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This much we now know: Many provisions of Arizona's immigration law, SB 1070, have been put on hold pending further review, the result of this opinion by Arizona federal judge Susan K. Bolton. But what happens now?

Congress approved a landmark change Wednesday to the mandatory sentences for cocaine possession that detractors have long alleged had racist effects.

A federal judge in Phoenix put on hold the most controversial provisions of the state immigration law slated to take effect Thursday.

Arizona's new illegal immigration law goes into effect on Thursday, but there's a problem. The state can't actually deport detainees. And the federal government, which does have that power, has suggested it may not use it.

On Monday morning, we did some looking into the legal issues surrounding WikiLeaks' decision to unveil some 92,000 previously classified documents on the public, in connection with a handful of media outlets. The bottom line, some First Amendment experts informed us: the government certainly had the right to go after and punish the person within the military who leaked the information. But logistical and legal concerns dictate that civil or criminal charges against WikiLeaks or any of the three publications that published the information are probably not gonna come. WSJ editor Alan Murray continued to fill in the picture Wednesday morning in this chat with legendary First Amendment lawyer and Cahill Gordon partner Floyd Abrams. We highly recommend checking out the video of their lively conversation. Some highlights . . .

The NYT takes a look on Wednesday at an interesting dynamic playing out in a number of states. It's this: states have to live under the federal health care law that they've sued to stop.

After the spectacle that was Monday, closing arguments finally took place on Monday in the corruption trial of former Illinois governor Rod Blagojevich.

Until now, it's most been preseason in regard to litigation resulting from the BP oil spill. Yes, many many suits have been filed, but few have yet had the time to get off the ground. All that will change on Thursday, when the regular season will begin in, of all places, Boise, Idaho.

Citing improper jury instructions, the Utah Supreme Court threw out two felony accomplice rape convictions in the high-profile case of controversial religious leader Warren Jeffs.

The little town of Fremont, Neb., stirred up quite a bit of dust in June when its 25,000 person town voted in favor of banning illegal immigrants from renting property or getting a job. It followed on the heels of a similar move in Arizona. Now, the City Council, which had rejected the ban two years ago, is saying it might suspend the ban. The reason? Money.

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

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

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

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

 

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

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

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

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

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

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

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

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



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

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

Seriously, the theme music was really awful.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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I received a suicide note today.  Many emails come in from readers who are angry, outraged, at their treatment by the system and express their rage at one or more participants.  This was completely different, and important enough that I take a few minutes from real work to write about it.

The writer doesn't ask me for anything, other than the hope that I might eventually find time to tell his story.  He writes that it's difficult, but that he's already dead.

He was charged with internet solicitation, for going to a gay chat room where he was nabbed by police who didn't agree with his preference.  Despite paying good money for a lawyer, it ran dry and eventually he was offered a plea that included 15 days in jail, a $500 fine, 20 hours of community service and 3 years probation.  He was told that his felony would be reduced and expunged when he completed his probation.  He was told to take the deal, so he did.  Things didn't work out the way he was told they would.

I wake up and cant believe whats happen . this has been going on now for 8 1/2 years  i have no job  i am broke  i have nothing i am going to lose my home my parents pay for my bills but  when you havnt been to a medical Doctor in 7 years or a dentist my teeth are rotting . I lost my medical insurance when i was fired from my job.  my savings are gone.

i cant form a relationship because who wants to be with a felon and a registered sex offender ??  I have lost  friends i had .    Now they changed how you have to register  so you have to pay for a drivers license every year  and on top of that they charged $75 a year just for the privilege of being a registered sex offender  which they raised to $ 125 which i don't have the money to pay for i don't have any money  because i was fired from my job and  am now unemployable   I live off my parents who can not afford it.  my life is a pure hell.  i am 10 years older now and  unemployed.  all my savings which i had saved for retirement  is GONE!   but i want people to know  ... 

He wants people to know that he didn't do it.  He never hurt anyone.  He never would hurt anyone.  He doesn't ask for any help in fixing his life, but only that someone knows why he took his life.

All of us, myself included, talk about the law in a theoretical sense, disconnected from a hard recognition of the human consequences.  No doubt there are people who can explain, inch by inch, line by line, how and why everything that happened here was grounded in good intentions, for the purpose of protecting people from harm.  We know that harm is caused in the process, but we shrug it off as collateral damage in the war on crime.  We are willing to suffer the damage to some in the name of protecting others.  We know that some innocent people will be caught in the process, but we close our eyes and argue that it can't be helped.  It's just the price we pay. 

Except we don't really pay it.  The writer of this email paid it, after losing his job, his savings, his life.  He served 12 days of a 15 day jail sentence, a trivial sentence in itself, but only the prelude to a nightmare.

Lawyers complain about the misery of their lives, having to go back to the trenches and suffer the indignities of fighting against the tide. Oh, how hard it is.  But they go home at night and have dinner with their families. 

To the judges, prosecutors, legislators and yes, defense lawyers, who support and enable the criminal justice system, this is your success story.  You've achieved everything the criminal justice system exists to achieve. You got your conviction and exacted everything from him that you possibly could.  In your zeal to make absolutely certain that no one can ever escape your control, this is what you've created.  Are you happy?  Is this what you hoped to accomplish?

If the writer of this email takes his life, you will have exceeded your goal.  You will have imposed the death penalty, on top of the 12 days to which he was sentenced and the life of misery.  You should be very proud of yourselves.  Your system worked like a charm, and society has one less person to worry about.  He will never harm anyone, even though he may never have harmed anyone before.  It's a success story.

I don't know what's become of the writer of the email.  I have taken action with regard to it, but haven't heard anything further as yet. 





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I remember the first time a man came into my office and told me his brother was arrested for "crack".  The word meant nothing to me.  I did a lot of work with clients arrested for drugs, and though I knew a bit about the drugs on the street, but this was new to me.  

He explained that it was cocaine cooked with baking soda, boiled down so that it was concentrated.  It was sold in tiny vials, and ingested by smoking rather than snorting.  Why?  It was a cheaper, quicker way to get high. Cocaine was expensive.  Crack was cheap. Crack soon became the talk of the land, the latest, greatest threat to society.

Uptown Manhattan changed during the crack rage of the 80s.  Competition for the street corners became fierce and violent.  People who once sold pot now sold crack, and other people with guns challenged them for their long-held spots.  There was huge money to be made.  You just had to stay alive long enough to enjoy it.  Many did not. 

Overnight, tales of crack grew to mythic proportions.  It was the most addictive drug ever.  It turned people into raging animals.  Crack addicts would kill for their next fix.  There were plenty of deaths to make the point, though most were kids on street corners being shot by other kids on street corners for the right to sell nickel vials.

In due course, crack fell out of favor, just as heroin and cocaine had before it.  Heroin was back at the time, bringing a quiet, passive type of junkie rather than the hyped up crack type.  Crack turned out not to be the worst drug ever.  Just another drug.  No more addictive than cocaine.  Just cheaper.

Congress, which has yet to remove marijuana from Schedule 1 , the list of drugs that are purely evil, addressed the horror of crack by making its punishment 100 times worse than powdered cocaine.  There were mandatory minimums, lest people skirt the horror of crack by holding it in small, but deadly, quantities.  The idea was that no amount, no matter how small, should escape severe punishment.  No crack dealer should escape the harsh punishment necessary to end this plague.  It swept a lot of small users up in its clutches.  They were usually black or Hispanic.  White people didn't use crack. 

It suited the myth, though it suggested that powdered cocaine, the drug of choice at the time by corporate executives, college professors and senators, was 100 times less criminal.  The joke back then was cocaine was God's way of saying you make too much money.  It was expensive, but people who had the money bought it, hung out at Studio 54 with the glitterati and snorted coke on the dance floor.  It made them cool and edgy.  It made them high.

I challenged the constitutionality of the sentencing guidelines, then mandatory, for crack, arguing that they were arbitrary and capricious, a penalty founded on distinction that didn't exist, rendering it irrational.  I was laughed at by prosecutor and judge alike.  Crack was the most evil drug ever conceived, and deserved its 100 to 1 disparity.  It's not that anybody in the courtroom, aside from my client, had the slightest clue about crack.  It was reefer madness.  Overnight, it was an inviolate part of the pathos of the drug war. 

A generation later, people in positions of influence came to the realization that it was just a fiction.  But it's a fiction that became so ingrained in the psyche of the powerful that it was nearly impossible to overcome.  Nearly.  The New York Times has an editorial calling for the passage by the House of Representatives of Senator Richard Durbin's bill ending the disparity.

Congress passed the misguided law two decades ago, when it was believed that crack — cocaine in baking soda — was more addictive and led to more violence than the powdered form of the drug. These myths were quickly debunked. But the country was stuck with a law under which a drug defendant found holding five ounces of crack received the same mandatory five-year prison term as one busted with 500 ounces of the chemically identical powdered form of the drug.

African-Americans make up a minority of crack users but account for about 80 percent of those convicted under the statute. The mandatory sentence has pushed drug policy in the wrong direction, imprisoning addicts who should have been sent to treatment programs.

I can't remember the last time a crack case came into my office.  I suppose they are out there, but the plague passed long ago amongst my clientele.  And Congress is first beginning to catch up to what was patently obvious a generation ago.  It's rather odd that there is a question on whether to end the disparity.  It's not like anybody is arguing to decriminalize crack, but rather punish it as severely as powdered cocaine.  As if that's a gift.

The crack plague served its purpose.  Many hopped on the war on drugs bandwagon, swapping freedom for safety from the hopped up masses of dark-skinned, drug-crazed crack addicts.   To argue that the crack disparity should be brought to an end at this point seems almost ridiculous.  It never should have happened, and the damage done by crack directly was nothing compared to the damage done by Congress' treatment of crack. 

Yet marijuana remains on Schedule 1.  Society has its newer plague, terrorism, to justify the continued adoration of safety over freedom.  And only after the latest and greatest war on something sweeps the country will we step back and look at what we foolishly did in the name of fear. 

Crack caused people to lose all reason.  All of those people held seats in Congress.  Should Senator Durbin's bill pass the House, it will end a vestige of criminal justice foolishness, but a generation too late.  The foolishness otherwise continues unabated.

Update:  The law passed the House. The 100 to 1 disparity is now reduced to 18 to 1, without retroactivity and maintaining the mandatory minimums (except for first time, small quantity possessors).  Woo hoo, kinda.

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Whether you chalk it up to a rite of passage or a demonstration of the minimal degree of knowledge for the right to be responsible for other people's lives, the bar exam must still be passed before you get to call yourself a lawyer.  I believe it will be administered on July 27-28th in New York.  Suddenly, all those smart-mouthed know-it-all kids who were busy telling lawyers all about their vision of the law are lying in their beds in the fetal position, praying that they don't screw it up and reveal to the world, and their mothers, that they are are total, complete failures.

Or so that's what I read at Thanks, But No Thanks, a law student blog I read about on Ed's Weekly Law School Roundup.

Calm down.  Take a deep breath.  Not because I'm sure you'll do fine.  I'm not. I don't even know who you are, and you may well be the loser you fear you are.  But getting yourself worked into a lather isn't going to help you any.  Nobody does better on the bar exam by hyperventilating.

Here's the deal.  Take the rest of the time off from your studies.  If you don't know it by now, it's too late.  No seriously, it's too late.  And chances are in your favor that you know more than you think.  Most people pass the bar exam, and you fall into that category. 

Your mind will work far better if you get a tan, take a swim, have a cool beer (preferably with a piece of citrus at the top of its long, long neck).  Relax and trust that if you have not been a complete screw up all along, lying and cheating your way through law school, you've likely picked up a bit of knowledge.  Not wisdom, mind you, but knowledge.  And that's all the bar exam asks of you.  No biggie.

Cool heads work better.  Worry too much and your brain will cramp.  That could be painful.  You don't want pain, do you?

And no matter what your mother or Uncle Charlie thinks, anybody can blow the bar exam the first time.  Anybody.  No, I passed the first time, but that doesn't mean that everybody does.  Great minds, thinkers, people, lawyers fail the bar exam the first time.  It happens.  Stercus accidit (use this in an essay and you're guaranteed an extra 2 points).

There is only one thing that you really need to know.  While anybody can fail the bar exam the first time, nobody but a blithering idiot* fails it twice.  No pressure though.  Best of luck and enjoy your time taking the bar exam.  Really.

* If you are reading this post and failed the bar exam twice, do not post a comment saying so or informing of great lawyers who failed the bar exam twice.  Just trust me on this.  Don't do it.

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I was sold on the idea after reading Dan Solove's book, The Future of Reputation.  For reasons unknown, the New York Times has finally caught up with its story in the Sunday Magazine by lawprof Jeffrey Rosen.  The problems are well known.

1.  People post the most mind-numblingly stupid revealing and personal stuff about themselves.
2.  People post things that seem funny at the time but will cause them enormous grief and problems later.
3.  People post things that are easily misunderstood by readers who are not within the intended audience.
4.  People post things in haste or anger, but can't take them back.

And then there are the problems people cause others.  Some post critically about others.  Sometimes it's well deserved.  Other times it's not.  Sometimes it's completely false.  Sometimes it's completely true.

One of the most problematic situations is when someone posts information about a friend that contains information that will haunt another person forever.  You can be circumspect in your own posting, but have no control over the propriety of what others post about you.

"Sue Smith was so drunk and high on coke last night that she let all seven of those disgusting guys have their way with her in front of everyone.  LOL!"

Yeah, that's a hoot.  Unless Sue Smith's employer happens to run across it as she's up for consideration for a new job, promotion, appointment.  Sue would have done better to remain in control, but then again, is it necessary that this be her legacy?

Rosen, like Solove before him, offers a number of solutions to the problem of perpetual online reputation.  The problem is that none of them come without a price, primarily in the form of free speech.  Whether the trade-off is worth it largely depends on where one's reputation falls along the spectrum.  If there are some nasty things out there about you, chances are good that you're all in favor of declaring "reputation bankruptcy" and clearing the cache, so to speak, of your past.  But then, it will also breed scoundrels by eliminating those aspects of their history that remain critical, such as disbarment.

To those people, and by "those people" I particularly refer to the young and foolish who appear clueless as to why today's fun and cool adventures won't be received nearly as well twenty years later, who post about themselves without the slightest degree of thought for their reputation, grow up.  You can be fun, carefree and cool without being utterly foolish.  Ask yourself, will this be nearly as cool when it's read by my future employer, client or spouse?  If not, don't do it.

Far harder is dealing with dear friends who mindlessly post the harmful, stupid stuff that wreaks havoc with another person's life.  They mean no harm.  Oops. Sorry.  Yeah, well, that doesn't do much good, now does it?

Think.  If you want to screw up your own life, reputation and future, at least you're the only who will suffer.  Don't screw with someone else's life out of stupidity and carelessness.  Don't do grievous harm to another because it seemed like a funny thing to do at the time.  Read what you are about to publish as if you were someone researching their life twenty years later, and consider that info posted by friends can frequently be considered one of the most credible sources of information about a person.  In other words, you are stabbing your dear friend in the heart and can't be bothered to think enough of it to restrain yourself.

I've seen this happen, and had it happen.  I've had very smart people post some very stupid things about me.  It's cost me friendships when the poster doesn't get why I'm so angry about their off-hand joke.  But their lack of comprehension isn't reason enough for me to be burdened by their moment of cluelessness forever.

The price for the solutions to the dilemma of reputation is higher than I care to pay.  There are some negative things about me floating around the internet, and some horrifically awful false statements made for the purpose of trying to do me harm.  I don't like them, but I would still prefer that we not engage in a series of legal responses that will infringe on free communication.  My shoulders are pretty broad.

The best solution, however, is also the easiest and cheapest.  Stop posting stupid and harmful crap for fun.  Think before you hit "enter".  Both for yourself and others, but especially for others as they don't deserve to suffer the consequence of your brain fart. 

Yes, a few funny things will be lost to the ages,  That's a price I can live with.

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Chandler criminal defense lawyer Matt Brown makes an astute observation.  Listening to a loud-talking probation officer in her 20s interview a defendant, it became clear:

After the probation officer finished, she shuffled past me with a faint smile on her face. I caught a glimpse of the defendant in the visitation room. He was grizzled, with a glass eye and scars everywhere. He was rail thin and had a head of curly black hair. I looked back at the probation officer. She waited impatiently to get buzzed out of the jail hallway while fiddling with her ponytail.

The stupid questions and the stark contrast between the probation officer and the defendant made a strong impression. She shouldn’t be in a position to report on him. He’s experienced things that she can’t even fathom. I’d guarantee it.

The coddled class judges society's rejects.

I imagine the probation officer sitting in her office, surrounded by bric-a-brac as she types up a report about that man’s antisocial personality and escalating drug use. A judge will read what she writes and commit a fellow human being to state custody for a term of years. The judge may have struggled less in his or her life than the probation officer.

They grow up in lives of relative comfort and great expectations.  They do well in school, come home to meals cooked by their mother and advice dispensed by a father wearing a cardigan, and attend the university where they read great literature and obtuse philosophers.  Not too many know what it's like to go to bed hungry.

Bobby Frederick in South Carolina picks up Matt's theme, and takes it a step further.

The probation officer could just as easily be the man's defense lawyer, the prosecutor, or any other person that comes into contact with him in the system and participates in determining his fate. I imagine that many readers of this blog and Matt's may relate more to the probation officer in the story, and that many of those readers just don't get it. Also, it's an academic observation - the coddled among us are most often the ones who are privileged to attend universities, obtain degrees, and take positions of authority over the rest of us - that's not going to change.

We all of the coddled class.  Defense lawyers, at least, have the opportunity to learn about a sphere of humanity that never had a chance to enjoy the wonderful opportunities we did, but that only helps if the lawyer has the metacognitive skills to see their relationship to others.  Most see nothing but themselves.

Both Matt and Bobby are relatively new lawyers, yet they consistently demonstrate a depth of observation and understanding that shows that they have what it takes to be great criminal defense lawyers.  No wasted energy on oozing self-absorbed  compassion without substance, as the Slackoisie are wont to do, but purposeful insight that furthers their grasp of the criminal justice system.

Throughout their legal careers, they will be confronted with real life as filtered through the prism of the coddled.  Judges, prosecutors, probation officers and yes, even defense lawyers, will recoil from the smell of a troubled life.  We can't conceive of how some miscreant ended up lying in the street in a pool of his own vomit rather than sitting for the college boards.  After all, they had the chance to go to school, just like us, but took the path toward a life of misery.  They made the choice not to be like us, to someday wear a cardigan and lecture our daughters on dating etiquette.

The truth is that many don't have lives that resemble our own experiences in any way.  We could parse it and point to bad choices, often by parents, cops, teachers and others who could have helped but instead became a guide down the road to perdition.  But every junkie, mugger and dealer has a tale of his own.  It's just not our tale. We have done so much better with our lives that we believe ourselves entitled to judge them.  We did right. They did wrong.  We win.

There are many people out there who have led lives of deprivation and misery.  Many have made some very poor choices, taking an ugly existence and making it worse.  Some are poorly educated.  Some are dumb as dirt.  Some are sociopathic and some are malevolent. Some are just sad and pathetic.

The coddled class judges them all harshly.  They are unsalvageable, or if they can be saved, it's just not worth the effort or the risk that some of their stench will rub off on us.  The coddled class looks in the mirror every day, making sure their hair looks attractive, before they pretend to help those less fortunate.  It's not that they don't mean well, but that they share no understanding of the life of those they judge.

It's impressive that Matt and Bobby realize this, as so many don't even though they think that disconnected empathy makes them worthy of judging others. 

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

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

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

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