Bev's News

Justice Ruth Bader Ginsburg on Friday invoked the Federalist Society’s chairman to refute conservative attacks on court decisions that reference foreign and international law.

Juice maker POM Wonderful on Friday afternoon withdrew its request for a restraining order against the National Law Journal, freeing the publication to disseminate word that POM is under investigation by the Federal Trade Commission.

Will the U.S. Patent & Trademark Office grant the application of an American chocolate maker to trademark a common Indian word?

Go to the best law school you get into is advice that's been handed down to generations of law students. But a new study argues that it's not necessarily the best advice.

A lawsuit filed on Thursday in Los Angeles aks whether the heirs of the Armenians whose property was allegedly seized in Turkey in 1915 should be able to recover for their losses.

At long last, it appears the BigLaw job market might finally be showing signs of a serious thaw.

The dust from Phoenix federal judge Susan Bolton's immigration ruling continues to settle, and the nation's scribes continue to try to make sense of it.

In a lawsuit filed Thursday, the SEC charged the Wylys with hiding $550 million in trading profits by using an "elaborate sham system" of offshore entities.

The clock was ticking today in Boise as more than 200 lawyers gathered to argue over the setting for the colossal litigation against BP for the Gulf oil spill. But only a handful would get to speak, and not for very long.

Is the legal system too complicated? If so, what's to be done about it?

Over at Defending People, Mark Bennett rehashes an old argument about the nature of the ethical responsibility of the criminal defense lawyer. The underlying argument is inconsequential. Not only has it been discussed before, but the counterpoint is so completely meritless as to render it unworthy of mention.

When he posted, I asked him why he was raising this nonsense again. He replied that there are new lawyers in the blawgosphere, and they should be made aware of the problem. He has a point. Even though these issues have been thoroughly discussed, new readers won't know about it or participate in it. From the blawgers' perspective, this is old news, been there, done that-type stuff. From the new readers' perspective, it's hot off the presses.

In gently chiding the counterpoint, Bennett offers this comment.

Ah, you crazy kids, with your contempt for the wisdom of those who have come before you!

This is a lesson worth repeating. There's an awful lot of accumulated wisdom to be found in the blawgosphere. Lessons learned, often the hard way, by lawyers who came before.

The gut reaction is that new lawyers have new ideas, and why should they be constrained to adhere to old school notions. Thinking outside the box is a mantra for many, and it's a worthwhile concept that can produce great ideas and approaches. Some will view Bennett's comment as the typical old lawyer reaction to anything new.

This misapprehends the point. No one, neither Mark nor I, is trying to tell new lawyers not to think new thoughts, raise novel questions or consider interesting ideas. Not at all. Thinking outside the box is how we arrive at better, more effective ways to do what we do. It's something to be encouraged and attempted, whether by new lawyers or old.

The point, however, is that not every new idea is a good idea. Indeed, not every new idea is new. There's a natural tendency to become unduly enamored with one's ideas, a sort of pride of ownership. Everybody wants to invent something newer and better, whether it's a mousetrap, a defense or just an idea accepted by others. But there's really very little new, and coming up with something truly new, and actually good, is both difficult and extremely rare. Most of us will never do so.

While there's nothing wrong with raising a novel idea, there is something very wrong with those who can't let go of their own brainstorm after it's been thoroughly and completely debunked. Part of growing up is accepting that the idea is wrong and letting go.

Mark's comment is directed toward the inability to recognize that the time has come to give up some unacceptable notion that's been floated and rejected, with extreme prejudice. That's the '"contempt" to which he refers, that reaction to "old timers" like Mark, like me, that our refusal to acknowledge the brilliance of an idea is symptomatic of our clinging to the past, our old school ignorance, our inability to appreciate the visionary.

There seems to be a growing contempt for experience in the blawgosphere. Plenty of people with either peculiar political views that color their idea of what it means to be a criminal defense lawyer, or the self-serving notion that things are different now and they won't be constrained by the past. Screw George Santayana. Screw Dunning-Kruger. Screw experience.

Yes, it's worse to be an old fool than a young fool, but it's better not to be a fool at all.

A number of people have asked me why I haven't jumped into the underlying argument that Bennett's post addresses. The answer is plain, that I've already addressed it a few times and said what I have to say. Despite demands that I continue to engage in arguments with every kid who decides to persist, there's no bone in my head that compels me to continue to argue just because some young buck decides to challenge me.

Here's the harsh news from this mean old man: You're wrong. There's no issue. Your inability to accept the accumulated wisdom of those who came before you doesn't make you right, just stuck. In some instances, it even renders you a danger, someone who has no business holding the lives of others in your hands. Sorry if that makes you sad, but the world didn't come into existence the day you decided to show up.  No doubt there will be comfort to be found amongst other lawyers to soothe your fevered brow, but not here.

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As anyone who has ever skimmed criminal defense lawyer websites is painfully aware that every one says the lawyer is "experienced, aggressive and caring."  We must be the most amazing bunch of lawyers ever, since there's not loser in the bunch. Or so it seems.  Obviously, some are completely full of it, whether because their experience consists of 3 years in a prosecutor's office or 12 minutes in the trenches copping pleas.

A problem arises from callers who want to know whether the lawyer on the other end of the line has the goods.  Some, like this caller, ask a bunch of questions, but many just want to tell the lawyer their side of the story, get a supportive reaction and a fee that matches their pocketbook. 

The burden then flips to the lawyer.  Surprised?  Most are, since there's a tacit understanding within the bar that if a client is willing to pay you money, you're golden.  But what of the lawyer who takes on a case they aren't equipped to handle?  Sure, you're a criminal defense lawyer (and some are simultaneously real estate lawyers, according to the caller's needs), but there are some areas of criminal law that require specialized knowledge to be effective.  One such area is DWI.

I've never done a DWI case.  When a call came in on a DWI, I would refer it out.  I've got no expertise with the Breathalyzer 5000, or the sobriety tests used, or blood alcohol content.  I know some other lawyers who are incredibly knowledgeable about these things, and they can provide a great defense whereas I would be incapable of providing a defendant the defense he deserves.  If I was interested in DWI cases, I would work with these great lawyers and learn from them.  I'm not, so I've never done so.  I'm more than happy to send these clients to better hands.

These days, however, lawyers aren't always inclined to take a pass at a paying client.  Business is slow for many, and passing up a fee isn't something that they're inclined to do.  One lawyer has written about his taking on such cases, despite having no experience in handling them.  He touts that he's reading a book to learn how to do DWIs  While it's better than going in blind, it raises some hoary questions.

It's impossible to gain the experience and knowledge necessary to provide effective assistance of counsel by reading a book.  This may be the best one can do, say when a client in a rural area lacks access to a lawyer who is competent to defend and the only lawyer in town lacks the experience to handle the case.  In that instance, an inexperienced lawyer is better than no lawyer, and a book is certainly better than nothing.

It may be that the defendant can't afford a competent lawyer, and the one he's chosen has fully disclosed that he's never done a DWI case before and plans to cut his teeth on the client.  If the client is cool with that, appreciating that he's getting a DWI virgin and willing to take his chances, it's acceptable.  Less than optimal, obviously, but at least there's no deceit.

But as we know from the wealth of "experienced, aggressive and caring" lawyers on the internet, not everybody is playing fair.  Honesty can be bad for business.  The surest way to lose a client is to tell them that you've never done a case like theirs, which requires specialized knowledge, but would sure like to give it a shot on their dime.  Tell the client not to worry, you'll read a book.  See how happy that makes them.

There are ways around the problem.  Refer the case to a competent lawyer and co-counsel up to learn her ways is the best idea.  Read the book as well, but don't expect a book to substitute for life in the trenches.  Somehow, things never quite work out the same in real life as they do in books (or CLE war stories, for that matter).  Chances are that you will need to do it a few times before you've got the chops to do it well.  That's the price of competence, no matter how experienced you claim to be on your website.

A story I've told here a few times is instructive.

A few years back, I had an evidentiary hearing before Judge Kimba Wood in the Southern District of Ne York.  It related back to a New Jersey case, where the defendant had taken a plea to some relatively inconsequential felony offense and was given probation.  The problem was that he was on life parole in federal court at the time, and the Jersey lawyer neglected to mention that he was going to get banged by the feds despite his probation in New Jersey when he advised him, STRONGLY, to take the plea.

The Government put the Jersey lawyer on the stand.  He spoke eloquently of his many years of experience as a criminal defense lawyer, and his determination to advise his client, now my client, to take the deal.  On cross, I asked the lawyer to tell us how many felony cases he had tried to verdict before a jury in his long and illustrious career as a criminal defense lawyer.  He was silent for a while.  He looked up at the ceiling, deep in thought.  He looked down at his fingers, toes and some other part of his anatomy that was concealed by the rail.  A few minutes went by in silence.

Finally, I asked him again, please tell us how many.  He looked at me with venom.  Very softly, he answered:  "None." 

Of course you need the business.  Of course you want the money.  But that's not good enough.  If you can't handle the case, taking it is completely unethical.  And there is no excuse for lying to a client about having vast experience.  When you blow the case, it's not you who suffers the consequences. 

No matter how good the book is, if you have told your client the truth, you're wrong to take the case.  No matter how many hugs you get from your fellow lawyers who feel your fiscal pain, there is nothing that will make your inability to defend a client less of a disgrace.

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Radley Balko posts about another arrest, forced by the hand of a potentially vicious woman who refused to obey the reasonable order of a police officer who feared for his life.  And her name was Greenfield.  Melissa Greenfield.

When a deputy sheriff began questioning Melissa Greenfield’s boyfriend at a Delaware County truck stop, she began recording video with her cell phone.

She never thought that she, or her phone, could be viewed as a danger as she documented the activities of public employees in a public place.

“I’m a 115-pound, 20-year-old girl wearing a cervical collar with nothing but a cell phone. I was not going to harm any officer,” Greenfield said yesterday.

As if every police hater announces their intentions beforehand.  Of course this Greenfield woman says she's harmless.  They always do.  But then, what about the weapon?

Sgt. Jonathan Burke wrote that he repeatedly ordered Greenfield to place the “unknown” object in her pocket and keep her hands free. When Greenfield refused, she was arrested and charged with obstructing official business and resisting arrest.

Burke wrote in his report that he feared that Greenfield could have been holding a dangerous object such as a “cell-phone gun”…

“Not knowing what the item in her hand was and having prior knowledge of all types of hidden weapons, including a cell-phone gun, I asked her several times to place it in her pocket and to keep her hands free,” Burke wrote.

Perhaps Sgt. Burke should have waited for the muzzle flash before taking reasonable precautions to protect himself?  Sure, why head off a deadly threat beforehand when you can wait for the slug to approach your chest?

The Columbus Dispatch carries the rest of the defendant's beef:

After Greenfield got her phone back, she said, the video she took of the deputies at the Flying J truck stop at I-71 and Rt. 37 on July 9 had been deleted, along with a couple of vacation videos.

Deputies did not delete any video, Davis said. A warrant would have been required to search the phone, and one was not obtained, he said.

Obviously, since there was no warrant obtained, the police couldn't have had any connection with Greenfield's video mishap.  But then, as we are all well aware, it's a cellphone, not a video recorder.  It was never made for that purpose in the first place, and it's really beyond the pale for this Greenfield woman to expect there to be no malfunction.  It was like begging for trouble, something she apparently does on a regular basis.

In Delaware Municipal Court on July 13, Greenfield's public defender deemed it "ridiculous" that she might have had a cell-phone gun. Greenfield, who lives in Poway, Calif., pleaded no contest to obstructing official business. She was fined $20 and released with time served: three days in jail. The resisting-arrest charge was dropped.

Naturally, her lawyer called Sgt. Burke's very real fear for his safety "ridiculous".  After all, what would a public defender care if a cop's life was lost to a cellphone gun?  But you'll notice how tucked away at the back of that paragraph is a little detail, that the Greenfield woman pleaded to obstructing official business?  Why, was there a cellphone gun to her head?  So we have another admitted criminal trying, after the fact, to smear the hard-working police officer who wants only to survive long enough to make it home for dinner.  Wow, doesn't that make him evil.

It should come as no surprise that the criminals are trying to hide the old videotaping the cops claim, while our police officers continue to work the streets to keep us safe and protect themselves from that old terrorist favorite, the cellphone gun.  And naturally, this criminal is some gal named Greenfield.

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It's described in the Chicago Sun-Times as "unusual", but that's nonsense.  It's unheard of.  Until now.  The Tribune does a better job, calling the hostility between Chief Judge James Holderman and United States Attorney Patrick Fitzgerald "extraordinary", though even that fails to capture the situation.

The "relationship" between the two is described as hostile.  Since when do U.S. Attorneys and federal judges have relationships?

Fitzgerald has had issues with Holderman's temperament. In 2005, the judge ordered a misconduct investigation of the U.S. attorney's office by the U.S. Department of Justice's Office of Professional Responsibility. In response, Fitzgerald countered that Holderman had been openly hostile to prosecutors.

At that time, the federal appeals court ordered a halt to the judge's inquiry and noted respectful relations between the bench and prosecutor were vital.

Apparently, respectful relations involving others in the courtroom, say, oh, criminal defense lawyers, don't merit a mention.  But that's all in the past.  This time, the mid-trial blow up caused Fitzgerald to stop the trial of an accused Columbian drug dealer to go cry to Judge Richard Posner at the 7th Circuit that Holderman was being too mean to the government.

Before the trial started July 6, Holderman excluded evidence of two fingerprints on drug packaging because the prosecutor had violated a court deadline for evidence gathering. The federal appeals court reversed the ruling, saying the exclusion was too harsh a penalty for missing a deadline.

Yet during the trial, Holderman found problems with the reliability of the same fingerprint evidence. He notified the prosecutors, prompting them to file an appeal with the appeals court July 14. Holderman responded in court papers that he had not made a final decision.

On July 22, the judge definitively excluded the evidence, leading to another trial stoppage. In the petition, Fitzgerald said Holderman had accused multiple prosecutors of lying and threatened to hold misconduct hearings. The judge fired back in court papers filed Tuesday that the government's petition contained "several deficiencies" and "false factual statements."

The Circuit, sua sponte, did the unthinkable.  It removed Judge Holderman from the case.  Fitzgerald only wanted his evidence to come in.  That wasn't enough for the panel, apparently, and it decided that the judge presiding over the trial was out on his butt.   The court offered no explanation for its action, though a decision will supposedly issue eventually.

When news of this action broke, the initial reaction was utter amazement.  No one had ever heard of anything like this occurring before, and certainly no one could even fathom a court considering, no less acting, upon a complaint of hostility coming from the defense. 

Short of Judge Holderman being on the take, which no one suggests, his removal from the trial is nothing short of amazing and incredible.  Even the notion of the emergency order by the government, because it didn't like the judge's decision, borders on the inexplicable.  What's the message?

When a judge refuses to suppress evidence that the defense contends was seized in violation of the Fourth Amendment, the case goes to trial and the evidence is admitted.  Assuming, as is usually the case, that the defendant is convicted, he may be imprisoned pending appeal.  Chances are slim that the defendant will be allowed bond pending appeal. 

Once the appeal is perfected, the matter argued and a decision is penned, and should the denial of suppression be reversed, the defendant may be released.  Understand, this process can take years, and the defendant remains in prison throughout the process.  None of this matters to the court.  It's hardly an emergency situation, demanding immediate action to prevent the wrongful imprisonment of a human being.  This is just the way the process works.

Yet when the U.S. Attorney complains that the mean judge, the hostile judge, might preclude the prosecution from introducing a piece of evidence that they want to use to prove guilt, the circuit judges come a'running to prevent the grave injustice that someone may not be convicted as readily as the government demands.

Until a decision issues, we won't have a clear understanding of what it was that Judge Holderman did here that so aggrieved the government that it commanded the Circuit's immediate attention and caused the judges to take the extreme action of removing a judge in the middle of a case.  As of now, it certainly smells as if it's all because of an adverse ruling.

So what?  Judges make adverse rulings against one side all the time.  All the time. And it doesn't raise an eyebrow, no less give rise to relief of any sort.  No court has ever gotten this bent out of shape because a defendant might be wrongfully convicted.  That's a big yawner around the courthouse.  It's worthy of a platitude in a decision, and nothing more.  The fact that a guy was convicted on unlawfully seized evidence wouldn't give rise to a blink. 

The message from Judge Holderman's removal isn't that the judge was making an erroneous ruling.  If it wasn't for erroneous rulings, there wouldn't be any need for appellate courts at all.  Whether reversed or not, they're a dime a dozen.  No, the message here is that the criminal justice system can tolerate errors that affect defendants all day long, but it will not tolerate a mistake that might result in a defendant not being convicted.  It will not tolerate the judge who rules for the defense.

But the Chicago Tribune speculates as to the point of this extreme action by the 7th Circuit.

The uneasy history between Fitzgerald and Holderman may have inspired the appellate court to rebuke Holderman. [Lawprof and former defense lawyer Len] Cavise said, "This could be Posner's way of saying, 'I've had enough of the hostility between you and the U.S. attorney's office. I want you to cool off.'"

If so, this could be the most dreaded message of all, that federal judges, upon pain of removal, must maintain cordial relations with one side of the adversarial system of justice, the government. 

If a judge has a reason to get hot at the government, then he should be hostile.  Same with the defense, which is notably missing from all of this as if it's not even worthy of mention, no less recognition.  Since there's no explanation for any of this as yet, we can only hope that Judge Posner's message isn't that the judge and prosecution need to play nice with each other.  They aren't on the same team.  At least, they aren't supposed to be.

Update:  The 7th Circuit decision (they keep changing links, so if the link dies, let me know)  is out (h/t Another Chicago Lawyer below), and here's the beef:

The transcript of the district judge’s remarks concerning the evidentiary issue reveals a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record. He repeatedly accused the government lawyers of lying. He said, for example: “I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt.” He said: “I am going to bring the jury out, and I am going to tell them the government has failed, once again, to have witnesses ready to proceed. The government is delaying this case. Members of the jury, this case is being delayed by the government. It has been delayed by the government.

Your time has been wasted by the government.” He said: “I would like you [the government lawyers] to go back to the Court of Appeals and tell them, gee, we would like to mandamus Judge Holderman because he won’t allow us to call more witnesses or prove our chain of custody that we asked you, the Court of Appeals, last week to order him to present in the evidence in the case, to admit the document, to admit the exhibit into evidence. We now want to call more witnesses to lay the foundation, witnesses that Judge Holderman has pointed out we need. We now agree with Judge Holderman, and we were wrong last week when we tried to mandamus him. I would like you to go to the Court of Appeals and you tell them that. Will you do that?... Will you do that? Will you go to the Court of Appeals and admit that you lied to them….” He threatened to conduct hearings concerning misconduct by the prosecutors (shades of the conduct that led to the issuance of the writ of mandamus in In re United States, supra).

It's an outrage!  An outrage I say.  No judge would ever talk to the defense like that.  No wonder Judge Posner had no choice but to remove Judge Holderman from the case. 

 

 

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Following the New York Times editorial on the latest fashion trend in sentencing, Lawprof Doug Berman got an email from his beer buddy, Nebraska District Court Judge Richard Kopf.  The good judge not only offers some thoughts on the state of affairs of sentencing, but wants you to know his thoughts as well.

Although it has the data and although it releases data on a court-by-court basis, the United States Sentencing Commission has never publicly released information on the extent to which individual federal judges sentence within or outside the Guidelines.  I propose that the Sentencing Commission annually release sentencing statistics for each federal judge who sentenced a significant number of offenders during that year.

Since the Supreme Court’s reordering of the federal sentencing process, compliance with the Guidelines is on a steady downward trend, albeit not as drastic as feared.  This trend has caused the Attorney General, scholars and some judges to worry (1) that disparities caused by irrelevant factors (race, gender, class and so forth) are increasing and (2) that a fair number of sentencing decisions are driven by idiosyncratic beliefs that, while well-motivated, are not empirically supported or are contrary to reasoned sentencing policy. Indeed, these concerns are finding a public voice.

By making individual sentencing statistics available, federal judges will be held publicly accountable for the exercise of their new found discretion, and that might have the beneficial effect of causing judges to think more deeply about the sentences they impose and explain more clearly the reasons for those sentences.  Perhaps more importantly, armed with this data, outside scholars who seriously study these things will be better informed and therefore better able to provide a reasoned critique of the federal sentencing process in this post-Booker world.  In short, it is time for federal sentencing judges like me to pay the piper.

For those of us who didn't sleep through high school American history, we learned that federal judges had life tenure, upon good behavior, for the purpose of not being held publicly accountable for the exercise of judicial discretion.  The notion was that the judiciary should serve the law rather than transitory public whim.  I know, a bit Pollyanna-like, but these were high-minded ideals.

Judge Kopf appears to fall into the "consistency is good" camp, his reasoning being curious.  Some will read his point as being that those who don't have fancy-pants lawyers get screwed, while the wealthy can hire the best legal talent to buy their way out of long sentences.  There's a problem with that seemingly egalitarian position, however.  We've lived through the reality of this position from 1987 through Booker, and learned that the outcome is everybody gets screwed. 

His second reason, judicial idiosyncratic beliefs, raises a different issue.  Who's to say that a judge's exercise is idiosyncratic?  Why, the collective wisdom of the United States Sentencing Guidelines Commission, of course.  And their solution is to eliminate the factors that serve to personalize a sentence to a defendant and an offense, because that's the stuff that gives rise to what appears to be superficially disparate treatment.  Ah, the love of bean counting for consistency.

It's not that Judge Kopf hasn't shown his mettle in the past on sentencing issues, such as when he bench-slapped the Supreme Court in The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough and Gall.

10. Following the Court’s approach, always put off to tomorrow what you can do today.

9. You don’t need experience in actually sentencing people in order to totally screw up the law of sentencing. It is telling and painfully obvious that not a single Justice ever had to look a federal defendant in the eye while not knowing what law to apply.

8. Footnote 9 in Blakely ("The Federal Guidelines are not before us, and we express no opinion on them.") is the biggest practical joke in the history of American law. See lesson One below.

7. The "merits" and "remedial" opinions in Booker satisfy George Orwell’s definition of "Doublethink." That is, the two opinions, and Justice Ginsburg’s swing vote to make both the law, reveal "the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them."

6. Never impose a sentence that is too harsh or too lenient. To quote Baby Bear, make it "just right" or, perhaps more importantly, to satisfy Justice Breyer, make sure it is just "reasonable."

5. Some sentencing judges used to take the Supreme Court seriously, but that got harder and harder beginning with and following Apprendi.

4. In an Ivy League sort of way, it makes sense to address the "crack" question fifteen years after everyone else knew something was terribly wrong. See lesson One below.

3. Justice Scalia’s dictum should be rewritten this way: The rule of law is the law of rules except when it isn’t.

2. Sentencing judges can be divided into two groups–those who are damn sure they’re right and those (like me) who have no clue.

1. There are a lot of really good, hard-working people "in the field" plus tens of thousands of defendants who deserved far better than the seven years of "water boarding" that ensued between Apprendi and Gall.

Yeah, I love it too.  But be cautious about what you project onto Judge Kopf's views.  In the comments to Doug's posting, my bellwether buddy from Crime and Consequences, Bill Otis, adds his two cents.

The only reason a person would oppose Judge Kopf's proposal is to enable the Nancy Gertners of this world to hand out 90% downward departures and keep it as quiet as possible.

We sure wouldn't want that to happen, now would we?  For every person who reads into Judge Kopf's email the opportunity to impose consistent, but reduced, sentences, there are Bill Otis fans marching on courthouses with torches and pitchforks demanding that jaywalkers be executed.  There's nothing like public accountability to remind us how much the public hates criminals.

But what of the ability of scholars to "provide a reasoned critique of the federal sentencing process in this post-Booker world?"  After all, isn't that really the point of all those guys and gals strolling into courtrooms day after day, to provide law professors with something to analyze?  It would be a terrible shame if all that experience in the trenches, from the first day in the United States Attorneys office to their going away party as they ship off to the Ivory Tower were wasted.

It's been less than 24 hours as this post is being written since the House of Representatives approved the Durbin bill reducing penalties for crack from 100 to 1 all the way down to 18 to 1, as if one to one would cause the San Andreas fault to open.  How long will it be before the cries about crack-crazed raping and pillaging are heard throughout the federal courthouses of America?  Remember, just as hemlines go up, they also come down.  Personally, I think Nancy Gertner's hemline looks awfully darn good.

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Much has been written about how people are absurdly careless with their personal information online, offering everything from their home being readily available for theft to their least savory moments with unknown suitors in dimly lit pubs.   Little by little, people are beginning to realize that a moments foolishness can be their perpetual online legacy, and they restrain that urge to update their facebook with the running description of their bathing rituals.

That's all well and good, but does that mean you're now safe from online shenanigans?

Not as long as the government has its way.  While you calmly vet your online information to protect yourself, various tentacles of the government are busy mindlessly posting your personal information on the internet.  How personal?  Like your social security number, in tandem with other identifying data that is commonly used to access your financial and personal records.  Via The Virginia Watchdog:

Your SSN is just a click away on the world wide web and it was most likely put there by some stupid elected official. And your health information is next.   Go to more news articles in our archives  and see examples of records put online by courts and other state agencies.  Yours could be online somewhere right now.    Many state agencies across the country like New York, Colorado, and Pennsylvania have SSNs online today available to anyone, anywhere in the world.   

 

This is no tin foil society, but quite real.  Government, in the name of transparency, allows access to data of all sorts indiscriminately, from properties to court records.  Within this is a gold mine of personal information, necessary for the purposes of internally maintaining identification information but definitely not the sort of stuff you would hand over to the folks running the omnipresent Nigerian lottery.  And yet it's all there, neatly available.

BJ Ostergren wasn't happy about this, and decided to address it by doing a little tit for tat, publishing the SSNs of public officials online to see how much they liked having their personal information exposed.  Shockingly, they didn't. So they tried to shut her down.  No dice, said the Fourth Circuit in Ostregren v. Cuccinelli.

"The unredacted SSNs on Virginia land records that Ostergren has posted online are integral to her message," Judge Allyson Duncan wrote in the unanimous opinion. "Indeed, they are her message. Displaying them proves Virginia's failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned."

The court also agreed that the state cannot punish Ostergren for posting on her website the same public records that the government makes available online.

"Ms. Ostergren's most powerful advocacy weapon has been to demonstrate to the public how bad a job the government is doing to protect our online privacy rights," said Kent Willis, executive director of the ACLU of Virginia, which represented Ostergren. "The government responded, but by trying to silence Ms. Ostergren."

Putting aside our sheep-like willingness to provide personal information on demand to petty much anyone who asks, whether governmental or the nice young lady at the cash register of your local big box store, what this reflects is the difficulty of those entrusted with personal information of exercising reasonable judgment, and putting in the amount of effort, necessary to protect us.  Thousand, if not millions, of records are dumped online so that politicians can claim transparency, but it takes a lot of manpower, not to mention a little bit of thought, to deal with it in a way that doesn't expose our information to anyone who cares to look.

No matter how well we conduct ourselves, or teach our children, to be circumspect in our online dealings, it's not going to help without the cooperation of government clerks who mindlessly offer us up on a silver platter.  Some might view BJ Ostergren's actions in exposing government officials in the same way they expose others, but asking nicely isn't working out too well and this needs to be stopped. 

Is it harsh to expose the personal information of government officials to all the scammers, cheaters, liars and thieves online.  You bet.  When the lesson can't be taught nicely, unfortunately, harsh measures are needed.  This has got to be stopped.



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Via Bobby Frederick and Radley "Do I really look like my dog?" Balko. some fun video viewing.  Three parts.  Two intermissions. Fun stuff. 

Caveat: It's been edited and put together.  It's possible that material information is omitted. It's also possible that it portrays exactly what it claims to portray.  Since this is offered for your viewing pleasure, and as another fine excuse to munch on something while you're awaiting your bar exam results or for the phone to ring, just chill out and be thankful that no one is warped enough to ask me to appear on a Hot Blawgers Calendar.  Now enjoy.

Seriously, the theme music was really awful.

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Hemlines go up.  Hemlines go down.  Wide ties. Skinny ties. Individualized sentencing. Sentencing uniformity.  We really need a Mr. Blackwell for criminal law.

The Department of Justice has issued its annual letter on the sentencing guidelines.  You remember them, the matrix that determined sentence before the Supremes in Booker said "never mind."  So what does the DOJ have to say this year?

On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines. This significant set of criminal cases includes those sentenced by judges who regularly impose sentences outside the applicable guideline range irrespective of offense type or nature of the offender. It also includes cases involving certain offense types for which the guidelines have lost the respect of a large number of judges. These offense types include some child pornography crimes and some fraud crimes, including certain frauds involving high loss amounts.

We are concerned by this evolution of federal sentencing into two separate regimes for several reasons. First, we think it leads to unwarranted sentencing disparities. More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse will conduct the sentencing. Scholarly studies are now beginning to reinforce these reports. This is extremely problematic. In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly. This was the foundational principle of the Sentencing Reform Act of 1984. We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.

Uh oh.  Sentences have "lost their moorings."  Nautical theme alert.  That's bad, as prosecutors and judges take nautical allusions very seriously.  Not so much defendants, who rarely crewed at Choate or sailed at Seawanhaka Corinthian, but those who know a jib from a jab understand its seriousness.

Missing from this in-depth analysis, which stretches the fabric of sentencing from the government's loss valuation to the defendant's months in prison, is any mention of 18 U.S.C. §3553, the statutory sentencing factors.  Might the disparity in sentencing be a product of the consideration of factors beyond the government's beloved formulaic approach?  Might the government delve deep, deep into its soul to recognize that its loss valuation isn't the only consideration?  Nah. Besides, the government has no soul.

The letter, sent to Sentencing Commission Chair, Chief Judge Jeff Sessions, fails to set forth what exactly the government is seeking, aside from his undivided attention.  Are they saying that sentences are too low?  Too high?  Too disparate?  Does the government really have to spell it out for Judge Sessions, because he might think that DOJ wants sentences of probation available for all crimes?  You know, interest of justice and all that jazz?

Well, the New York Times apparently thinks that's indeed what the Department of Justice wants. 

Sentencing for white-collar crimes — and for child pornography offenses — “has largely lost its moorings,” according to the Justice Department, which makes a strong case that the matter should be re-examined by the United States Sentencing Commission.

As a general principle, sentences for the same federal crimes should be consistent. As the Justice Department notes in its report, a sense of arbitrariness — sentences that depend on the luck of getting a certain judge — will “breed disrespect for the federal courts,” damaging their reputation and the deterrent effect of punishment.

The Justice Department is not explicitly recommending that sentences be lowered; in fact, the new financial regulatory law suggests higher sentences in some areas. But readjusting the guidelines downward in some cases is clearly one of the possible routes the sentencing commission could take.

It's not "explicit", but somebody on the New York Times' editorial board got the nod and wink.  The DOJ says, Judge Sessions, take down that wall!  Hooray, DOJ, tacit though your recognition that the sentences imposed are draconian may be.  Huzzah!

So why am I not reading the Justice letter the same as the Times?  I never crewed, but I know how to sail.  I get the nautical allusion.  I've had dinner at Seawanhaka, wearing a blue blazer with brass buttons.  What am I missing?

Uniformity based on the formulaic measure of government imposed plea terms is beloved by those who don't want to think too hard.  That every case presents its own considerations, ranging from the facts and circumstances of the offense to the situation of the defendant, and occasionally even a challenge to the government's vision of the harm caused, would mean that people who love statistics, easy answers, superficiality and committees would be unhappy.  None of this fits easily into the paradigm, and it makes people look bad in Washington when forced to take more than 10 seconds to explain something. 

It comes as no surprise that the DOJ pushes for a return to uniformity.  It makes their life infinitely easier, and puts the power back into the government's hands.  But that the New York Times supposes that the government's secret message to the sentencing guidelines commission is to loosen up, lighten up, lower the number, is, well, suspicious. 

Does the Times know something about the DOJ that I don't?  Or maybe the Times is stumbling around like a drunken sailor, three sheets to the wind, and seeing what it wants to see.

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Sam Adams.  A beer (and a darn good one at that).  A founding father.  Almost President.  A lawyer with the balls to do his job.  Pick 'em.

Sam Adam(s) Jr., is defending Rod Blagojevich in Chicago, where the judge, James B. Zagel, is trying to micromanage his summation.  From the AP:

Judge James B. Zagel sent the jury home for the day after Blagojevich's attorney Sam Adam Jr. complained the judge was gutting his closing arguments by not allowing the defense to mention witnesses that prosecutors did not call.

Prosecutors had mentioned some of those witnesses, including convicted fundraiser Antoin "Tony" Rezko, in their closing argument, and Adam argued the defense should be able to do the same.

"Your honor, I have a man here that is fighting for his life," Adam said, turning red and raising his hands.

Zagel responded: "You will follow that order because if you don't follow that order you will be in contempt of court."

"I'm willing to go to jail on this," Adam shot back.

How many of you have the stones to say that to a judge?  After all, it's so much easier to turn to your client and say, "but you heard the judge.  He won't let me."  Certainly your client, even if it happens to be someone as universally despised as Blago, would understand and forgive you for not putting your own butt on the line.

Yet, there's a problem.  What the heck is Judge Zagel talking about?  There are certainly a bundle of rights involved here, but they all belong to Blago.  One of the premier rights is the right to present a defense.  Included in that right is the ability to point out to a jury the failure of the prosecution's proof, which includes the absence of witnesses who the government might have called to support its contentions but didn't.  The defendant's decision not to testify is a matter of right.  There is no parallel right for witnesses, and certainly no similar right for the government to keep its witnesses failure to testify from the juror's delicate ears.

The government spoke about missing witnesses, yet the defense is precluded?  Why would that be, Judge?

Zagel said he was giving Adam the night to rework his closing arguments, given his "profound misunderstanding of legal rules." He said Adam could designate another defense attorney to give the closing if he couldn't follow the rules.

A regular misunderstanding, apparently, gets you a slap in front of the jury.  A "profound misunderstanding" gets you an extra day.  Yet the judge neglects to mention what rules Adams profoundly misunderstands.  This concerns me, since I profoundly misunderstand them as well. 

The yeoman's reaction to a ruling like this is to protest, make a record, and move on.  But Sam Adam is no mere yeoman.  He knows that there will be no better chance to beat the case than here and now, before the jury.  On appeal, everything flips over and all presumptions are against him.  On appeal, the sensibilities of judge rule, while the understanding of real people are lost.  No, one doesn't give away a critical part of the defense lightly.

But how, you wonder, can Sam Adam take the risk of being held in contempt for violating the court's ruling.  Won't that interfere with his twitter use, his blogging, his social media availability?  Why yes, it most assuredly will. 

This is what it means to be a criminal defense lawyer, standing between a client and everyone else in the world.  Not that you disobey a judge's order on a whim or lark, or even when you think the court is wrong.  What it means is when your client is about to lose a fundamental right that he can never be recaptured, that is so egregiously harmful that there is no redress available, that the basic purpose of this exercise called law is about to be flushed down the toilet, you make the decision whether your personal comfort and convenience rises above your duty to your client.  The times may be rarer than rare, but there are time when you take the hit for your client. 

It's hard to say whether this is the time that Sam Adam Jr. should face Judge Zagel and say, "do what you've got to do, I'm going to defend my client."  That's his call entirely.  If he should decide to do so, given the court's ruling, it would hardly come as a shock.

But somewhere in your career as a criminal defense lawyer, you will be faced with the decision of whether to risk your freedom to do what's right.  When that happens, make the choice that Sam Adam would make.  All of them. 

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There are some very witty folks on twitter.  No, it's not quite Oscar Wilde meets high tech, but then you don't have to be that witty to make friends.  Plus, not everything Oscar Wilde had to say fit within the 140 character confines of twitter.  Yet, there are new friends to be made who, out of the blue, get a decent chuckle.

Many, however, aren't on twitter to do an Oscar Wilde imitation.  Oh, no sireebob.  They are trolling for friends with an ulterior motive.  They follow (then unfollow when you don't return the twitter love [twove?]) to gain your confidence.  They network. If you need a lawyer in Des Moines, they're your man.

It's not an evil plan.  They aren't doing it because they want to steal business they don't deserve.  They just want to let the world know they're there, available and, hey if it happens that you need them, your friend.  Manufactured experts on things that require no expertise tell lawyers that this is a great way to grow your business.  Lawyers who need business go along for the ride.  There's no barrier to entry and if you get a case out of it, you're way ahead of the game.  What's wrong with that?

In the past, the nature of referrals via twitter has been a subject of discussion here.

Contrary to my brethren who assert that cute and interesting twits are a fine basis for the construction of a referral network, I will never refer a matter to someone on the basis of their twits. I may like them very much, and enjoying twitting back and forth with them all day long, but they aren't getting a case from me based on twits alone.  I would require far, far more to have the requisite faith to entrust them with a client. 

This isn't to say that someone isn't worthy, but that worthiness can't be discerned on the basis of twits.  No matter how much I like you on twitter, it doesn't make you a good lawyer, just a good twitterer.  If someone asks for a referral to a good twitterer in Des Moines, you're my guy.  A good lawyer? Sorry, don't know anybody.

I realize that my view likely makes me an outlier.  Many, perhaps most, will fail to connect likeability in one arena to competence in another.  Some will justify it by saying, "hey, he's a really sharp guy.  I can tell by his twits."  Others just want to feed the business to someone they like.  Still others will send it out in the hope that the favor will come back to her.  Backscratching is a time honored tradition.

An outlier like me, however, can't bring myself to do it.  Not because I don't think you're smart, witty or likeable.  You may be the most likeable person in all of Des Moines.  If I'm in Des Moines and free for drinks and dinner, you would be the first person I would call.  No, really.

But referrals aren't guided by who one would prefer to hang out with.  It's all about lawyering.  And it's not about who talks a good game, but who produces.  And it's not about backscratching but trust.

Where did we go so far astray that we've forgotten the point of this exercise we call the practice of law.  Sure, the marketers inform us that people are inclined to do business with people they like, thus directing us to be more likeable, more appealing in order to gain business.  This has confused many, who fail to distinguish between what makes for good marketing as opposed to what makes for good lawyering.  Do you refer to the best marketer or the best lawyer?  Sadly, I see the former prevailing as weaker minds populate social media. 

Think Dr. Gregory House, who may be the most dislikeable character on television, but the one you want when no one else knows what's wrong.  Yes, of course it's total fiction, but it's an example to make a point.  In law, as on TV, the bottom line is the ability to get the job done, not the ability to provide comfort and solace while screwing it up. 

While it's not impossible to do both, my experience is that the lawyers who do the best work tend not to be the hand-holders and comforters.  They tend to be hardened, focused and intolerant.  They suffer foolishness poorly.  They have the killer instinct, the ability to find the weak spot and the will to exploit it unmercifully.  They have the guts to stand up to any enemy, and the smarts to know when and how to pick their battles.

These types of lawyers won't be everybody's cup of tea.  Some of them are pretty hard to get along with, difficult to like.  But when you're in the midst of battle for your life, these are the lawyers you want standing beside you. 

Chances are, you're not going to find these lawyers floating around twitter making friends.  But if you ask me for a referral, these are the lawyers I would send you to.  If you want to know who is witty and fun on twitter, that's another matter entirely.



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The below post was put on my new website: www.themlmattorney.com. It concerns a bill that’s up for debate in Tennessee. About two months ago, I approached a legislator in my legislative district to run an anti-pyramid bill designed to help clarify the differences between legitimate network marketing companies and pyramid schemes.  The bill [...]

What a powerful legacy. Martin Luther King, Jr. was a precious gem whose end came far too soon. He was truly a remarkable person that altered the course of history.

but I intend to get better and I need some help. I understand the social media tools and I appreciate their game-changing importance, but I’ve done a poor job at optimizing their effectiveness. I’m all over the place. Take this blog, for example. I dont’ make any money here, yet I’m [...]

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I’ll post my thoughts on this lawsuit in a separate post. Until then, check it out. MonaVie vs. XOWII, et al