09 June 2010

A Round Tuit (33)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

A Nice Cup of STFU

In the Monty Python episode "Blood, Devastation, Death, War, and Horror", a television presenter portrayed by Michael Palin uses an elaborate gesture to indicate to his audience that the natural pauses and breaks in his monologue are just temporary, that his speech will continue once he catches his breath, and that they shouldn't wander off. In another episode, Graham Chapman's "Biggles" is obliged to don and doff a set of antlers to indicate to his dimwitted courtesan... er, secretary whether he's dictating a letter or simply speaking to her. Frankly, if either of these approaches had been recommended by the Berghuis v. Tompkins Supreme Court to clarify in-custody discussions between police and suspects, it would've been nearly as sensible as what they did choose.

In Berghuis, Thompkins had been taken into custody by local police. He was read his Miranda rights and asked to sign a waiver of those rights. Very sensibly, he did not sign the waiver; somewhat less sensibly, he also did not request an attorney and expressly state that he would not answer police questions without an attorney present. Over the course of three hours, Thompkins sat quietly while interrogators peppered him with questions. As Steven Shapiro noted in a Wall Street Journal opinion piece:
Until the very end, Thompkins made only two comments of note: He declined a peppermint candy that the police offered and he complained that his chair was uncomfortable.

Thompkins said nothing else of substance in response to a barrage of police questions. He did not answer the easy questions and ignore the hard ones. He did not answer questions at the beginning of the interrogation and then stop talking later. The police themselves characterized the interrogation as "nearly a monologue."

Still, the police persisted. After nearly three hours, Thompkins was asked whether he believed in God and whether he had asked God to forgive him for his crime. A police officer later testified that Thompkins said "yes" to both questions, and Thompkins was convicted of murder.
If that sort of questioning causes you to flash-back to first-year Criminal Law lectures and the Brewer "Christian Burial" case, you're not alone. Scott Greenfield called the Berghuis questioning "A Christian Burial, Redux" and noted that this dimunition of Miranda hinged on one justice's decision:
We've been down this road before. Every law students studies the 1977 decision of Brewer v. Williams, where the defendant invoked his 6th Amendment right to counsel. Yet police continued to try to get Williams to talk, manipulating him with an appeal to his deep religious beliefs, that the parents of the young girl he murdered should be able to have a Christian burial. Williams led police to the body.

Much is packed into the Supreme Court's Berghuis v. Thompkins decision, Much surrounds it. It's a 5-4 decision, thus leaving the rights protected by our Constitution in the hands of a single individual, Justice Anthony Kennedy, whose individual views more than any other dictate the fundamental law of the United States of America.


The way it's told, the decision is ironic in that a defendant is required to speak to remain silent. Putting in these terms makes it almost cute, not to mention silly. It isn't as vast a departure from our understanding of the tortured use of Miranda to protect police interrogations as some suggest. Before this decision, defendant's were required to invoke the right to remain silent or the right to counsel in a clear and unambiguous way. This alone tripped up most defendants who were otherwise disinclined to heed the warnings. Most defendants heard and understood the warnings clearly, and talked anyway.

The change of Berghuis is that a clear and unambiguous invocation of rights now requires a defendant to express it verbally. He must say something to invoke.


Berghuis v. Thompkins is a decision by Justice Kennedy that somebody has to be the one responsible for saying the magic words, and he thinks it ought to be the defendant, since the defendant is the one least capable of doing so and it's better for law enforcement, it's more effective, to get confessions than not. By allowing people to invoke their rights, if they know the magic words and can manage to get them out properly (and the cops scribble them down accurately when writing their report the next day), they have a chance of safeguarding their constitutional rights. That's good enough, even if most will be incapable of doing so.

As for the promise of the 5th and 6th Amendments, the protection of rights that Miranda v. Arizona had in mind, which now lasts only 14 days at best, it was stillborn. The sweet words of precedent did nothing to help defendants to overcome the coercion, manipulation, lies and pressure to hear their rights and still utter the words that would convict them. It provided an easy shield for the police that never worked as a sword for the defendant. It was dead on arrival.

All Miranda needs now is a decent Christian burial.
Rick Horowitz spared little in his criticism of the majority's decision to further erode Miranda and their glib dismissal of the realities of custodial interrogation; he quoted from Justice Sotomayor's dissent:
Justice Sotomayor’s conclusion is that
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent — which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.
The majority disagrees. By their words, they continue to reiterate that the burden is on the prosecution. It’s just that, according to them, the burden ain’t heavy; it’s Miranda.
Paul Kennedy noted, as did others, that the Miranda warnings have entered the public's consciousness through countless police procedurals on television; it seems that at least five justices don't watch much TV:
Notice there is nothing in either the 5th Amendment or in the Miranda warning that indicates a suspect in a criminal case has to tell the police he doesn't want to answer questions. "You have the right to remain silent." How hard a concept is that to get your head around?

Apparently much harder than you or I might think.


Mr. Thompkins, by all accounts, was "largely" silent during the almost three hour long interrogation, but somehow that wasn't a clear and unambiguous exercise of his right to remain silent. What more did the police need? Are we now going to see more marathon interrogation sessions in which the police attempt to "beat down" a suspect's will?

So, according to the Supreme Court, we no longer have the right to remain silent. Instead you must tell the police you aren't going to answer their questions. How absurd is that?
Jeff Gamso explained that the simplicity of the Miranda protection (not to mention the clear Constitutional language from which these are derived) has been undermined to the point of nonexistence by subsequent decisions and that even determining when a suspect is in custody is problematic:
Consider Miranda v. Arizona. You know, the case that says:
  1. When you're in custody, and
  2. Police want to interrogate you,
  3. They have to read you your rights, and
  4. You have to understand your rights, and
  5. You have to voluntarily agree to give them up, and
  6. If you then say something incriminating,
  7. It can be used against you in court. But
  8. Only if the government can satisfy a "heavy burden" of
  9. Demonstrating by a preponderance of the evidence steps 3, 4, and 5.
Or, of course, not.

Because "custody" isn't what you or anyone else thinks it is. According to the courts, a person is in custody when a reasonable person would believe himself free to leave.... judges know all that's nonsense, but it's what they choose to believe when they are in the courtroom being judges rather than out on the street being asked questions by a cop.

And then there's that whole understand your rights thing. As if it matters. Did you ask for an explanation? No? Then you must have understood. Oh, wait, you did ask for an explanation? Did the cops offer one? Then you clearly understood.


But you said, "I should speak to a lawyer." And they kept after me. Ah, but you didn't say you refused answer questions until you spoke to a lawyer. It's magic words. You have to say the right ones. And nobody will tell you what they are.


So the truth is that the government's "heavy burden" of proving that any custodial statement was made only after a knowing and voluntary waiver of the rights to silence and counsel is, and pretty much has been for years, just so much bullshit.

And now it's official.
I've often heard criminal defense counsel advise that in any meaningful encounter with police, one should invoke rights early and often and refuse to answer police questions without counsel present. I've passed that sage advice along numerous times. In light of the Berghuis decision, how explicit does that refusal to answer questions and invocation of rights need to be? Pretty damn explict, it seems. Norm Pattis is taking no chances; he suggests, "Is 'Fuck Off' Clear Enough?"
The Supreme Court decided conclusively that you must make it clear and umabiguous to police officers that you want to remain silent. Normal polite conventions, such as refusing to speak, do not apply. You need to spell it out for the coppers. Make it crystal clear. Lay it out loud and bold.


Of course, carrying on in this vein has its downside. But it has the benefit of being unambiguous enough for most police officers to understand. Some members of the Supreme Court will undoubtedly struggle with the nuances.
Jon Siegel noted an interesting procedural aspect to the Berghuis decision and suggested that this major change to Miranda was "unnecessary":
[T]he case arose in the context of a petition for habeas corpus. That is, direct appeal of the conviction was over, and the convicted prisoner then applied for habeas. In such cases, pursuant to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), relief is available only if the state court decision is not merely wrong, but unreasonably wrong, to the point where reasonable judges would all agree that the state court decision misapplies federal law. If the state court judgment is a close call, the federal court is supposed to deny habeas relief even if, in the federal court's best judgment, the state court got the case wrong.

Therefore, whatever one thinks of the Supreme Court's new understanding of how Miranda actually works, it seems pretty clearly unecessary for the Court to have announced its rule in a habeas case. The Court needed to say only that the state court decision was not an unreasonable application of Miranda, without deciding whether it was ultimately correct. That question could have been saved for another day.
Decide they did, though, and it's left to us to deal with the new official reality (which is, as Jeff Gamso pointed-out, much the same as the old unofficial one).

Know your rights and do whatever you can to keep them when your friendly neighborhood police drop by for a chat. Whether you follow Norm Pattis' step-by-step process for loudly and... um, explicitly invoking your rights is up to you. For myself, I'm going to reread a couple of Constitutional Amendments, rewatch "Blood, Devastation, Death, War, and Horror", and carry a set of antlers at all times, just in case.

Joyce and Galarraga

I've been annoying family, friends, and co-workers for some months now with my eager anticipation for the soon-to-start 2010 World Cup. First things first: yes, I'll cheer for the USA, but I've always been an England supporter. I know, I know, I am an American, but I was born in England, I'm an unapologetic Anglophile, and it's only the last few World Cups where the Americans have made the field; when I was a kid, I wasn't entirely certain that we had a national team. But for this weekend, when England and the USA play one another, I expect that it won't be a problem to support both. They're both likely to advance from a relatively-weak group. All right, enough, I'll move on. I suppose I can now add the readership of these Round Tuit posts to that list of annoyed family, friends, and co-workers. At least I can take some consolation in the fact that there are a few legal bloggers out there who care as much as I do about the World Cup.

David Post is probably at the top of that list. His lengthy guide to the tournament is excellent and his assessment of England ("England looks like England.") probably suggests that, like me, he's curious to see what bizarre turn of events will cause The Three Lions to lose in the Quarterfinals as they often seem to do. An early red card? A poor referee call? A dive by an opposing player in the penalty area? An untimely choke on a penalty kick? Zinedine Zidane running onto the field to head-butt Wayne Rooney into unconsciousness? Time will tell.

Mike Madison offered a couple of posts this past week on World Cup-related legal issues. In the first, he considered a copyright moral rights matter decided — badly, it seems — by an American court. In the case, a songwriter hired to adapt a Spanish version of an existing song for a Cup-related Coca-Cola ad campaign sued the soft drinks giant:
The relief granted is less than the relief sought. According to the court, Vergara asked for an order “requiring that Coca-Cola and its subsidiaries cease advertising with, selling, distributing or otherwise commercially exploiting the song containing Vergara’s lyrics. Additionally, Vergara requests that the Order require Coca-Cola to immediately provide a public acknowledgment of Vergara’s contribution ‘by such media or other vectors as the Work has been previously disseminated.’”

Still, whether or not the court gave Vergara everything that Vergara asked for, Vergara asked for something — and the court gave him something — that the American copyright statute does not grant: a kind of moral right. In this case, that moral right is a species of attribution right. The court agreed that Vergara was likely to succeed on the merits of his underlying infringement claim, that Coca-Cola was reproducing the copyrighted lyrics without permission. But there was no agreement between Vergara and Coca-Cola (or between Vergara and Universal) regarding the work being attributed to him; this was not a request for specific performance of an underlying private obligation. Vergara was claiming rights under American copyright law based on his having produced a work protected under Mexican copyright law; American copyright law includes no statutory attribution right that would apply to this case. There was, in other words, no preexisting obligation on Coca-Cola’s part to attribute the work to Vergara.
In a second post, Madison discussed a concept foreign in every sense of the word for Americans — the European legal scheme to designate certain sporting events as being "events of major importance for society" and requiring these to be on free television:
The list of “major events” developed by Italy, for example, recites the following:

1. Summer and Winter Olimpic Games;
2. The final and all matches involving the national team in the football World Cup;
3. The final and all matches involving the national team in the football European Championship;
4. All official matches of the national football team;
5. The final and semi-final of the Champions League and UEFA Cup when italian teams are involved;
6. The Tour of Italy;
7. F1 Italian Grand Prix;
8. The Italian Music Festival of Sanremo.

It is tempting to imagine developing a comparable list for the United States — “events of major importance for society” — although it is unimaginable that Congress would dare legislate (let alone that the FCC would try to mandate) that broadcast television networks make these events available. Telecommunications policy and cultural policy are just about as distant from one another in the US as they are aligned in the EU.
In another event of major importance for society, journeyman pitcher Armando Galarraga was deprived of a perfect game — a perfect game being one in which a pitcher retires all batters in a complete game without allowing a hit or a walk. Though, bizarrely, Galarraga's would have been the third such game in the space of a month this season, over the course of major league baseball history, perfect games are exceedingly rare — occurring just eighteen times before this season. It wasn't so much that Galarraga missed his perfect game or that he lost it on the twenty-seventh (and final) batter; according to Wikipedia, that's happened ten times before. No, what made Galarraga's blown perfect game an historic one was that it was a wrong call by umpire Jim Joyce — calling the batter safe at first when Galarraga had beaten him by a half-step — which cost Galarraga his perfect game.

To Joyce's credit, he reviewed replays shortly after the game and admitted his mistake, saying "I just cost that kid a perfect game. I thought he beat the throw. I was convinced he beat the throw, until I saw the replay." Joyce's error breathed new life into the long-running debate over the use of replays in-game to correct umpiring mistakes and many called for Commissioner Bud Selig to reverse the call, much as had been done in the "Pine Tar" game some years ago. Ted Frank suggested that comparisons to the "Pine Tar" incident were misplaced:
Around the web, there are calls for Major League Baseball to retroactively award Galarraga a perfect game. A comparison is made to the "Pine Tar game" in 1983: an umpire reversed a George Brett home run for excessive pine tar on the bat, calling him out and ending the game with a New York Yankees victory over the Kansas City Royals; the American League reversed the call and ordered the last inning of the game replayed, with the Royals winning by virtue of the reinstated Brett home run.

But the difference between the Galarraga game and the Pine Tar game is material. In the Pine Tar game, the umpire made an erroneous interpretation of the rules—the penalty for using a bat with too much pine tar is to remove the bat from the game rather than to call the batter out. The Royals protested the decision under applicable baseball procedure and got the erroneous application of rules reversed. In the Galarraga game, the umpire's error is one of a bad interpretation of facts: a judgment call that is not appealable or reviewable under MLB Rule 4.19.

(Habeas aficionados will be interested to see that MLB Rule 4.19 has a "harmless error" component: even an umpire's mistaken application of the rules is not reviewable if it would not make a difference to the outcome of the game.)
It seems that Selig will not intercede this time around; I think that's the right decision and I commend him for it. Paul Kennedy would go a step further than that if he could, to nominate Selig for the Supreme Court:
[D]espite the evidence Mr. Selig held firm and told the world that the rules are the rules and that he would not undo the end of the game. Even though he knew the call was wrong and that Galarraga had his perfect game stolen from him, Mr. Selig stood firm that he would not overturn a call made by an umpire on the field.

Why, then, should Mr. Selig sit on the highest court in the land?

It goes a little like this... The Fourth Amendment protects us from unreasonable search and seizure. The Supreme Court decided that this protection was so important that any evidence obtained by means of an unreasonable search would be deemed inadmissible and would not be allowed to be presented to a jury. The "exclusionary rule" became the ultimate sanction the court could impose upon the state. And whenever a judge excluded evidence obtained by an illegal search or seizure, the judge was saying, in essence, that it didn't matter that the evidence showed the accused committed the crime and that it didn't matter that he knew and the police knew and the attorneys knew the accused committed the crime -- the rules are the rules.
What's this "Fourth Amendment" thing all about? Is that something "of major importance for society"?

Howard Wasseman shared the sentiments of many when he wrote that it's right in sports — particularly baseball — to leave well-enough alone: "I just am not exorcised about the "correctness" issue, at least where sports are concerned. I prefer finality and redoing all sorts of things once the game ends." His co-blogger, Michael McCann, disagrees and argues for a replay facility in baseball:
It's encouraging when someone admits a mistake and owns up to it, but why should the mistake even stand? Why isn't there instant replay for extremely close calls, especially when fans get to watch those replays, in some cases over-and-over again? And especially when the person who made the mistake clearly would have corrected it had he been able?

Some might argue that instant replay would extend the time of already-too-long games. That is probably true, but if managers were limited to two or three replay challenges per game, presumably the impact on the time would not be too significant. Also, isn't accuracy and the fairness it promotes more important than whether games are five minutes longer?

Others place value in the tradition -- umpires haven't been able to use instant replay for calls and we should honor that tradition. First off, that isn't true, as in 2008, MLB umpires allowed for umpires to use instant replay to review whether fly balls are foul or home runs. But more important, who cares about a tradition if contemporary technology offers a better and fairer system? After-all, if instant replay technology had been around when baseball was created and developed, isn't there a good chance that it would have been adopted?
Donald Layden agreed with McCann that unswerving adherence to tradition is not always in the game's best interests; he further suggested that what we're witnessing in the Galarraga matter is not honoring tradition but dogmatically sticking to past practices:
Holding fast to past practice is not the same as holding on to tradition. I hope that Commissioner Selig is able to distinguish between the two. Baseball tradition was honored by the way that Armando Galarraga has accepted the decision of the umpire and the rules under which the game is played. He is a class act. Baseball tradition was honored by the way that Jim Joyce accepted that he is human and acknowledged his mistake. Baseball is bigger than the egos of either one.

Now it is time for the Commissioner to get over his misconceived notions of clinging to the past and accept that baseball should be able to adjust to the times and use technology to review calls like the one last night at first base. No fan would object to the delay and no player or umpire would object to the review. Indeed, in a case like last night the focus would be on getting it right.
Jonathan Adler noted that Joyce's was not the only blown call in an event of major importance for society that night; in the Stanley Cup Finals game between Chicago and Philadelphia, a hard-fought series tied 1-1 at that point and led by Chicago 3-2 going into tonight's game six, a questionable goal was reviewed without disruption to the game, providing some guidance (perhaps) for baseball in the future:
The game was tied 1–1– and the Flyers were on a power play, and it appeared Scott Hartnell deflected Chris Pronger’s shot past Blackhawk netminder Antti Neimi. The siren sounded, but no call was made, and play continued — for another minute-and-a-half. Yet at the next stoppage, the refs asked the video booth to review the call. The video was unmistakable, and the call was corrected. Score a goal for the Flyers, reset the clock, and pick up the game as if the proper call had been made in the first place.

Professional hockey, like most professional sports, uses instant replay to help ensure that game-changing calls are made correctly. Accommodations are made to maintain the integrity of the game — such as waiting until a natural stoppage before reviewing the tape — but instant replay is still used to make sure saves are saves and goals are goals, and it works. Indeed, during overtime there was another close call, a shot that could have been called a goal as the puck skated along the line. This, too, was reviewed, and properly ruled a save. And so the Flyers would have to take more shots before finally winning the game.

The outcome of the game should turn on the performance of the players, not the performance of the referees. Not every call is reviewable, and some amount of human error is inevitable, but instant replay can reduce the scope of potential error and help ensure the proper outcome. And, as last night’s hockey game shows, it need not come at the expense of the game.
Alan Milstein also noted the hockey review and reversal, but wondered whether such precision is appropriate in baseball:
I was thrilled that the right call was made in the hockey game. Playoff hockey is such a brutal game and the players seem to give more of themselves in that sport than in any other, well past the point of exhaustion, performing feats on ice that on solid ground would be remarkable.

But baseball is the most human of games. Players don’t commit penalties or make turnovers, they commit errors. The best hitters fail two thirds of the time. It is a sport that reflects the wonder of human frailty. As the biblical texts teach us, even the angels were jealous of humans because their free will allowed them to make wrong decisions, which made the right ones so much richer.

The way Gallarraga and Joyce have conducted themselves since the one hitter shows how perfect human beings, and baseball, can be.
David Post responded to Jonathan Adler's hockey post and wrote that the precision of hockey is entirely wrong for baseball; instead, he argued, soccer's imprecision-by-design is a better model for the national pastime:
[P]art of the appeal of [soccer is that] the refs are actually a part of the game, and their performance gives you more to be angry about or amused by, and more to talk or argue about after the game is over. Nick Hornby had it right, in his wonderful novel “Fever Pitch”: one of the necessary ingredients of a truly great soccer game is that the ref makes a horrendous call against your team — a penalty against you, say, awarded on the basis of a patently-obvious flop inside the box — but you win anyway! Not something a football fan is likely ever to experience.

Adler’s claim really goes to the question of what games are about, and why we love them. Soccer is like life. It can be terribly, brutally unfair; if you have any Irish friends, ask them how they feel about the blatant handball that enabled France to defeat Ireland and make it to the World Cup finals. It’s full of error and mistake. We (soccer fans) don’t like it when refs blow calls, any more than we like the fact that life deals out tragedy seemingly at random, or that good and virtuous people don’t always get their just desserts. But it’s part of the game, and part of what we respond to in the game, part of why we care so passionately about it. Football and hockey and the rest of them try to eliminate that element from the game — good luck with that, by the way. Nothing a priori better or worse about either approach, I suppose — but when one starts to talk about what sports should or should not have, perhaps the principle of vox populi, vox dei should inform our judgments.
If anyone's left reading this post at this point, after all this talk about baseball and soccer in Biblical terms and in Latin, let me reward you by bringing things back around to the law. Yes, there were a few legal bloggers this week who managed to put aside their deep and abiding reverence for sport and relate the games we play and watch to more weighty matters.

Maxwell Kennerly considered, amongst all the discussion about reversing Joyce's call, whether there was much significance in the Supreme Court's reversal this term of seven decisions made by the Sixth Circuit. With the Court's control over its own docket (picking-and-choosing the cases it wishes to hear), the complexity of habeas law in particular, and the law of averages, we can't conclude too much, he suggested:
There's obviously room for debate [about Joyce's call], and we're only talking about a simple safe-or-out call in baseball, where everybody agrees on the rules.

The same can't be said for law, where lawyers and judges often disagree on what the rules even are, much less how those disputed rules apply to a given situation.

Throw in decades of vague, sometimes contradictory Supreme Court precedent on the rights afforded to criminal defendants and it's not too hard to image the Sixth Circuit getting "out-of-step with existing Supreme Court precedent on habeas." There's precious few "steps" to follow.

Unlike the Sixth Circuit — which has to hear every appeal filed with it — the Supreme Court gets to cherry-pick the vast majority of the cases on its docket, and so could spend all of next year doing nothing more than cherry-picking habeas cases in which it could reverse the Sixth Circuit. It could do that for any circuit, and for any legal issue. It could spend a whole decade doing nothing but affirming appeals of cases initially filed in the United States District Court for the District of Guam.

This year, it chose a handful of cases from the Sixth Circuit to reverse; given the sheer volume of habeas petitions out there, and the diversity of holdings in those cases, the Supreme Court could have chosen cases from any of the circuits to make its point.

Seven reversals is thus no indication of the Sixth Circuit's reasoning or fidelity to precedent; it's little more than the Supreme Court holding up a candle in the middle of the dense fog they and Congress created.
Brian Tannebaum took the opportunity to note the imperfections in another game — the criminal justice system — and our similar reluctance to overturn bad decisions there:
Any criminal defense lawyer who felt his client was wrongly convicted, has stood at sentencing and heard the judge and prosecutor say over and over again "but the jury found him guilty." Yes, a group of people looked at the evidence and made a judgement call. Human beings came together to decide whether someone committed a crime. Most of the time it's easy. There's a confession, along with witnesses, along with physical or scientific evidence, and the combination of all of it is proof beyond a reasonable doubt

But it's the cases like the missed call that resulted in a "non"-perfect game, cases where there is one witness, who may have gotten it wrong.


Today the country is crying foul - a man pitched a perfect game and the law prevents us from doing anything about it. It's wrong. It's not fair. But my friend is right - we in this country love law & order so much, that we can say with a straight face that Bud Selig did the right thing. Sometimes life sucks and you get screwed. You don't go back and change things.

And nobody will, regardless of the truth.
Mirriam Seddiq also wrote about the parallels between the imperfect game of baseball and the imperfect criminal justice system:
Law is not baseball.

Criminal defense lawyers aim for a perfect game every time we go to court. We've practiced, set up our strategy, know who our players are and the other side's weaknesses and strengths. We go out ready to play, ready to win. And, there are times when we are on top of it, we are pitching a perfect game. But we only have so much control over how the game plays out. We, too, have umpires who make lousy calls. And, when our umpires make bad calls, they don't acknowledge and they certainly don't apologize.

When our games go awry, people go to prison. They lose liberty and sometimes they lose life. We have the benefit of instant replay, transcripts of what was said, precedent to rely on, but despite all of that, our umpires are people who make mistakes. They are human. But when they screw up, we don't all hug and go home.


Law is not baseball. But if only it was.
Daniel Schwartz noted that Galarraga's and Joyce's experiences and their relevance in the workplace:
[N]o one debates that the umpire just made a mistake. A big one. So big that it deprived a pitcher one of the crowning achievements in baseball and a spot in the history books. But the umpire is powerless to reverse it.

Sometime, a mistake of this proportion (or bigger) is going to happen in your workplace too. A supervisor or a member of your human resources staff is just going to make a big ol' mistake. Maybe they won't ruin a "perfect" game, but within your workplace it may be just as big.


Not all mistakes are fixable. And some mistakes by employees warrant disciplinary action. But sometimes mistakes are just lapses in judgment or oversights.

We all know mistakes happen. How your workplace responds to a mistake may ultimately define your workplace more than the mistake itself.

Odds n Ends Shop

Scott Greenfield, whose posts on criminal law, social media, and other matters great and small generally form the backbone of my Round Tuit posts each week, is deservedly one of the most-trafficked, honored, and linked legal bloggers around. Though he's spoken from time-to-time about his blogging philosophy, I don't recall a more pointed or personal discussion than this week's post, "Simple Justice: Through the Eyes of Scott Greenfield". He discussed a number of behind-the-scenes concerns and, in passing, a particularly troubling one:
A couple of weeks ago, an email came in about how the writer had googled my name and found some insane, vile posts about me on the second page. My psycho stalker is still working hard through the night trying to get his inane nonsense on the first page of google. You haven't made it as a blawger until you have a psycho stalker. Psychos, by definition, don't go away. I assume that people who aren't totally nuts realize that these attacks are the work of a psycho. I could be wrong, but I have no plans on spending my time worrying about it.

By putting my name in the title of this post, it's likely to appear on the first page of google. It will push the insane posts down the list by one. It would be really great if everyone did a nice post about me and used my name in the title, so that the insane posts could be pushed back to page 28. I don't expect anyone will think it worth their effort to do so, unfortunately.
Though Greenfield's often right, in this instance he couldn't have been more wrong. Over the next few days, many legal bloggers wrote as he'd requested and a grass-roots "Scott Greenfield Day" was born. Eric Turkewitz called Greenfield a super lawyer and super blogger:
A human can only pump out consistently high quality posts — his take as little as 10 minutes — by being able to:
  • Think imaginatively about issues;
  • Organize those thoughts in the head;
  • Write creatively;
  • Type fast as hell.
Greenfield has that rare combination of qualities, making him a virtual one-stop shop for legal issues that confront us in New York or around the nation. If he isn’t in your RSS feed, you’re missing a continuing treat. If I were forced at gunpoint to pick just one blog to read from the hundreds in my RSS feed, his would be it.
John Kindley wrote that, "Love him or hate him, or love him and hate him, there’s no denying that Scott H. Greenfield at Simple Justice has contributed more substance to the criminal defense practical blawgosphere than any other individual." One of those love-and/or-hate-Greenfielders is Norm Pattis:
Scott over at Simple Justice and I have been in a pissing match of late. He calls me a self-indulgent whiner; I snipe that he is an anti-social network marketing social network marketer. On and on it goes, where is stops, who the fuck knows. Or cares. I've wearied of his "I am not worthy" cynicism and have decided to move on to other blogs and writers. Even so, I respect anyone who puts their name on an opinion piece and then hits the send key. Inviting critics to step into the virtual forum takes anatomy.
The Blawg Review Editor also paid his respects:
We sometimes disagree, but he's never disagreeable. Scott Greenfield is not perfect; his blog isn't meant to be. It's one of the best, that's all. Simple Justice is a great law blog because Scott Greenfield is a natural blogger. He is generous with link-love and that makes him a great host of Blawg Review. He gets it. It's not all about him. Scott Greenfield plays the curmudgeon in the blawgosphere but, in real life, he's a nice guy. He will deny it, but it's true.
Mark Bennett rounded-up the more than a dozen tributes posted for "Scott Greenfield Day" and offered some insights into the lack of character displayed by Wayne Conley, Greenfield's stalker and an individual who's darkened the virtual doorsteps of several legal bloggers recently:
Conley is... seriously batshit insane. So however people respond to his stalking, in the real world or online, he sees it as vindication. Ignore him, and he thinks you're afraid of him; engage him, and he thinks he's "winning." Caring what he thinks is like mainlining madness. .... Conley's rants are paranoid, delusional, racist, and antisemitic. He is so patently a whackjob that even the most feebleminded of readers recognizes how goofy he is. Nobody who matters is going to take seriously his diatribes. I've had people hire me not despite his impotent attacks, but because of them. So those of you who, writing about Scott Greenfield today, have attracted Conley's attention, rejoice: the worst thing Wayne Conley can possibly do for a lawyer's reputation is to praise her.
When Google and the City of Los Angeles agreed this spring to replace key portions of the City's existing information technology infrastructure with cloud-based Google Apps, the arrangement was unprecedented in size and complexity. The details of the arrangement were recently published and David Navetta undertook a detailed analysis of this important contract; this week, Navetta concluded that review. The terms are surprising in places and the structure of the arrangement is certain to provide a model to many cloud-computing vendors going forward, particularly those who deal with large organizations and governments. After starting this post with the discouraging Berghuis decision, I'd like to end it with a bit of Glee. For those who enjoy the musical dramedy Glee as I do, it's a weekly dose of pure entertainment; I enjoy its superficiality, though others are able to find some deeper meaning in Glee and the phenomenal following it's attracted. Unlike your police procedurals and courtroom dramas, there don't seem to be many legal issues in and around Glee, but Christina Mulligan noted one in a very worthwhile post concerning the mixed-messages the program sends about the current state of copyright law:
The fictional high school chorus at the center of Fox’s Glee has a huge problem — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines. In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two. The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered. .... The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines? Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?
Though he admits that he's no "Gleek", Mike Masnick recommended Mulligan's analysis and offered a few thoughts of his own:
[W]hat I find interesting is that Mulligan doesn't even touch on the fact that these mixed messages are coming from the same place. The same folks who produce, distribute and broadcast Glee are the folks who insist copyright is property and that the current laws are just and good. But, even they must know, conceptually, that there's a mismatch between what the law says today and what people actually do.
In-show, the kids were unexpectedly given another year together by the group's nemesis, cheerleading coach Sue Sylvester; in the real world, having just concluded a very successful first season, the show has been renewed for another two by the Fox network, so at least the Glee kids will have a bit of cash-in-pocket when the copyright lawyers come calling. Whether Kurt will have enough left over to afford next season's fabulous wardrobe remains to be seen. Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., http://utopia.duth.gr/~nikobeis/, USA Today, and Paris Odds n Ends Thrift Store.

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