Monday, April 24, 2006

A Sunday Trip Around The Blogoshpere

I have been away for a week visiting The George Washington University and getting steeped in "Colonial" culture. My eldest son has decided to study there for the next four years. Hence I haven't been to active here. I am back however,and what better way to start than with a fast spin around this weekend's Blogosphere:

For those of you who want to know why always throwing the book at crime can be a bad thing, check out this post. Here is your money quote:

""There's not much of an advantage to pleading guilty these days because the (sentencing) guidelines are so high," said Albany-based Assistant U.S. Attorney Thomas Spina. He said he has prosecuted federal child pornography cases for 15 years and has never had one go to trial."

Professor Berman also had this post about sentencing disparity run amok. Two defendants, one judge. Poor defendant robs a guy at gun point of two dollars when he is 17, gets probation for 10 years, smokes some pot, gets life for the probation violation. The other defendant (rich connected defendant) kills a guy gets 10 years probation, (that really rarely happens either)smokes crack 5 times gets off and doesn't have to take urine tests to test for drug use anymore.(Musta been too inconvenient to avoid crack.)Where is 60 Minutes when you need it?

I have been toying with writing a post about why I think that sentencing disparity in federal court is not such a bad thing. I am interested in doing research in the area if I can find the time (or a sponsor hint, hint...) but stories like this one just really turn the stomach of anyone who is interested in justice, and sees justice as our way of evening the playing field between rich and poor. The judge in question has refused to give any interviews on the subject. He ought to at least have to speak to an investigator from the courts or the legislature about this.
Money quote:
" 'This certainly undermines one's confidence in the judicial system around here,' said Rick Jordan." Ya think?

Vohlok Conspiracy is right on top of our latest Public supported teacher (this one a University dept. Chair no less) who cannot figure out the First Amendment. Worse yet, this hypocrite has written warning others not to do what he just did. It gets worse yet!! The Penn State mouthpiece then gets caught lying about why the censorship occurs by an e-mail exchange. Read all about it and weep for our forgotten First Amendment here.

Here is you're moment of Zen:
"So we have two possibilities here: (1) Penn State's art faculty has a rule against displaying any student work that has any sponsorship, including sponsorship of a student organization such as Hillel [near as I can tell, Penn State Hillel is an official PSU club, though I'm not 100% sure]. However, this rule is only applied when the faculty doesn't like the message the art is sending or (2) there is no such rule, or at least it wouldn't apply to a noncommercial, student organization such as Hillel, but pretending there is such a rule is a convenient excuse for what would otherwise look like pure heavy-handed enforcement of political correctness.

Needless to say, neither option reflects well on Penn State" Ya Think?

Our favorite Matrimonial lawyer/blogger has this to say about do it yourself divorce over at Divorce Hotline blog.
Here is the Money Quote:

" Personally, I have handled one too many cases where a novice successfully drafted a divorce settlement only to cause the parties to re visit concepts which should have been addressed in the settlement papers but where either overlooked or intentionally left vague so the parties could "mutually agree on their terms." The problem inevitably arises however, where the parties cannot agree and some judicial intervention is needed to resolve these issues. Now the parties have to fight the good fight once again and the cost is usually greater than it would have been if they had hired an attorney to draft the documents to begin with."

Remember, Abe Lincoln warned that the person who had himself as a lawyer, had a fool for a client.

Finally under the heading "You just knew this was coming" we have this "startling" new revelation from the Duke Lacrosse team debacle prosecution.

How come when they have next to no decent actual factual evidence, every prosecutor becomes a pharmacologist? I don't know if a rape happened at this party or if there is just a Tawana Brawley encore occurring here. What I do know, is that this investigation and prosecution has the words "unmitigated disaster" written all over it. Scientific evidence is non-existent, Physical evidence is weak, there is allegedly photographic alibi evidence, and Testimonial evidence has more flip-flopping than a retrospective of John Kerouac career.

One more thing on the Duke case. I get sick and tired of apologists on both sides trying to play the race card here. Let's get right down to it. Those boys (read that to be every kid at that party) should have been setting an example for their schoolmates. There is no excuse...NO EXCUSE for the type of behavior exhibited there. On their best day everyone of those boys present at the "show" is a cad. At the very least, every kid involved there at the time of the "performance" should serve a suspension of at least 1 semester, and loss of their athletic scholarship. This was a serious lack of judgment.

As for the dancer, find a strip club. I have yet to see, deal with or have to represent someone at a private party strip show at a frat house or college eating society where sex (usually paid for) didn't happen. Allegations of "rape" often follow same. She shouldn't have been there either, and she should never have accepted a drink she didn't supervise the making of. She shouldn't have been there without an escort body guard and her co-performer should have had more sense than to leave her partner behind. If she is a dancer with any experience she should have known all of that.

In fact that is good advice for every kid and young adult. The chances of someone drugging you go up exponentially when you accept a drink from someone else, or when you go back to a drink you left unattended. Watch them make your drink, and drink it. Do not let someone else carry it back to your table, do not leave it or turn your back on it, even for a moment. If you do, go get another. It is the safest way to go.

Ok that's it for now. I hope to get another one of these out to you soon.

Friday, April 14, 2006

This Is Why I Belong To The ACLU: 1.2 Million Dollar Settlement in Goose Creek Police Drug Raid On High School

My friends and family give me a lot of grief over my decision to join and participate in the ACLU and its local NYCLU Chapter. I don't always agree with their case choice decisions and I am not sure that their agenda is a little more political than I would like it to be. However, the above story however is why I do it. If you don't remember the disgusting facts about this gun drawn/drug dog sniffing drug raid at a local High School, go here for the pictures and videos, and here for the original story.
I think kids going to school in the morning need to be free of people selling drugs in their school. However I think a stormtrooper style raid is probably worse. More importantly, they didn't find any drugs!

If the ACLU doesn't get involved, it is hard to find a lawyer in those parts with the wear-withal to sustain the case, deal with all the plaintiffs and fund the suit. Not to mention I get the feeling Goose Creek SC, doesn't have a large legal community.

Hopefully the settlement will give other police forces pause before they act on tips by staging storm-trooper style raids on High Schools. Sorry but I have no problem with this result. One should not be drawing guns and have a dog rip at a child's school bag in a high school unless one's life is in danger. That does not seem to be the situation here.

I will be sending in my ACLU renewal fee shortly.
Hat tip to CC Happens. for the information and a lot of the links.(Watch out this group blog is definitely rated PG-15.)
By the way you can access the Police department website by following this link.

Tuesday, April 11, 2006

HOW COOL IS THIS... For me at least

I don't get a whole lot of links or comments which sometimes leads me to believe noone but my mom and wife are reading this blog. I know some of you tell me you see it now and again and I seem to have a few really loyal readers (and I really appreciate you guys!!) But every so often I get really ranting on a topic and sometimes people take notice. Bloggers live for trackbacks and links and I got a really big one today from David Hull over at "What about Clients".

David's blog is more oriented toward business lawyers but there is a lot of things that focus on client service for individual and small business clients and I have been reading it often over the past 2 weeks. He had a few posts about the billable hour and how it doesn't serve clients and how general counsel don't really like it. He talked about how it drives a wedge between lawyer and client. I guess running my own firm and realizing how flat fees and "bonus pay" really screws over the individual client (even though they often do not know it)I had a few ideas on how General Counsel can if they show some initiative can really score good results for reasonable rates even using a billable hour system.

If all this leaves you in the dust don't sweat it (really mom it's no big deal)but the end shot was a big time link to That Lawyer Dude which tickles me (and my wife AND my mom) to no end. So thanks to David Hull and "What about Clients" and to all the other blawgers that link to us here and at Long Island (Criminal) Trial Law.

Sunday, April 09, 2006

Are Burnt Out Lawyers Ruining The Profession

Later today, I hope to do some blogosphere posting of interesting things I have seen since Wednesday. Right now however I am intrigued by the above post which questions whether lawyers who are burnt out ruin the profession.

I always felt like the burn outs were dangerous for many of the reasons mentioned in the article. The main reason they hurt us is that their"Give a Damn's busted. It is hard to give a client good service when you just don't care, or believe, in the client, the matter, or the legal system as a whole.

I can't really figure out what the reason for such a high degree of burn out is. I used to think it was about the money and the hours. I now think however, it is more systemic than that. I think it has to do with the difference between what the study of law promises, and what the practice of law delivers.

Too many lawyers thought this was about going into court and fighting for the rights of others, where a team would get together and prove the government had the wrong person. They thought clients would appear out of nowhere, with money, hire them at great rates, pay for the team, and that they could prepare the case and present it all in an hour. Call it the Perry Mason or Ben Matlock syndrome. There is almost no motion practice, discovery fights or even judicial ill temperament. Perry Mason doesn't even face a jury. Even our patron Saint Atticus Finch in "To Kill a Mockingbird" doesn't do much to prepare for trial (on screen at least.) (That is not why he loses however).

Legal work is more than asking tough questions and working on issues of constitutional import. It is filing motions, even in the most mundane petty larceny case. It is giving your client the respect, and courtesy, to believe his story as long as it remains plausible. It is dealing with frustrated judges who are jealous of how much we private counsel earn and who go out of their way to make our lives more difficult. Not to mention stubborn prosecutors who care more about their next elected office than the cases or people they are supposed to serve now. It is dealing with clients who don't pay, or do so grudingly, because they "weren't guilty in the first place" so they shouldn't have to pay to be proven correct. These are not things you usually hear about when lawyers talk about why they became lawyers, but they are among the first things they tell you about when they say why they want to quit. (For a clever joke that might lighten your mood, and make my point, check out Sui Generis, here.)

I have been saying for a long time now, Law is a very difficult and draining profession. You should only enter into it, if you can find the intrinsic beauty of it, its traditions, and its symmetry. You need to understand the Zen of it. Truth is not a goal so much as an occasional byproduct. Equality is the goal. Compromise is inevitable. Black and white turns to shades of gray.

Money should not be one's main motivation for entering any profession. This is especially true of law. The money is rarely guaranteed. I think helping the client who needs you, should be the motivation.

That is not to suggest that feeding, clothing, and housing your family is not very important. It is not even to say that the accoutrement of wealth should be shunned. It is just that ignoring compelling cases because you won't make money on them shatters your belief in the system and in yourself as a player in that system. Yet many attorneys will not follow their hearts. They will turn down that case and other non-lucrative cases in order to chase money. Letting a dream die cannot turn one into a pleasant human being. This in turn fuels burn out and disenfranchisement leading to comments like " Be a Lawyer? Why would you want to do that?" Or the very popular "Don't apply for law school... Go to "B" school, that's where the money is."
These speakers have lost their compass. I am intrigued everyday by what I can do to make the system preform better. I come to work everyday in the hope that my efforts will improve the profession, the world, and the client I am serving (not often in that order of course.)

The "not caring anymore" lawyer leads to sloppy habits: Not filing motions; Racing to turn a client ""state's evidence" before learning he has a defense; Not challenging rulings or witnesses because it might make one unpopular. Systemically that leads to sloppy police work, and lazy prosecutor habits. It results in judicial misconduct as well. In all, not only does our profession suffer, but so does the state of all of our legal lives. They say hurricanes can be effected by the wing flapping of a single butterfly thousands of miles away (it's called the butterfly effect). Imagine what damage one burnt out lawyer does to a justice system.

In a column to come, I will discuss my solutions to lawyer burnout. I would, in the meantime, love to hear from others who face the issue, and hear about their solutions, or even just their problems with burnout. As my friend Blondie's tort professor used to say,"Discuss."

Thursday, April 06, 2006

"Give Me Your Tired Your Poor"... Support American Immigration

I have linked to an article in today's "USA Today" about the immigration debate on Capital Hill. In reality I am writing to you, my readers, in the hope you will join with me and support both a guest workers' program and a "patriation" program for undocumented immigrants who have been in this country since 2004.

Why a guest workers program?:
Simple. There are an estimated 10 million undocumented immigrants in this country. We do not know who they are, or where they are at any given moment. They have no interest, nor do they have any incentive, to report where they are to us. In a country of 225 million or so, that about 5% of its population is unaccounted for in any way is a big problem. Post 9/11 it is just plain insane.

If most of America's undocumented aliens were to come out and let us know where they were, it would increase the ability to hunt out those who are here to do us harm. A guest workers program would give an incentive to both the alien and the employer to register. It would guarantee that the alien could report without fearing deportation and it would punish more severely those employers who would skirt the law. Moreover, the alien would get protection in the form of work and payroll support that are unavailable to him now because he fears deportation if he comes out of the shadows.
It would also favor fair and honest employers, as it would nearly wipe out the incentive for cutthroat business owners to cut costs using undocumented immigrants. It would dry up the pool of talented unreported workers and add a disincentive of stiff financial and criminal penalties. A guest worker program would thus protect law abiding business owners while punishing the unscrupulous. It would also add an incentive to report these unscrupulous employers because it would not hurt the alien.

Why patriate those that have been here since 2004?:

If we fail to patriate people who have been here since 2004 we will not get full compliance with the registration requirement. So many immigrants have built lives here and have families and people they love here. So many are integral to the businesses they are employed in. Their children know no other home. These kids have no future even if they have lead a life of achievement and hard work.

Failure to have a fair patriation program will subject these people to continued hardship. It makes them prey for extortionist and those that would take unfair advantage of them. It also would cut down on immigration fraud immensely. It would lessen the burden on our Immigration courts homeland security and the Matrimonial courts. It would be fair and just.

For example take a young woman I know who has been here since 2000. She was brought in to work in the sex industry by unscrupulous black marketers from Eastern Europe. She managed to get away from them and has taken up with a very nice American born kid her age. They would like to be married and have children. Although very smart, she is stuck working in strip clubs because she cannot get a day job that earns her any real money. Why? Because she cannot safely come up out of the shadows. Her lover cannot marry her. If he does, and applies for citizenship, she is deportable for being in country without papers. She cannot go home, because if she leaves the country, she cannot get back in (unless she does so illegally.)Further, in leaving, Homeland Security will find out she was here, again opening her up to a 10 year waiting period to get back in (and they will never let her back in.) Her lover and she fear starting a family, because she can be put out at any time.
She hasn't seen her own family in over 5 years. Loved ones abroad have had children, married, and died. She has not been able to go to them. She came here as a young girl not 20 years old. She is a woman now but she is in limbo. Her heart breaks as her mother was diagnosed with cancer and she cannot be with her, but if she leaves, she leaves her Fiance forever on our shores.

Present American policy on immigration is unfair and inhumane. It sentences people who seek a better life to a life of running and looking over their shoulders. It renders our nation unsafe, and it thus endangers all of us. It allows the undocumented to be taken advantage of, and be unable to report crime and criminal activity without fear of reprisal from those they would protect. It threatens our economy and fosters unfair business practices which hurt honest businessmen. It stresses our city's budgets for services without letting those governments collect taxes for the services they provide. It splits up families and it coursens the fabric of our nation.

I read with great displeasure a post by a "Neo-conservative" blogger a child of immigrants herself who took issue with the concept that America is a nation of immigrants. She wrote that 86% of us were born in America. She thinks us idiots. Anytime after 1825 American born people outnumbered immigrants by a great majority. We haven't been a nation of immigrants since before we were a nation by her definition.

The fact is almost all of us no matter how long our families have been in America are identified in part by the ethnic groups our forefathers hailed from. I will proudly always be an Italo-American though the only Italian words I know would get me kicked out of any decent establishment. (I can say the names of food I like however.) My sons are imbued with my sense of family history and pride. I do not think much about Italy. Instead I focus on the brave men and women who came here before me, raised my parents and aunts and uncles. I think of their struggles and the hardships they faced. I think of a family of young men who marched off to war and fought in their parent's homeland to free it from fascism and the Nazis. I think of a family that built construction companies. Those companies worked to help build a city and Island that I love. New York and Long Island were built by the hands and sweat of immigrants and their children. I have taught that history to my boys and I hope I will teach it to my grandchildren when that day comes. This immigrant experience is from where we draw our strength. It is how we measure our successes too.

I was the first Grandchild of these immigrants to get an advanced degree. My son Frank wants to be the first to go to an Ivy League college. We carry the traditions of our immigrant grand (and great grand)parents. We teach these traditions to our young.

America will continue to be great the great nation it has become, if it can remember that it is, in fact, a nation of immigrants. America is not just the greatest nation of our time, it is the greatest nation of all time. It is as great as it is, because we have taken the bravest and toughest and smartest of all nations and given them a chance to reach the pinnacle of their abilities. Yes we had great resources, but it takes great people to harness those resources. Those that oppose the President and Senator McCain's immigration initiative, have no vision. They look out only for themselves and only for today. They are short of sight and of charity. They are not Americans for they know not the American spirit.

For those not aware of the words inscribed upon the Statute of Liberty they are the words of poet Emma Lazarus. They describe the promise of the America I love. They inspire me daily. I commend them to those who agree with me on this issue. I pray that those who do not, read them and take them to heart, and that they too will be filled with the excitement and promise The Lady of the Harbor, Lady Liberty inspires.

The New Colossus:
"With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep ancient lands, your storied pomp!" cries she

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"

Keep the door open. Support the McCain-Kennedy Secure America and Orderly Immigration Reform Act. Call your Congressman, and Senator. Tell them you care about this issue, and tell them you vote. Remember their vote on this issue of national import when you vote in November.

UPDATE: Check out this wonderful blog on the importance of immigration to America's history.

Saturday, April 01, 2006

Go Take Our First Amendment Quiz For High School Administrators At Our Sister Blog Long Island (Criminal) Lawyer.

I just put up another post about High School Administrators who don't understand student Free Speech. Now I will admit running an American Public High School is difficult work. However, if your not up to the job move over and let someone else do it. Understanding and teaching respect for law includes your knowing some law. Hence go take our quiz and come back here and record your score.