military just stuck on old habits, old prejudices? Does sexual preference (or, gender identify as has recently been addressed) have anything to do with being a good soldier? Is any of this a real issue? Should it be?

A. Even 20 years ago, the majority of people with whom I served did not care about sexual orientation. I’m proud to say that I defended several folks who were subject to this policy. However, I was defending them to leaders who, as a whole, said, “Yeah, I think the policy is bullshit, too.” The Pentagon had more of an issue with DADT than the Soldiers in the field. So, while I’m proud of defending those subjected to DADT, the cases were not hard to win.

In my time, I saw more people kicked out because they made up a story that they were gay in order to obtain an early discharge. If there’s a rule, somebody will exploit it. DADT was no exception.

Q. You’ve appeared at more than a few courts-martial. In 2011, you were actually flown to Iraq for one. In military law, this is the big leagues; courts-martial are analogous to felony prosecutions in civilian court. One prominent example of a soldier facing a court-martial for his actions is Sgt. Bowe Bergdahl, who deserted his post in Afghanistan in 2009 and was held prisoner by the Taliban until 2014. At your blog, The Unwashed Advocate, you’ve written about the case: you said Bergdahl’s decision to appear on the Serial podcast effectively destroyed his ability to defend himself. But can you give us your personal opinion? Does Bergdahl deserve further punishment for his crime, or has he suffered enough? Is it important for the Army to make an example of him? Does playing to the public, despite its lack of understanding of the Uniform Code of Military Justice, advance knowledge or play to people’s ignorance and prejudice?

A. This Bergdahl thing is getting out of hand. His lead counsel is Gene Fidell, a Yale law professor who focuses largely on military justice. Bergdahl also has four assigned Army counsel. Read that again. He has five free attorneys (I’m assuming that Fidell is not being paid via Bergdahl’s spare change). The assigning of four uniformed attorneys is extraordinary. To put it in perspective, I had a murder trial, and we had two. I can’t help but wonder if at least two of the four are appointed largely to assist with damage control for some of the boneheaded things that have already transpired.

I think playing to the public is insanely stupid. Of course, I’m on the outside without access to case files, but here’s how I see it:

First, his mental state is clearly at issue. If you want to maintain that your client is fragile, impaired, or damaged mentally or emotionally, why would you let him talk to the press for hours and hours? I see the prosecution leveraging this as evidence that he knows (and knew) exactly what he was doing.

Second, if he takes the stand for any reason, the prosecution will use the unedited transcripts of the Serial interviews liberally and at will. Heck, they will likely be able to use them even if he doesn’t take the stand.

Third, it is no longer a hot issue. Most of America has made up their minds. No changing them.

Finally, how is it likely to materially help at trial (for the defense, not the prosecution)? I can’t think of a way. Even if there is a way, does it outweigh the clear benefits the same provides to the prosecution?

If I were one of the four assigned counsel, I’d already be like Steve McCroskey (Lloyd Bridges’ character in “Airplane!”) at the end of the movie.

Q. After you left the JAG Corps and the Army in 2010 (at the rank of Major, by this time), you set up a private military criminal defense firm, The Mayer Group, in Overland Park, Kansas. How difficult was it to transition from practicing law as a JAG to defending military personnel as a civilian attorney? Do you get the same respect, the same access? Soldiers are entitled to free military counsel; why should they hire private counsel? Is it easier to zealously defend clients now that you’re free of the Army’s bureaucracy? Are you still that West Point man, Army Ranger, without a uniform? Do you secretly wish you were still wearing the uniform?

A. As with most things, it is a trade-off. Being in uniform grants greater access, but being in a suit allows greater leeway.

I’m still the same guy. Whether I wear a polyester uniform or a black label suit from Alton Lane, I am who I am, and I’m from where I’m from. It is most important to always remember that last part—where we’re from. Kansas, West Point, my father, my mother, Boy Scouts.

But, if you’re looking for a more vivid answer…

If you’ve ever seen an action movie set in a desert area, there’s always one character who gets no respect. Typically, he wears a suit, has dirt thrown upon him at every turn, and is both comical and sad simultaneously. However, he is always happy and alive in the end. In the movie “The Mummy,” this character is the brother of the movie’s heroine.

In 2011, I found myself in Iraq representing a court-martial client. During a break in which we stepped outside the courthouse, I looked around at the military folks in their field uniforms, and it hit me.

I’m the asshole in the desert wearing a wool suit.

Cross: T. Greg Doucette, From No House To The Senate

July 13, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross T. Greg Doucette, Durham criminal defense lawyer, twit-stormer extraordinaire and Republican candidate for the North Carolina Senate.

Q. To understand how you became you, we have to take a deep dive into your past. In 1998, at the tender age of 17, you went to North Carolina to escape your military family’s dysfunction in Virginia, enrolling at NC State and majoring in computer science. What baggage did you carry with you to North Carolina? Why did going it alone seem a better choice than staying with your family? Was there some lure in North Carolina to make you say, “that’s where I want to be”? What made you decide on computer science? When you left Virginia, where did you expect to end up?

A. Objection, compound question!

Q. That’s the first time anyone raised that objection. Overruled as background. Move on, counselor.

A. My family was a mess growing up. It didn’t really “click” that the mess was such a mess – that things like domestic violence actually were called “domestic violence” – until after I was gone from living in it every day.  That’s the main reason I chose to come to Raleigh, because it was close enough to home that I could still go back to visit my grandparents but still far enough away that no one could visit me without giving me at least a few days’ notice to mentally prepare.

I chose a computer field because I grew up alongside the tech boom and loved playing around with them (as a kid I was de facto Tech Support when my family got our first computer in 1994). I actually started out in computer engineering, because back when I started college in 1998, the “sexy” technology stuff was still in the hardware arena with ever-faster processors and ever-more-capacious memory.  But by the time I returned to school after dropping out, hardware was passé and all the cool stuff was happening in software, so I switched.

My thinking at the time I started college was that I would finish my degree at 21, and land a job somewhere in Silicon Valley paying me six figures a year to do cool stuff.

Q. You had a curious plan to pay for college, using savings and scholarship money to cover the first year, then establishing in-state residency to qualify for financial aid to cover the rest. Like so many really good plans, it didn’t work, and by the end of your sophomore year, you needed $15,000 to continue and NC State refused to let you stay on. While you worked a full-time job, you still ended up homeless. How did this happen? Where did you sleep? What was the real-life impact of being homeless, and how did that influence a young man on his own? Did you think you would overcome it, or did you worry that you blew it bigtime? How did it end? Do you still carry the scars?

A. Being homeless was a terrible experience I wouldn’t wish on my worst enemy.  Even though I’ve “recovered,” I developed a habit of overstocking as a contingency in case life went south again: duplicates of many purchases; weeks’ worth of things like toilet paper and ramen noodles; I even kept my 14-year-old car when I finally bought a new one last January, just in case it got repossessed (even though the old one would sit unused for weeks on end; I eventually donated it to a law student).

But let’s back up.  NC State in-state tuition was cheap enough back then that you could get by with financial aid, and getting that tuition rate just required proving domicile.  The catch was that I had come to college as a minor – my parents had me skip the 4th grade, so I didn’t turn 18 until Spring semester of my freshman year – so my tuition application required an affidavit from my parents that I didn’t live with them, and my FAFSA required my parents’ tax info.  They refused to sign the affidavit (since I was a tax deduction back then) and wouldn’t provide the tax details (since they were lazy and didn’t file until October despite the March 1 FAFSA deadline). So I was stuck, and relied on an employee in the Cashier’s Office working a miracle for me to stay enrolled my sophomore year.

Well, as a sophomore the cycle repeated, so by the end of that year I had a balance circa $15K that couldn’t be covered. I even had a form letter from the Financial Aid folks, with a handwritten note on the side that they’d be able to process everything if I could just get the stuff from my parents.  I spoke with one of the Vice Chancellors at the time for advice, and was told, “You should consider dropping out, it builds character.”  By mid-June my summer school classes were cancelled, housing, meal plan, all of it – and I got a nice email from the Public Safety folks telling me I had 24 hours to vacate the campus, and I’d be arrested for trespassing if not.

I relied heavily on a young lady I was dating at the time to keep things together for those 3 months. She would sneak me into her dorm to sleep or bathe (which eventually got her in trouble); when that wasn’t an option, I would sleep in my pickup truck during the day, have friends sneak me into the gym to shower, and then spend overnight hours in the 24-hour campus library.

(These of course triggered hand-wringing emails of concern from my parents – that I still have on my computer, 17 years later – urging me to move up to Connecticut where I could work in a casino.)

The biggest challenge to it all was not really being able to plan for the future.  Applying for jobs is difficult without an address.  Thinking of plans at all is difficult when you don’t really know where you’re going to get your next meal, how you’re going to wash your clothes, or at what point you’ll get found out that I was still using campus resources despite not being a student.

Things didn’t change until mid-September, 2000, when that young lady I mentioned used half of her financial aid refund to get us an apartment, and I found a job working at UPS loading trucks from 3 a.m. to 8 a.m., Monday through Thursday.

Q. In early 2001, you went in two different directions. You worked the law side, including paralegal for law firms in Raleigh and Durham and clerical jobs with the NC State Bar and Superior Court. At the same time, you honed your computer skillz, even starting your own business, PhoenixWeb Internet Creations. Was there method to the madness? Was this survival? Is this where you gained an interest in law, or was it already inside you? Did your work as clerk make you want to become a lawyer, or hate law more than life itself?

A. It was survival:  I was applying to every job in the classified section of the newspaper (they still had newspapers back then), and the file clerk gig was the first one I got.  It was beyond mundane – but it also wasn’t rocket science, and I was good at it.  So most of my day was spent playing Minesweeper because I could get things filed faster than the attorneys could generate paperwork.

One day, a named partner came in, saw me playing video games, cussed me out until his face was red and fired me on the spot; when I started packing up my things, I pointed out there were no papers for me to file because I’d already filed them all.  Before I left the building I’d gotten unfired and promoted to a paralegal.

That’s what started my interest in law, when I realized statutes and computer programs had similar logic to them (this was before I learned to read case law and realized how naïve I was thinking there was logic to the law).

The web development work was a “side hustle” of sorts – I’d gotten involved in politics in the Wake County GOP, and realized no one had the slightest damn clue how to use basic technology.  So several politicians agreed to pay small amounts for me to help them out, which was a welcome boost to the paralegal salary.

Q. In 2005, you went back to NC State and finished your computer science degree. You then went to North Carolina Central University for law school. Why this “idiosyncratic” choice, given that NCCU is a T4 school and historically black to boot. What made a white Republican with the grades for a top law school choose NCCU? Why law school at all, given that law held little promise for a gloriously lucrative career when you entered? Had you already decided to hang out your own shingle? Did you know what practice area was right for you going in? Were you that unicorn who actually wanted to be a lawyer? Or was this just self-reliance, the certainty that you would somehow manage?

A. When I came back to NC State in 2005, I first started writing an opinion column for the student newspaper.  By the end of the 2005-2006 academic year, I had gotten involved with Student Government again, being appointed to a vacancy in the Student Senate and using my legal background (and years of watching the University from the outside) to help the younger students get things done, lobby for changes, and so on.

Well, by a sheer quirk of fate – a student I was supporting was removed from the ballot, I filed in his place in protest, and it was discovered our mutual opponent was a huge UNC Chapel Hill fan (NC State’s rival) – the campus elected me as the oldest President of the Student Senate in Spring, 2007. That made me an automatic delegate to the statewide UNC Association of Student Governments that chose the student leader on the UNC system’s Board of Governors, in a year where the UNCASG President eventually resigned after being convicted of assault with a deadly weapon (seriously).

By Spring, 2008, through another quirk of fate, I had been reelected as Senate President at NC State – and also elected President of UNCASG, by a 1-vote margin in the longest election in the organization’s then-37-year history. The 2008-2009 academic year saw a ton of change spurred by a group often regarded as useless.

So when graduation loomed in 2009, I knew I wanted to run for reelection as UNCASG President.  To do that I had to be a student at UNC-system campus, so my options were staying at NC State for a PhD in economics, or going to law school at UNC Chapel Hill or NCCU. My LSAT score was pretty good (165, 92nd percentile), so I wasn’t terribly concerned about admission – but I wanted a place that “felt” right, and us NCSU students didn’t have fond opinions of UNCCH.

After visiting both campuses, I got the impression UNCCH was “typical” of law schools; snooty, stuffy, “my daddy was a lawyer, my granddaddy was a lawyer, and my granddaddy’s granddaddy was a judge,” trust fund babies, you know the type.  NC Central had none of that:  it was very much a “this is a Tier 4 school and you’re all going to have to stick together if you want to succeed.”  I loved the environment and the people and the persona of it all.

I came in wanting to do intellectual property law, since I had the bachelor’s in Computer Science.  Two things shifted me out of that: (1) I hated my Contracts class, and (2) I tried out on a whim for our 1L Trial Advocacy Team and fell in love with litigation.  I didn’t know for sure what area of law I was going to get into by the time I graduated, but I knew it wouldn’t be IP and would have to be something where I was in the courtroom.

The shingle-hanging came about from my extracurricular activities:  I had spent 2 years as President of NC State’s Student Senate, 2 years as President of the statewide UNC Association of Student Governments, and my 3L year was elected as President of the Student Bar Association (one of only 6 white folks in the school’s 77-year history).  The thought of having a boss made me want to go drink bleach. I knew I had to go do something on my own.

So I took the bar exam in July, 2012, found out I passed at the end of August, was sworn in the first Friday in September, and was defending a bar owner and retired Marine in a foreclosure hearing the following Monday.

Q. In law school, you became an “organization man,” a popular and electable leader of campus and statewide student organizations. In addition to helping to get the lege to repeal a tuition increase, you helped your fellow law students to make contacts in the professional world. Did this instill in you a belief that politics could work? Did you find this exhilarating or exhausting? Was the pain worth the gain? What did it teach you about persuasion, negotiation, conflict resolution, navigating large organizations, and playing politics?

A. I loved student organizations.  Loved.  To the point where I’d sacrifice grades without a second thought.  The lack of partisan stupidity made it a great laboratory for testing out how to collaborate, build consensus, and get things done on behalf of a group.

It certainly had its exhausting moments – I had taken a mini-vacation to see NC State play in the NCAA tournament my 3L year (when I was SBA President), got home around 1 a.m. on my birthday, ended up on the phone until 4 a.m. dealing with a classmate’s emergency, and had to be on campus by 9 a.m. because I was asked to speak at a vigil for Trayvon Martin, followed by a full day of classes and then two more events that night.  But most of the time, on most of the days, it was a terrific experience.

One of the key points I learned was to treat people like people.  There were many times where folks supported my initiatives or would back me up on something they didn’t personally agree with, solely because I called them on their birthday or remembered a parent was sick or ate lunch with them when they needed someone to vent to.  It helped make a terrific network of people I can call on and who call on me – for example, when S873 was being considered in our state legislature here, that would have potential repercussions for 3 of the state’s 5 publicly-funded HBCUs, I got unsolicited phone calls from three of the folks I’d worked with through UNCASG asking for my thoughts and what could be done to influence the outcome. Likewise, when I travel for an ABA conference or something else, it’s rare I am ever in city where I don’t have at least one friend from college or law school to grab dinner with while I’m in town.

I joke that you couldn’t repay me to redo law school.  But if I could relive everything except the exams, I’d strongly consider it.

Q. After graduation, you founded your own firm in Raleigh, focusing on small business and higher ed litigation.  Did you think hanging out a shingle would be easy? Was it? Did the clients, and their fees, start rolling in, or did you have to struggle to establish yourself? Was the practice of law what you thought it would be? Was being a solo the right choice? Did you have any options?

A. Slight correction:  we started in downtown Durham, in the same city as my law school.  I wanted to stay close in case I needed to contact my professors for advice!

I didn’t think hanging a shingle would be “easy,” but I thought my experience running three different organizations – and amassing a pretty wide range of contacts – would make it easier than it was for other folks who had tried it (plus I didn’t have a wife or kids living with me, or a car payment, or a mortgage). And in some ways it was easy-ish; it was a non-stop grind, often putting in 10-12 hour days at the start, but it wasn’t intellectually difficult, if that makes sense.

My biggest impediment to rolling in the dough was terrible business skill.  In hindsight, I absurdly undercharged for my services because I was a sucker for people being wronged, and would often let clients pay me “later” rather than getting paid up front (no one ever accused me of being a genius).  By the end of my first year, I had only brought in $38,000, in large part because a bunch of people still owed me a bunch of money.

Truthfully I don’t know if I would have had options other than going solo.  I knew by the first semester of my 3L year it’s what I wanted to do, so I didn’t apply for a single job at all after my 2L summer internship.

Q. On top of your other areas of practice, you are also deep into criminal defense, ranging from traffic tickets to drug offenses. Why? Is it a pragmatic thing, because college students occasionally make legally dubious choices? You’re philosophically opposed to the War on Drugs; are you putting your money where your mind is? You’ve also said you wouldn’t represent someone guilty of rape. Why not? Are they not entitled to a zealous defense? As a small-government conservative, you know someone’s got to do it, so why not you? Do your politics limit your willingness to fight for the constitutional rights of clients?

A. When I started my firm, I knew from the beginning I wanted to help entrepreneurs and students – I figured if I could help folks stay in college, and start their own business when they got out, they would never end up homeless or degreeless like I was.

So my advertising was as a practitioner in small business law and “higher education law,” figuring on the education side I would be helping with campus due process, FERPA violations, and that sort of thing.

But then my first student client was a 20-year-old on her 4th underage drinking ticket.  My next one had gotten into a fight with his roommate.  My third had a joint found on him during a traffic stop after what I considered an unlawful search of the car.  Out of my first 100 student clients, only 2 were non-criminal issues (a campus due process violation, and a healthcare POA).  So I said to hell with the titles and decided I was “officially” a criminal defense attorney.

There are definitely certain types of cases I don’t touch, mostly in the homicide and sexual assault realms.  I still think those folks are entitled to a zealous defense, but with the personal experience on the domestic violence front, it’s just not something I’m willing to take on myself; I know some top-flight criminal defense attorneys I happily refer them to.

I took on one rape case, because in going through the discovery and the forensics it was obvious to me that my client was not guilty.  After the State’s case, I was fairly certain the jury was convinced he was not guilty too.  But he insisted on testifying despite me telling him it was an incredibly stupid idea; he wanted his daughters to grow up knowing he “fought the charges.”

I prepped him for hours in the jail, doing mock “red team” crosses, coaching him on his responses and his movements and his eye contact like I’d coached my trial team students.  He seemed ready in the rehearsals, we put him on the stand… and he promptly went off the reservation on direct, then couldn’t give a direct answer to anything on cross.  I spent my closing desperately trying to get the jury to focus back on the forensics but it didn’t work.  He’s currently serving 10 years, and will be a registered sex offender when he’s released, just before he gets deported.  He will likely never see those daughters.

The drug defense ended up being a by-product of being a criminal defense lawyer rather than an intentional practice area. The deeper I got into defense work, the more the scales fell from my eyes about how corrupt our criminal justice system can be, basically a glorified money vacuum taking cash from the lower- and middle-class targets of over-policing, laundering it through the courts, and giving it back to the politicians to spend on vote-buying elsewhere.  In the meantime entire families are destroyed by the collateral consequences of arrest – often something as trivial as weed possession, which can make you a successful businessman in Colorado but persona non grata in North Carolina.

Q. Your semi-weekly Twitter rants have quickly become legend. You’ve managed to make them interesting, moving, informative and wildly popular.  How did you come up with the idea? You manage to accomplish more in a dozen twits than others in a thousand words. Are they totally legit? Did everything you say happened actually happen? What has been the reaction to your tweetstorms? While a great many people love them, you no doubt get your share of haters as well. Has it been as much fun as you thought it would be? Has this had any impact on your practice, how you deal with the insanity of the trenches?

A. The “legend” part didn’t happen until 3.5 years in!

It’s strange.  I had been tweeting about cases for years, mostly as a catharsis to deal with the abject stupidity that every criminal defense lawyer deals with.  All the facts are legit, but the names are changed, the counties are occasionally changed, and sometimes key details have to get held back until I get a privacy waiver from the client.

Then in February of this year, I had a case involving a 17-year-old black male charged with reckless driving to endanger, a Class 2 misdemeanor in North Carolina.  A neighbor had called police to say he was doing donuts in the street.  The officer wrote in his narrative – a narrative that I hadn’t yet seen at the time of the intake – that he had investigated the scene and “clear skid marks in the road showed a 360º spin.”  My client’s mother had taken geotagged and timestamped pictures on her phone after the officer left that didn’t show a single spin, much less “donuts,” pluralized.

Now one of the things I had gotten involved with in law school was a group called QVerity, which is a team of ex-CIA and other professionals who train law enforcement on detecting deceptive behavior for use in interrogation.  I rely on that training when I do interviews and cross examinations to figure out when clients are lying to me, and as I was interviewing the young man after his mom left the room, nothing he did came off as deceptive.  He was driving the family car toward his home, a cat darted into the road, he turned to avoid the cat and the car spun out.

Later on I went to the site of offense, took a tape measure, and actually measured the roadway.  The street wasn’t physically wide enough to do a donut in the car my client was driving.  He could have done 1 “donut” in the midst of spinning out, with both front and back wheels out of control, but there was no physical way he could have done multiple deliberate donuts on purpose.

When I went to court, my client had two unrelated charges pending from when he passed a dump truck on a 2-lane road headed to school:  one for unsafe passing, and a companion charge for not having an adult in the car while he had a learner’s permit.  My goal was to plead to those charges in exchange for having the reckless dismissed, or vice versa.  Instead, I showed the non-donut pictures to the ADA, who dismissed the reckless driving outright, dismissed the no adult charge, and didn’t oppose a PJC on the unsafe passing (a PJC stands for “Prayer for Judgment Continued,” basically a designation that says the person has been found responsible but it carries no additional punishment, points on the license or insurance, and so on).

Obviously to me that was a big win, and I posted on Facebook how excited I was that I had gotten a dismissal I hadn’t even asked for.  But then, as I was driving to lunch, it hit me that the officer had cosigned the “donuts” accusation when he wrote about the “360º spin” – and I realized that my client would have been screwed if his mom had not taken the pictures and I hadn’t grabbed the tape measure to do geometry.

I was livid that an officer had lied in his report, started tap-tap-tapping away on the keypad to get it off my chest (like I had done dozens of times over 3.5 years)… and this one got picked up. A lot.  I’m fairly certain it was Ken White at Popehat [Ed. Note: and, ahem, Fault Lines contributor] who did the RT that triggered everything, but within 48 hours it was going global, and I went from 900ish followers on Twitter to over 4,000+.  The crush of attention and phone calls and emails and Facebook messages and Twitter messages got so bad I almost had to shut down the firm until it died down because I couldn’t use my phone or email.

(We later released the rest of the pictures once I had a privacy waiver from the clients, showing for sure that there were no circles – but also including legible numbers on the mailbox and a phone number on the van of the neighbor who filed the false report, which was why we hadn’t released it initially.)

Since then I’ve kept at it, to try and share some insight and crazy stories to the folks who follow me.  The most pushback I’ve gotten has ironically been from another lawyer, who had just finished paying a local pay-to-play publication a tidy sum of money for a cover story on the lawyer’s firm – and here I was, this upstart, representing misdemeanants getting all this publicity for free.  I still send their firm clients because they do good work though. lol.

Q. Last January, you announced you were running for the North Carolina State Senate. Bold move, since you’re a Republican in a Democratic district. Of course, you’re pretty moderate by today’s standards and District 22 has a lot of swing voters. What made you decide to throw your hat in the ring? How do you rate your chances? You don’t have a Trump- or Clinton-esque support network to fall back on, so how do you plan to get your message out? District 22 hasn’t seen a credible Republican challenger in, well, forever. How will T. Greg Doucette make the system work better?

A. We need more adults in the North Carolina General Assembly.

I had spent quite a bit of time working to get the Republican majority we got in the 2010 elections, but then was astonished by the general asshole-ishness after they took power, and the large number of ethically dubious laws that were passed when they were supposed to be working on things like fixing the economy.

At the same time, my own Senator, who I like as a person and who I’d worked with in the Chamber of Commerce, was basically useless as a legislator.  Part of that was from being in the minority party, but even his Democrat colleagues at least offered up legislation to try and get things done.

My frustration with everyone in the General Assembly bubbled over in November, when the Legislature-appointed UNC Board of Governors – the Board I had served on as UNCASG President – hired a new President for the University system at $775,000.00 plus bonuses.  An eye-popping salary that was more than double what it had been just 10 years prior, during an era where the median income for a family of four in North Carolina had actually fallen during the recession.

So I filed for office on December 1st, not really having a firm campaign plan.  And I ended up getting sick with pneumonia on December 2nd (proof that I’m allergic to political bullsh*t), basically bed-ridden for two weeks on azithromycin, albuterol, and prednisone, as candidates were busy having their campaign kickoffs.

But then people started offering their support.  And then I accidentally went viral with that donuts case.  By the time we actually had my campaign kickoff in March, 74 people attended (the same number as the GOP Convention for the entire county) – and out of those 74, 55 of them were people of color, unheard of for a Republican anywhere in the state.

My campaign is still very much an uphill battle, especially with Donald Trump leading the GOP ticket, the state legislature convening a special session to pass a nationally mocked bathroom bill, and the NCGOP impeaching and removing our first black party chairman even as a Republican state senator just got indicted for mishandling his campaign account.

Unlike in December, though, it’s now winnable… if I can raise the money to reach the voters who don’t know how amazing I am on Twitter.

Q. You’ve been a vocal critic of state and federal Republican initiatives, from North Carolina’s controversial HB2 bill to the GOP’s presumptive presidential nominee. Then there are the state GOP scandals, including the June 28 indictment of Senator Fletcher Hartsell for mishandling campaign funds and the April impeachment of Chairman Hasan Harnett. Your pragmatic point of view is that the GOP’s insistence on legislating morality is bad for business and the party’s image. So what makes you a Republican in North Carolina? If you could recreate the party platform on criminal justice, what it be and why?  Is there real support for reform? Will there ever be real support for reform? If you win, will the new kid on the block be able to persuade those old timers to change their evil ways? Are you the guy who can do it?

A. In politics, the ability to influence others in the party caucus comes down to three main things:  raising money, winning elections, and good ol’-fashioned jawboning. Raising money is difficult for a first-time candidate challenging a career politician, but winning the election alone would change the narrative dramatically.  And if Twitter has shown anything, it’s that I don’t mind talking at length.

The support for criminal justice reform is growing, especially after the national trauma we’ve had this past week with the executions of Delrawn Small, Alton Sterling, Philando Castile, and Dylan Boyd.  The videos of Sterling and Castile in particular provoked a recognition that something is gravely wrong with our criminal justice system, in a way I suspect will be reminiscent of the 16th Street Church Bombing becoming a turning point in the civil rights movement.

The challenge is putting together an actual agenda and getting it out into the public eye for debate.  Our criminal justice platform will be up at VoteTGreg.com soon, and I hope it can become a catalyst for that discussion.

Cross: Mario Machado, From One Court To Another

July 6, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Mario Machado, Fault Lines contributor and lead criminal defense counsel at Miami’s Avenlino J. Gonzalez, P.A.

Q. You were born in Venezuela, where your dad was a well-known pediatrician. But in 1991, your dad decided to pack up his practice and family and get out of the country before things went from bad to really bad. Chavez bad. Why? Were you fleeing, or was your dad just prescient about what was going to happen? Was there a socialist straw, and if so, when did it break the camel’s back? Were you upset about trading in paradise for Florida? From your decadent American perspective, was your dad right not to throw in with Chavez and Maduro? Does it affect your feelings about the good, ol’ US of A?

A. Prescient.  That’s a perfect way to describe how my dad was when my parents packed our bags and brought me and my younger brother stateside.  I arrived in Miami when I was 8 years old, 2 months before Chavez’s failed coup d’état against Carlos Andres Perez. The Perez administration was right wing, but they were stealing everything in sight, and the atmosphere was very tense.  And that’s when Chavez and his left-wing cohorts made their move.

I had a great childhood, but Venezuela was already far removed from the paradise that it was in the ‘70s and ‘80s.  The crime rates were sky high, my house got robbed several times, and my parents thought that I had no real future over there.  My parents were upper middle class. I had visited Miami during the ‘80s several times, and I had always loved it.  So I was kinda glad to be moving to Miami. I was a bit scared, but I assimilated quickly, learned the language, and continued practicing martial arts as my sport of choice.

The Venezuelan experience teaches us that the left wingers can fuck up a country just as bad as the right wing, or vice versa.  It teaches us to be skeptical of the powers that be, whatever their political affiliation.  To me, both sides are full of it, and it’s better to remain unaligned to either side, which keeps you skeptical, original, independent, and unpredictable.

When I left it was bad, but it’s a gazillion times worse now.  There is no food or medicine. After my dad passed, my mom visited her family in Barquisimeto (my city of birth) for a year, but just got back to Miami because life is miserable over there.

Q. Unlike most Fault Lines contributors, you were an honest-to-god college athlete, getting a scholarship to play NCAA Division II tennis at Augusta State. Two years later, you went back to Florida, where you got a double degree in economics and political science from FSU (and may have still found a little spare time to socialize). Why the change? Homesick? Tired? Couldn’t handle the microaggressions? Or were you just looking for an excuse to focus on drums? Where were you heading back then? Had you found your inner lawyer yet?

A. I just got tired of playing.  Augusta was beautiful (it lives up to its nickname of “The Garden City.” Jersey should follow suit), and it was a great experience, and it meant I accomplished my mission of getting an NCAA Athletic Scholarship. Yes, it’s ironic that I would get tired after getting what I had worked towards since I was 11, but my academics were suffering and I felt I was going nowhere. Plus, I had an academic scholarship waiting for me at a Florida state school, so that made it easier.  And I never cared for The Masters (I got multiple offers to attend, but never did. This tidbit always pisses off golf aficionados).

I had a great set up at FSU. My parents kept supporting me and covering my costs, and my tuition and books were part of my scholarship. I lived in a resort-style condo, where pool parties were an everyday thing.  I got back to playing drums and played with a local band. I used to play alto sax as well, but that instrument didn’t fit my musical tastes. I’d like to say we sounded like Led Zeppelin, but in reality it was more like a sloppy version of Cream.

I was already thinking about law school, but obviously didn’t have a clue what it meant to be a lawyer. I thought that it just involved me getting a red Ferrari with a voluptuous blonde in the passenger seat (American dream, anyone?) right after getting my bar license. But for the time being at FSU, you would think that I was trying to play out the stuff inside Mötley Crüe’s The Dirt (which came out the year I went to FSU), minus the drugs.

By then, I had not gotten the memo that I was not in a legendary rock band, but just a college student.  I had the temerity of having a full size drum kit in my living room, at a place where everyone was in close quarters, but at the time I thought I would be crazy to NOT have a drum kit in my living room. The police were called to my place on a very regular basis for noise complaints, and to this day I don’t know how the hell I didn’t end up detained, tased, beaten, or arrested. I was not very welcoming when they would show up at my door. Today I still have a lot of fun, but I don’t even go past the speed limit when driving, because nothing good can come out of having the police looking into your affairs.

Q. In 2005, you traded in a life of teaching tennis, playing drums and hanging on the beach for Rutgers School of Law (in Camden, New Jersey, of all places). Your classmates, and even your crim law professors, thought you were [ableist slur] to give up that kind of lifestyle for the misery of law school. What made you decide that law was a better idea than tennis pro? Was it crim law from the start, or did something happen to put it on your radar? And why, why Jersey? Did you look at Miami and say to yourself, “this just isn’t squalid enough?”

A. Well, when I took the year off to teach tennis in Miami, it became obvious that I needed to do something else with my life. I’m not very bohemian in the sense that I know that at the end of the day, you will need some money to travel and enjoy yourself without hitchhiking or staying at a hostel. So in a sense, becoming a lawyer seemed like a fun way to make a good living (but I didn’t know that I still had no clue what it meant to be a lawyer). And Miami had already become what it is today, save for Coconut Grove, which is where I live: one big shopping mall populated by some of the most uninteresting people on earth. So I was ready to go somewhere else.

Rutgers was the “best” law school that would take me (expect for probably the University of Minnesota, but I’m too tall for igloos), and it was much cheaper than the local law schools. Of course, everyone at Rutgers thought I was mental for making such a move, but I lived next to Philly, where the music scene was vibrant and the food was good. Plus, I got to travel the Northeast for the first time, so that was cool. And after being exposed to some real ghettos and crime in Venezuela, I was unfazed about Camden’s reputation as being the most dangerous in the U.S.

At Rutgers, it became evident that crim law was the best fit for me, and the more I delved into it, the more I wanted. I had my first experience in a courtroom when I was in the juvenile justice clinic, and the rest is history. I fell in love. I took every course/clinic that had to do with crim law and read up on the subject to be better prepared when I went back to Miami to work.

Q. You graduated in 2008, not the best year to graduate for new lawyers. Did you feel that sense of dread like so many other 2008 graduates? Did you start working right away? How long did it take to find a job that let you use your JD? Did you sell out, have to do something vile to make ends meet? Now that you’re well past those nasty days, how bad was it?

A. I never, ever sold out, to my financial detriment at the time. To this day I’m very proud of that. What is selling out, you ask? To me in 2008, that meant going to work for a foreclosure mill or simply doing anything else besides criminal defense. I was fortunate to land a job where I had interned during my 3L summer, and I eventually became the firm’s “go-to” guy for criminal defense. My first case involved a DUI for one of the firm’s bigwig clients, and after I got a good result for him, I was hired.

And every year –no, every day — that I have worked as a defense attorney has made me better prepared, more effective. So I can imagine all  the experience I would’ve lost if I had done something else for let’s say, two years, like a lot of people did. Believe it or not, most of the people that graduated with me are not working as attorneys. I know of only one other person that does criminal defense. And that is OK. Not everyone is meant to work as an attorney, let alone a criminal defense one.

Q. Now for the obligatory, (hopefully) embarrassing, first jury trial question. Were you terrified? Chill? Sweaty palms as you rose to open? One question too many on cross? Were you ready? Looking back now, were you the trial lawyer you thought you were? What, knowing what you know now, would you have done differently?

A. I actually got some trial experience before I went in front of my first jury, doing bench trials before an immigration judge (there are no juries in immigration court). I’d be lying if I said I wasn’t nervous, but what saved me from shaking like a leaf is what I inherited from my days as an athlete: always overprepare. When I was younger, I had yet to develop what my inner drugstore psychologist likes to call borderline sociopathy, hence I would get nervous during an important event (e.g., tennis tournament). So, after reading a sports psychologist’s voodoo shaman’s book, I learned to train my ass off (run until I puked, do hundreds of practice serves) to ward off nerves. And it worked then.

So I was definitely ready as I could be, and I loved the thrill, rush, etc. Knowing what I know now, I would tell the Mario from 2009 to just breathe, relax, and to heed his former martial arts teacher’s advice: “You’re in the alley, you’ve got nowhere to run, and these punks are ready to kick your ass.  Just make sure you get a good lick at the first one, and have fun from there on.”

Q. As would be expected from a criminal defense lawyer in Miami, your practice covers immigration as well. Which practice area presents the most difficult problems? What impact does a defendant being a non-resident have on your ability to fight criminal charges? Has it gotten worse since you started practicing? Did the Padilla decision help? Are immigration lawyers as bad as reputed? Are they asked to perform an impossible job?

A. Defending someone without papers raises the stakes. Example: getting the state to offer some kind of pretrial diversion program in order to drop the charges can be a victory in itself, but sometimes immigration frowns upon these programs: they see it as an implied admission of guilt/responsibility. This means that anything short of an acquittal or dismissal of the charges can cause him trouble later on when immigration gets its paws on his file.

It is always getting worse, in that they are always tightening the grip on those without immigration status, making it harder to get a driver’s license, harder to get a work permit, etc. It’s death by a thousand cuts. Padilla helped, to a point. But the fact that it is not retroactive renders it useless for a lot of people. That’s when you have to think outside the box: maybe convince the prosecutor to vacate the conviction based on the equities on each case. You do it because that’s sometimes your only recourse, but I can’t help but fell a bit icky when asking the state to do us a favor. I always have to shower afterwards.

It’s definitely more work, in that most prosecutors are clueless as to the immigration consequences and find it hard to believe that a plea to pot possession may bring this person problems. But as with any system, people are largely myopic and only care about their own agendas. Part of my job is to illuminate and convince the other side that the world is not as flat as they see it.

Immigration lawyers in general are like any other field of practice: you’ve got the criminally incompetent, the all stars, and everything in between. But most immigration lawyers would soil themselves if they had to face a criminal jury or the might of the U.S. Department of Justice. There are those who do fine work, but generally it is not the same level of intensity. Not even close.

One bonus of immigration work: you become an expert in direct examination. Your client almost always has to testify during his immigration trial (they’re called “individual hearings”), so you get a lot of practice. The same way most prosecutors are not effective in cross, most CDLs can’t do direct. This means that when I’m defending a client in a domestic violence injunction case outside of criminal court, the CDL on the other side is usually not in the same ballpark when it comes to direct. Of course, this also puts you in a good position in criminal court as well, should you have to put on any witnesses.

Q. Florida is the land of drug deals, insurance fraud and overworked cops holding back the tide of criminal insanity. Do Miami juries have a more nuanced outlook? Federal? What’s the impact of citizen’s attitudes toward drugs? Toward immigrants? Is there anything unique about trying a case before a Florida jury? Are they as insane as the general population? And what about the judges?

A. I wouldn’t say more nuanced, but I would opine that it’s easier to convince them when the government is being extra petty or overreaching. You still have to educate them, make it easier to side against the government, and to make them comfortable with letting your guy walk. And I wish that they would frown upon a parade of rats more often (which make up the majority of health care cases). But, the fact that we are all constantly surrounded by all types of big time illegality means that resources shouldn’t be wasted on the little guys.

But it varies greatly from county to county. Some of the toughest juries when you have a Hispanic client are in the Florida Keys, where everyone looks like a hungover fisherman with a permanent tan. As for the judges, generally speaking the federal ones are quicker on their feet and more competent to wear the robe. In Florida, some of the more cantankerous judges are state judges who have been elected by the general population (who by definition have no real clue on how to pick out an effective jurist). What’s worse, criminal state judges are unexpectedly shuffled between the civil, criminal, and family law courts, meaning you can get a judge with almost no experience in criminal law that was recently transferred from civil. The waters are murky, and you really have to do your homework to put your client in a good spot. I think they are all wonderful, each in their own way though :).

Q. You’ve managed to create a thriving federal practice, which is pretty unusual in a relatively new lawyer. How did that happen? Did someone give you a leg up, mentor you? How hard was it to adjust to the language, rules and culture of federal court? Not that state court is easy, but the stakes are much higher in federal court. Does it strike fear in your heart, or get your juices flowing, to walk into a federal courtroom?

A. Since my first bond hearing in federal court, it got my juices flowing. Those big marble federal courthouses, guarded by the U.S. Marshals, truly make you feel like you’re taking part in something that is a big deal. And it is, just look at the sentencing guidelines. I’ve always been a sucker for the grandiose, the bigger stages.  I’ve always been a show off.

What happened is that some of the firm’s civil clients started getting federally indicted in 2009 for health care fraud and the such (e.g., structuring transactions), and it all went from there. All through word of mouth, as I’ve never had an ad or website. In south Florida’s purportedly criminal underground, word spreads fast, I guess.

I sense that there is a masochistic element to the federal criminal practice, given how high the deck is stacked against your client: no depositions, draconian sentences, and the government’s unrivaled resources and access to information. But I guess an infantryman from the front lines would give you a weird look if you pressed him on why he took on such a challenging/crazy task: he would simply tell you that is what he does/was meant to do, and he couldn’t see himself doing anything else. You gotta love tilting at windmills if you’re showing up for this gig.

Q. Immigration has proven one of your favorite topics at Fault Lines, where you’ve steered a relentlessly realist course, ignoring politics in favor of focusing on ICE’s dysfunction and whether plans for immigration reform have a chance of success. Time to out your sympathies. Where do you stand? Should we call them “illegals” or “undocumented aliens”? Does it really matter what they’re called? Do they deserve to be coddled or thrown out of the country? And does your background make it easier or harder to represent people trying to live the American Dream?

A. My background makes it easier because there is never a language barrier, and I can appreciate just how terrible some spots outside America can be. Plus, I had a close family member be without papers for over 20 years just because he pled out to possessing a dime bag during the 80s. That kind of waste and injustice is wrong on so many levels.

I’m no bleeding heart, but the term “alien” just sounds so…inhuman. Last week I was visiting a client in immigration jail, and was told I needed to wait because it was “feeding time.” Words matter, and they determine how people are treated.

I think no one should be coddled, but people should at least be given a chance to plead their case, to show why they deserve to stay here. And, if a kid beats all odds and goes throughout Central America on his own, crosses the Rio Grande while evading CBP, to then catch a bus to be reunited with his parents in south Florida, I’m sorry. He gets to stay. That kind of initiative should be rewarded.

Q. You’ve made some seriously dubious choices, like going back to Florida, then going to New Jersey, but the most curious of all was deciding to write for Fault Lines. What were you thinking? Is it everything you dreamed? How hard is it to put up with your editor? Do you thrill at the sight of a nutjob comment popping up in your inbox? Where does Mario Machado see himself in five years?  Do you plan to be the fourth judge contributing to Fault Lines, maybe?

A. For reasons that I can’t fathom, you’re not the first to suggest I could be a judge someday. I was good friends with a retired judge, the Honorable Tam Wilson, for some time, who made a similar suggestion. He has since passed, and he was as close to a legal “mentor” as I ever had. But I’m not sure I will don a judge’s robe someday. I feel like I’ve got so much left to do in my career before I would consider such a move. There are way too many people that are left to piss off before I put my name on the ballot box.

Writing for Fault Lines has made me a better attorney, better informed. And the fact that I can call myself a “writer” or “contributor” is mad cool. The editor and I share a no nonsense, intellectual approach to this project, so that always helps. I was very stoked when I got the gig, even though the first time I sat down for a post I stared at the screen and asked myself “what the hell did I just get into?” But I stuck it through, and to this day I look forward to making the world less dumb, one post at a time.

Cross: Roy Black, The Lawyer You Hope To Be

June 29, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross renowned Miami criminal defense lawyer Roy Black.

Q. You earned your bachelors degree in the radical Stone Age, 1967, at University of Miami. What was your major? Was law the plan for the future? Were you out to change the world, spread peace and love, or did you have more banal concerns at the time? What did 1967 Roy Black plan to do with the rest of his life?

A. I experienced (or suffered through) a diverse and bizarre education which directly impacted my choice to become a criminal lawyer. I started out in New York, New Jersey and then Connecticut at typical American public schools. Then my British step-father moved us to the top of the tallest mountain behind Kingston, Jamaica.  I went to an English prep school, grandly called Jamaica College, mainly designed for the rich kids who couldn’t make the grade at the upper class English schools like Eton and Rugby. It was a sobering experience both educationally and culturally.

I had a black math teacher who detested me because I was either American or white or both. He tortured me at the blackboard almost every day forcing me to perform the intricate arithmetic of English currency: pounds, shillings, guineas and pence (of which I was profoundly ignorant). While he never taught me any useful math skills, he inadvertently taught me the more valuable lessons of pain, humiliation and prejudice. From him I learned to hate prejudice, support the underdog and always question authority. This led to my mission in life — law school and criminal defense.

Q. You stuck around Miami for law school. When did you come to the realization that you wanted to practice criminal law? Were you always on the side of truth and justice, or did you ever consider being a prosecutor? Other than crim law, were there any other practice areas that interested you? Could you have ended up in a windowless office of Biglaw doing contract review? Even if the price was right? If things didn’t work out doing criminal defense, where would you have ended up?

A. I have never felt the need to be popular, so prosecution was out. I loved the concept of the lone wolf defender as the last resort against the brutal minions of government. Where else can you find that other than in an urban Public Defender office?

I loved the job from the first to the last minute. It was like working at an inner city trauma hospital – we saw everything from the best to the worst of humanity. I owe the office a large debt for providing the education to be a trial lawyer.

Q. Your first job out of law school was as a public defender, working under Phil Hubbart, from whom you took criminal evidence in law school. That was back in the early 70s, when the Burger Court still mattered and concern for the constitutional rights of the accused was about as good as it gets. Was public defense different then? More respected, more appreciated?  What about your first trial, almost always a great opportunity to come to grips with reality. How did your first jury trial go? Looking back, were you the lawyer you thought you were at the time? Any mistakes that make you cringe today?

A. When I became a public defender, the legal system was far different than today. Gideon had been decided only a few years before and the system was not ready to accept real defense for the permanent American underclass; the poor, the uneducated, the inconsequential. Our budget was a measly $125,000 and we were paid $8,500 a year.

Before Hubbart was elected, being a public defender was a part time job. They waived jury in almost every case and tried them on Tuesdays and Thursdays. The other days were spent in their private law offices. There were only ten of us, and we swore to work full time (this became seven days, 18 hours) and to give the clients a real defense, including demanding a jury in every case.

This caused the system to grind to a halt. The judges were outraged. Tee times were cancelled. They brought in judges from around the state to try every case in an attempt to break us. After two years of outright civil war, they capitulated and our clients grudgingly got some semblance of equal treatment.

A large part of our success was due to the Warren Court criminal law revolution. Our clients actually had rights we could enforce. We used these newly-minted rights to slow down the trains. Unfortunately, the Warren afterglow soon faded into the blasé Burger court and then to the Rehnquisator and Ronald Reagan, who tag-teamed our constitutional rights into the toilet.

Q. You started teaching criminal evidence at Miami as an adjunct, which you continue to do today. Have things changed? Are the old “Paper Chase” days gone? Is that a good thing? Students today suffer every insult from debt to joblessness to bar failure. Is it their fault? Are they now too soft, too entitled, to be tough enough for the law? Have you changed the way you teach in order to avoid any potential “offense”? Have you caught any flack for being insufficiently sensitive as a law professor?

A. I have taught the same course since 1973, albeit slowly morphing it from a traditional evidence course into more trial advocacy. I basically teach my idiosyncratic ideas about trial skills. I teach for two reasons. It has made me a much better trial lawyer. Each class, I confront the critiques of young and bright kids who think they know it all. I am invested in the principle that one doesn’t know a subject well until they can explain it simply to another.

The second is to find potential great trial lawyers. When I find one, I do everything to nurture them from finding trial work to the best post law school training. I have had a few over the forty plus years, and believe they impact the system of justice.

Q. Long before you hit the national consciousness with a vengeance in the William Kennedy Smith (whom you called “Will Smith” at trial) case, you were already one of the most respected criminal defense lawyers in Florida. What gave rise to your appreciation of detail, tactics and preparation? Were you just that rare lawyer who appreciated the virtue of hard work, or were you better at it than others? To what do you attribute the reputation you earned as “the Professor”?

A. My only real skill is cross-examination; when I was a PD, that was all we had. We learned trial skills as a matter of self-defense. I spent five years cross-examining lying cops, biased expert witnesses and outraged victims.

I am a believer that our failures are more instructive than our successes. When I cross examine I need to get something out of the witness to use in my final argument. It doesn’t always work out. In a tax case I cross examined the case agent for 5 1/2 days. It took so long because I never got anywhere with him.

Cross-examination is a zero sum game; either you or the witness wins. No law school course can teach that. No colorfully produced videos, no pontificating judges, not even entertaining lectures like Irving Younger’s Ten Commandments (and don’t even consider law review articles).

One learns these skills only by doing. Most lawyers suffer from a knowing/doing gap. They intellectually know how to do it; they just can’t put it into action. As a result, I teach both law students and lawyers through mock trials as the only way to learn through doing.

The five-year public defender battle with the judges inadvertently provided me with an invaluable asset. I estimate I tried 125 jury trials in those five years. I once tried three in one week. We worked from 8 a.m. to midnight, but youth and inexperience made it all seem possible. For five years I had no private life – but it was all worth it.

Q. Few lawyers will ever experience a case with the same extent of media interest as the Kennedy case. What impact did the media have on your ability to prepare, to go about your practice of law, to advise your client? How intrusive was the media in your personal life? Was there a point in time that it was, for lack of a better word, fun? Was there a point where it turned into a nightmare? For those lawyers who dream of that high profile case, what advice would you give them?

A. The Kennedy Smith case was the first nationally televised trial. Court TV had debuted only a couple of months before and we made the network a success. OJ greatly eclipsed it a few years later, but our trial spawned a new class of lawyer – the trial analyst. They ensure every step you make will be criticized.

Perhaps the most memorable event surrounding the Smith trial was that my jury selection tactics were spoofed as the opening act of Saturday Night Live. At least I didn’t suffer the embarrassment of being in the Dancing Itos.

Since I have done work as a TV analyst, I know how the game works. We utter opinions without knowing all the facts and assure the audience we could do much better. Of course, it doesn’t always work out the way you want. The commentary which didn’t work out related to the OJ case. Almost all of us commenting on the case thought Lee Bailey didn’t get much on cross from Mark Fuhrman. Then the tapes surfaced and Fuhrman’s cross became the key to OJ being acquitted.

Q. Many young lawyers today believe it effective to create a social media presence that gives the appearance of competence beyond what they possess, if for no other reason than to make a living. Is this a mistake? What’s wrong with over-promising and under-delivering? From a lawyer who did the heavy lifting, what should young lawyers be doing if they want to have a reputation like yours some day?

A. I have no judgment on lawyers seeking to be noticed through social media or any other alternative means. Lawyers have always sought ways to garner public attention. When I started practicing law, there were strict ethical rules about advertising or self-promotion. So many lawyers ran for political office to get their names out to the public. Or taught Sunday school (one of my professors pushed that) and criminal court judges, pre-Gideon, appointed callow lawyers, right after swearing them into the Bar, to defend murder cases.

The method I used, trying cases, is no longer available to young lawyers. We failed the new generation of trial lawyers by not acting while the government dismantled the adversary system of justice. As a result there are far fewer trials and diminished chances of being noticed. Lawyers seek advancement through numerous venues. Some become AUSAs and ascend to a Wall Street partnership by convicting Martha Stewart (or her analogue). Others network through the bar associations.

I particularly enjoy those lawyers who exercise their writing skills on the internet. Going through my email each morning is like a legal seminar. I love to read blogs, e-newspapers, Facebook posts, even twitter aphorisms and clichés. I write an occasional blog (shameless plug) when I find a trial to use as a concrete example to explore some trial skill.

Q. Aside from the Smith case, you’ve represented a slew of other high profile defendants. How does it happen that they find their way to you? Is there anything you do to court high profile cases, or do they find you no matter what? Is this a good thing, to have clients who are in the spotlight, subject to intense scrutiny beyond that of the ordinary criminal defendant?

A. My so-called success is mainly a function of luck, being in the right place at the right time. All the clients I have represented over the years came to me because of publicized trials. I was fortunate to try high profile cases even when I was a public defender. They caused me a modicum of notoriety and brought in clients. My blog is limited to trial skills, hardly an effective advertisement. I have never been a good businessman. It doesn’t interest me.

Q. There is no serious criminal defense lawyer who doesn’t love trying cases. What part of a trial gets your blood pumping the most? Are you a cross guy, a closing guy, voir dire perhaps? What trial skill is most neglected, most in need of work by lawyers these days? What can be done to improve skills? What is the impact of so few cases being tried anymore? What will it mean for criminal defense when it’s all pleas, no trials?

A. I was sworn in as PD on January 5th, and on the 6th, I started a second degree murder trial. There was no training, no assistance and mainly disdain from the bench. For some reason, lost in the midst of history, my client was acquitted, no doubt more to do with my enthusiasm than my meager trial skills. I feel sorry for the young lawyers of today because they will never get this experience. Instead, they are left to plea bargaining and sentencing.

The only real talent I have is cross-examination. When I was a public defender, we had no resources. No investigators, no trial consultants, no time. I typed up my own subpoenas and did all the legwork out in the worst ghettos of Miami. Our only real weapon was cross-examination. You either mastered it or failed.

Q. Without getting into the particulars, you married a juror from the Smith trial. Most lawyers would consider themselves lucky to get the opportunity to talk to their jurors, to get a firm sense of what worked and what didn’t. You got a telephone number. Is there a lesson here about lawyers being endearing to their jurors? Was this a matter of tactics, of focusing on every detail that could have any potential impact on the jurors’ perception of you and your client? Was this about the jurors liking Roy Black, because he’s just a good guy, or was this a fortunate additional benefit of a lawyer being what he had to be to best serve his client?

A. Think of the advantages of dating a former juror. I had individual voir dire and a twelve-page questionnaire. So I got a raft of personal material and then questioned each juror for two to three hours under oath. And don’t overlook the benefit of her voting for me (all lawyers know their ego is on trial, not the defendant!).

I didn’t save her phone number from the trial, nor did I question her about the case. I had other ideas in mind. We ran into each other at a restaurant one night about a year later. Things developed quickly from there. In any event, where does the solitary, unsocial criminal lawyer find love?

Cross: Shon Hopwood, From Prisoner To SCOTUS To Scholar

June 22, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Shon Hopwood, one-time jailhouse lawyer who won before the United States Supreme Court, turned lawyer, scholar and graduate teaching fellow at Georgetown Law School’s Appellate Litigation Clinic.

Q. You grew up in a small town in Nebraska, David City, where you were a high school basketball star, good enough that you won a scholarship to Midland University. But in 1994, you dropped out to join the Navy. Why did you trade Nebraska for Bahrain? You had the ticket to the American dream, and chose to walk away? It obviously wasn’t because you lacked the intelligence to succeed, so what drove your choice to leave? And why choose the alternative of the Navy? Was there a sailor inside you yearning to be set free?

A. I didn’t voluntarily leave Midland. I was kicked out of school. As a college athlete, you only have time to do so much. It is very difficult to both go to school, practice and then party. I chose the latter two. I never enjoyed school and academics; I was a solid C student all through high school. It wasn’t until I discovered the law and started researching legal problems and writing out solutions that I finally began to relish things of an academic nature—probably because postconviction and appellate work melds helping people (the extroverted part) with thinking about various arguments and framing devices (the introverted part). I like the mix.

As for the Navy, that choice was born out of necessity. I had been kicked out of college and my parents wouldn’t allow me to move back in their home (good for them). I rented a dilapidated apartment in my hometown for $200 a month and went to work at a factory. Doing the same job over and over again was, for me, a form of torture. So I decided to go see the world and the Navy offered that. My dad also thought the Navy might teach me some discipline, which I sorely needed. But even the Navy couldn’t break through my foolishness.

Q. In 1996, you nearly died from pancreatitis and were honorably discharged from the Navy. By your own account, you ended up back home, underemployed, depressed and addicted to drugs and alcohol. What did your future look like to you at that point? When your best friend from high school invited you to rob banks with him, you said yes. You and your friends robbed five banks in the Omaha area before you were done. Were you any good at it? What did you spend the loot on? And at the time, did it give you a sense of purpose you felt you were lacking? How did you think it would turn out?

A. I actually came back home worse off from the Navy than before I left. I had no idea what I wanted to do with my life, and I struggled through a series of dead-end jobs. I had gotten myself in trouble for attempting to forge a check. I was also hanging around other people who were as moronic as I was. We spent weekends drinking and chasing after girls. I was an idiot, to say the least.

And then my lifelong friend asked me to a bar one night and, while we drank watery beers, he asked if I would help him rob a bank. Most people would have laughed it off, maybe said, “you’re crazy,” or even, “no.” But not me. In my immature mind, it seemed like a solution to my problems.

I was not a good bank robber. The longer it went, the sloppier I got. By the last robbery, I left a palm print on the getaway car. I just didn’t care anymore what happened to me.

I never had any illusions about how it would turn out. I expected to end up caught or dead. I often told my friends that when the police came for me, I hoped they’d end it with a bullet to my brain. Those claims weren’t hyperbole. That was my plan. To live the fast life until law enforcement found and killed me. I sure was stupid.

Q. Two years later, you were caught when one of your friends snitched. You pleaded guilty to five counts of bank robbery for 87 months in prison, and one count of use of a firearm for another 60. What goes through a 23-year-old’s head when he’s staring at over 12 years in prison? Were you angry at the judge, your friends, yourself, the world? Did you realize what it meant to face what’s euphemistically called “prison culture”? Did you think your life was over?

A. I, like most people in their early 20s, couldn’t fathom what 12 years meant. It may have been a life sentence, for all I knew. I remember thinking that I’d be 30-something when I got out, which meant I’d be really, really old! For the first few years in prison I did think my life was over. But then I got a little older, a little wiser, educated myself, and realized it would be way more fun to prove to everyone that my life wasn’t over than to prison. So I never held any animosity towards Judge Kopf, my sentencing judge.

Q. Shortly after you got to Club Fed, you started working in the law library. Though you’d had no legal education, you discovered you had mad skillz for understanding court cases and following legal arguments. After you learned about § 2255 motions, you filed one, invoking the newly-decided Apprendi v. New Jersey in an effort to get your sentence reduced. It didn’t work out. Were you discouraged, or motivated to keep trying? What made you decide to be a “jailhouse lawyer”? What was in it for you? In your memoir, Law Man, you write about the brutal prison environment. What impact did it have on pursuing jailhouse law? Any cognitive dissonance involved in learning the sanitized version of the criminal justice system compared with the reality version you lived?

A. Being a jailhouse lawyer isn’t very glamorous. It meant long hours reading Federal Reporters and pecking out a brief draft on a typewriter. At least, that’s how it was for me. I might have gotten frustrated had the Fellers case not happened. It is very frustrating to write a brief with meritorious issues only to be rejected out-of-hand because the petition is filed pro se. And I watched that occur with regularity during my time as a jailhouse lawyer. But the wins kept me motivated. And later on, when I had a budding friendship with my now wife, I was motivated to learn more about the law because I was hoping to have a career as a paralegal when I got out of prison.

As to the cognitive dissonance, yes the actual criminal justice system is much different than most realize. Very few people understand all its dimensions well. And, unfortunately, academics and appellate judges probably understand it less than most. It’s not their fault, though. Academia and the federal judiciary reward rule followers, so I think it is difficult for them to understand that many, maybe even a majority of Americans are not strict rule followers. So how do we design a system taking that into account? I don’t think people who have spent the majority of their life making decisions to get a seat on the Supreme Court or Harvard law faculty necessarily have the best answers.

Q. In 2002, a fellow prisoner, John Fellers, approached you about his case and you agreed to help him out. As his “jailhouse lawyer,” you petitioned the Supreme Court for review, and in extreme defiance of the odds, they granted cert. That’s a huge accomplishment for an attorney with years of experience. For a self-taught prisoner, it borders on the fantastical (I called you a “freak of nature,” which made you bristle). Seth Waxman, a former Clinton solicitor general, agreed to handle oral argument on condition that you be involved. Together, you won a unanimous decision: Fellers’ case was remanded on Sixth Amendment grounds. What was it like, preparing for a Supreme Court case from a prison cell? Waxman kept you closely involved; what were your responsibilities? Did you appreciate the significance of what you were doing? And what does a prisoner say to himself when he wins at the Supreme Court?

A. Freak of nature sounds like something I should have tattooed on my back! Getting cert. granted as a jailhouse lawyer may, no matter what I do as a lawyer for the next thirty years, rank as the singular best accomplishment of my career. Which sucks. Nowhere to go but down! That said, I probably wouldn’t have a legal career now had that not happened for me twice.

My big break occurred when Seth took over the Fellers case. I think most people of his caliber (former Solicitor General, Harvard undergrad, Yale law school) would have said, “hey, Mr. Jailhouse Lawyer, thanks for getting cert. but I will take this over now.” Anyone other than Seth might not have kept me involved. But Seth did. I called him and he answered. He sent me drafts of the merits briefs and I’d send notes back to him. And at one point, I had a conference call with Seth, Noah Levine, and two other lawyers from WilmerHale, so that we could discuss oral arguments. I appreciated the significance of Seth’s graciousness, but I don’t know that I truly understood how strange it was to litigate in SCOTUS as a jailhouse lawyer.

Q. After Fellers, you were unsurprisingly in demand as a jailhouse lawyer. Were you able or willing to help everyone who came to you? How did you deal with hopeless cases? More broadly, do jailhouse lawyers deserve their rep? Were you the one guy who wasn’t incompetent or trying to scam people? Are all jailhouse lawyers entitled to a presumption of good intentions and competency? The flip side is that there are few avenues other than jailhouse lawyers for prisoners, especially poor prisoners, to pursue post-conviction relief. Is there a tipping point between jailhouse and practicing lawyers? What should private lawyers do to fill the hole?

A. Jailhouse lawyers aren’t that different from normal lawyers. Are there scammers and the incompetent? Yes. But the same is true for lawyers. Some of the worst degenerates I saw and still do see are the lawyers paid to do prisoner post-conviction motions. The only bar that is worse are immigration lawyers.

Most jailhouse lawyers don’t intend to be incompetent. They just don’t know they are. There is a rather big incentive to not be an incompetent jailhouse lawyer. I once watched a jailhouse lawyer really mess a case up and the judge wrote something about the inadequacies of the filed brief in the judge’s order. The next day the jailhouse lawyer woke up to his client swinging a padlock inside a sock. Padlock breakfast burritos are not something that concerns lawyers.

Jailhouse lawyers are not a long-term solution to a lack of representation. They just aren’t. Society needs to adequately fund public defenders and other groups to fill in the gap. Pro bono lawyers aren’t the answer either. Most noncriminal lawyers can’t adequately represent a criminal defendant. Some criminal trial lawyers can’t adequately represent a client on appeal. And some appellate and trial attorneys know nothing about habeas practice. In Law Man, I recount a story about a lawyer appointed by a federal district court judge to represent a friend of mine after we had filed my friend’s habeas petition. I called the lawyer one day and he said he was going to voluntarily dismiss the petition because it was untimely. I ended up screaming at this lawyer when he wouldn’t listen as to why the petition was timely filed (the prison mailbox rule). I had to threaten to file a bar complaint before he finally relented.

Q. After you were released in ’08, you went to school at Bellevue, hoping to become a paralegal. That changed when you got a full scholarship to the University of Washington School of Law, courtesy of the Gates Foundation. How did that happen?  What impact did your criminal record have on your decision to go to law school? On Day 1, who walked into the classroom, with those bright-eyed, bushy-tailed, sheltered budding lawyers?

A. I decided to apply to the University of Washington School of Law after Professor Eric Schnapper called me. Eric was one of my employer’s biggest clients (Cockle Legal Briefs) because he often litigates cases in the Supreme Court. Eric encouraged me to apply and said I should come to school there. I applied to school and to the Gates Program, and I was chosen as a Gates Scholar after two days of interviews in Seattle.

Going into a classroom where everyone knew my story but I knew no one else’s was difficult. At first, I had this awareness that maybe I shouldn’t be in law school. But after I realized everyone else had the same feeling, I quickly reversed course and just got down to business. I don’t remember a lot from those first few months other than my daughter Grace’s birth, living in a new city where we knew no one, and working on a series of Supreme Court filings (three briefs in total) that I had been paid to write in the summer and of course things got extended into the school year.

My classmates made school many times better. Especially my small section. They taught me about all things millennial and I taught them about how to make a shiv out of a toothbrush or a homemade tattoo gun from a beard trimmer. With apologies to my professors (who were also wonderful), we had long running threads on Facebook that occasionally heated up during class. I’m a trash talker and sometimes my classmates brought out the best in me!

Q. At UW, you interned with Judge John C. Coughenour of the Western District of Washington. Then you got one of the most prestigious clerkships in the nation when you signed on with Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals. You’ve kept pretty quiet about your time with Judge Brown, in particular. Not to highlight the brutally obvious, but the juxtaposition of inmate and circuit court clerk is pretty stark. Did the judges “get it”? Did you bring the baggage of your experience, or were you now part of the sanitized world of federal law clerks? Seeing how the sausage was made, did it change your view from the cell? Did you change the judges’ view?

A. I have been quiet about my time as a clerk for one reason. In my view, clerks should be what my dad said about children: “seen but not heard.” So I don’t speak publicly about my time at the court.

I can tell you that Judge Brown is a treasure. I have never met a more genuinely humble lawyer, let alone a more humble federal judge. We often talked for an hour about the law and life, and I cherished those conversations. She never once treated me any differently from anyone else. If it’s not completely obvious, I adore her. I miss working for her.

Whenever we had a D.C. Circuit clerkship happy hour with clerks from other chambers, I always felt out of place. Every happy hour felt like a Yale and Harvard law school reunion because those two schools placed the majority of clerks on the D.C. Circuit. Yet the other clerks and judges were always very nice. It was a wonderful job.

Q. Now you’ve graduated, published numerous law review articles, gotten an LL.M at Georgetown Law and a fellowship at its Appellate Litigation Clinic. How do you balance your teaching and litigation responsibilities? How did your past prepare you for helping 3Ls get their chops? Are they up to it? What do you see as the most significant hurdle for law students to overcome? Do you give them a reality check as to what it means to be entrusted with another person’s life? Do they get it? And what’s it like for a former federal prisoner to rep federal prisoners in federal court? Are you considered one of them, one of us or something in between?

A. My boss, Steve Goldblatt, is old school in his belief about clinic pedagogy. It’s a belief I share. We don’t send out bad briefs on behalf of real clients, even if that means we need to rewrite large parts of it because the students aren’t up to snuff. We of course work with the students the best we can. Which means editing at least four or five drafts. But sometimes we need to take it over. So that is the balance. I hope to get better at it this year.

The biggest hurdles for students are the same for practicing lawyers. Writing and analytical skills. Students haven’t read hardly any briefs by the time we get them, so they don’t understand how to write. Just like many lawyers, students tend to use lots of “lawyerly” words and convoluted syntax. And, just like lawyers, students have difficulty when there is no binding precedent and they have to create their own arguments for why the court should rule in favor of their clients. I often tell them that in many of our cases it is not enough to throw handfuls of precedents at the court in the hope that one sticks; it takes persuasive arguments.

My relationship with my clients depends on the client. Some of my clients don’t know my backstory. To them I’m just another lawyer. But some of my clients are guys I was in prison with. They’ve been waiting patiently for me to be in a position where I can really help them. My first case with the clinic here was a case I brought to the clinic. A friend of mine is serving 20 years for felon in possession of a firearm, so we filed for a second or successive 2255 petition in the Eighth Circuit and it was granted. He is now litigating for the chance to be resentenced and immediately released. My conversations with him aren’t much different from what they were in prison. I seem to occupy this strange place where I have one foot in and one foot out, and I’m perfectly okay with that.

Q. And then there’s that mean-ass old judge who sentenced you, and who denied your § 2255 motion, all those years ago. That would be Fault Lines’ own Judge Richard G. Kopf, who has since become one of your strongest supporters. You’ve even given interviews together, where Judge Kopf said his sentencing instincts about you back in ’99 “sucked” and were totally off the mark. Have you come to terms with this? What influence has this had on your view of the system, the judiciary? Does this make it better or worse? And your legal scholarship shows you to be a strong critic of things like AEDPA, which Judge Kopf has vigorously defended. What’s up with that old judge? Will he never learn?

A. There really isn’t anything to come to terms with. I harbor no ill will against Judge Kopf. Never have. The fact that he thought I’d never amount to much wouldn’t separate him from most people that knew me in my early 20s. All of us have the capacity to change. Even prisoners. And even me.

As to AEDPA, Judge Kopf is just wrong. Totally and utterly and completely wrong. So says the now academic to the district court judge! That was a joke, by the way.