CSI Effect As Blowback

Some cops and prosecutors are claiming that TV crime shows are helping real life murderers commit crimes and cover their tracks. If true, this would be another facet of the so-called “CSI effect,” “an expectation in every trial for the type of high-tech forensic evidence the show's investigators uncover.” Both of these developments are disturbing—especially if you're a cop or prosecutor. What's sort of funny about these “CSI effects” is that they're products of shows that are popular primarily because Americans so badly want to believe in humanity's ability to perfectly track down and punish law breakers and “evildoers.” It appears to work like this:

1. People get scared.
2. The President or the prosecutor or the police (the three P's!) reassure the scared people: “Don't worry, we're on it!”
3. The scared people see CSI and think, “Sweet! With cops and investigators and technology like that, we have nothing to fear!”
4. The scared people aren't really scared quite so much. CSI and similar shows become wildly popular.
5. A few of the not-so-scared CSI watchers commit crimes, using tricks they saw on the shows to make it harder for law enforcement to crack their case. More people get away with their crimes.
6. The rest of the not-so-scared CSI watchers sit on juries and hold the state to a higher burden of proof; therefore, more people get away with their crimes

In short, CSI is a show that makes us think we're safer, even as it makes us less safe than ever. And that's how fantasies of false security are created and maintained, and more importantly how they backfire.

Now, the real question: Is the Bush/Cheney “War on Terra” really just “CSI” for global terrorism?

Posted 06:42 AM | Comments (2) | TrackBack | crimlaw

Penciling in a murder trial

A lot of law students think they have tough class schedules and that law school is so hard and all that, but what if your calendar looked like this:

I have a murder trial starting in one week.

Holy crap. I have my first misdemeanor trial scheduled in a couple of weeks and I'm freaked out about that (a little). If it was a murder trial? I can't even imagine.

Aside from that stress, “Janet” offers some great insight into the mind of a high-stakes criminal defender:

I always convince myself that i'm going to win everytrial. I think you almost have to. If you don't believe in your case how are 12 jurors supposed to believe in your client. . . . My perspective is I represent each client as if they were a relative. I try to think how would I want my sister, mother, father, etc. treated and represented if they were in my clients shoes.

So there you go: A public defender who is basically motivated by a slightly modified Golden Rule. When put that way, the cliched “how can you defend those people?” becomes “how could you not?”

At any rate, good luck, Janet!

Posted 10:24 PM | Comments (1) | TrackBack | crimlaw

The Talk of the Crimlaw Blawgosphere

For the past week everybody in the crimlaw blawgosphere (or at least the part of it that I know) has been talking about two great examinations of criminal justice in America. The first is a three-part series called The $40 Lawyer about Charley Demosthenous, an unlikely public defender in Florida. (In that jurisdiction you have to pay a $40 application fee to get a public defender, hence the title of the series.) The second is a five-part series called Tainted Trials, Stolen Justice about the failures of the criminal justice system in Silicon Valley.

The three parts of the unlikely PD series (one, two, and three) have already received plenty of commentary elsewhere, including especially the posts and comment threads (and links to further posts and discussion) from Blonde Justice (and here) and Arbitrary and Capricious (and here). While the series is terrific reading for anyone wanting to be a PD, it is, as many have noted (and I mentioned the other day), sad to see the article perpetuate the stereotype that PD is a job of last resort for slacker law students. Nothing could be further from the truth in most jurisdictions. Take it from someone who's now looking for a PD job—these are incredibly competitive positions and there are many many people who would love to have one but can't get one b/c of that stiff competition. That said, the series also shows what a tough job it can be—often thankless, low-paid, and with an incessant and grueling workload. Even if the series is suggesting that PDs are the losers of the legal world, it can't help but give them props for their dedication and determination against big odds.

Although I haven't been able to read everything people have already said about this series, I haven't seen one reaction that struck me from the first installment, namely that Charely's colleague, Chris Chapman, sounds like a tool:

“They don't like me, do they?” [Charley] asks Chris Chapman, a 31-year-old PD in his courtroom who regards the prosecutors as friends.

“No, man, no,” Chapman says, trying to spare Charley's feelings, though he knows the state is griping.

Chapman is bald and chatty and an improbable presence, grandson of former Tampa Bay Buccaneers owner Hugh Culverhouse. He wanted to be a fighter pilot or, failing that, a prosecutor. He hates the long hours at the PD's office but wants the job on his resume. His rich-kid hobbies - horseback riding, fencing, piloting prop planes - seem alien to his cash-strapped colleagues.

Chapman thinks Charley's courtroom approach is shortsighted and self-sabotaging. Chapman tries hard not to irritate what he calls “my state attorney people.” He thinks being nice gets him better deals.

Plus, he figures he'll be in private practice soon and may be working with some of them. “I'm looking ahead,” Chapman says. “If you ask any state attorney over there about their favorite public defender, I bet they'd say me.”

Great strategy, Mr. Chapman! Way to put your own interests ahead of those of your clients! I, for one, cheered when I read in the second installment of the series that Chapman resigned from the PD's office. He claimed his bald head, white skin, and upper-class background made him an outsider in the PD's office, but just from the little the article tells us about him, I'd have to say the real reason he never “fit in” was his attitude. Perhaps that does come from his upper-class background, but I worked my first summer with a PD who had come from and still had lots of money and she was a totally kick-ass PD who delighted in pissing of the prosecutors if doing so would help her clients.

As far as the five-part Santa Clara County series, I haven't been able to read the whole thing yet, but the third installment focuses on the defense, basically concluding that inept defense counsel produces injustice time and again.

Public and private attorneys alike have offered second-rate representation. Deputy Public Defender Victoria Burton-Burke, for example, explained in court papers in one case that she hadn't attempted to learn whether any witnesses who would be testifying against her client had juvenile criminal records -- information that comes only through seeking court approval -- because she was too busy.

But the newspaper review found a telling distinction, in that private attorneys' failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial.

Defendants with language barriers and little education found themselves at the mercy of these lawyers, who pushed them to plead guilty even when it may not have been in their best interest. In 10 cases uncovered by the review, defendants buckled; in four of those cases, including Herrera's, there was significant evidence the defendants were not guilty.

Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles' Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes ``one of my biggest concerns. Unfortunately, it happens all the time,'' she added, because guilty pleas ``take a lot less work.''

In other words: When PDs fail it's because they're overworked, but when private defense attorneys fail, it's because they're greedy. That sounds about right, and it's a situation that I doubt will change any time soon because the end result is that we get more “bad people” off the streets, and that's the whole point of the criminal justice system, right?

The rest of the installment on the defense function is definitely worth reading. Defense attorneys may benefit from the reminder to be vigilant about making objections and preserving issues for appeal, while the article's indictment of the judiciary for failing to discipline ineffective counsel argues for the need for reform in that area.

UPDATE: A couple more links about this story:

• Public Defender Dude had many of the same reactions I did.
• Great comments from David Feige at Indefensible, here, here, and here. He calls the series “offensive” and “insufferable.”

Posted 11:53 AM | Comments (1) | TrackBack | crimlaw

Ain't I A Lawyer?

Ok, I'm not, but I really think I will be soon, and a public defender too, I hope, so you can understand why I find this little story so simultaneously sad and funny. If you don't laugh you might cry, right?

And you know, there's a reason people have this misperception that public defenders are not lawyers, that they're “public pretenders,” and/or that they are somehow complicit in trying to punish their clients. That reason is that prosecutors and most legislators and public figures don't like public defenders. Defending criminals is not popular with voters, its importance doesn't fit easily into soundbites, so it is always, always dissed. And so our cultural is drowning in the message that public defenders (and all other indigent criminal defense attorneys) are somehow either incompetent or ineffective, when most of the time just the opposite is true.

Stories like The $40 Lawyer (which I will post more about soon) don't exactly help, but they present the chicken/egg question: Does media coverage like that make people think less of PDs, or does the fact that people already think less of PDs simply encourage stories like The $40 Lawyer?

Posted 11:32 AM | Comments (7) | TrackBack | 3L crimlaw

Top-40 Flickr Interestingness Is Mine!

I was happy to discover late last night that my recent photo of the Washington Monument and its reflection made it into the top-40 on Flickr's “interestingness” scale yesterday. The screen capture at right is proof! If you look through those “interestingness” pages right now the photo has fallen to around 75 and will probably keep sinking, but it's just nice to see it getting so much attention.

For you non-Flickerites, “interestingness” is some amorphous measure of how many times a photo has been viewed, commented on, and made a favorite by other Flickr users. So it's both a measure of popularity and of an image's ability to spark conversation or elicit a response.

My ambivalent images project will hit its 2-year mark on March 10, 2006. I wasn't really sure how long I would continue it when it started, and there have been times when it has just seemed silly, but it has also been a fun diversion and I'm really glad to have the odd sort of record it provides of life in the last two years. I started trying to cross-post some of the “best” shots (the ones I liked or ones that other people commented on) on Flickr both to give them a wider audience and because it helps me connect w/other photographers (both casual and more professional) and gives me inspiration by giving me a chance to check out what other people are doing. The only problem with Flickr is that it's like a very deep well and once you start looking in you have to be careful you don't fall in and get lost fo hours. I just today found out about all these great Flickr Toys and I can already see I'm going to waste a lot of time playing with them sometime soon.

Anyway, once I'm finished with school it's kind of up in the air whether I'll be able to continue posting a photo every day, but we'll see. For now, I hope you see one occasionally that you enjoy!

Note: If you've ever wanted to have a screenshot of an entire webpage rather than just the bit that fits into your screen at any one time, check out Papparazzi for Mac OS X.

Posted 09:58 AM | TrackBack | life generally mac geek meta-blogging

Being Honest About Bush's Domestic Spying

Thanks to Seth Abramson of Suburban Ecstasies for both the most hilarious and possibly the most incisive little critique I've read of Bush's domestic spying program. A taste:

Thank God 50% of mainstream media journalists suffered immediate braindeath shortly after securing their present employment--otherwise Bush's domestic spying scheme would be the biggest impeachment cluster$*@% in the history of the U.S., instead of, as it now stands, a charming little Big Brother bloc party which makes the mainstream media want to squeeze and hug and kiss and pinch the dimpled cheeks of our adorable little President, who's totally super and cares about us so very very much! Yay Mr. President! Yay Mr. President! Yay! Yay!

If you're offended by vulgar language, you probably won't enjoy it the rest of the post a great deal, but that aside, I highly recommend it. And thanks to Lyco for the suggestion.

Posted 09:43 AM | TrackBack | general politics

Job Application Insanity!

Check this out: If you want to apply for a job as a public defender in Cook County, Illinois, the job description says:

All Applications must be filed in person. No Applications will be accepted by mail.

Yeah. So I called the human resources office:

me: The job description says the application has to be turned in in-person. Is that really true?

them: Yes.

me: . . . No mail?

them: That's right.

me: So, since I don't live in Cook County, could I have someone walk in the application for me?

them: Well, no. Maybe. It depends on what job you're applying for. Some jobs require identification.

me: Just to apply?

them: Yes. What job are you applying for?

me: Assistant Public Defender.

them: Yeah, that should be ok. You can have someone bring that in for you.

Wow. I just can't believe it. In person? What is the purpose of such an insane rule? Crikey.

Obviously I'm coping less than optimally with this whole job application thing. So much to complain about, so little time!

Posted 11:25 AM | Comments (15) | 3L

Georgetown Law Isn't Buying the Spying

Law students at Georgetown, including our very own Scoplaw, turned their backs on Attorney General Alberto Gonzales yesterday as Gonzales attempted to defend Bush's domestic spying program. Check out Scoplaw's account and photos of the protest to see how much it rocked. Listening to the constant barrage of talking heads trying to say this program was “legal” and/or “necessary,” and that “the American people want us to do this”—such perfidy makes me furious. Hoorah to these Georgetown law students who sent a very clear and high profile message that there are many of us who just aren't buying the spin.

Posted 10:13 AM | Comments (9) | TrackBack | general politics

Illinois Bar Ripoff

The February 2006 edition of the ABA's Student Lawyer Magazine features a directory of state bar exams. It's helpful, and it clarified something for me. Long ago I heard someone mention that Illinois law students often start their bar applications in their first year. For the life of me I couldn't figure out why. What could the application possibly require that would take three years to complete? The answer is: Nothing. It's not a question of time required to complete the application, it's a question of money: If you “register” by March 1 of your first year of law school, you're going to save $450. Awesome.

Jerks.

Oh, but Illinois doesn't stop there with its attempts to woo new lawyers to its bar: When you don't register in your first year, the fee is $700 if you register by Feb. 1 this year. If you miss that deadline, the late fee is $250 if you register by April 1. And if you miss that deadline, the late fee goes up to 750 freaking dollars if you register by May 31. After that, dude, you're outta luck.

Can you say cartel? I knew you could. My levels of resentment and animosity toward bar associations are rising.

Posted 12:08 PM | Comments (2) | TrackBack | 3L

Criminal Justice Web Imbalance

Searching for jobs I can't help but notice that no matter what city or county website I visit I can always find information about the prosecutor for that jurisdiction. The prosecutor may be called a “City Attorney” or a “County Attorney” or a “District Attorney,” but his or her office always has a website and it's always very easy to find.

On the other hand, if you want to find information about that jurisdiction's public defender or other system of indigent criminal defense, well, good freaking luck. Just another sign of Gideon's Broken Promise, I guess.

Ok, I understand that even where there's a healthy and well-funded public defender's office, most of the people who will benefit from its services are not going to go looking for its website. Yet public defenders are public servants every bit as much as prosecutors; if one needs a website, so does the other. And that's true whether the jurisdiction has an actual public defender or whether it fulfills its Constitutional obligation to provide indigent criminal defense services via some other means. In other words, it should be just as easy for a person to learn about a jurisdiction's prosecuting function as it is to learn about its defense function, yet there's virtually no information about that defense function available for most jurisdictions.

On a personal note, this stinks especially if you're trying to find a defense job somewhere other than one of the major PD markets!

Posted 09:13 AM | Comments (9) | TrackBack | 3L crimlaw

Update: Montana's Public Defender System

Montana's new, “model,” statewide public defender system is still gearing up for a July 2006 start-date. I've been following the progress through the new State Public Defender webpage where the Public Defender Commission has kindly been posting the agendas and minutes of its monthly meetings. At the December meeting, the Board discussed a state attorney general's decision that their enabling legislation allows them to retain current state and county employees, but does not require them to do so. That means they could, theoretically, be replacing some attorneys or hiring new ones for whatever reason, and that would be good for me. Still, hiring new attorneys wasn't on the agenda of their meeting yesterday so if they plan to do that I guess it will be in the future.

One other tidbit I just noticed: The last sentence of this article about the appointment last October of Randi Hood as the new Chief Public Defender says “She is married to John Connor, the chief criminal prosecutor in the attorney general’s office.” Huh? Is there really no conflict of interest there for either of them?

Posted 08:51 AM | TrackBack | Montana crimlaw

Past Blast

Looking at Bar applications means looking at your past. It's something I don't do that often, really, and wow, what a crazy trip. I've apparently lived at 19 different addresses during my life, but only 16 of those have been since I turned 18. Why does the Bar care about all my addresses since I was 18? Does anyone know?

It's a bit of a challenge to try to track down addresses like this. For example, when I spent a school year on student exchange in Tampere, Finland, I just lived in what to me was a dorm. I know I had an address, but I have no idea what it was. A little research reveals that it must have been Pellervonkatu 9 (“katu” means “street” in Finnish, but the rest I have no idea) because that's the address for Uusi Domus (new dorm). Just seeing that picture sort of makes me heartsick and it's not even a very good picture. (I have wished a thousand times that I had been doing my photo-a-day project while I was in Finland. Now that would have been cool.)

My time in Finland was more than 10 years ago now and even though that's a long time, the distance between then and now seems more like a million years and miles. If you had told me then, in 1994, that in 2006 I would be graduating from a law school in Washington, D.C. I probably would have hurt myself I would have laughed so hard. Or maybe I would have punched you for insulting the future me like that. I don't know. I certainly wouldn't have believed it. I'm not sure I do now even though that very event is supposedly just months away.

Life truly is stranger than fiction. Truly.

Posted 07:43 PM | Comments (2) | TrackBack | 3L

Public Defender Retreat?

I just learned there's a “6th Annual Public Defender Retreat” coming up in March in Las Vegas. Does anyone out there know anything about this?

UPDATE: Sanchovilla, the Public Defender Investigator, knows something about this conference. He writes:

its mainly a place for Public Defenders to earn some MCLE credits and party. Since I'm not an attorney, I don't have to worry about the credits but I will be hanging with friends, listening to some more great speakers, playing poker in the 2006 World Defender Poker Championship, and generally just taking a breather from the daily grind.

World Defender Poker Championship? Sounds very tempting, but I think I'll wait until I'm actually a defender before I try to buy in.

Posted 08:16 PM | Comments (2) | TrackBack | 3L crimlaw

Grammar Peccadillos

Reading through a group of “notes” by some of the 2Ls on my journal staff reminds me of being a grader in grad school for both my own students and the students of actual faculty. I'll save those reminiscences for another day, but they also remind me of how much little writing quirks can get to me. Here are three of them I've just seen:

1. “Lessen” is a word I wish was not a word. In almost every context you can find a better replacement to express your meaning, usually reduce or decrease. “Lessen” is just a week verb and it obviously sounds like the much more common “lesson” and hence causes confusion, at least for me.
2. “Loosing” is not a word, but many people seem to think it is. Try “losing.”
3. “Irregardless” is also not a word, but again, many people seem to think it is. “Regardless” is what they are looking for.

We all make mistakes; I'm just sayin'....

On a happier note, I've finally finished reading all of these “notes” and therefore my work for the journal is nearly done. Now there's that little matter of finding a job still hanging over my head. Ugh.

Posted 03:32 PM | Comments (5) | TrackBack | 3L

I am the Rule of Lenity

Via Divine Angst via Citations, Which Canon of Statutory Construction Are You?

You are the Rule of Lenity! You interpret ambiguities in penal statutes in favor of the accused. You're a laid-back kind of rule and concerned with not being too quick to judge. You're soft on crime. (20% of people had this result.)

Big shock there, huh? I'm not sure “soft on crime” is a fair way to put it. How about “more concerned with fairness and due process than illusions of public safety”?

Posted 02:20 PM | Comments (1) | TrackBack | crimlaw

Paine's Faith

For my birthday a few months back my sister gave me a book I've long wanted to read: Hope Dies Last by Studs Terkel. It's a book of interviews with social activists that reminds us that even when the state of the world appears to be impossibly bleak, people can still act to make a difference. In the first few pages, I find this quotation from Thomas Paine in 1791:

Freedom had been hunted round the globe; reason was considered as rebellion; and the slavery of fear had made men afraid to think. But such is the irresistible nature of truth that all it asks, and all it wants, is the liberty of appearing. . . . In such a situation, man becomes what he ought. He sees his species, not with the inhuman idea of a natural enemy, but as a kindred.

When I first read this I thought, “Amen, brother,” especially with regard to the slavery of fear. But at the same time I wondered about Paine's faith in “truth” and whether such faith is possible or wise today. I want to believe, I really do, but...

Maybe the rest of the book will convince me...

Posted 10:55 AM | Comments (2) | TrackBack | ai books

MeFi's Advice to the Unhappy Young Attorney (and a note on Blawg Wisdom)

Today on Ask MetaFilter:

I've been an attorney for 4 years now, 28 years old, bored to death and uninsprired at my current job and completely clueless about my future.

The question goes on to give more background and context, then concludes with:

This is not the work I want to be doing. I am bored to tears daily and am frustrated. I don't even know if I should continue to be an attorney but then, what else would I be doing with my life? I think I'm fairly intelligent, a hard worker and a very quick learner. I'm not interested in litigation but I am interested in the transactional aspect of the law. I think I may enjoy serving as a general counsel for a company but they say those jobs are hard to come by. I have been looking for positions in the Jacksonville area but have not come across anything yet. I guess my question is, how do I know I'm in the right field? What should be my next step? I feel like I have no direction in my life. At this point, I am completely unsatisfied with my career right now. Any advice/insight/criticism is welcome. Thanks.

Hmm. Lots of responses, although no silver bullets. I just thought some of you might find it interesting. Or not.

This would be perfect for Blawg Wisdom, but if you haven't noticed, I haven't really been keeping up with that. I apologize to the handful of you who have submitted Requests for Wisdom in the past couple of months. I'm not ignoring you, but, well... I guess the thrill has kind of gone out of the project. It hasn't become as useful or as active as I'd hoped, which might be because there's really not much of a need for the service it provides.

So what do you think? Should we put Blawg Wisdom out of its misery, just leave it as is for the sake of posterity, or attempt to hand over site management to some young whippersnapper with the time, energy, and inclination to keep it up?

Posted 10:13 PM | Comments (7) | TrackBack | advice law general

Gore's Five Starting Points and Ending the Politics of Fear

Former Vice President Al Gore's speech today in D.C. was great. Although a bit long for my tastes, it outlined well the long list of disturbing and possibly criminal activities for which the Bush administration has been responsible in recent years. Gore focused much of his fire on the domestic spying in which Bush's NSA continues to engage, and he linked to the speech to this Martin Luther King Jr. Day by reminding his audience that King was himself the victim of an extensive (and illegal) campaign of spying and attempted character assassination by the FBI.

Gore also pulled no punches toward Congress, indicting the members of both houses for their passivity and complicity in the gradual dissolving of the checks and balances set out in the Constitution. He concluded with a list of five steps that should be taken immediately to begin to stop the runaway train of executive abuse of power:

A special counsel should immediately be appointed by the Attorney General to remedy the obvious conflict of interest that prevents him from investigating what many believe are serious violations of law by the President. We have had a fresh demonstration of how an independent investigation by a special counsel with integrity can rebuild confidence in our system of justice. Patrick Fitzgerald has, by all accounts, shown neither fear nor favor in pursuing allegations that the Executive Branch has violated other laws.

Republican as well as Democratic members of Congress should support the bipartisan call of the Liberty Coalition for the appointment of a special counsel to pursue the criminal issues raised by warrantless wiretapping of Americans by the President.

Second, new whistleblower protections should immediately be established for members of the Executive Branch who report evidence of wrongdoing -- especially where it involves the abuse of Executive Branch authority in the sensitive areas of national security.

Third, both Houses of Congress should hold comprehensive-and not just superficial-hearings into these serious allegations of criminal behavior on the part of the President. And, they should follow the evidence wherever it leads.

Fourth, the extensive new powers requested by the Executive Branch in its proposal to extend and enlarge the Patriot Act should, under no circumstances be granted, unless and until there are adequate and enforceable safeguards to protect the Constitution and the rights of the American people against the kinds of abuses that have so recently been revealed.

Fifth, any telecommunications company that has provided the government with access to private information concerning the communications of Americans without a proper warrant should immediately cease and desist their complicity in this apparently illegal invasion of the privacy of American citizens.

As predicted, Gore did not call for impeachment, and although I continue to think that the NSA's domestic spying alone not only justifies but requires that admittedly extreme level of censure, if Gore's five demands were met in good faith I believe they would provide a good measure of the accountability current events demand.

In addition to his five demands, Gore made at least one more critical point about the risks and dangers that supposedly justify all the unconstitutional actions the administration has recently taken (domestic spying, torture, holding U.S. citizens and others w/out any due process, etc.):

One of the other ways the Administration has tried to control the flow of information is by consistently resorting to the language and politics of fear in order to short-circuit the debate and drive its agenda forward without regard to the evidence or the public interest. As President Eisenhower said, “Any who act as if freedom's defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.”

Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction. Justice Brandeis once wrote: “Men feared witches and burnt women.”

The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk.

Yet, in the teeth of those dangers, they insisted on establishing the Bill of Rights.

Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of missiles poised to be launched against us and annihilate our country at a moment's notice? Is America in more danger now than when we faced worldwide fascism on the march-when our fathers fought and won two World Wars simultaneously?

It is simply an insult to those who came before us and sacrificed so much on our behalf to imply that we have more to be fearful of than they. Yet they faithfully protected our freedoms and now it is up to us to do the same.

So true. And while it may also be true that the dangers posed by terrorism are different in some ways from those we have faced before, they are not so different as to justify abandoning the values, principles, and laws that have brought us more or less safely through the trials of the past. Perhaps Jonathan Alter was correct when he said that talking about impeachment at this point is just a distraction; instead, we must call upon our elected leaders to live up to their oaths of office, maintain the checks and balances of our Constitutional system, and face up to the accountability built into that system. If impeachment ends up being part of the process, so be it.

Posted 05:04 PM | Comments (3) | TrackBack | general politics

Taking Serious Abuse of Power Seriously

As I prepare to head down to the Daughters of the American Revolution (DAR) Constitution Hall for Gore's speech later today, I'm thinking about the big I-word—Impeachment—and found a few minutes of interesting reading. From a couple of weeks ago, the blog Ahistoricality pointed to some good links on the subject, including an argument that the way the Bush administration took us to war constituted a criminal conspiracy, and a good summary of the many conservative voices that brought up the possibility of impeachment fairly early after learning that the NSA has been spying on us. More recently, Jonathan Alter has asked, “What if we faced a constitutional crisis and hardly anyone noticed?” Speaking of SCOTUS nominee Samuel Alito's views of presidential power and the current crisis, Alter puts the issue concisely:

The “momentous” issue (Alito's words) is whether this president, or any other, has the right to tell Congress to shove it.

Those who are talking about impeachment obviously think the answer should be “No.” Unfortunately, though he's right about the seriousness of the current state of legislative/executive imbalance, Alter goes on to call impeachment a “pipe dream and a distraction.” So what's his suggested remedy for this horrible imbalance? He doesn't have one.

That's why people are considering impeachment more closely—what else can be done? By far my favorite recent article on the subject is entitled simply “The Impeachment of George W. Bush” by Elizabeth Holtzman:

Finally, it has started. People have begun to speak of impeaching President George W. Bush--not in hushed whispers but openly, in newspapers, on the Internet, in ordinary conversations and even in Congress. As a former member of Congress who sat on the House Judiciary Committee during the impeachment proceedings against President Richard Nixon, I believe they are right to do so.

Holtzman goes on to lay out the case, citing as grounds for impeachment:

• warrantless wiretaps,
• subverting our democracy (lying to take us to war),
• failure to take care (for failing to provide troops w/necessary armor and other gear and for failing to have any real plan for getting out of Iraq once we'd gone in), and
• torture and other abuses of power.

Gore is not expected to call for impeachment today, but that's ok. He'll be calling for accountability, and that's what impeachment will be.

Finally it has started.

Posted 08:03 AM | Comments (3) | TrackBack | general politics

A call to arms?

John Nichols writes:

It sounds as if Al Gore is about to deliver what could be not just one of the more significant speeches of his political career but an essential challenge to the embattled presidency of George W. Bush.

In a major address slated for delivery Monday in Washington, the former Vice President is expected to argue that the Bush administration has created a “Constitutional crisis” by acting without the authorization of the Congress and the courts to spy on Americans and otherwise abuse basic liberties.

I'm going to be there so I'll let you know how significant and challenging it ends up being.

Posted 12:03 PM | Comments (2) | TrackBack | general politics

Pity the downtrodden landlord

Look! It's a right-wing screed against law school legal clinics! It condemns those clinics for attempting to help those among us who have the least because, well, that's “activism” or something. Instead, it advocates these clinics teach law students to help capitalists and crime victims—those for whom the existing legal and criminal justice system already work. It all makes eminent sense, don't you think?

Thanks to JD2B for bringing this screed to my attention.

Posted 11:54 AM | Comments (4) | TrackBack | law school

A Plainspoken Public Defender

I haven't been following this case so I might not have the story straight here, but as best I can tell it goes like this: A Missouri Mississippi attorney had a contract with two counties to be their public defender. He apparently also does his own private work. He considers taking on an unpopular case. One of the counties for whom he's the PD says if he takes the case, they'll terminate his PD contract. He takes the case. The county fires him.

Awesome, don't you think? It means you have the right to an attorney but only one who only takes cases approved by the local bigshots. But don't listen to me, listen to the public defender involved:

I have been Prentiss public defender officially (salaried) since February 1995 and unofficially for several years prior. During that time not one official complaint has been communicated to me about my performance. Of course, there have been many unofficial complaints about me “getting all those guilty people off.”

What it boils down to is something that I have known and personally observed about members of the “unwashed masses” for many years: When the Constitution and Bill of Rights are applied to benefit others, the right to counsel, due process, fair trial et al. are “technicalities”. Criminals get off on technicalities such as the 4th Amendment. Only when one of their asses is in a sling are these same documents “fundamental rights”.

Ain't that the truth. The same is true for all those people who say they don't care if the NSA is spying on them b/c they have nothing to hide. If they were arrested (say, because of some “misunderstanding”), they'd quickly sing another tune.

I wish people weren't so selfishly shortsighted, but then, if wishes were fishes...

BTW, I originally learned of this story via Alaskablawg, which is an awesome blog for anyone thinking about becoming a public defender. Excellent stuff. Plus, he's a celebrity: His trial is going to be webcast next week on CourtTV!

UPDATE: This post originally said that this situation happened in Missouri. My apologies to the Missouri State Public Defender for the error.

Posted 11:09 AM | Comments (2) | TrackBack | 3L crimlaw

The Rule Of Law?

In his first day of confirmation hearings for a lifetime appointment to the U.S. Supreme Court, Judge Samuel Alito said :

“The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda,” he said. “The judge's only obligation, and it's a solemn obligation, is to the rule of law.”

Hm. No agenda, huh? The rule of law? What the heck does that mean? Take President's domestic spying, for example; is it legal? To answer the question, we have to figure out what law applies and what that law means. So is this the law that applies to Bush's domestic spying? If so, it's illegal. Or is this the law that applies? If so, it might be legal. In other words, with this and many many other issues, saying that a judge's only obligation is to the rule of law is the same as saying that a judge's only obligation is to his own values, experience, and preferences of interpretation.

A judge can't have any agenda? Poppycock. Judges are human, humans have agendas, and Alito—like Roberts before him—is more dangerous for the fact that he either doesn't recognize this or has chosen to lie about it.

Posted 08:40 AM | Comments (3) | TrackBack | law general

School? Work? What?

I just realized I had an awesome holiday vacation the last few weeks. I did almost nothing and it was awesome. Total relaxation. Sure, I talked to everyone and her brother about where I'm going to take the bar and how I'm going to find a job and the fact that I really don't have answers to those questions, so that was a bit of a drag, but otherwise I hardly thought about law school or my incredibly uncertain future at all. It was great.

Unfortunately, that's so over. The semester started yesterday and suddenly I feel buried in obligations, responsibilities, and work. Yet before it's even really begun I'm feeling a lot like DG—completely checked out already. I mean, I was worried about graduation but now that that's settled (not going), I'm done.

But no. Not done at all. I've got three “and the law” classes to take and a mountain of clinic work to do. The clinic work is cool, the classes I'm sure will be great, so what's the problem? Maybe this is what they call burnout, but I'm going to try to shake it off for one last time and see if I can make this the best semester yet. Wish me luck!

And good luck to all of you who may be starting your last or second or fourth or whatever semester of law school. There are lights at the end of this tunnel and regardless of where we are inside it, those lights get a little brighter every day.

Posted 11:25 AM | Comments (1) | TrackBack | 3L

Graduation: What's it good for?

What does graduation mean? I'm talking about the actual ceremony here. Is it important? Should I go?

My final semester of law school starts tomorrow. That's obviously a great thing— 5 down, one to go. But it also means I have to find that job, figure out where to sit for the bar, and whether to go to graduation.

Yeah, that last one might be a no-brainer for most law students. You go to school for three years, borrowing an arm and a leg for the privilege, jumping through all manner of hoops to get this Juris “Doctor” degree, so why wouldn't you go to graduation?

My answer is not very clear, but it begins with the fact that I've never really thought much of such ceremonies. They seem to be empty gestures, silly rituals devoid of meaning. Will I actually feel any different after I hear my name called or walk across a stage and receive a ceremonial piece of paper?* I don't think so.

In addition, I don't really want to be part of or support a big ceremonial event that will consist largely of my school bragging about how great it is. Although I feel I have received a fine, relatively average legal education at GW, I see it as a very average sort of law school and therefore a cog in the larger machine of legal education that is failing its students and the general public by producing classes of money-grubbing technical functionaries rather than effective advocates for true equality and justice in this country. In this light, attending graduation and joining the collective self-congratulations of the school and my fellow graduates makes me more complicit in the whole broken system. That's stupid, I know. If a graduation ceremony makes me complicit, what does three years of school make me? I'm a cog already.

So what it comes down to is I have what may be an irrational desire to, in some small way, express my disappointment in GW and the larger legal education machine of which it is a part, and I have this idea that refusing to participate in graduation will constitute such an expression. Plus, as I said, it seems like an empty gesture and a big hassle and expense for myself and my family to attend. It will cost my family upwards of $1000 to get and stay here for a few days and since they've all been to D.C. before, it just seems like a waste. I'm pretty sure they would rather use their vacation days and dollars some other way.

Finally, graduation from law school seems so anticlimactic. The hard part seems to be making it through the first year; after that, the real challenge is passing the bar and getting a good job, so graduation shrinks to little more than a door prize on the way to those main events. Why make a big deal out of such a relatively small thing?

On the other hand, I could be all wrong. Perhaps there is something about graduation that makes it more than an empty gesture. Does it play a role in people's lives like other ceremonies or rituals? For example, a funeral is not for the person who died—being dead, that person can't get anything out of it. So the funeral is for those left behind, a ritual to perform in order to assure themselves and others that the deceased was beloved by and important to them. Weddings have something of this about them as well—if two people choose to marry, they shouldn't need a ceremony to confirm their feelings; rather the ceremony confirms those feelings to those who attend.

So, again, what purpose do graduations serve? It seems possible they are a way for the graduate to thank those who have supported him/her through school. If this is true it seems you thank those you love simply by inviting them. Do you need to actually go? But perhaps there is also a value to those supporting family members in actually attending a graduation ceremony; perhaps in some small way it allows them to share in the sense of accomplishment that comes from graduating law school. Maybe even I, as a graduate, would get something out of it. Then again, maybe not.

What do you think? Have you attended the graduation ceremonies for which you were eligible? If so, why? If not, why not? Do you think I should attend mine?

* At the only graduation I attended (high school) I recall that when I walked across the stage I got a nice looking folder w/the name of my school embossed on the front. Inside I thought I would find my diploma; instead I found a piece of paper that said I would get my diploma in the mail some time in the future once final grades were calculated and they were sure I had graduated. This wasn't because there was really any doubt about my graduating; it was just the standard way the school did graduation. But like I said, that made the whole exercise seem pretty meaningless.

Posted 02:27 PM | Comments (15) | TrackBack | 3L

Congratulations Caravan4Christmas

Congratulations to Law-Rah for successfully collecting and delivering a truckload of toys to needy kids whose Christmas was dramatically changed by hurricane Katrina. The project was a big one and she and her team had to overcome many obstacles along the way, but they did it and it looks like it was a huge success!

Posted 12:50 PM | Comments (1) | TrackBack | law school life generally

Hello, Accuracy

The Accuracy Blog appears to be a new blog about law school, politics, and current events by law student Chris Laurel. In one recent post he/she decries the sorry state of legal education and proposes a relatively simple fix: more frequent testing to measure progress and more teaching assistants to help students learn. That sounds like a fine start to me, although I would still add that the 3rd year seems unnecessary, at least in its current “more of the same” form.

Anyway: Welcome to the law student blog thing, Chris!

Posted 03:12 PM | Comments (10) | TrackBack | law school meta-blogging

Domestic Spying and Criminal Appeals

I haven't found any specific news of this, but it seems possible (if not likely) that someone convicted of a terrorism-related or other crime might soon mount an appeal of that conviction by arguing that the evidence on which it was based was obtained illegally through the NSA's domestic spying program. What would a court faced with such an appeal do? And if evidence obtained through the NSA's warrantless spying was found to be inadmissible in a criminal prosecution, how would that affect the argument that Bush broke the law in ordering the spying in the first place?

On a related note, attorney Harvey Silverglate has condemned the warrantless domestic spying program, as well as Bush's lame argument that the NY Times' disclosure of the program was a threat to national security:

The NSA has been around for 54 years and has been permitted to conduct unbridled foreign surveillance for the duration; the FISA extended that reach to include Americans, albeit with a readily obtainable warrant. The terrorists would have to be pretty dumb to have learned about electronic tapping by reading last week’s New York Times. And Bush would have to be pretty dumb for thinking we’d swallow such a line.

Silverglate's argument seems accurate; as many have already pointed out, the threat to the U.S. here is not that the press has brought this domestic spying program to light, but that the program exists in the first place. But if many people are saying this, why bother to point out Silverglate's article? Because he has a very interesting attorney-at-law website, that's why. Silverglate appears to be an accomplished and respectable lawyer, but what image, exactly, is he trying to present there?

Posted 02:56 PM | Comments (1) | TrackBack |

Sue the Communications Companies!

I just heard a talking head on NPR suggest that phone companies could be liable for damages if they assisted the NSA in spying on Americans w/out warrants. The Patriot Act gives those companies immunity from suit if they cooperate w/court ordered wiretaps, but if there's no warrant, the phone company should be liable for invading your privacy.

Suing communications companies wouldn't be the same as holding public officials accountable for ordering this in the first place (impeachment is the only mechanism I see for that), but I'd love to see phone companies have to fork over serious damages for their part in this ongoing debacle. Maybe that would teach them how to say “no” the next time some “authority” asks them to do something that's illegal. Of course, how are you going to know you were spied upon so that you'll have standing to sue? Hmm...

Posted 07:49 PM | Comments (2) | TrackBack | general politics

Why Domestic Spying Matters

Rumors are flying about whether the NSA's domestic spying program was eavesdropping on CNN reporter Christian Amanpour after NBC reporter Andrea Mitchell brought up the possibility. As America Blog points out, the consequences of such spying would be devastating to the democratic process. Was Bush spying on John Kerry and other Democratic opponents throughout the 2004 elections? Will we ever know? By circumventing established law and the Constitution by admitting it has and continues to spy on Americans without their knowledge and w/out any judicial oversight, the Bush administration has lost any shred of credibilty it might have had. If Bush denies that he spied on his political opponents, how can anyone trust that it's true?

I'll spare you an extended rant, but as the Huffington Post notes, Bush's domestic spying does not involve a “tradeoff” between security and civil liberties. Existing laws give the NSA plenty of room to get secret warrants and accomplish the same thing if they think it's necessary for U.S. security purposes:

There is no “trade off” issue here. There is no amount of security that would have been “traded off” had Bush followed the law. He would have gotten all the wiretaps we needed and we'd have gotten all the security that resulted from them.

Meanwhile, it appears some Democrats are taking this seriously and are accusing Bush of breaking the law. This is a new spin on viewing this domestic spying as a criminal act, but it sounds just as persuasive—if not more so—as simply arguing that Bush violated the 4th Amendment.

Posted 04:22 PM | Comments (1) | TrackBack | general politics

Torture Poll: We Love It!

The last Ambivalent Poll asked: “If you could save a million lives by torturing one person, would you do it?” (Related post.) The final results were:

• 72% of respondents said unequivocally: “Yes.”
• 14.2% said: “impeach bush”
• 6.3% said:“The question is stupid. That's not a choice we really face.”
• 3.9% said: “I don't believe torture would save the millions lives; the information gained would not be reliable.”
• 3.1% said: “No”

Total votes: 127

I was in the minority with “No.” Shocker, eh? As L.'s brother might say, I guess I'm just a paper-pants hippie.

Posted 12:30 PM | Comments (4) | TrackBack | general politics

2006: The Year the Fourth Amendment Disappears?

Hi there. We just returned last night from our travels and we had a most excellent time relaxing and enjoying the company of family and friends. My loved ones spoiled me ridiculously so I have lots and lots of loot to wear, play with, and use in this new year, for all of which I am extremely thankful. Family and friends are the best part of life—something that's easy to forget in the day-to-day when you're far away from them. I'm very much looking forward to finishing law school and finding a job closer to the people I care about and who care about me the most.

Being immersed in all that family goodness for the last 10 days or so meant that I was largely tuned out of what was going on in the world. I tried to follow the domestic spying story but found that the Billings Gazette didn't seem to think it important enough to cover, other than to say the spying was more widespread than was originally thought. Instead I heard bits and pieces about the one-year anniversary of the tsunami, I learned that the Billings, Montana City Council seems pretty spineless, and more recently I heard repeatedly about an Iraqi child with spina bifida who has come to the U.S. for treatment. CNN Headline News seemed obsessed with that story the other day and curiously kept repeating that U.S. troops found the child during a raid on her parents' home. The message seemed to be that it's a great thing for U.S. troops to raid your home because then they can find your disabled child and maybe get her some medical help! Gee, CNN, when you put it that way, I'm thinking maybe we should all hope our homes get raided by U.S. troops! I'm sure they could find something they could help me out with.

The lesson I learned was this: If you depend on your local small-town newspaper and/or CNN for news of what's going on in the world, you're likely to get a really strange, fragmented, and incomplete picture. Oh, how I missed the internets!

And yet, now that I'm back and catching up on what matters to me most at the moment, I'm sickened to learn that just before Christmas 49% of Americans thought Bush's domestic spying was Constitutional and 50% thought it made the country safer. All I can say is that these people do not know their history. When the President starts spying on any American he wants and does so in secret and without any oversight, that can never make anyone safer and if it's only Constitutional if the Fourth Amendment is meaningless. But what's worse is the brazen way Bush continues to claim what he's done (and apparently is continuing to do!) is legal and necessary. Not only that, but he's trying to shift the focus from his own impeachable offenses:

The fact that somebody leaked this program causes great harm to the United States.

No, Mr. President, Whoever “leaked” this to the press is a hero. the fact that you are unilaterally spying on Americans without their knowledge or consent and without any judicial oversight in contravention of the Fourth Amendment is what is causing great harm to the United States.

Oh yeah, Happy New Year!

*sigh*

p.s.: Thanks to Marshall for making my point better than I did in arguing that whether the domestic spying is legal is not the point in terms of this being an impeachable offense. Marshall writes in the comments to that post:

Strictly sepaking, impeachment isn't a criminal remedy. It's way for democratically elected representatives to redress wrongdoing. In the impeachment context, “wrong” is not limited to simply criminal acts. Incompetence or malfeasance or a gross offense against those who elected you will do. I'd say this president has been guilty of all three at various times.

I could not agree more.

Posted 12:22 PM | Comments (2) | TrackBack | general politics life generally