14 days.
Yes, you heard it first here folks, constitutional rights have a shelf life of 14 days.
So sayeth the Nine Great Legal Minds in Washington.
BUT WAIT, there's more! We now have two different kinds of custody. There's custody custody and there's Miranda custody. But custody custody might be Miranda custody if the custody custody is pretrial custody custody rather than post conviction custody custody.
It's all in Maryland v. Shatzer, handed down from the Mount last Wednesday. I'm not going to quote from the case because it engages in childish tit-for-tat with the concurrence and feeds us this gigantic imaginary straw man in order to justify itself. So, I'll just summarize the decision as my meager intellect is able to parse it.
Suspect was in a prison, serving a sentence, when an officer came to question him about an unrelated crime. Suspect asserted his right to an attorney and police officer left. Two and a half years later another police officer, prompted by some new evidence, spoke to Suspect, who was still in prison. Suspect waived his Miranda rights and made inculpatory statements leading to a new conviction. He tried to assert that his demand for an attorney to the first officer was still in effect because they'd both questioned him about the same crime and he'd never been out of custody in between.
The Supreme Court picks a totally arbitrary number out of thin air and decides that if a suspect has asserted his right to an attorney that the assertion only lasts for 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Then, if the suspect says no, the officers must wait 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Repeat ad infinitum.
As to suspect being in custody the entire time, the Court decided that he wasn't really in Miranda custody because the officers questioning him had nothing to do with the conditions under which the suspect lived his everyday life. The officers only controlled his life for that period of time they called him into a room to question him.
A part of the opinion talks about how the prior decisions in this area had all been related to pretrial custody. There's an implication that pretrial custody is Miranda custody because the matter has not been decided yet and a discussion with an officer could impact the ongoing case. However, all the cases cited seem to fall within the 14 day ban. Therefore, I'm not sure that pretrial custody is Miranda custody. I'm going to go out on a limb here and say we're going to see further litigation on this point.
MY ANALYSIS:
Let the games commence!
Actually, I'm in general agreement with the Court here. There is going to be some point where an original assertion of the right to an attorney no longer applies. For instance, if a suspect asserts his right while being questioned about a mugging, it shouldn't keep the police from questioning him about a totally unrelated murder a week later. On the same charge, I'm a little more leery than the Court. Every 14 days is just setting us up for years of further litigation. Nobody's going to go back every 14 days over a shoplifting, but in important cases that doorbell's going to be rung every 14 days like clockwork. The primary, but unprovable, suspect had best set aside the day every two weeks that officers are going to show up wherever he is. The next fight is going to be over whether 5 straight assertions of the right are enough to make it permanent, or 10, or 25, or . . . ?
If the Court had set this at a year or 6 months it would feel more like a right defended. As it is, it feels like a right begrudged.
And, yes, before anyone asks me, I will tell the officers in my County about the new rule. The courts and legislatures set the rules. We attorneys read and interpret the rules. Police have to live by them. I do my best to let them know what the rules are (even when the line keeps shifting).
24 February 2010
23 February 2010
22 February 2010
Virginia Government Furloughs:
Mandatory Unpaid Vacation
Please, Gentlemen and Ladies of the General Assembly and Mr. Governor, if you are going to cut my pay, just cut my pay. You can give me extra vacation - you can even mandate it if you want. However, a slight cut every two weeks beats a forced furlough wherein I have a significant portion of my salary for that month disappeared and have to figure out how to pay my rent, gas, food, etc. with a weeks' pay missing.
I understand that packaging it as a furlough allows you to keep everyone's salary up and may actually be better for me in the longer term. Therefore, I suggest a reduction in salaries with a two year sunset provision and any bonuses or raises linked to what salary will be after the sunset law has passed.
I'm not really against your proposal. I hope it saves jobs. I just would like to see it implemented in a better form.
I understand that packaging it as a furlough allows you to keep everyone's salary up and may actually be better for me in the longer term. Therefore, I suggest a reduction in salaries with a two year sunset provision and any bonuses or raises linked to what salary will be after the sunset law has passed.
I'm not really against your proposal. I hope it saves jobs. I just would like to see it implemented in a better form.
In the News
1) Tennessee "lawmakers are considering reining in cities' use of traffic cameras, contending local officials and companies are more interested in making money off motorists' fines than promoting safety." NO! Say it ain't so! (Virginia experimented with these and decided that they cause more wrecks than they stop and did not allow them) However, there are dire warnings from the Tennessee attorney general that if the changes aren't "reasonable" the localities will violate the contracts they've made with private companies abdicating the localities' duty to enforce traffic laws. (and with that comment I guess I shan't travel to Tennessee any time soon)
2) One dead husband buried without a head. One dead husband dumped in a well. I think I'm seeing a pattern here.
3) The Boomers and their vices: marijuana use rising as they get older.
4) Even a two year old racist poem gets you federal attention if the subject is the President.
5) In Virginia we stop evaluating judges if it might become public, in Kentucky . . .
2) One dead husband buried without a head. One dead husband dumped in a well. I think I'm seeing a pattern here.
3) The Boomers and their vices: marijuana use rising as they get older.
4) Even a two year old racist poem gets you federal attention if the subject is the President.
5) In Virginia we stop evaluating judges if it might become public, in Kentucky . . .
19 February 2010
The Castle Doctrine and Virginia
There are some basic rules that all lawyers learn in law school. First, there is a duty to retreat when faced with danger. Second, if the danger finds you in your house there is no duty to retreat, because the presumption is that you've retreated as far as any person should have to. Thus, the castle doctrine (a man's home is his castle) allows defense of habitation as an extension of defense of self. Of course every State has its own variations on these rules and Virginia looks like it's about to add some new wrinkles to its version.
History:
Virginia's common law has developed two types self defense which are in some ways broader and in other ways narrower than the castle doctrine. In "justifiable" self defense, a person is allowed to stand his ground anywhere, so long as he did not in any way provoke the aggression, and defend himself. In "excusable" self defense a person is somewhat at fault for the aggression and in this case he is required to retreat as far as safely possible before he can legally defend himself.1 This is further limited in that a person can only use "reasonable" force when attacked.2 Generally, this means that if the aggressor is using fists the defender can only use fists. It also means that there must be a threat to a person, not just property.
On top of all this is another line of cases which allow a landowner to order those illegally on his property to leave and if the trespasser does not leave to use "proper" force to expel the intruder from his land. However, this is limited in that the landowner is subject to a "breach of the peace in the outset" test. If there is such a breach the landowner may not continue to use force to expel the intruder. One case seems to say that this allows a property owner, who has given a prior warning to a trespasser on his chattels or realty, to threaten deadly force, but perhaps not to actually use it.3
General Assembly:
The Virginia House of Delegates has passed a bill which would enact a form of the Castle Doctrine over top of all this. It hasn't been considered by the Senate yet and who knows if it will pass and be signed into law and in what form it would finally appear. However, we do have the new statute as it would be if the bill was enacted in its current form:
This maintains the necessity of a threat against a person. There must be an overt act which makes the defender "reasonably believe" that a person is in "imminent danger of bodily injury." In this it might actually be more restrictive than normal justification self defense. Generally, in Virginia a person who attacks another with his hands is not presumed to mean to cause "injury"; instead, he is just imputed the intent to commit "harm." Of course, these are terms of art in Virginia law. Injury meaning serious internal physical damage (it's a "wound" if the skin is broken - see the post here). "Harm" doesn't seem to have been given a specific definition (at least not in cases I remember), but it has developed into a catch-all which could probably be defined as "pain, minor abrasions, and bruising."
The use of the term "injury" is a bit of untidy drafting; it really should say "wound or injury" to keep the courts from having to jump through interpretational hoops and avoid potentially confusing variant interpretations of terms of art as applied to different statutes.
Nevertheless, I doff my cap to the Delegates for drawing the line where they did. As written, the statute avoids the fairly common scenario of two Yahoos fighting in the front yard and the fight ranging into the residence. Since use of fists does not infer an intent toward bodily injury, the resident cannot legally shoot the other pugilist just because the fistfight crossed a doorway.
Level of Force Allowed:
What this statute clearly does is remove any restrictions that a "reasonable force" requirement might place upon a defender, once the requisite level of threat is reached. However, I'm not sure if this really accomplishes as much as it seems to. Anyone carrying a weapon which could cause bodily wound or injury would generally be presumed to be offering deadly force and therefore could be opposed with the same amount of force. As discussed above, an unarmed intruder wouldn't generally fall under this statute, because of the presumption that he is offering "harm", not "wound or injury." A physical attack can cross the line, but in that case the defender can already defend himself with deadly force under current law.
What This Statute Won't Do:
This statute is limited to the defense of people. It does not allow the use of deadly force in protection of property.
Additions Needed:
1) The language needs to be changed to say "bodily wound or injury."
2) I would like to see language put into it setting up certain presumptions:
a) "The victim of a rape is presumed to have a reasonable belief of danger to
life, even if the assailant is unarmed."
b) "If an intruder breaks into a dwelling after dark, the resident is presumed
to have a reasonable belief of imminent bodily wound or injury and may act
upon this belief without acting to verify or dispel it."
---------------
1 See Foote v. Commonwealth, SEP90, VaApp No. 0484-89-3.
2 See Diffendal v. Commonwealth, JUL89, VaApp No. 1224-87-3.
3 Alexander v. Commonwealth, JAN99, VaApp No. 2136-97-3.
Hat-tip to the Office's blog.
.
History:
Virginia's common law has developed two types self defense which are in some ways broader and in other ways narrower than the castle doctrine. In "justifiable" self defense, a person is allowed to stand his ground anywhere, so long as he did not in any way provoke the aggression, and defend himself. In "excusable" self defense a person is somewhat at fault for the aggression and in this case he is required to retreat as far as safely possible before he can legally defend himself.1 This is further limited in that a person can only use "reasonable" force when attacked.2 Generally, this means that if the aggressor is using fists the defender can only use fists. It also means that there must be a threat to a person, not just property.
On top of all this is another line of cases which allow a landowner to order those illegally on his property to leave and if the trespasser does not leave to use "proper" force to expel the intruder from his land. However, this is limited in that the landowner is subject to a "breach of the peace in the outset" test. If there is such a breach the landowner may not continue to use force to expel the intruder. One case seems to say that this allows a property owner, who has given a prior warning to a trespasser on his chattels or realty, to threaten deadly force, but perhaps not to actually use it.3
General Assembly:
The Virginia House of Delegates has passed a bill which would enact a form of the Castle Doctrine over top of all this. It hasn't been considered by the Senate yet and who knows if it will pass and be signed into law and in what form it would finally appear. However, we do have the new statute as it would be if the bill was enacted in its current form:
§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense.Threat Level Required:
Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.
Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.
This maintains the necessity of a threat against a person. There must be an overt act which makes the defender "reasonably believe" that a person is in "imminent danger of bodily injury." In this it might actually be more restrictive than normal justification self defense. Generally, in Virginia a person who attacks another with his hands is not presumed to mean to cause "injury"; instead, he is just imputed the intent to commit "harm." Of course, these are terms of art in Virginia law. Injury meaning serious internal physical damage (it's a "wound" if the skin is broken - see the post here). "Harm" doesn't seem to have been given a specific definition (at least not in cases I remember), but it has developed into a catch-all which could probably be defined as "pain, minor abrasions, and bruising."
The use of the term "injury" is a bit of untidy drafting; it really should say "wound or injury" to keep the courts from having to jump through interpretational hoops and avoid potentially confusing variant interpretations of terms of art as applied to different statutes.
Nevertheless, I doff my cap to the Delegates for drawing the line where they did. As written, the statute avoids the fairly common scenario of two Yahoos fighting in the front yard and the fight ranging into the residence. Since use of fists does not infer an intent toward bodily injury, the resident cannot legally shoot the other pugilist just because the fistfight crossed a doorway.
Level of Force Allowed:
What this statute clearly does is remove any restrictions that a "reasonable force" requirement might place upon a defender, once the requisite level of threat is reached. However, I'm not sure if this really accomplishes as much as it seems to. Anyone carrying a weapon which could cause bodily wound or injury would generally be presumed to be offering deadly force and therefore could be opposed with the same amount of force. As discussed above, an unarmed intruder wouldn't generally fall under this statute, because of the presumption that he is offering "harm", not "wound or injury." A physical attack can cross the line, but in that case the defender can already defend himself with deadly force under current law.
What This Statute Won't Do:
This statute is limited to the defense of people. It does not allow the use of deadly force in protection of property.
Additions Needed:
1) The language needs to be changed to say "bodily wound or injury."
2) I would like to see language put into it setting up certain presumptions:
a) "The victim of a rape is presumed to have a reasonable belief of danger to
life, even if the assailant is unarmed."
b) "If an intruder breaks into a dwelling after dark, the resident is presumed
to have a reasonable belief of imminent bodily wound or injury and may act
upon this belief without acting to verify or dispel it."
---------------
1 See Foote v. Commonwealth, SEP90, VaApp No. 0484-89-3.
2 See Diffendal v. Commonwealth, JUL89, VaApp No. 1224-87-3.
3 Alexander v. Commonwealth, JAN99, VaApp No. 2136-97-3.
Hat-tip to the Office's blog.
.
18 February 2010
In the News
1) A Christian con man.
2) A new pot replacement.
3) High school students have a right to comment on their teachers without punishment. What? They have 1st Amendment rights too?
4) Looks like the governor is trying to force me to take an unpaid vacation.
.
2) A new pot replacement.
3) High school students have a right to comment on their teachers without punishment. What? They have 1st Amendment rights too?
4) Looks like the governor is trying to force me to take an unpaid vacation.
.
17 February 2010
Kerr & Wagstaffe: The Final Word
Usually, I don't put this many posts into a subject like this, and I promise this is the last one, but I wanted to answer one more letter from the Leslie Brodie, the petitioner.
As to being from the Virginia-Kentucky border area, please note that I went out of my way to point that out in the first post. As well, I've never drank moonshine in my life, thank you. In any event, if you think that my argument is strongly informed by my life in the Appalachians, Sir, you mistake me. My argument is informed most strongly by my life prior to ever having moved to the mountains.
If I have to have diversity interaction bona fides, here they are. I grew up on the North Side of Lexington, Kentucky which was the wrong side of the tracks. I don't know the exact ethnic breakdowns of my elementary school and Junior High, but I know that Bryan Station High School had 40+% African-American. A couple years later I went off to the Army where 30% of the soldiers were African-American and about 8% were Hispanic. However, my experience was even more varied from the norm. Because I was in a linguistics unit I served with a greater mixture of Arab-Americans, Puerto Ricans, and Mexican Americans. There were also sizable groups of African-Americans, Native Americans, all sorts of Christians, Mormons, Jews, Muslims, and atheists. Among the most unique people I met were a Mithra worshipper, a Druid, and a Satanist. The Army is where I first learned that calling someone an "Asian" or "Hispanic" was likely to get you corrected: "I'm not a 'Hispanic', my family came from Argetina" (admittedly, as we were all soldiers this was usually said more, ahem, gruffly). This was also the first place I met Whites who seriously identified themselves as Irish-Americans or Italian-Americans. Furthermore, as a linguist, I was deployed to the Middle East twice and dealt with Egyptians, Kuwaitis, Saudis, and Bedouins. After leaving the Army and completing my schooling, I practiced as a defense attorney in Richmond, Virginia for about six years. Richmond proper has an African-American population of about 60% and in the Greater Richmond Area about 30%.
Personally, I find all the diversity stuff to be rubbish. I've had friends and colleagues over the years who were Black, Asian, Amerind, Jewish, Baptist, etc. Many of them have been smarter, more driven, and more successful than I have. I will not insult them by saying that they've gotten where they have because of the set they belong to. I also will not agree that, all things being equal, the choice between two hires should go to the one who's not White. No. that's laziness on the part of the hirer, a shoddy way to treat the White who is trying to compete fairly for a job, and insulting to the non-White. It says, "We fear that if we looked deeper you would not be competitive, so we're not going to look. Instead, we're going to hire you because we perceive you to be a member of X group." I stand pretty much where I perceive the Supreme Court to be: if purposeful racial-ethnic discrimination (understanding that mere correlation does not prove causation) can be shown there should be a remedy. Otherwise, let everyone compete on equal grounds.
Still, let's venture onto the field as you've presented it. In San Francisco proper 45% are non-Hispanic White, 31% are of various Asian ethnic groups, 13% are of various Hispanic ethnic groups, and 7% are African-American. In the Bay Area 58% are non-Hispanic White, 19% are of various Asian ethnic groups, 19% are of various Hispanic ethnic groups, and 8% are African-American.
So, let's look at the law firm before it undertook the hiring of the various ladies (which seems to be a more recent occurrence, quite possibly in an effort to diversify). At that time there were five "White" males and one "Asian" male. If we use the Bay Area Demographics (area demographic usually being a more accurate picture of who works in a city than city dweller demographics), there should have been one Asian-American at the firm and one Hispanic-American. Whites should be 3.5 of the firm members - let's round that up to four since half a person is a rather gruesome sight and would probably scare clients away. Basically, the firm was one person away from matching your diversity requirement and, while I am admittedly not a statistician, one person in a six person firm strikes me more of a statistical anomaly, rather than purposeful evil. Taking the same 6 person firm and applying the San Francisco proper demographics, the firm should have three Whites, two Asians, and one Hispanic. I suspect that even two Whites above the projected number is still a statistical anomaly for a group as small as six people, but I'll say that the firm was, by a plain application of flat demographics, short one Hispanic or Asian.
Next, let's overlay the percentages of these three ethnic groups with the percentages who go to law school. I've found figures which state that 3.8% of Whites go to law school and 1.9% of Hispanics. Since I couldn't find Asian figures, I took the national demographic of 13.4 million, added every single Asian 3L listed here from 1972 until now, and then used those two numbers to render a stat of .04% of Asian Americans going to law school (I know it's jury rigged, but it's the best I could put together off the top of my non-statistician head). So, assuming the only population being drawn from is San Francisco itself, there will be 14,459 White lawyers, 2,249 Hispanic lawyers, and 105 Asian lawyers. So, the actual population of lawyers breaks down to 85% White, 13% Hispanic, and .6% Asian. With these numbers, when the firm was 6 attorneys and had 1 Asian-American it was just about spot on as far as White members went (83% of firm - 85% of lawyer pool). On the other hand, one Asian in a 6 person firm is a massive overrepresentation. The 6th spot really should have gone to a Hispanic. Heck, even if we plug actual lawyer levels into the firm after it rose to ten people, 85% of a ten person firm is 8.5 people and therefore 9 people in the firm being White isn't a terrible misrepresentation of the actual community of lawyers.
You may not like the pool of available lawyers, but the ethnic breakdown of that pool is not the fault of the firm.
-------------
NOTE: I know there are all sorts of math and assumptive errors above. I was trying to present a thumbnail, not dig deeply into the numbers for absolute accuracy. I am particularly suspicious of the % I came up with for Asian-Americans going to law school, which I had thought might be lower, but never expected to be so low. And, yes, I know that there would be more lawyers than just the three groups talked about above. The exclusion was not meant as a slight, but to allow the model to be simple enough for my brain to wrap itself around.
---------------
If you want to narrow the field even further, you start asking how many in the lawyer application pool have graduated from Harvard Law or UM Ann Arbor, or at least a top ten law school? Three of the female hires you've pointed us all to have graduated from these schools. That must be an even smaller pool, whatever the ethnicity of the hire.
Look, as I've said, I don't believe in this kind of idiocy. Merit should be the reason for a hire and the only reason for a hire. In fact, I'm sure someone more schooled in statistics and/or with more accurate figures as to San Francisco and the Bay Area and/or who just wants to can turn my every statistical argument upside down to prove exactly the opposite of my point. This is why there are lies, damn lies, and statistics.
One reason the firm may have so many young female members is surge hiring. If, in a fit of PCdom the firm decided it needed female partners, it would hire enough associates that some of them would be expected to make partner. If the firm wanted two female partners and usually lost 50% of its associates without offering them partnerships, it would hire four. Thus, in an long term attempt to counteract perceived unPCness, it could - in the short term - open itself to criticism for its stilted hiring practices.
I don't know if this happened. All I do know is that the women who have been hired by the firm appear to be very qualified and any firm hiring them should be happy to have them.
I would like to thank you very much for taking the time to comment on the issues concerning racism/sexism in the legal profession. You are truly perceptive and sharp.As to the petition removal, it's possible the law firm arranged to have it taken down. However, there were also a lot of negative commentary on the petition and anyone who decided they wanted to could easily have looked at the terms of service and made a case that the petition should have been taken down under the content restrictions. In either event, while I disagreed with the petition, I also disagree with its deletion. Free speech, even if it is free speech I disagree with, should always be the default as long as it does not constitute a danger.
The petition which was posted on-line has been removed, and not by me. Any guesses? There is a good sense of fairness to your personality, so I am sure that you are offended by this development. Can you comment and expose it in your blog?
With the utmost respect to you and to the Commonwealth of Virginia, when you write about other parts of the country, you need to make it very clear that you are from the Appalachian Mountains. Now, why is it Ken? That we can make fun of the large amount of Mountain Dew you drink. No Serri, Bob.
The reason, Ken, is that people need to know you are from the border of Kentucky and Virginia is because the majority of the population there is white. I looked at the web-site of your employer, and everyone there is white. Is that a problem? Of course not.
It is a problem, though, when in a place like San Francisco, California nine out of ten lawyers are white, like it is the case with Kerr & Wagstaffe.
In Cal the white are a minority, and in SF, last I checked, whites are about 20%. In the SF legal arena diversity considerations are HUGE.
So a firm with nine out of ten lawyers who are white, with no blacks, no latinos, and no jews, will tend to draw attention to itself.
As to being from the Virginia-Kentucky border area, please note that I went out of my way to point that out in the first post. As well, I've never drank moonshine in my life, thank you. In any event, if you think that my argument is strongly informed by my life in the Appalachians, Sir, you mistake me. My argument is informed most strongly by my life prior to ever having moved to the mountains.
If I have to have diversity interaction bona fides, here they are. I grew up on the North Side of Lexington, Kentucky which was the wrong side of the tracks. I don't know the exact ethnic breakdowns of my elementary school and Junior High, but I know that Bryan Station High School had 40+% African-American. A couple years later I went off to the Army where 30% of the soldiers were African-American and about 8% were Hispanic. However, my experience was even more varied from the norm. Because I was in a linguistics unit I served with a greater mixture of Arab-Americans, Puerto Ricans, and Mexican Americans. There were also sizable groups of African-Americans, Native Americans, all sorts of Christians, Mormons, Jews, Muslims, and atheists. Among the most unique people I met were a Mithra worshipper, a Druid, and a Satanist. The Army is where I first learned that calling someone an "Asian" or "Hispanic" was likely to get you corrected: "I'm not a 'Hispanic', my family came from Argetina" (admittedly, as we were all soldiers this was usually said more, ahem, gruffly). This was also the first place I met Whites who seriously identified themselves as Irish-Americans or Italian-Americans. Furthermore, as a linguist, I was deployed to the Middle East twice and dealt with Egyptians, Kuwaitis, Saudis, and Bedouins. After leaving the Army and completing my schooling, I practiced as a defense attorney in Richmond, Virginia for about six years. Richmond proper has an African-American population of about 60% and in the Greater Richmond Area about 30%.
Personally, I find all the diversity stuff to be rubbish. I've had friends and colleagues over the years who were Black, Asian, Amerind, Jewish, Baptist, etc. Many of them have been smarter, more driven, and more successful than I have. I will not insult them by saying that they've gotten where they have because of the set they belong to. I also will not agree that, all things being equal, the choice between two hires should go to the one who's not White. No. that's laziness on the part of the hirer, a shoddy way to treat the White who is trying to compete fairly for a job, and insulting to the non-White. It says, "We fear that if we looked deeper you would not be competitive, so we're not going to look. Instead, we're going to hire you because we perceive you to be a member of X group." I stand pretty much where I perceive the Supreme Court to be: if purposeful racial-ethnic discrimination (understanding that mere correlation does not prove causation) can be shown there should be a remedy. Otherwise, let everyone compete on equal grounds.
Still, let's venture onto the field as you've presented it. In San Francisco proper 45% are non-Hispanic White, 31% are of various Asian ethnic groups, 13% are of various Hispanic ethnic groups, and 7% are African-American. In the Bay Area 58% are non-Hispanic White, 19% are of various Asian ethnic groups, 19% are of various Hispanic ethnic groups, and 8% are African-American.
So, let's look at the law firm before it undertook the hiring of the various ladies (which seems to be a more recent occurrence, quite possibly in an effort to diversify). At that time there were five "White" males and one "Asian" male. If we use the Bay Area Demographics (area demographic usually being a more accurate picture of who works in a city than city dweller demographics), there should have been one Asian-American at the firm and one Hispanic-American. Whites should be 3.5 of the firm members - let's round that up to four since half a person is a rather gruesome sight and would probably scare clients away. Basically, the firm was one person away from matching your diversity requirement and, while I am admittedly not a statistician, one person in a six person firm strikes me more of a statistical anomaly, rather than purposeful evil. Taking the same 6 person firm and applying the San Francisco proper demographics, the firm should have three Whites, two Asians, and one Hispanic. I suspect that even two Whites above the projected number is still a statistical anomaly for a group as small as six people, but I'll say that the firm was, by a plain application of flat demographics, short one Hispanic or Asian.
Next, let's overlay the percentages of these three ethnic groups with the percentages who go to law school. I've found figures which state that 3.8% of Whites go to law school and 1.9% of Hispanics. Since I couldn't find Asian figures, I took the national demographic of 13.4 million, added every single Asian 3L listed here from 1972 until now, and then used those two numbers to render a stat of .04% of Asian Americans going to law school (I know it's jury rigged, but it's the best I could put together off the top of my non-statistician head). So, assuming the only population being drawn from is San Francisco itself, there will be 14,459 White lawyers, 2,249 Hispanic lawyers, and 105 Asian lawyers. So, the actual population of lawyers breaks down to 85% White, 13% Hispanic, and .6% Asian. With these numbers, when the firm was 6 attorneys and had 1 Asian-American it was just about spot on as far as White members went (83% of firm - 85% of lawyer pool). On the other hand, one Asian in a 6 person firm is a massive overrepresentation. The 6th spot really should have gone to a Hispanic. Heck, even if we plug actual lawyer levels into the firm after it rose to ten people, 85% of a ten person firm is 8.5 people and therefore 9 people in the firm being White isn't a terrible misrepresentation of the actual community of lawyers.
You may not like the pool of available lawyers, but the ethnic breakdown of that pool is not the fault of the firm.
-------------
NOTE: I know there are all sorts of math and assumptive errors above. I was trying to present a thumbnail, not dig deeply into the numbers for absolute accuracy. I am particularly suspicious of the % I came up with for Asian-Americans going to law school, which I had thought might be lower, but never expected to be so low. And, yes, I know that there would be more lawyers than just the three groups talked about above. The exclusion was not meant as a slight, but to allow the model to be simple enough for my brain to wrap itself around.
---------------
If you want to narrow the field even further, you start asking how many in the lawyer application pool have graduated from Harvard Law or UM Ann Arbor, or at least a top ten law school? Three of the female hires you've pointed us all to have graduated from these schools. That must be an even smaller pool, whatever the ethnicity of the hire.
Look, as I've said, I don't believe in this kind of idiocy. Merit should be the reason for a hire and the only reason for a hire. In fact, I'm sure someone more schooled in statistics and/or with more accurate figures as to San Francisco and the Bay Area and/or who just wants to can turn my every statistical argument upside down to prove exactly the opposite of my point. This is why there are lies, damn lies, and statistics.
One reason the firm may have so many young female members is surge hiring. If, in a fit of PCdom the firm decided it needed female partners, it would hire enough associates that some of them would be expected to make partner. If the firm wanted two female partners and usually lost 50% of its associates without offering them partnerships, it would hire four. Thus, in an long term attempt to counteract perceived unPCness, it could - in the short term - open itself to criticism for its stilted hiring practices.
I don't know if this happened. All I do know is that the women who have been hired by the firm appear to be very qualified and any firm hiring them should be happy to have them.
12 February 2010
A Lawyer Walks Into a Bar
Over the last few days, I've been watching a number of documentaries via Netflix/Roku. Generally, the filmer finds a topic which would be exhausted in 10 minutes and fills another hour and 20 minutes with panoramic pictures, man on the street interviews, skewed opinions, and gotcha shots. The biggest exception to all this has been "A Lawyer Walks into a Bar", which follows six people on their path to take the California Bar exam.
About three months prior to the exam, the documentary starts following 4 women and 2 men. First, it lets us know of California's low Bar passage rate (somewhere between 35-40%) and shows us several famous Californians who failed it more than once. Then we follow the lives of the 6 people preparing for the Bar.
The four women are all taking the Bar for the first time. There's Role-Reversal Woman. She's bright, driven and has a stay at home husband (well, significant guy-other). She's sacrificing time with her family in order to secure Bar passage and a job at a law firm. There's Geeky-Freaked Out Woman. She is alone and spending every second of every day cramming every little bit of legal information into her head that she can (interspersed with painting). There's Party Girl. She's obviously bright, but she just isn't going to put too much work into this. She parties, talks about her acting aspirations, and brags about not having done the take home assignments for BarBri. The final woman is Boot Strap Woman. She's older, has raised a kid, has a live in almost spouse. She never graduated high school. She got her GED, went to community college for two years, went to a university for two years, and then went to an unaccredited law school: the People's College of Law.
The two guys are both multiple fails. Young Guy has failed twice before. It's the first time in his life that he hasn't succeeded at something and he seems to be working through shock and disbelief. Old Guy has failed 41 times, but he's going to keep trying until he passes.
We follow them through their preparations. Role Reversal Woman is studying so hard she doesn't go to the hospital when her son is injured. Geeky Freaked Out Woman pushes herself to the point that she almost cracks and ends up going to hypnotherapist. Meanwhile, Party Girl is shown picking up some random guy at a bar. Old Guy gets a special tutor. Interwoven in all of this are little stories being told by various attorneys.
Next we come to the Bar exam dates. Here we see Boot Strap Women get stopped before she can even take the test because she hasn't taken the proper courses at People's College of Law. Then we get to watch the others as they go through the test. Young Guy looks like he's having a melt down. Geeky Freaked Out Woman is, predictably, burning the candle at both ends. Old Guy is yelling at the test site at night.
The only two who are confident are Role-Reversal Woman and Party Girl. RRW has it all together and exudes confidence. At one point RRW is talking about how the contract question was meant to sucker people into giving a UCC answer when there wasn't any real UCC issue. Then they cut to Party Girl who is confidently talking about the UCC answer she gave.
In the end, it all comes down to the day the Bar publishes the list of who passes on the internet. I'm not going to tell you who made it and who didn't (go watch it yourself). All I'm going to say is that if you fail the Bar California lets you know with a 3" high red "FAIL."
About three months prior to the exam, the documentary starts following 4 women and 2 men. First, it lets us know of California's low Bar passage rate (somewhere between 35-40%) and shows us several famous Californians who failed it more than once. Then we follow the lives of the 6 people preparing for the Bar.
The four women are all taking the Bar for the first time. There's Role-Reversal Woman. She's bright, driven and has a stay at home husband (well, significant guy-other). She's sacrificing time with her family in order to secure Bar passage and a job at a law firm. There's Geeky-Freaked Out Woman. She is alone and spending every second of every day cramming every little bit of legal information into her head that she can (interspersed with painting). There's Party Girl. She's obviously bright, but she just isn't going to put too much work into this. She parties, talks about her acting aspirations, and brags about not having done the take home assignments for BarBri. The final woman is Boot Strap Woman. She's older, has raised a kid, has a live in almost spouse. She never graduated high school. She got her GED, went to community college for two years, went to a university for two years, and then went to an unaccredited law school: the People's College of Law.
The two guys are both multiple fails. Young Guy has failed twice before. It's the first time in his life that he hasn't succeeded at something and he seems to be working through shock and disbelief. Old Guy has failed 41 times, but he's going to keep trying until he passes.
We follow them through their preparations. Role Reversal Woman is studying so hard she doesn't go to the hospital when her son is injured. Geeky Freaked Out Woman pushes herself to the point that she almost cracks and ends up going to hypnotherapist. Meanwhile, Party Girl is shown picking up some random guy at a bar. Old Guy gets a special tutor. Interwoven in all of this are little stories being told by various attorneys.
Next we come to the Bar exam dates. Here we see Boot Strap Women get stopped before she can even take the test because she hasn't taken the proper courses at People's College of Law. Then we get to watch the others as they go through the test. Young Guy looks like he's having a melt down. Geeky Freaked Out Woman is, predictably, burning the candle at both ends. Old Guy is yelling at the test site at night.
The only two who are confident are Role-Reversal Woman and Party Girl. RRW has it all together and exudes confidence. At one point RRW is talking about how the contract question was meant to sucker people into giving a UCC answer when there wasn't any real UCC issue. Then they cut to Party Girl who is confidently talking about the UCC answer she gave.
In the end, it all comes down to the day the Bar publishes the list of who passes on the internet. I'm not going to tell you who made it and who didn't (go watch it yourself). All I'm going to say is that if you fail the Bar California lets you know with a 3" high red "FAIL."
11 February 2010
Indicting Mother Nature
I've had all I canst stands. I canst stand no more. Time to exercise some of that prosecutorial power I'm supposed to possess.
VIRGINIA:
11 FEBRUARY 2010
Address: The Weather Channel
SSN: 000-00-0004
DOB: Creation
THE GRAND JURY CHARGES THAT:
COUNT 1:
On or about December 2009, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Damage Public Utilities. To wit, Mother Nature purposefully damaged power cables, tranformers and poles in an amount valued at more than $200. Damaging Public Utilities is a Class 4 felony punished under Virginia Code section 18.2-162 and it is punishable by imprisonment in a state correctional facility for not less than two nor more than ten years. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 2:
On or about 10 February 2010, in the County of Pitcairn, MOTHER NATURE did commit Obstruction of Justice. To wit, Mother Nature did intentionally, willfully, and unlawfully dump tons of snow on the roads of Pitcairn County. The snow did obstruct the judge and several prosecutors from making it to the courthouse, therefore keeping them from the performance of their duties. This is a violation of Virginia Code section 18.2-460 and it is punishable by confinement in jail for a period not exceeding twelve months or a fine not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 3:
On or about 11 February 2010, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Petit Larceny. To wit, Mother Nature did intentionally, willfully, and unlawfully cause the weather to be so bad that court was cancelled on the day that the victim, Ken Lammers, had already been approved for vacation, thus permanently depriving Mr. Lammers of his vacation day (valued at less than $200). This is a violation of Virginia Code section 18.2-96 and it is punishable by a term of imprisonment of not more than 12 months and a fine of not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
A True Bill
/s/ Thomas Jefferson
______________________
Foreperson
.
INDICTMENT
VIRGINIA:
IN THE CIRCUIT COURT OF THE COUNTY OF PITCAIRN
THIRTY-FIFTH JUDICIAL CIRCUIT
THIRTY-FIFTH JUDICIAL CIRCUIT
11 FEBRUARY 2010
MOTHER NATURE
aka ASIAQ aka TAMAR aka MARI
aka FREYR aka LUONNOTAR aka JULUNGGUL
aka ASIAQ aka TAMAR aka MARI
aka FREYR aka LUONNOTAR aka JULUNGGUL
Address: The Weather Channel
SSN: 000-00-0004
DOB: Creation
THE GRAND JURY CHARGES THAT:
COUNT 1:
On or about December 2009, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Damage Public Utilities. To wit, Mother Nature purposefully damaged power cables, tranformers and poles in an amount valued at more than $200. Damaging Public Utilities is a Class 4 felony punished under Virginia Code section 18.2-162 and it is punishable by imprisonment in a state correctional facility for not less than two nor more than ten years. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 2:
On or about 10 February 2010, in the County of Pitcairn, MOTHER NATURE did commit Obstruction of Justice. To wit, Mother Nature did intentionally, willfully, and unlawfully dump tons of snow on the roads of Pitcairn County. The snow did obstruct the judge and several prosecutors from making it to the courthouse, therefore keeping them from the performance of their duties. This is a violation of Virginia Code section 18.2-460 and it is punishable by confinement in jail for a period not exceeding twelve months or a fine not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 3:
On or about 11 February 2010, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Petit Larceny. To wit, Mother Nature did intentionally, willfully, and unlawfully cause the weather to be so bad that court was cancelled on the day that the victim, Ken Lammers, had already been approved for vacation, thus permanently depriving Mr. Lammers of his vacation day (valued at less than $200). This is a violation of Virginia Code section 18.2-96 and it is punishable by a term of imprisonment of not more than 12 months and a fine of not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
A True Bill
/s/ Thomas Jefferson
______________________
Foreperson
.
09 February 2010
Kerr & Wagstaffe, Part Deux
A couple days ago, I took up for a SanFran firm which was being targeted via email and an e-petition. Today, I got this email from the same person:
I'm not defending Mr. Wagstaffe in particular. I have no idea as to his personality, although I'm sure he is confident in himself. Most really good attorneys develop a sort of overbearing self-confidence. After all, if you're going to stand in front of judges or justices and tell them that they are wrong and what they are doing to your client is a travesty, you have to have a strong sense of confidence, purpose, and verity. As to being an extreme liberal,well, everyone has flaws . . . er, he does practice in San Francisco . . . ah, being a liberal doesn't mean you're evil (usually). I've had liberal friends and conservative *ahem* "not friends."
You seem to want to have your cake and eat it too. If he's an extreme liberal, he should be filling his firm with whatever would satisfy your petition, no matter the lack of quality. Instead, the associates all seem to be high quality.
I've also looked at Ms. Hogan's profile, as you asked. Yes, she is very attractive. However, she's also a Harvard Law grad and therefore presumptively very qualified. That's the second highest US News ranked law school and she's the second woman associated with the firm that has graduated from that institution. Another went to UM Ann Arbor (ranked 9th). Basically, unless you can show me that they've been rejecting Yale grads you're going to have a hard time convincing me that the firm isn't hiring for quality. The implication that the guys are hiring good looking women just so that they can leer at them all day doesn't stand up to scrutiny. I repeat, show me the proof that Yale grads (or at least other top ten law schools) have been getting turned away in droves - whatever their ethnic/racial/social group - and I'll have more sympathy for your inference.
Ken, your piece is fantastic. I enjoyed reading it.I'm glad you enjoyed reading the post. Always happy to have satisfied readers.
You should not defend Wagstaffe, he is a huge scum bag, egomaniacal and an extreme liberal to boot.
I forgot to mention an associate who used to work there by the name of Holly Hogan who also fit the profile.
You can see her at : link one and link two.
Do you see a pattern, or is it just me?
I'm not defending Mr. Wagstaffe in particular. I have no idea as to his personality, although I'm sure he is confident in himself. Most really good attorneys develop a sort of overbearing self-confidence. After all, if you're going to stand in front of judges or justices and tell them that they are wrong and what they are doing to your client is a travesty, you have to have a strong sense of confidence, purpose, and verity. As to being an extreme liberal,
You seem to want to have your cake and eat it too. If he's an extreme liberal, he should be filling his firm with whatever would satisfy your petition, no matter the lack of quality. Instead, the associates all seem to be high quality.
I've also looked at Ms. Hogan's profile, as you asked. Yes, she is very attractive. However, she's also a Harvard Law grad and therefore presumptively very qualified. That's the second highest US News ranked law school and she's the second woman associated with the firm that has graduated from that institution. Another went to UM Ann Arbor (ranked 9th). Basically, unless you can show me that they've been rejecting Yale grads you're going to have a hard time convincing me that the firm isn't hiring for quality. The implication that the guys are hiring good looking women just so that they can leer at them all day doesn't stand up to scrutiny. I repeat, show me the proof that Yale grads (or at least other top ten law schools) have been getting turned away in droves - whatever their ethnic/racial/social group - and I'll have more sympathy for your inference.
08 February 2010
Going Back to Limited RSS Feed
Footers
CrimLaw - http://crimlaw.blogspot.com
Sorry, Ladies & Gentlemen, but I'm going back to "short" rss feeds. I know it makes things less convenient for those of you using aggregators, but I just did a quick search around the interweb and it's gotten pretty obvious that a number of sites are just grabbing my content and publishing it. I wouldn't even be all that upset about it except that I don't even seem to be getting a link back to CrimLaw.
Sorry for the inconvenience.
[addendum] I stumbled over "footers" for the feed and am going to see if I can use it to attach my site's url rather than shortening the feed.
Sorry, Ladies & Gentlemen, but I'm going back to "short" rss feeds. I know it makes things less convenient for those of you using aggregators, but I just did a quick search around the interweb and it's gotten pretty obvious that a number of sites are just grabbing my content and publishing it. I wouldn't even be all that upset about it except that I don't even seem to be getting a link back to CrimLaw.
Sorry for the inconvenience.
[addendum] I stumbled over "footers" for the feed and am going to see if I can use it to attach my site's url rather than shortening the feed.
Kerr & Wagstaffe:
Besmirched and Beslurred?
Since I've been posting on this blawg, I've gotten a lot of email press releases. Politicians, publishers, think tanks, and people who want the world to know about something that has piqued their ire all seem to think it to be important that I know certain things. So, I can't say I was surprised when I got another one on Saturday (and yet another on Sunday).
In faux neutral manner, it was a slap at a San Francisco law firm, Kerr & Wagstaffe, and one of its senior partners, James Wagstaffe, who is an adjunct professor at UC Hastings Law. Basically, the evil of this firm is that "out of the ten attorneys currently employed nine are "white", six out of the seven partners are males , and the only associates are young and attractive white females." Heaven forfend!
So, I first go off to check out the attorneys at the firm, if for no other reason than to get a look at the hot women. Sadly, while none of the women were bad looking, none of them were so drop dead gorgeous that I became instantly smitten and ran to my car and started driving to SanFran to pledge my undying love. As well, they all seem entirely too smart and qualified (University of Michigan Law School, Ann Arbor; magna cum laude, Harvard Law School; B.A. degree in Political Science from the Sofia University St. Kliment Ohridski in Bulgaria; 2 X UC Hastings Law). Gotta admit, with the implied "they were only hired because they are hotties" in the email, I was under the impression that they would have names like Trixie and Bubbles and be dressed in skimpy, tight fitting clothes. Instead, they're intimidating as all get out. I'm not sure I'd want to pit my poor besotted mind against any of them in a BS philosophy/political discussion at a party, much less face them in litigation.
So then I went on to check out the rest of the claim. Sure enough there's one female partner and one partner with a Chinese last name. Of course, if we assume he's Chinese, I guess we have to sort the others by names as well (4 English, 2 Scottish, 1 German, 1 French, & 1 Irish). Personally, I don't much go in for that kind of rubbish, so I'm going to assume they're all Americans. After all, if they ethnically identified the English and Irish would be shooting and bombing each other, and that doesn't make for a very productive law office. Just like the women, all the men seem very well qualified and experienced, although, admittedly, they weren't as easy on the eyes.
So, I decided to go look at the "electronic petition" mentioned in the email. Herein we are informed of such interesting "facts" as
And, of course, Asian lawyers couldn't possibly be hired because they have earned the job. Nope, they are only hired because they'll sit there and stay shut up. And if you think a competent lawyer is willing to hire an incompetent person to answer the phone, keep his schedule, and keep his paperwork flowing, just so he can say his office is diverse, you're an idiot. A brand new lawyer, of any ethnicity or creed, is liable to do less damage than a bad secretary any day.
As to the third point, of course law firms show off their ethnic hires. It is a sad thing that they do so and it is terribly wrong to do to the lawyer. However, if they don't they get fussed at for not having anyone of a particular set. It sucks, but if they don't show that they've hired people of different sets they are liable to have someone file an electronic petition against them.
As I write this, the petition has 13 whole "signatures", 4 of which call out the author and 1 of which is the author threatening a disagreeing signatory with sanction by the law school. It's the exchange between these two which clarified what's actually going on here. I had thought that this was a non-hire who was striking back at the firm, but apparently it's even more petty than that. This is about a bad grade which the author got from James Wagstaffe in a CivPro class. A BAD GRADE. A law firm, which by all appearances is filled with bright, capable people, is dragged through the mud over a grade. YOU'VE GOT TO BE KIDDING ME!
-----
[addendum] The person in control of the e-petition has removed the two "signatures", claiming that it pointed to the wrong person. So, maybe it is about not getting hired. In any event, to pick on a particular 10 person law firm in a city the size of SanFran fairly screams "I'll get you!" for whatever reason.
-----
BTW: The person who sent this to me did so through an Indian site "in.com". There wasn't even a Californian IP address attached to the email.
--------------
1) Before anyone graces me with a comment: I freely admit that I am a narrow minded, German-Catholic-Appalachian-Neanderthal-American who would be Center/Center Right where I now live (which means most SanFran citizens would probably see me as right of Moussolini) and just assume that I know I have all the evil prejudices and terrible traits that you are about to tell me I have. You don't have to waste your time typing all that into comments.
2) Yes, I realize that big firms tend to have monochromatic tendencies, although I think I've seen more BigLaw female lawyers than I've ever seen in CrimLaw / small firm circles. Still, a 10 person firm isn't BigLaw, and no matter who they hire a firm that size isn't going to ever get a correct demographic distribution. Note, for instance, that about 20% of the US is Germanic, but this firm only has one person with a Germanic name. Perhaps they should go out and hire another person of Germanic descent. In fact, if they desperately want to hire someone, anyone - no matter how unqualified he is - I'd be happy to take a $20k moving fee and guaranteed $250k a year for two years as my name is Germanic and my family is originally from Cincinnati, which is the most German city in the US.
[addendum] The law firm scrambled the order in which it presents its attorneys. Instead of being presented from senior to junior it's now a scramble with the top six faces including 3 females and the two most "non-white" males. See my paragraph above starting "As to the third point . . ."
[addendum] A comment noted that the name Ng is most likely Chinese rather than Vietnamese. I checked and this appears to be correct. The Vietnamese name would Ngo. Therefore, I have substituted Chinese for Vietnamese in the post above.
Links to Follow-up Posts:
Kerr & Wagstaffe, Part Deux
Kerr & Wagstaffe: The Final Word
Click on "CrimLaw" at top to go to main page.
In faux neutral manner, it was a slap at a San Francisco law firm, Kerr & Wagstaffe, and one of its senior partners, James Wagstaffe, who is an adjunct professor at UC Hastings Law. Basically, the evil of this firm is that "out of the ten attorneys currently employed nine are "white", six out of the seven partners are males , and the only associates are young and attractive white females." Heaven forfend!
So, I first go off to check out the attorneys at the firm, if for no other reason than to get a look at the hot women. Sadly, while none of the women were bad looking, none of them were so drop dead gorgeous that I became instantly smitten and ran to my car and started driving to SanFran to pledge my undying love. As well, they all seem entirely too smart and qualified (University of Michigan Law School, Ann Arbor; magna cum laude, Harvard Law School; B.A. degree in Political Science from the Sofia University St. Kliment Ohridski in Bulgaria; 2 X UC Hastings Law). Gotta admit, with the implied "they were only hired because they are hotties" in the email, I was under the impression that they would have names like Trixie and Bubbles and be dressed in skimpy, tight fitting clothes. Instead, they're intimidating as all get out. I'm not sure I'd want to pit my poor besotted mind against any of them in a BS philosophy/political discussion at a party, much less face them in litigation.
So then I went on to check out the rest of the claim. Sure enough there's one female partner and one partner with a Chinese last name. Of course, if we assume he's Chinese, I guess we have to sort the others by names as well (4 English, 2 Scottish, 1 German, 1 French, & 1 Irish). Personally, I don't much go in for that kind of rubbish, so I'm going to assume they're all Americans. After all, if they ethnically identified the English and Irish would be shooting and bombing each other, and that doesn't make for a very productive law office. Just like the women, all the men seem very well qualified and experienced, although, admittedly, they weren't as easy on the eyes.
So, I decided to go look at the "electronic petition" mentioned in the email. Herein we are informed of such interesting "facts" as
*Mediocre firms and solo practitioners are a hodgepodge of Whites, Asians, Jews, and some Latinos. Of the solo practitioners, a large percentage of them are Jews, as oppose to other minorities, who are not incline to practice solo.Wow. An anti-racist petition which spews racist stereotypes. Why exactly are ethnic groups other than Jewish "not incline to practice solo?" That's not been my experience. I've seen quite a few people of ethnic groups ranging from Black, to Filipino, to Melungeons practicing solo and doing quite well at it, thank you very much. And what's with the inverse of that statement? Why does being Jewish lead to a burning desire to have a solo practice?
* Most firms, with very few exceptions, will employ Asians, usually females, and usually as associates. Asian associates tend to be hired in larger numbers because they are being perceived as hard workers, subservient, and with a very little chance of causing troubles or rocking the boat, so to speak. Also, hiring an Asian tends to serve as an "insurance" against allegation of racism and lack of diversity. Likewise, employing minorities as staff such as secretaries, clerks, legal assistants and receptionists will serve to rebut allegation of racism and discrimination in case such a claim is made. It also serves as a way of convincing the hiring partner that that he is not a racist by creating diverse workplace, and a chance to do some good while he is doing very well, indeed.
*If one of those "white shoe" firms will have a minority partner, he/she will be displayed and advertised to the world in an aggressive fashion, and in various ways such as award ceremonies, media interviews, luncheons, symposiums, MCLE, etc. Morrison & Forrester, for example, has a Latino partner that with the help of the media is being heavily promoted. Do not be surprised if you will see his white colleagues parading him on Market St.
And, of course, Asian lawyers couldn't possibly be hired because they have earned the job. Nope, they are only hired because they'll sit there and stay shut up. And if you think a competent lawyer is willing to hire an incompetent person to answer the phone, keep his schedule, and keep his paperwork flowing, just so he can say his office is diverse, you're an idiot. A brand new lawyer, of any ethnicity or creed, is liable to do less damage than a bad secretary any day.
As to the third point, of course law firms show off their ethnic hires. It is a sad thing that they do so and it is terribly wrong to do to the lawyer. However, if they don't they get fussed at for not having anyone of a particular set. It sucks, but if they don't show that they've hired people of different sets they are liable to have someone file an electronic petition against them.
As I write this, the petition has 13 whole "signatures", 4 of which call out the author and 1 of which is the author threatening a disagreeing signatory with sanction by the law school. It's the exchange between these two which clarified what's actually going on here. I had thought that this was a non-hire who was striking back at the firm, but apparently it's even more petty than that. This is about a bad grade which the author got from James Wagstaffe in a CivPro class. A BAD GRADE. A law firm, which by all appearances is filled with bright, capable people, is dragged through the mud over a grade. YOU'VE GOT TO BE KIDDING ME!
-----
[addendum] The person in control of the e-petition has removed the two "signatures", claiming that it pointed to the wrong person. So, maybe it is about not getting hired. In any event, to pick on a particular 10 person law firm in a city the size of SanFran fairly screams "I'll get you!" for whatever reason.
-----
BTW: The person who sent this to me did so through an Indian site "in.com". There wasn't even a Californian IP address attached to the email.
--------------
1) Before anyone graces me with a comment: I freely admit that I am a narrow minded, German-Catholic-Appalachian-Neanderthal-American who would be Center/Center Right where I now live (which means most SanFran citizens would probably see me as right of Moussolini) and just assume that I know I have all the evil prejudices and terrible traits that you are about to tell me I have. You don't have to waste your time typing all that into comments.
2) Yes, I realize that big firms tend to have monochromatic tendencies, although I think I've seen more BigLaw female lawyers than I've ever seen in CrimLaw / small firm circles. Still, a 10 person firm isn't BigLaw, and no matter who they hire a firm that size isn't going to ever get a correct demographic distribution. Note, for instance, that about 20% of the US is Germanic, but this firm only has one person with a Germanic name. Perhaps they should go out and hire another person of Germanic descent. In fact, if they desperately want to hire someone, anyone - no matter how unqualified he is - I'd be happy to take a $20k moving fee and guaranteed $250k a year for two years as my name is Germanic and my family is originally from Cincinnati, which is the most German city in the US.
[addendum] The law firm scrambled the order in which it presents its attorneys. Instead of being presented from senior to junior it's now a scramble with the top six faces including 3 females and the two most "non-white" males. See my paragraph above starting "As to the third point . . ."
[addendum] A comment noted that the name Ng is most likely Chinese rather than Vietnamese. I checked and this appears to be correct. The Vietnamese name would Ngo. Therefore, I have substituted Chinese for Vietnamese in the post above.
Links to Follow-up Posts:
Kerr & Wagstaffe, Part Deux
Kerr & Wagstaffe: The Final Word
Click on "CrimLaw" at top to go to main page.
07 February 2010
05 February 2010
OMG, How Long Can a Decision Be?
So, I'm breaking down all the cases from the last month to put them in Virginia Criminal Cases & Law and I think I'm pretty close to the end. I've only got two cases left to figure out and think that it'll probably take a couple hours.
Nope, the only case I got finished (this morning, no less) was Thomas v. Commonwealth. It's a 59 page opinion. 59 pages. It's not even an appeal from a death sentence, so I'm not sure how counsel got enough space to brief all the matters raised. As I took notes, I skipped over the sections where the Justice Lemons basically says "you didn't preserve that error" or "that's just too dumb to address" and I still ended up with this:
Thomas v. Commonwealth, JAN10, VaSC No. 090518: (1) Juvenile adjudications cannot be used as impeachment of general credibility. (2) Pending juvenile proceedings which may tend to show bias or motivation of a prosecution witness must be allowed during cross examination. (3) If a defense attorney seeks juvenile records he must identify bias or motivation to receive them. (4) A principal in the second degree is as culpable as a principal in the first degree. (5) A principal in the second degree need not be present during the actual commission of the crime. (6) A principal in the second degree need only (a) encourage, (b) incite, or (c) aid in the commission of the crime. (7) Presence at the commission of a crime, without disapproving or opposing it, is a factor which jurors may use to help them determine if the defendant was a principal in the second degree. (8) If two people are acting in concert to commit a wrongful act each party is responsible for the acts of the other which were not specifically planned, but which were the incidental probable consequences of the planned wrongful act. (9) When parties are acting in concert they are guilty of the acts of the others even if they did not intend them or anticipate they would occur. (10) Unless there is a specific indicted charge of accessory after the fact neither the prosecution or the defense is entitled to an accessory after the fact instruction because it is not a lesser included offense. (11) Jury instructions can tell the jury that they can infer malice from (a) a deliberate, willful and cruel act against another, or (b) the deliberate use of a deadly weapon. (12) The standard of review for refusing to allow a voir dire question is abuse of discretion. (13) Allowable voir dire questions necessarily disclose or clearly lead to disclosure of (a) relationship, (b) interest, (c) opinion, or (d) prejudice. (14) Voir dire questions which would generate answers which are speculative or irrelevant are too ambiguous and a trial judge does not have to allow them. (15) The standard of review for reviewing a judge's refusal to strike a juror is abuse of discretion. (16) In reviewing the refusal to strike a juror the appellate court will consider the entirety of questions asked to the juror, not just a single question. (17) Neither the prosecution nor the defense is allowed to ask questions in voir dire about the range of punishment which may be imposed if the defendant is convicted. (18) “You may infer that every person intends the natural and probable consequences of his acts.” is well established and oft upheld jury instruction and does not constitute a presumption. (19) Although guilt may be inferred from flight, the phrase “if a person leaves the place where a crime was committed” is overly broad and including it in a jury instruction is a misstatement of the law. (20) If the judicial instruction proffered by the defense has the same error as the one given the defense cannot claim error in the instruction given. (21) To have a private investigator appointed for an indigent defendant, the defense must show a particularized need by establishing that (a) the services of an expert would materially assist him in the preparation of his defense and (b) the denial of such services would result in a fundamentally unfair trial. (22) A particularized need must be more than a hope that favorable evidence will be found. (23) It is not error for a trial judge to allow the word murder to be used in a murder trial. (24) Photographs and videos of a crime scene are admissible to show (a) motive, (b) intent, (c) method, (d) malice, (e) premeditation, and (f) the atrociousness of the crime. (25) Accurate photographs of a crime scene are not rendered inadmissible solely because they are gruesome. (26) Photographs must be excluded if their prejudicial effect substantially outweighs their probative value.
Nope, the only case I got finished (this morning, no less) was Thomas v. Commonwealth. It's a 59 page opinion. 59 pages. It's not even an appeal from a death sentence, so I'm not sure how counsel got enough space to brief all the matters raised. As I took notes, I skipped over the sections where the Justice Lemons basically says "you didn't preserve that error" or "that's just too dumb to address" and I still ended up with this:
Thomas v. Commonwealth, JAN10, VaSC No. 090518: (1) Juvenile adjudications cannot be used as impeachment of general credibility. (2) Pending juvenile proceedings which may tend to show bias or motivation of a prosecution witness must be allowed during cross examination. (3) If a defense attorney seeks juvenile records he must identify bias or motivation to receive them. (4) A principal in the second degree is as culpable as a principal in the first degree. (5) A principal in the second degree need not be present during the actual commission of the crime. (6) A principal in the second degree need only (a) encourage, (b) incite, or (c) aid in the commission of the crime. (7) Presence at the commission of a crime, without disapproving or opposing it, is a factor which jurors may use to help them determine if the defendant was a principal in the second degree. (8) If two people are acting in concert to commit a wrongful act each party is responsible for the acts of the other which were not specifically planned, but which were the incidental probable consequences of the planned wrongful act. (9) When parties are acting in concert they are guilty of the acts of the others even if they did not intend them or anticipate they would occur. (10) Unless there is a specific indicted charge of accessory after the fact neither the prosecution or the defense is entitled to an accessory after the fact instruction because it is not a lesser included offense. (11) Jury instructions can tell the jury that they can infer malice from (a) a deliberate, willful and cruel act against another, or (b) the deliberate use of a deadly weapon. (12) The standard of review for refusing to allow a voir dire question is abuse of discretion. (13) Allowable voir dire questions necessarily disclose or clearly lead to disclosure of (a) relationship, (b) interest, (c) opinion, or (d) prejudice. (14) Voir dire questions which would generate answers which are speculative or irrelevant are too ambiguous and a trial judge does not have to allow them. (15) The standard of review for reviewing a judge's refusal to strike a juror is abuse of discretion. (16) In reviewing the refusal to strike a juror the appellate court will consider the entirety of questions asked to the juror, not just a single question. (17) Neither the prosecution nor the defense is allowed to ask questions in voir dire about the range of punishment which may be imposed if the defendant is convicted. (18) “You may infer that every person intends the natural and probable consequences of his acts.” is well established and oft upheld jury instruction and does not constitute a presumption. (19) Although guilt may be inferred from flight, the phrase “if a person leaves the place where a crime was committed” is overly broad and including it in a jury instruction is a misstatement of the law. (20) If the judicial instruction proffered by the defense has the same error as the one given the defense cannot claim error in the instruction given. (21) To have a private investigator appointed for an indigent defendant, the defense must show a particularized need by establishing that (a) the services of an expert would materially assist him in the preparation of his defense and (b) the denial of such services would result in a fundamentally unfair trial. (22) A particularized need must be more than a hope that favorable evidence will be found. (23) It is not error for a trial judge to allow the word murder to be used in a murder trial. (24) Photographs and videos of a crime scene are admissible to show (a) motive, (b) intent, (c) method, (d) malice, (e) premeditation, and (f) the atrociousness of the crime. (25) Accurate photographs of a crime scene are not rendered inadmissible solely because they are gruesome. (26) Photographs must be excluded if their prejudicial effect substantially outweighs their probative value.
02 February 2010
Don't Sleep With Your Client
The Virginia State Bar has made a spectacularly stupid idea officially unethical: you can no longer sleep with your client.
31 January 2010
The Last Mile:
Handcomputers Post-iPad
As anyone who has been reading my blawg for a while knows, I have been keen on the idea of a workable tablet which could be carried to court instead of files. This is particularly of interest because both the Clerk of our Circuit Court and my boss are trying to get us to the point that paper isn't needed in the courthouse. This works wonderfully for the storage of closed files, but is more difficult for ongoing case files. Laptops can somewhat fill the gap, but to use the laptops you get stuck at the desk and have to type notes. You really need a tablet which you can carry with you so that you can pop up .pdf's and documents in a case file, take written notes when you are standing at the bench or podium, and use it to read your notes for openings and closings while you are standing in front of the jury.
So, I am really looking forward to a real working tablet. To this point, I have been most impressed with the enTourage eDGe which has a goofy name and is still too heavy and bulky at 3+ pounds (seems light until you carry it in replacement for a paper tablet), but has much more functionality than anything else I've seen.
Now Apple joins the race. I've been looking forward to this for a while because Apple usually tries to be innovative when it develops a new product. Of course, I also carry prejudices with me which caused me to expect the Apple tablet to be too expensive and too locked in to Apple programs (i.e. iTunes). Comes now the Apple "iPad."
It's an unfortunate name, which has led to a lot of jokes, most in the vein of the one which Mad TV did years before Apple ever thought of this tablet.
There was an initial flush of Apple fanboys talking about how wonderful this device is. Here's the uber-maven of tech Leo Laporte gushing about the device (bracketed by Tekzilla).
Then came the almost immediate and large backlash pointing out all the flaws of the device. This one by Molly Wood, via the Buzz Report, has a number of them (and is funner to listen to than most).
The Good: At a price of $499 with 16GB of memory, it sets the price point for everybody else. With it at this price, it becomes very hard for ereaders to justify their current pricing. In particular, I hope it drives down the price of items like the Sony Reader Daily Edition ($399) and the QUE proReader ($799). The proReader in particular seems badly overpriced at 8GB, even though it is impressive if all you want is a reader.
The Bad: All they did was make a big iPod touch. It will probably be a good way to read the internet and could be a good way to watch video if it supported flash (supposedly to be fixed sometime in the future by support for h264 in new HTML). It could at least have been a new type of communication device if it had a camera and microphone and did vid-phone between devices. No stylus either so that a person can write down a quick note and save it (or, continuing the new type of communication device theme, it could have allowed writing notes and sending them to another person with a tablet).
AAAaarrrrggggg!!!! I'm not sure what Apple thought it was doing when it put this product together. It doesn't look like it will work well for much of anything. Primarily, it seems to be interested in pushing against ereaders instead of actually becoming a working hand computer. It's sad, but the last company to do that really well is probably still Palm. I'm still waiting for the somebody to get it right.
[ADDITION] The coolness offensive has begun:
.
So, I am really looking forward to a real working tablet. To this point, I have been most impressed with the enTourage eDGe which has a goofy name and is still too heavy and bulky at 3+ pounds (seems light until you carry it in replacement for a paper tablet), but has much more functionality than anything else I've seen.
Now Apple joins the race. I've been looking forward to this for a while because Apple usually tries to be innovative when it develops a new product. Of course, I also carry prejudices with me which caused me to expect the Apple tablet to be too expensive and too locked in to Apple programs (i.e. iTunes). Comes now the Apple "iPad."
It's an unfortunate name, which has led to a lot of jokes, most in the vein of the one which Mad TV did years before Apple ever thought of this tablet.
There was an initial flush of Apple fanboys talking about how wonderful this device is. Here's the uber-maven of tech Leo Laporte gushing about the device (bracketed by Tekzilla).
Then came the almost immediate and large backlash pointing out all the flaws of the device. This one by Molly Wood, via the Buzz Report, has a number of them (and is funner to listen to than most).
The Good: At a price of $499 with 16GB of memory, it sets the price point for everybody else. With it at this price, it becomes very hard for ereaders to justify their current pricing. In particular, I hope it drives down the price of items like the Sony Reader Daily Edition ($399) and the QUE proReader ($799). The proReader in particular seems badly overpriced at 8GB, even though it is impressive if all you want is a reader.
The Bad: All they did was make a big iPod touch. It will probably be a good way to read the internet and could be a good way to watch video if it supported flash (supposedly to be fixed sometime in the future by support for h264 in new HTML). It could at least have been a new type of communication device if it had a camera and microphone and did vid-phone between devices. No stylus either so that a person can write down a quick note and save it (or, continuing the new type of communication device theme, it could have allowed writing notes and sending them to another person with a tablet).
AAAaarrrrggggg!!!! I'm not sure what Apple thought it was doing when it put this product together. It doesn't look like it will work well for much of anything. Primarily, it seems to be interested in pushing against ereaders instead of actually becoming a working hand computer. It's sad, but the last company to do that really well is probably still Palm. I'm still waiting for the somebody to get it right.
[ADDITION] The coolness offensive has begun:
.
28 January 2010
Obama Calls Out The Supreme Court to Their Face
The following video has been spreading around the internet because, if you watch closely, you can see Justice Alito muttering "Not True" as the President calls the Supreme Court out in the State of the Union Address. However, watch it closely and you'll also see Justice Ginsberg's head snap up into a death stare as the President begins his call out. The only Justice that seemed totally unaffected by the political rabble rousing was the Chief Justice, who almost looks like he's smirking.
25 January 2010
New Street Law
Netflix has gotten it into it's computer algorithm that I'm a fan of BBC shows. After having it pop up in suggestions several times, I finally decided to try "New Street Law", a show about barristers in Manchester, England.
It's fascinating. The ongoing story is that of two law chambers (roughly analogous to US law firms). One chambers is dominated by a barrister determined to be a champion of the little guys; it struggles just to keep its doors open from day to day. The other chambers is well established and dominated by a respected barrister who is in the twilight of his career. The twist is that the barrister in the first chambers used to be in the elder barrister's chambers; he left and the elder barrister has never forgiven him. Since these two chambers share the same building, appear to be the only ones in Manchester and constantly face each other in court, this provides the background for every single case.
However, the truly interesting part is watching how the system operates. I'd realized that the British system had solicitors and barristers, but I hadn't realized that the barristers are totally dependent upon the grace of the solicitors to receive cases. It appears that if no solicitor will give a barrister a case (apparently called a brief in British parlance), the barrister is going to starve. There also doesn't appear to be permanently employed set of prosecutors so that cases are sent out to private chambers. It's also strange to see the differences in procedure. I can't imagine trying a case for the defense with the client sitting off to the back behind a glass wall. It's really interesting to watch the trial ongoing and see things go by as a matter of course which would have lawyers here in the States screaming at the top of their lungs (usually because of the lack of our constitutional amendments). Hearing a judge say that she will weigh the defendant's refusal to speak against him is really different. AND, I really want American courts to provide locker rooms in the courthouse for attorneys like British ones do (at least on this show).
Prior to watching this, I had thought that TNT's Raising the Bar was the best representation of defendants. Now I think that New Street Law is. Some clients are innocent, some are unrepentant (and still expect to win), some refuse to cooperate, some women try to use there sexuality to get out of things, and some clients are manipulative as a snake charmer.
Of course, part of the reason that I like this show is that I'm not able to pick it apart as I sit through it like I do American lawyer dramas. Perhaps an actual British barrister sits through this show pointing out errors every 3 minutes. Still, I thought it was great.
I checked and this show only ran for two seasons. If you've got Netflix and a device which will stream to your TV (I use a Roku), you can stream the first season (8 episodes), but you'll have to get the second season mailed to you. If you haven't figured it out yet, I heartily recommend you find some time and watch New Street Law.
It's fascinating. The ongoing story is that of two law chambers (roughly analogous to US law firms). One chambers is dominated by a barrister determined to be a champion of the little guys; it struggles just to keep its doors open from day to day. The other chambers is well established and dominated by a respected barrister who is in the twilight of his career. The twist is that the barrister in the first chambers used to be in the elder barrister's chambers; he left and the elder barrister has never forgiven him. Since these two chambers share the same building, appear to be the only ones in Manchester and constantly face each other in court, this provides the background for every single case.
However, the truly interesting part is watching how the system operates. I'd realized that the British system had solicitors and barristers, but I hadn't realized that the barristers are totally dependent upon the grace of the solicitors to receive cases. It appears that if no solicitor will give a barrister a case (apparently called a brief in British parlance), the barrister is going to starve. There also doesn't appear to be permanently employed set of prosecutors so that cases are sent out to private chambers. It's also strange to see the differences in procedure. I can't imagine trying a case for the defense with the client sitting off to the back behind a glass wall. It's really interesting to watch the trial ongoing and see things go by as a matter of course which would have lawyers here in the States screaming at the top of their lungs (usually because of the lack of our constitutional amendments). Hearing a judge say that she will weigh the defendant's refusal to speak against him is really different. AND, I really want American courts to provide locker rooms in the courthouse for attorneys like British ones do (at least on this show).
Prior to watching this, I had thought that TNT's Raising the Bar was the best representation of defendants. Now I think that New Street Law is. Some clients are innocent, some are unrepentant (and still expect to win), some refuse to cooperate, some women try to use there sexuality to get out of things, and some clients are manipulative as a snake charmer.
Of course, part of the reason that I like this show is that I'm not able to pick it apart as I sit through it like I do American lawyer dramas. Perhaps an actual British barrister sits through this show pointing out errors every 3 minutes. Still, I thought it was great.
I checked and this show only ran for two seasons. If you've got Netflix and a device which will stream to your TV (I use a Roku), you can stream the first season (8 episodes), but you'll have to get the second season mailed to you. If you haven't figured it out yet, I heartily recommend you find some time and watch New Street Law.
20 January 2010
18 January 2010
Around the World & Near to Home
1) Wonderful, a brand new way to make meth.
2) The much vaunted "can't arrest a naked person defense."
3) The Board of Governors of the Kentucky Bar Association has voted to disbar Melbourne Mills Jr. I know this doesn't mean much to those of you who didn't grow up in Kentucky, but it's the only lawyer's name that stuck with me from my youth. I think the reason was that he did a bunch of commercials (was he the guy that shot a raybeam from his hand at a dinosaur?).
4) On his way out the door, Governor Kaine agrees to let a murderer go back to Germany causing a ruckus over whether the murderer could get the parole there that he can't get here.
.
2) The much vaunted "can't arrest a naked person defense."
3) The Board of Governors of the Kentucky Bar Association has voted to disbar Melbourne Mills Jr. I know this doesn't mean much to those of you who didn't grow up in Kentucky, but it's the only lawyer's name that stuck with me from my youth. I think the reason was that he did a bunch of commercials (was he the guy that shot a raybeam from his hand at a dinosaur?).
4) On his way out the door, Governor Kaine agrees to let a murderer go back to Germany causing a ruckus over whether the murderer could get the parole there that he can't get here.
.
17 January 2010
Kentucky's Constitutionally Mandated Oath of Office:
Attorney General
Okay, it starts out with the normal boring oath that is given everywhere, but listen until the end, because apparently Kentucky has a serious ongoing problem with duels?!?
11 January 2010
Probation:
Uses, Failures & Effects
The theory behind probation (and parole, although that's rare in Virginia anymore) is that it is agreement between the government and the defendant. The government forgoes a certain amount of punishment and the defendant agrees to forswear all his evil ways. Of course, the carrot comes with an explicit stick: "Screw this up and we'll throw you back in." Typically, a defendant will receive a sentence of something like "5 years with 4 years 10 months suspended, the suspended time to remain suspended for a period of 5 years with 2 years of supervised probation." At any time within the 5 years that the time is suspended the court could impose some or all of it for failing to abide by conditions the court has imposed (new convictions, failing to remain on good behavior, etc.). Realistically, while the suspended time could be imposed at any time, it is unlikely to be imposed unless the defendant is still on probation to have someone to report him to the court.
Defendants almost never concern themselves with the amount of time or conditions which attach to probation. They have myopic vision which zeros in on how much time they are actually getting for their conviction, ignoring all else. Despite their attorneys' advice to the contrary, I'm fairly certain that the vast majority of felony defendants would agree to 10 years of probation rather than spend a month in jail and a year of probation.
The purpose of probation is fairly straight forward. Of the four purported reasons for a judicial criminal sentence - rehabilitation, quarantine (keeping the defendant from further harming the community), deterring others from offending, and simple punishment - probation falls almost exclusively in the rehabilitation. It's society's attempt to put someone back on the street and keep them on the straight and narrow.
The reality is somewhat different. Pretty much everyone in the courtroom, except perhaps the defendant himself, expects to see many (probably most) of the defendants back in the courtroom during their probation. This is based upon common experience repeated over and over and over again. Certainly, not all people put on probation violate it (and God bless those who don't), but the experiential bias which comes from being in the courtroom every day wouldn't lead judges, defense attorneys, or prosecutors to bet on it.
In some courthouses this can lead to a "we'll get him later" attitude which leads to sentences that are low because prosecutors and judges think they'll have another go at this guy a year or so down the line when the offender is back before the court in a probation violation hearing. In that hearing the level of proof is lower and the rules of evidence are far easier (basically, the hearing proceeds with all sorts of hearsay reported by the probation officer). It is extremely rare that a defendant is found not to have violated his probation and most probation hearings are primarily about what the punishment for the violation will be. You'll even hear defense attorneys trying to take advantage of this attitude in plea negotiations: "C'mon Mary, this is John Smith. You can give him a short sentence. You know you'll get it on the backside."
The flaw in probation is that offenders and society at large don't associate punishment meted out under the probation system with the original offense. They see it as punishment for the probation violation. Thus, incarceration which proceeds from a probation violation only serves the purpose of quarantining of the defendant. The fact that punishment is occurring means that rehabilitation has failed. Community deterrence doesn't occur because the punishment is divorced from the crime (although, assuming the offender hangs around with others on probation it will at least serve as a lesson to them). Simple punishment for the initial crime went by the wayside in the initial sentencing; the punishment in a probation violation hearing is for the failure of the offender to reform himself. Still, the offender ends up incarcerated.
Herein lies the philosophical fork in the road. If someone believes that there is a class of persons who are going to break the law no matter what is done, then the goal is to get these individuals off the streets for the longest period of time possible and the "We'll get him later" method make the most sense. It allows offenders to be removed from society in a far easier manner than a full blown felony trial with its constitutional protections and high level of proof. It also provides a safety valve because those very few who have the fortitude to fly straight and actually make it through probation without violating don't get an unnecessary period of incarceration (a benefit to both them and the taxpayer). On the other hand, if someone believes that individuals, and through them society as a whole, can be taught and learn through their errors then delaying punishment for the initial crime and putting people in prison later for probation violations which they don't associate with their original offense is counter productive. If the first felony larceny offense only gets someone a 3 year suspended sentence and a year of probation (a fairly typical sentence), no one learns not to commit larceny. At best, they learn to live by the rules of probation. This does not shape society away from those acts which we have deemed serious enough to make criminal.
Defendants almost never concern themselves with the amount of time or conditions which attach to probation. They have myopic vision which zeros in on how much time they are actually getting for their conviction, ignoring all else. Despite their attorneys' advice to the contrary, I'm fairly certain that the vast majority of felony defendants would agree to 10 years of probation rather than spend a month in jail and a year of probation.
The purpose of probation is fairly straight forward. Of the four purported reasons for a judicial criminal sentence - rehabilitation, quarantine (keeping the defendant from further harming the community), deterring others from offending, and simple punishment - probation falls almost exclusively in the rehabilitation. It's society's attempt to put someone back on the street and keep them on the straight and narrow.
The reality is somewhat different. Pretty much everyone in the courtroom, except perhaps the defendant himself, expects to see many (probably most) of the defendants back in the courtroom during their probation. This is based upon common experience repeated over and over and over again. Certainly, not all people put on probation violate it (and God bless those who don't), but the experiential bias which comes from being in the courtroom every day wouldn't lead judges, defense attorneys, or prosecutors to bet on it.
In some courthouses this can lead to a "we'll get him later" attitude which leads to sentences that are low because prosecutors and judges think they'll have another go at this guy a year or so down the line when the offender is back before the court in a probation violation hearing. In that hearing the level of proof is lower and the rules of evidence are far easier (basically, the hearing proceeds with all sorts of hearsay reported by the probation officer). It is extremely rare that a defendant is found not to have violated his probation and most probation hearings are primarily about what the punishment for the violation will be. You'll even hear defense attorneys trying to take advantage of this attitude in plea negotiations: "C'mon Mary, this is John Smith. You can give him a short sentence. You know you'll get it on the backside."
The flaw in probation is that offenders and society at large don't associate punishment meted out under the probation system with the original offense. They see it as punishment for the probation violation. Thus, incarceration which proceeds from a probation violation only serves the purpose of quarantining of the defendant. The fact that punishment is occurring means that rehabilitation has failed. Community deterrence doesn't occur because the punishment is divorced from the crime (although, assuming the offender hangs around with others on probation it will at least serve as a lesson to them). Simple punishment for the initial crime went by the wayside in the initial sentencing; the punishment in a probation violation hearing is for the failure of the offender to reform himself. Still, the offender ends up incarcerated.
Herein lies the philosophical fork in the road. If someone believes that there is a class of persons who are going to break the law no matter what is done, then the goal is to get these individuals off the streets for the longest period of time possible and the "We'll get him later" method make the most sense. It allows offenders to be removed from society in a far easier manner than a full blown felony trial with its constitutional protections and high level of proof. It also provides a safety valve because those very few who have the fortitude to fly straight and actually make it through probation without violating don't get an unnecessary period of incarceration (a benefit to both them and the taxpayer). On the other hand, if someone believes that individuals, and through them society as a whole, can be taught and learn through their errors then delaying punishment for the initial crime and putting people in prison later for probation violations which they don't associate with their original offense is counter productive. If the first felony larceny offense only gets someone a 3 year suspended sentence and a year of probation (a fairly typical sentence), no one learns not to commit larceny. At best, they learn to live by the rules of probation. This does not shape society away from those acts which we have deemed serious enough to make criminal.
10 January 2010
CES: Tools, eReaders, & Dual Screens
Anybody who follows any tech news knows that this last week was the Consumer Electronics Show. It's a yearly get together of almost all of the electronics companies where they show off all that's new and interesting. The big things this year have been 3D TV's, eReaders, and tablet computers. I could care less about 3D TV's, which I hope die a quick death (unless someone figures out holographics). However, eReaders and tablet computers are heading somewhere that I see as being extremely useful.
The best of the eReaders seems to be the QUE proReader. Here's a video in which engadget examines the proReader:
The proReader appears to be the thinest, lightest most capable new eReader out there. At 8.5 X 11", it is larger than the Sony Reader Daily Edition at 7" and maybe smaller than the Amazon Kindle DX at 9.7" (measured diagonally). Effectively, I think the sizes will probably all be adequate for viewing .pdf's or .doc's stored as part of a case file. The proReader seems to have the same flaw as the DX, in that the reported capabilities does not include the ability to add SD memory cards. As well, both the proReader and the Sony RDE do not have the Kindle's ability to access the web pages via the internet (limiting the access to downloading books and magazines). The proReader, at 8gb, has more memory than the DX, at 4gb, and far more than the Sony RDE, at 1.6gb. There does not seem to be the ability for freehand note taking in either the proReader or the DX that the Sony RDE claims to have (a vital need if this is going to become business useful). It's becoming more and more foreseeable that in the near future the cutting edge attorney won't be going to court with the four files for that day's cases, but with an ereader that has the files for all his cases in it.
However, the tech's not there yet. One innovation which I think would be a boon would be the folding dual screen. MSI was showing off a very early version of this sort of device. Here's engadget's video:
Obviously, that device is still flawed and I suspect that it would be too heavy to carry and have too little battery power for long use because it's still trying to be a full on computer. Still, imagine having a document displayed on one side and taking written notes on the other side which could be saved to the same case file. It'd be a great way to work on another case while waiting a couple hours for the case you are in court for to be called. As well, it would allow you to take notes straight into your file in the courtroom and easily store them forever.
Personally, I'm looking for a very light, very thin, fold-open device which used e-ink on both sides, both to save on eye strain and extend the battery to a couple days. Wifi and/or telephonic internet connection would be good, so that files and messages could be sent back and forth between the office and so legal web resources could be accessed. We're not there yet. If I had to buy a device at this moment, I'd get the Sony RDE because it allows SD cards to be exchanged and freehand notes.
Of course, now we all wait to see what the Apple most wonderfulest superslate tablet computer which every tech site on the web is already drooling over, even though it shan't be even possibly announced until the end of this month. Newton 2?
ADDENDUM - I was just watching TWIT and they pointed out the enTourage eDGe, which is pretty close to what I want. Here's Cnet's first look video:
They say that the ereader is on the slow side and the computer isn't exactly the fastest in the world. I could live with that, but I still need it to be very thin, very light, and have 2 days worth of battery power once charged. I doubt they'll be able to do this unless both sides use e-ink. Still, this is the closest to what I've been looking for.
BTW: Apparently, the proReader does allow freehand. You just have to provide your own stylus (or write with your finger like you did in kindergarten).
The best of the eReaders seems to be the QUE proReader. Here's a video in which engadget examines the proReader:
The proReader appears to be the thinest, lightest most capable new eReader out there. At 8.5 X 11", it is larger than the Sony Reader Daily Edition at 7" and maybe smaller than the Amazon Kindle DX at 9.7" (measured diagonally). Effectively, I think the sizes will probably all be adequate for viewing .pdf's or .doc's stored as part of a case file. The proReader seems to have the same flaw as the DX, in that the reported capabilities does not include the ability to add SD memory cards. As well, both the proReader and the Sony RDE do not have the Kindle's ability to access the web pages via the internet (limiting the access to downloading books and magazines). The proReader, at 8gb, has more memory than the DX, at 4gb, and far more than the Sony RDE, at 1.6gb. There does not seem to be the ability for freehand note taking in either the proReader or the DX that the Sony RDE claims to have (a vital need if this is going to become business useful). It's becoming more and more foreseeable that in the near future the cutting edge attorney won't be going to court with the four files for that day's cases, but with an ereader that has the files for all his cases in it.
However, the tech's not there yet. One innovation which I think would be a boon would be the folding dual screen. MSI was showing off a very early version of this sort of device. Here's engadget's video:
Obviously, that device is still flawed and I suspect that it would be too heavy to carry and have too little battery power for long use because it's still trying to be a full on computer. Still, imagine having a document displayed on one side and taking written notes on the other side which could be saved to the same case file. It'd be a great way to work on another case while waiting a couple hours for the case you are in court for to be called. As well, it would allow you to take notes straight into your file in the courtroom and easily store them forever.
Personally, I'm looking for a very light, very thin, fold-open device which used e-ink on both sides, both to save on eye strain and extend the battery to a couple days. Wifi and/or telephonic internet connection would be good, so that files and messages could be sent back and forth between the office and so legal web resources could be accessed. We're not there yet. If I had to buy a device at this moment, I'd get the Sony RDE because it allows SD cards to be exchanged and freehand notes.
Of course, now we all wait to see what the Apple most wonderfulest superslate tablet computer which every tech site on the web is already drooling over, even though it shan't be even possibly announced until the end of this month. Newton 2?
ADDENDUM - I was just watching TWIT and they pointed out the enTourage eDGe, which is pretty close to what I want. Here's Cnet's first look video:
They say that the ereader is on the slow side and the computer isn't exactly the fastest in the world. I could live with that, but I still need it to be very thin, very light, and have 2 days worth of battery power once charged. I doubt they'll be able to do this unless both sides use e-ink. Still, this is the closest to what I've been looking for.
BTW: Apparently, the proReader does allow freehand. You just have to provide your own stylus (or write with your finger like you did in kindergarten).
06 January 2010
Blackstone:
Should criminal law be revised every hundred years?
The Legislature's Duty:
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In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind : though it sometimes (provided there be no transgression of these eternal boundaries) may modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge ; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion ; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ; from, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil.
. . .
[E]ven here [in Great Britain] we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded ; from not repealing such of the old penal laws as are either obsolete or absurd ; and from too little care attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall be subject, ought not to be left as matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons, who know what proditions the law has already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proofed, and who will judge without passion or prejudice how adequate they are to the evil. It never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary, when laws are to be established, which may affect the property, liberty, and perhaps even lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape ; or cut down a cherry tree in an orchard. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.
It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public : but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy.
.
----------
In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal ; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind : though it sometimes (provided there be no transgression of these eternal boundaries) may modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge ; from retaining the discordant political regulations, which successive conquerors or factions have established, in the various revolutions of government ; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as lord Bacon expresses it) merely upon the spur of the occasion ; or from, lastly, too hastily employing such means as are greatly disproportionate to their end, in order to check the progress of some very prevalent offence ; from, or from all, of these causes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil.
. . .
[E]ven here [in Great Britain] we shall occasionally find room to remark some particulars, that seem to want revision and amendment. These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded ; from not repealing such of the old penal laws as are either obsolete or absurd ; and from too little care attention in framing and passing new ones. The enacting of penalties, to which a whole nation shall be subject, ought not to be left as matter of indifference to the passions or interests of a few, who upon temporary motives may prefer or support such a bill; but be calmly and maturely considered by persons, who know what proditions the law has already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proofed, and who will judge without passion or prejudice how adequate they are to the evil. It never usual in the house of peers even to read a private bill, which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary, when laws are to be established, which may affect the property, liberty, and perhaps even lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fishpond, whereby any fish shall escape ; or cut down a cherry tree in an orchard. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians.
It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public : but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to hint them with decency to those, whose abilities and stations enable them to apply the remedy.
.
04 January 2010
The Northern Virginia Federal Congressional Penitentiary
Norm & Scott have suggested that for legislators to serve they should have to spend 6 months in prison so that they know what's happening to people subject to the laws they pass. Somehow, I just don't see it working out that way . . .
------------- -------------- ---------------
Warden: Nancy Pelosi
76 Lyndon Baines Johnson Road
Alexandria, Virginia 22306
Security Level: Ultra-Low
Assignment Criteria: Election to Congress or conviction of graft while a sitting federal legislator.
Special Programs: Golf rehabilitation program. Cute Aide withdrawal therapy.
------------- -------------- ---------------
Warden: Nancy Pelosi
76 Lyndon Baines Johnson Road
Alexandria, Virginia 22306
Security Level: Ultra-Low
Assignment Criteria: Election to Congress or conviction of graft while a sitting federal legislator.
Special Programs: Golf rehabilitation program. Cute Aide withdrawal therapy.
Incarceration Program: Inmates are housed two to a room and are locked down from midnight until 6 a.m. There is only one phone per room and calls are limited to 3 hours per day and may not be received except between the hours of 9 a.m. and 10 p.m. Inmates must supervise cleanup of the tennis courts, gym, and golf course between 9-11 a.m. daily.
Punishment of misbehavior: Institutional sanctions are punished by solitary confinement in a room with no honor bar, no premium cable, and no turn-down service. In order to avoid issues the 8th Amendment no institutional sanction shall last longer than 3 days.
.
Around Virginia
1) Judge Warren, the longest sitting judge in Virginia, is retiring. Judge Warren sat mainly in rural counties. Unlike a lot of "circuit" court judges in the modern world, Judge Warren actually rode his circuit and I used to appear before him in both Powhattan and Amelia counties.
2) Speculation that there will be more death eligible crimes under the new governor.
3) In some places the bad economy has led to more financial crimes.
4) Is it constitutional for a State agency to force an owner to lease his mineral rights, then allow the company to take its expenses out of the payments, and then have that same State agency hold the money in escrow rather than paying the owner?
2) Speculation that there will be more death eligible crimes under the new governor.
3) In some places the bad economy has led to more financial crimes.
4) Is it constitutional for a State agency to force an owner to lease his mineral rights, then allow the company to take its expenses out of the payments, and then have that same State agency hold the money in escrow rather than paying the owner?
03 January 2010
A New Year, A New Project:
Virginia Criminal Cases & Law
This was my project over the Christmas / New Year breaks. It's an outline of the cases which come out each month from the Virginia appellate courts and those cases out of the 4th Circuit and US Supreme Court which I think are relevant to Virginia criminal law. I hope it will be useful to those of you from Virginia.
I built this with Squarespace instead of writing this one myself. In fact, I don't know if the webpage would have been created if Squarespace hadn't been offering a free 14 day trial. Squarespace works pretty well and I doubt I would have gotten the page up as quickly as I did if I had written it myself instead.
Anyway here's the link: Lammers' Virginia Criminal Cases & Law
01 January 2010
The Ugky Side of Jury Nullification: Emmett Till
There are a lot of people out there who think that jury nullification is a panacea. The problem is that jury nullification is an application of the jurors' prejudices. No one thinks about how nullification can allow the dark sides of people to come to the fore and allow evil to triumph. Ladies and Gentlemen, I give you the Emmett Till trial.
In 1955, Emmett Till was a 14 year old Black kid who was visiting relatives in Jackson, Mississippi. He was rude to a married White woman. That night at least two White men broke in while Till was asleep and dragged him off. J.W. Milam and Roy Bryant took the youth off and beat him at gunpoint. Then, incensed that Till would not admit they were better than him or recant his statement that he had slept with white women, they shot him dead. They tied a fan to the neck of the body using barbed wire and through it into a river.
When Milam and Bryant were tried their attorneys trotted out the defense that there was no proof that Emmett Till was dead. Till's mother identified his body and a unique ring which had belonged to Till's father was found on the body. The defense attorneys argued that it was all a plot to help destroy the way of life of Southern white people. The jury took an hour to find the defendants not guilty.
The prejudices involved in the case are pretty clear, but in case none of you are up on your civil rights history here's a letter written to LIFE about the murder and trial:
In 1955, Emmett Till was a 14 year old Black kid who was visiting relatives in Jackson, Mississippi. He was rude to a married White woman. That night at least two White men broke in while Till was asleep and dragged him off. J.W. Milam and Roy Bryant took the youth off and beat him at gunpoint. Then, incensed that Till would not admit they were better than him or recant his statement that he had slept with white women, they shot him dead. They tied a fan to the neck of the body using barbed wire and through it into a river.
When Milam and Bryant were tried their attorneys trotted out the defense that there was no proof that Emmett Till was dead. Till's mother identified his body and a unique ring which had belonged to Till's father was found on the body. The defense attorneys argued that it was all a plot to help destroy the way of life of Southern white people. The jury took an hour to find the defendants not guilty.
The prejudices involved in the case are pretty clear, but in case none of you are up on your civil rights history here's a letter written to LIFE about the murder and trial:
Maybe the Emmett Till case will convince "smart alecky" Negroes to stay in the North where such things as the attempted assault of Mrs. Bryant are condoned. We do not want them in the South and will not have them even if it means drastic measures.And, lest any of you might think there's a chance the defendants didn't do it - they confessed to a reporter after they were found not guilty.
Mrs. Sarah White, Memphis, Tennessee
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