Blawg Review #199

 Posted on February 15, 2009 in Uncategorized

This Week, in 2009 and in History

February 9th was the 100th anniversary of the federal "war on drugs", writes WindyPundit in 100 Years of FAIL. This week South Carolina cops did their part to expose the WOD for a pathetic farce. Radley Balkoff (The Agitator) writes in The Michael Phelps Witch Hunt Gets Surreal:

Richland County, South Carolina Sheriff's Department went out and arrested eight people on marijuana charges allegedly associated with the now-famous bong photo of Olympic swimmer Michael Phelps.

Houston prosecutor "Arthur Seaton" (Saturday Night and Monday Morning) never one to mince words, says of this, "Goddammit This is Stupid."

Part of the WOD has been an explosion in government's asset-forfeiture powers. Scott Henson (Grits for Breakfast) doubts that anyone involved in the asset forfeiture scandal in Tenaha TX will be disciplined for this roadside piracy under color of law; he suggests that removing the profit motive in forfeiture actions would go some way toward preventing the situation from recurring elsewhere.

Another side of the WOD is mass incarceration and felonization of working-age Americans. It's hard for a convicted felon to get work; Gideon (A Public Defender) cheers the City of New Haven, Conneticut's decision to remove the requirement that job applicants indicate whether they are convicted felons: "What this does is gives ex-felons a fighting chance at reintegration."

The WOD is also largely responsible for the crushing burden on the criminal justice system, chronicled by Gideon (Public Defender Stuff) in Budget Cuts Would Put System in Jeopardy, and - through overincarceration - on society in general, as observed by Fresno criminal-defense lawyer Rick Horowitz (Probable Cause) in Are Americans Just Mean and Stupid? Robert Guest (Dallas Criminal Defense Lawyer Blog) says it's time for the Dallas Morning News to abandon its drug war apologetics.

Charles Dickens's birthday was last week, but the news of profit-motivated "justice" that Bobby Frederick (South Carolina Criminal Defense Blog) brought us this week has a Dickensian aspect: Pennsylvania judges to plead guilty today to charges of jailing kids for cash. Volokh names the crooked judges (Mark A. Ciavarella Jr. and Michael T. Conahan) "to insure that their names do not disappear from the List of the Wicked" and Waco criminal-defense lawyer Walter Reaves uses that case to ask What to Do When the System Breaks Down?

No amount of money can compensate those children who shouldn't have been sent to detention. Society is probably going to have to bear the costs for some; no doubt there are some who will be lead down the wrong path because of what happened. Kids are especially prone to becoming what people think of them. If society thinks they are a failure, the tendency is to become one.

On February 10th, 1763, France and England signed the Treaty of Paris, which ended the French and Indian War and gave Canada to England. English IP barrister Geeklawyer is visiting Canada this week; he writes about Canada's vaunted mildness in Polite Canadians, eh?

Lon Chaney, Jr. was born on February 10th, 1906. Chaney was famous for his portrayals of movie monsters, among them the son of Dracula. Ken (Popehat) tells us about a Minnesota Politician in the movie-monster spirit. Jonathon Sharkey, founder of the Vampires, Witches, and Pagans Party (campaign slogan: "Impale George Bush"), is in trouble for allegedly stalking a 16-year-old girl:

She told police that "in a desperate attempt" to get him to leave her alone, she had e-mailed him that she was a member of an elite vampire hunter society and that continuing their relationship would put him in danger. Her father told police he talked to Sharkey, but Sharkey continued to call the girl and write letters to her parents.

In TBI Complication No. 763, Broken Brain – Brilliant Mind (not a blawg, but regular readers know that I am a master of the disparate, and extremely interested in traumatic brain injury (TBI) to boot), teaches us that one effect of TBI is defenselessness to energy-sucking "vampires."

Doug Berman (Sentencing Law and Policy) tells us of the Seventh Circuit's reversal of a sentence based in part on the trial judge's belief (powered by vampiric telepathy?) of what the defendant would have done had he been on bond:

The Seventh Circuit in England finds error in a district court's decision to increase a defendant's sentence significantly based on the "court's belief that the defendant would have committed the crime" of attempted murder if given the opportunity to be free on bond.... [B]y my reading, if the prosecution can come forward with more evidence to support the claim that the defendant here would have committed attempted murder, the Seventh Circuit would be fine with the sentence imposed.

Berman refers in the post to the movie Minority Report; such allusions are an excellent way to relate the dry stuff of appellate opinions to actual experience. R.J. MacReady (Texas Court of Criminal Appeals Blog) looks at a Roberts dissent à la mode Spillane and wonders, in When Judges Get Spirit Fingers, whether judges should be more creative in their opinion writing:

By being more creative, the ideas are communicated more effectively. A well-turned phrase can resonate with the reader. It may help him or her understand a particular issue on multiple levels and make the resolution easier to remember.....[But] at the numerous seminars where judges sit on panels to tell me what they are looking for I've never once heard anything like: "Please be more hip. If you get a chance, pattern your statement of facts after a Mike Hammer story. The books, not the Armand Assante movie or the Stacey Keach TV show. And if you can work in a Bob Dylan quote we'll give you a free T-shirt from our court's gift shop. Shouldn't be that hard, they did it in Battlestar Galactica." If that type of thing damages a lawyer's credibility, doesn't it do twice the damage to the judges?

In a separate discussion, Berman and Jamie Spencer (Austin Criminal Defense Lawyer) consider why defense wins in sentencing appeals go unpublished so frequently. Berman wonders if it's a conspiracy, while Jamie is more blunt: "the appeals courts are full of a bunch of lilly-livered chickenshits."

On February 10th, 2009, the blawgosphere began to respond to Nordstrom's bullying of a small business over the trademark "Beckons." Marc Randazza (Legal Satyricon) gave us a heads-up, Seattle trademark lawyer Michael Atkins covered the story in InformationWeek Blog Slams Nordstrom for Alleged TTAB Conduct, and WindyPundit, Scott Greenfield, and Brian Tannebaum (among others) wrote about Nordstrom's bullying. Then Nordstrom wrote a lying non-apology to InformationWeek, and Greenfield called them on it. Nordstrom would do well to heed Bill Marler's (MarlerBlog) advice to Peanut Corporation of America: Sometimes it is Better to Say "I'm Sorry": "Sometimes it is better to get ahead of a train that is about to hit you."

February 11th, 1847, was the birthday of Thomas Edison, who held 1,093 patents; J. Douglas Miller (Small Business IP Protection and Management) this week answers the question, "How do I get a patent?" and Brett Trout (BlawgIT) honors Edison's birthday and Black History Month (which Marcia L. McCormick at PrawfsBlawg thinks might be counterproductive) at the same time by listing his Top 10 African American Inventors, including Lewis Latimer, who invented the carbon filament that made the light bulb practical. Austin criminal-defense lawyer Jamie Spencer honors his dad, a math and science teacher and Edison-like "mad scientist" with What Your Parents Did (or Do). In a related vein, Houston DUI lawyer Paul Kennedy wrote with an appropriate degree of pride about his -year-old daughter's description of Paul's job in The Defense Rests: Out of the mouths of babes:

Some of the kids said their dads worked in an office, worked on the computer or worked for money. When the teacher asked my daughter what I did, my daughter told her that I was an attorney who helped get people out of jail.

Among other things, Thomas Edison invented the light bulb. This week we learned from Virginia prosecutor Ken Lammers (CrimLaw) that Virginia keeps its jurors in the dark: "lawyers in Virginia aren't supposed to tell the jury the law we're applying the facts to in the voir dire or opening statements." Ken's solution: give jurors a jury charge at the beginning of trial.

Inventors have given us myriad high-tech ways to communicate. Dan Hull (What About Paris) would like us to use fewer of them:

What happened to voices, vibes, faces, bodies, winks, hand gestures, touching another's hand or shoulder impulsively, stares, grins, frowns, hand-written thank you notes, human electricity, NOT-typing, non-virtual joking, yelling, ragging and flirting, occasional confrontation, intimacy and the "god-in-the-room" magic that starts with two breathing humans in one 3-D place? Or at least on the phone?

Patrick (Popehat), in Thoughts On Receiving An Email Attachment, Sent To Me In Error, describes a mistake that certainly wouldn't have been made had the sender been communicating in a less virtual medium:

A couple of points: You described Plaintiff Jones, based on her deposition appearance, in rather disrespectful terms. While, like you, I am not too impressed with Jones, I would tone that down in future reports. You never know who might read what you write, and there are more artful ways to describe a witness's appearance than "dirty". I would suggest "unkempt". Also, I disagree with your assessment of the value of this case, and the attitudes of jurors in Upscale County, but if your client wishes to pay more to settle this case than does mine, I am not unhappy to hear it.

On Thursday, February 12, 2009, less than a tenth of a percent of U.S. lawyers were laid off. With their gift for self-important histrionics lawyers naturally labeled this "Black Thursday;" non-lawyers would probably label it "a good start." Nobody seems to think the purges are over. Jordan Furlong (Law21) thinks that "What we're looking at here is the real possibility that the law firm associate, in its current form, will not survive this crisis," and Bruce MacEwen (Adam Smith, Esq.) suggests a few ways for firms to cull their ranks more intelligently.

New York criminal-defense lawyer Scott Greenfield (Simple Justice) tells the criminal defense bar What Black Thursday Will Mean Come Monday (hint: some of BigLaw's inferior-or-surplus lawyers will be trying to make an honest living). Miami criminal-defense lawyer Brian Tannebaum has some free advice for former BigLaw now criminal-defense lawyers.

[8] Understand that you have spent years doing nothing of any importance. What you are doing now, is important. Do not take cases that are over your head. It takes about 4 words for the criminal defense bar, prosecutors, and judges to know that you are a fish out of water. So before you go into court and demand a hearing that everyone else waives and has waived for 30 years, talk to someone.

The culled lawyers aspiring to criminal lawyerness, many of whom will never have been in a courthouse for anything more than the kabuki of a civil trial, would do well also to read Scott Greenfield's Lawyer to Geeks: YANAL.

My experience is that YANALs view the law as a series of hypertechnicalities, anyone of which will trip up the cops and prosecution. They harbor a bizarre belief that the nice words appearing regularly in court decisions actually mean something, rather than present black letter law which is then torn to shreds by the thousand exception and the functional refusal to apply it in the trenches. How does one explain to a binary thinker that a judge waves his arm and the law mysteriously disappears? "They can't do that!" Oh yes. They can. They do. Every single day. Welcome to the real world.

One thing the culled lawyers may now do is represent college athletes in Ohio because, as Mark at SportsBizBlog tells us, an Ohio judge has struck down the NCAA's ban on such representation.

(Is it too much to hope that the BigLaw cull will lead to the demise of the Bluebook, which Mark Randazza (The Legal Satyricon) epigrammatically describes as "the only book in existence that actually makes the world a shittier place"?)

February 12, 1809, was Abraham Lincoln's birthday, and today is President's Day. Virginia prosecutor Tom McKenna (Seeking Justice) in President's Day Thoughts laments Abraham Lincoln's role in winning the War of the Northern Aggression and laying the foundation for the Fourteenth Amendment, which makes the Bill of Rights enforceable against state governments. The States, it seems, ought to be able to make laws restricting human freedom without interference from that nassstty Bill of Rightsssessss. (Orthogonally: Jefferson Davis was elected President of the Confederacy on February 9th, 1861.)

One of the Constitutional Amendments that the States have to honor because of the Fourteenth Amendment is the First. They don't have to worry so much about free speech in Germany, where, Birgit Clark (IPKat) reports, the German government cracked down on reproductions of actual Nazi newspapers that were printed not to promote Nazi philosophies but for historical research, nor in Britain, where, Ken at Popehat relates, a high-ranking diplomat has been charged with "inciting religious hatred" for a loutish outburst at the gym.

Also on February 12, 2009 a commuter plane crashed in Buffalo New York, killing all 49 aboard and one person on the ground (and it was the layoff of 800-some pampered BigLaw associates that made the day "black"; lawyers are some kind of asshats!). Miami criminal-defense lawyer Brian Tannebaum (My Law License) writes in A Plane Crashes, A Law Student Dies:

The timing of this plane crash makes some things obvious. It was a late Thursday night flight from Newark to Buffalo. What's obvious is that most people were going home. Home for the long weekend. Going home like this Florida law student. It was a short flight, meaning some probably didn't call their family to tell them they loved them, or call them about anything. A quick flight, skip and a jump, no big deal.Now they're all dead.

Following the crash, New York personal injury lawyer Eric "Turk" Turkewitz monitored lawyers who were using the internet to solicit cases arising from the crash, and wrote two posts about his observations: Buffalo Plane Crash WILL Test New York's New Anti-Solicitation Rules (Updated x2) and New York Personal Injury Law Blog: Buffalo Plane Crash Ad Taken Down:

Attorney advertising and ethics are deeply entwined. And so, when the advertising is outsourced, then the ethics get outsourced with it.

Speaking of outsourced legal ethics, one thing that I love is to mess with internet legal marketers. Knowing this, some kind soul submitted for my Blawg Review consideration this crassly self-aggrandizing post on a crass advertising blog (I have edited away any possible SEO value): Michgan Trock Acsident Atturney is the Authority for Trock Acsident Victims | Michgan Auto Law Blog. I enjoyed the account by Stingray at Atomic Nerds gives an amusing account of how he dealt with the telephone equivalent of the blawg marketer. Oh, and by the way Grant Griffiths wants to teach you to blog for profit for profit (that is not a typo); he has manufactured a scarcity of 250 "members." I wish he had set the number considerably lower, like zero - I don't believe the world needs another 250 Michgan Trock Acsident-type atturneys who are "blogging for profit"; I'm afraid the sudden increase in people treating blogs as blatant marketing tools may be too much for Scott Greenfield's aging heart. They should, however, be good for at least a little entertainment value.

February 12th, 1809 was Charles Darwin's birthday as well. Howard M. Friedman (Religion Clause) informs us that the 14th and 15th were "Evolution Weekend" in houses of worship. "Over a thousand congregations from all 50 states and 15 foreign countries [were] slated to take part." Securing Innovation blog marks the anniversary with "some interesting information about patents and the Human Genome Project". Brownsville, Texas lawyer Ed Stapleton (Aim Low and You'll Never Be Disappointed) writes, Happy Birthday Mr. Darwin, and David Giacalone (f/k/a) notes a link between Lincoln and Darwin in their influence on language, while Winning Trial Advocacy Techniques Blog writes this week about visual distraction and... apes in business suits:

Just once in my life I want to dress a chimpanzee in a business suit, bring him to court, and seat him next to me at counsel table for the entire trial. (If I can train him to hold a sign that says "Tell Us What Happened Next," he could even perform a direct examination or two.)

On February 13th, 1935, Bruno Hauptmann was convicted of murdering Charles and Anne Lindbergh's baby boy. Would Hauptmann have been better served by a board-certified criminal-defense lawyer, if such a thing existed then? Ft. Worth criminal-defense lawyer Shawn Matlock (the Matlock Blog) discusses the benefits of becoming board certified in Texas.

Norm Pattis had a client this week who was unjustly accused and then acquitted, but Norm, and criminal-defense lawyers everywhere, know how it feels to have clients unjustly convicted. Doubtslinger says, "kiss my ass, you twelve rocks in a box;" Gideon (A Public Defender) says that Some days are agonizing, and Ambimb (Public Defender Stuff) responds, "Come on Sancho Panza! We have clients to defend."

One guy who got really badly screwed by the criminal "justice" system was Ricardo Rachell, who spent six years in prison for a rape he didn't commit because none of the three prosecutors assigned to his case or his defense lawyer could be bothered to ask for a DNA test. Rage Judicata focuses his rage on the prosecutors and the Houston Police Department. Even less lucky than Rachell was Timothy Cole, who spent 14 years in prison, where he died of asthma, for a rape he didn't commit. Walter Reaves (Waco Criminal Law Blog) discusses his thoughts on the case and the dangers of misidentification.

Blonde Justice helps us prepare to tilt at our windmills with her series on how to prepare for trial; her Step Four discusses the logistics of getting ready for trial. Maryland criminal-defense lawyer Jon Katz (Underdog), taking a more philosophical tack, writes about Trials and the art of bloodless war, collecting some thoughts on the Art of War and trial:

I have found no book-length discussion of Sun Tzu as his teachings apply to criminal defense practice, but have found some of the below-addressed shorter discussions related to criminal defense practice. Today's blog entry brings together some of my observations about Sun Tzu and criminal defense, and links to others' related discussions.

Also in the philosophic vein, Stephanie West Allen (idealawg) announces a mindfulness meditation retreat for lawyers in California in April.

February 13th this year was a Friday, a combination dreaded by triskaidekaphobes, but in my stomping grounds, the Harris County Criminal Courthouse, the 10th was unlucky for Judge Ellis of the 351st. He discovered after the jury came back with a guilty verdict that 13 of 12 jurors had deliberated.

February 14th is, of course, Valentine's day. In observance, Anne Reed (Deliberations) collects juror-fall-in-love stories in ugly cases, and concludes: "If jurors' minds could wander from the evidence in these trials, we can safely conclude that they wander in every trial. Jurors walk into the courtroom with complicated thoughts, from complicated lives, and they don't and can't set all that aside just because you're talking." These jurors might find some words of advice Dr. Fiona Travis's (Lawyer Avenue) post, Marry a Lawyer? Proceed with Caution.

In other love-related news, Matthew I. Fraidin (Family Law Prof Blog) informs us that two women who bore children fathered by the same man (step-babymommas?) have an "intimate relationship" for purposes of the New York State Family Court Act. And, speaking of unconventional loves, Cognitive Daily (again, not a blawg, but you need to be reading Cognitive Daily if your job has anything to do with convincing strangers to do things) writes about Selection bias and homosexuality:

A couple hours ago I posted a quick poll, in what might be construed as an unbiased fashion. I simply asked respondents for their sexual orientation, offering a wide array of choices ranging from "straight" to "mostly gay" to "gay" to "other."In fact, my poll was biased - not because the question itself was slanted, but because of the way respondents were recruited: I titled the post "Are you homosexual?" Potential respondents who are homosexual or who don't have traditional sexual preferences are more likely to be interested in the question, and therefore more likely to respond.

The lesson for trial lawyers is that the way we ask our questions affects not only the answers we get, but also whether we get answers at all.

I love to read. When I was a child I loved to read. So Walter Olson's (Overlawyered) reports on the CPSIA's effect on pre-1985 children's books were heartbreaking to me.

Merging intellectual property law and love - One Love - for Valentine's Day, Dallas IP lawyer Tamera Bennett (Current Trends in Copyright, Trademark, and Entertainment Law) tells us that

Bob Marley's estate inked a merchandising agreement with private equity group Hilco Consumer Capital for the rights to license not only the reggae singer's name & likeness, but also other branded products under the Tuff Gong, One Love, Three Little Birds, Catch A Fire and Relics of Antiquity names.

Marc Randazza (Legal Satyricon) follows up on his Valentine's Day 2008 post about the film "2 Girls, 1 Cup" by revisiting that scat film and asking the question, Should Anything Be Held Legally Obscene? Apropos of coprophagia, William Mitchell College of Law student Emily Babcock (Food Law Prof Blog) warns us of Mercury in High Fructose Corn Syrup.

On February 15th, 1820, Susan B. Anthony was born. On the same date in 1879, President Hayes signed a bill allowing women to argue cases before the Supreme Court. In 2009 Ms. JD has a weekly roundup of articles on the theme of women in law, and Ann Bartow (Feminist Law Professors) gives us an account of two aspiring lawyers' treatment online that reminds us that we're a long way from treating women as fairly as they deserve. As Nebraska criminal-defense lawyer David Tarrell (In The Moment) reminds us in The Packing Staple, how we treat people can reverberate in ways hard to imagine.

February 15th is also Canada's Flag Day. Canadian Law Blog Law is Cool reminds us with a cartoon that It's Not Easy being a Felon on Valentine's Day.

Galileo Galilei was born on February 15, 1564. He gave us a whole new way of looking at the universe. Orlando / Tampa tax lawyer Peter Pappas (the Tax Lawyer's Blog) gives us a whole new way of looking at one little part of that universe by telling us that we have rights as taxpayers (who knew?) and what to do when the IRS screws up.

Finally, Galileo gave us a better understanding of outer space; The Underblawg dreams of Alpine, Texas, and space of a different sort:

I mean, I'll tell you (and this is not the sort of thing that I'd normally tell because it's crazy and stupid and, though I'm both, I like to hide it), but I've got this dream and in this dream, there's space. A lot of it. Real space, and not one human thing around me that's not mine. I can't see the neighbors and they can't see me.

That's my Blawg Review, and I'm sticking to it.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

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