17 November 2010

A Round Tuit (49)

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.

TSA Parody Book

Criticism of the Transportation Security Administration (TSA) has been a regular feature in these Round Tuit posts. The agency's knack for implementing heavy-handed, reactionary, inefficient, and ineffective security measures in the most heavy-handed, reactionary, inefficient, and ineffective manner conceivable makes them an easy target. Hack that I am, I cannot resist taking aim at an easy target.

The agency's latest initiative — widespread use of whole body imaging systems (which essentially take nude images of everyone scanned) — seemed calculated to stoke public scorn for and ridicule of our tens of thousands of federal mall cops.

The public had been reassured by the Department of Homeland Security that anyone reticent about acting in the TSA's backscatter pornography could opt-out in favor of a stroll through a standard metal detector and a simple pat-down screening. By "simple pat-down screening", of course, the TSA meant a humiliating gropefest stopping (for now at least) just this side of a strip search and anal probe. Much to our dismay, it seems that the "SA" in "TSA" stands for "Sexual Assault".

In an op-ed piece this past Monday, Homeland Security Secretary Janet Napolitano asked for travelers to be cooperative and patient with the TSA's "risk-based, layered security approach"; this would be more compelling if experience had not already demonstrated that the TSA indiscriminately regards everyone as a risk and treats all of us as criminals (or worse, when one considers that criminals can at least rely on some Fourth Amendment protections). Though I suspect she convinced no one, at least Secretary Napolitano managed to discuss the new screening procedures without falling into Clayton Williams territory and advising the traveling public to "just relax and enjoy it". To borrow Whoopi Goldberg's infamous characterization of Roman Polanski's crimes, those parents who decline to allow the TSA to take nude pictures of their small children can rest assured that the TSA's aggressive genital-area searches of those children isn't "rape rape".

Indeed, the entire matter has seemed for some time like a cause in search of its cause célèbre; it arrived this past week in the person (and groin) of San Diego resident John Tyner. What ended with Tyner being directed to leave the San Diego airport but threatened with a hefty fine if he did so began simply enough with him doing what the TSA had claimed anyone could do — opt-out of the whole body scanning.

Tyner said later that he had reservations about the safety of the machines and the invasion of personal privacy which these represent; before traveling, he'd checked the (apparently inaccurate) TSA website to find that the San Diego airport did not have the scanners. After opting-out, Tyner submitted to a metal detector check and a basic pat-down search, but declined the TSA agent's kind offer of a complimentary genital fondle: "You touch my junk and I'm going to have you arrested." He was escorted from the screening area by six agents and a police officer (seven being the magic number needed to accompany someone who's already expressed his willingness to leave rather than fly). At that point, he was told by someone else that he was obliged to return and submit to the screening even though he no longer planned to travel that day. Tyner indicated that he would again go through a metal detector and submit to a basic pat-down search, but that he refused anything beyond that. He was informed that if he left, he would be subject to a civil suit and a $10,000 fine.

Mike Masnick suggested that the time is right for the courts to test the TSA's new procedures:
With groups like EPIC and the ACLU fighting these machines, I'm guessing the guy has already been contacted by them and other such groups. The idea that buying a ticket and entering the screening area means you've agreed, no matter what -- even if you decide not to fly -- to go through an invasive screening process, seems like a pretty radical reading of the 4th Amendment that I'm sure some civil liberties groups would happily challenge.


It seems pretty clear that these new invasive scans and pat downs are going to end up in the courts. From my perspective, they certainly seem to go way beyond the "reasonable" standard, but who knows what the courts will say. That said, in this case, the security officials went way beyond even that level, by threatening to sue the guy for not consenting to go through with it, even after he had said he would no longer be flying.
At the Popehat blog, Patrick noted that the TSA seems eager to oblige; it's announced that it will investigate the Tyner incident with an eye toward pursuing those threatened damages:
"It’s Such A Fine Line Between Stupid And Clever”

And the Transportation Security Administration is doubling down on the Stupid.


...Tyner could make a case of [selective prosecution]. There is absolutely no question that Michael J. Aguilar, the head of the Transportation Security Agency in San Diego, would not know Tyner’s name, much less be raising the prospect of a $10,000.00 $11,000.00 fine against Tyner if Tyner’s “Don’t Touch My Junk” video hadn’t gone viral. Tyner is being threatened for exercising his constitutional right to free speech.
Some bloggers considered a few of the legal issues raised by the TSA's search procedures. Lawrence Ebert noted some dicta in a 2007 Ninth Circuit case, United States v. Aukai, which seems to anticipate the TSA's position that travelers cannot avoid screening by deciding not to fly:
The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, 92 S.Ct. 1593, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world.6  Such a rule would afford terrorists 7 multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found.   This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks.   Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory.
Orin Kerr briefly considered whether the new whole body scanning procedures violate the Fourth Amendment; he concluded that these are "very probably lawful":
The basic idea is that screening to stop a terrorist attack is an “administrative search” that is constitutional so long as it is reasonable — and that it is reasonable so long as it it is not overly invasive given the threat that it is designed to deter and stop.

The question then becomes if the new technologies are distinguishable. The argument would have to be that the new technologies are more intrusive than they need to be, and that they are therefore not constitutionally “reasonable” unlike other screening technologies.... But based on cases like [United States v.] Hartwell, and the fact that Al Qaeda has recently tried to used PETN on a passenger to try to blow up a passenger plane, which I believe traditional screening devices can’t detect, that strikes me as an uphill battle.
Marc Randazza is amongst the many who are appalled at the TSA's suggestion that these enhanced procedures are justifiable in the name of security:
Back in February, I wrote that it was time for a social revolt against the TSA. The idea was that everyone should treat TSA agents like shit. I haven’t met any outside an airport — probably because I don’t frequent places where uneducated ‘tards hang out. Accordingly, I wasn’t able to employ my own strategy.

I’d like to renew the call. We’ve employed an army of low grade fucking retards to pantomime security theater — and if you think it was absurd before, we’ve really turned the corner into idiocracy now.


So let me get this straight. You either have to be subjected to increased doses of radiation, a virtual strip search, or being fondled in order to board a plane? However, if you refuse any of those things, you still have to be subjected to it, whether you board the plane or not?

I have news for you, people. “The Terrorists” won. We lost. Game over.
Ken of the Popehat blog is not yet ready to accept that it's "game over" for us; he wrote that the furor over the whole body scanners may be just the thing to rouse us from our complacency:
We’ve allowed ourselves to be scared moronic and compliant. Like cows.

Now, however, the TSA might possibly have found a way to startle the herd into genuine anger and defiance. The TSA has rolled out its program requiring you to submit to either a body-revealing scan or a gropefest patdown. Between revealing full-body scanners and the alternative “enhanced pat-downs,” Americans are as close as they have been since 9/11 to calling bullshit on the ever-increasing Security Theater. Is the TSA managing that anger well? Of course not. Some of them smirk that we like it. Still others are clearly furious that the cows are no longer, well, cowed. There are increasing reports that the enhanced pat downs are being threatened, and used, in an angry and retaliatory fashion by government employees who are upset that we don’t want our practically naked bodies displayed on scanners.


Of course TSA agents are angry when you don’t herd obligingly through the scanner. They feel entitled to it, as a matter of right, based on what the modern Security State envisions that Americans should be. When the TSA expressed angst that “unquestioning compliance has diminished”, it was tipping its hand. The purpose of Security Theater is not only to prevent actual security threats. The purpose of Security Theater is to convince us that the government can do something and is doing something, and most importantly to make us accept “unquestioning compliance” with government as an American value. The purpose of Security Theater is to normalize submission. But “unquestioning compliance” is not an American value. Quite the contrary.


The media is trying out the story-of-the-week that the populace is revolting against the TSA, and against Security Theater. It might even be a little bit true.

It’s about godammed time.
Rick Horowitz agreed:
What we need are a few thousand more people to follow John Tyner’s example. Maybe then we can restore a little sanity and the perverts working at TSA will have to find some other way to get their rocks off.

And now you know why they want to sue John Tyner for refusing to be sexually battered.

They’re afraid you’ll be the next to refuse.
Scott Greenfield suggested that the intrusiveness and degradation of the TSA's new procedures is characteristic of the often-unjust criminal justice system which relatively few of us have had the misfortune to experience personally. He wrote that the TSA's mandate to treat everyone as criminals may just have spread the pain so widely that it will prompt a popular backlash:
Despite all the argument and examples, few who haven't been personally touched by the tragedy of the American criminal justice system care that it fails to meet its promise of "justice for all." I suspect that's because few are touched by the system, seeing it as misfortune from afar, providing greater benefit to their lives than detriment. It's easier to overlook problems when they aren't yours.

The Transportation Safety Administration, however, may have found a way to touch people who thought they were untouchable. The TSA may accomplish what so many others before it have failed, because the TSA touches the lives of so many. Rich or poor, powerful or weak, law-abiding or criminal, young or old; if you fly, they will touch you.


People do demand that the government protect them. It's irrelevant if we think these scared people are foolish, as even foolish people are entitled to make demands of their government.

How the government is to protect them, however, is another matter. It's unclear that anyone has demanded that the government take naked images of airline passengers, or touch the genitalia of children. For the most part, the protections sought by the overly fearful have been at the expense of others. As Americans, we have a long history of demanding the government do what's good for us at other people's expense. We've come to consider it our birthright.

But this time, the pain is widely shared. We all suffer the indignity.


Maybe we're at a line that even foolish people don't want to cross. Maybe then, in contrast to the... view that our rights must be sacrificed so that others can enjoy security, they will say "enough." Maybe they've gone too far this time.
Steve Chapman discussed the growing number and strength of challenges to the new TSA policies and suggested that the problem may be broader than can be solved with a single solution:
Besides the indignity of having one's body exposed to an airport screener, there is a danger the images will find a wider audience. The U.S. Marshals Service recently admitted saving some 35,000 images from a machine at a federal courthouse in Florida. TSA says that will never happen. Human experience says, oh, yes, it will.

For the camera-shy, TSA will offer an alternative: "enhanced" pat-downs. And you'll get a chance to have an interesting conversation with your children about being touched by strangers. This is not the gentle frisking you may have experienced at the airport in the past. It requires agents to probe aggressively in intimate zones—breasts, buttocks, crotches. If you enjoyed your last mammography or prostate exam, you'll love the enhanced pat-down.


The new policy is being challenged in court by the Electronic Privacy Information Center, which says it violates the Fourth Amendment's ban on unreasonable searches. But don't expect judges to save us.

Says Stanford University law professor Robert Weisberg, with resignation in his voice, "Airports are pretty much a Fourth Amendment-free zone."

Though the harm to privacy is certain, the benefit to public safety is not. The federal Government Accountability Office has said it "remains unclear" if the scanners would have detected the explosives carried by the would-be Christmas Day bomber.

They would also be useless against a terrorist who inserts a bomb in his rectum—like the al-Qaida operative who blew himself up last year in an attempt to kill a Saudi prince. Full-body scanning will sorely chafe many innocent travelers, while creating only a minor inconvenience to bloodthirsty fanatics.

The good news is that last year, the House of Representatives voted to bar the use of whole-body scanners for routine screening. But only a sustained public outcry will force a change.
At the New York Times' website, polling expert Nate Silver considered a number of surveys — most conducted before the roll-out of these new procedures — which indicated high levels of support for extensive security screening amongst the American public. He noted, however, that that support may diminish as press criticism and coverage of others' criticism increases and as more of the public experiences the enhanced imaging and search procedures firsthand:
What I think we need to know then, is how those who have actually traveled through an airport that uses the full-body scanners feel about them — particularly if they’re people who fly frequently and are therefore going to bear the burden of any inconvenience, embarrassment, invasion of privacy or health risk brought on by the new technology.

My guess is that a majority of such passengers will still approve of them: Americans are willing to tolerate a great number of things at the airport that they would never stand for in other parts of their lives. (Imagine, for instance, if you had to pass through a metal detector on the way into the shopping mall, or were diverted for 15 minutes through a security checkpoint every time that you wanted to drive on the Interstate.)

But the holiday travel period — when nerves are always frayed and the weather is often at its worst — will be a significant test of the new system.
Despite that customary tolerance of and complacency about security-related inconvenience and intrusions, there does seem to be something of popular backlash brewing on many fronts. At Change.org's criminal justice blog, Kelley Vlahos reported:
In what could be a nationwide protest at hand, air travelers across the country are engaging in open dissent and boycotting new Transportation Security Administration (TSA) screening procedures that many have likened to "virtual foreplay" and even "sexual assault." Complaints that began in late October have gone viral across the Internet, spawning protests among travelers, pilots and health care advocates, as well as protests from the ACLU and other privacy advocates.

"We're opposed to letting TSA treat us like criminals," said James Bobb of Eagleville, Pennsylvania, who is organizing the We Won't Fly campaign on WeWontFly.com. He told The Washington Post on Saturday that the site has gotten more than 70,000 hits per day since it went live a week ago.
Kashmir Hill, who's written previously about the enhanced scanning machines (and was cited on that topic in last week's A Round Tuit), wrote about the growing discontent:
There has been skepticism about the TSA’s new full-body imaging scanners since their debut, thanks to health concerns about the radiation involved and privacy concerns about how revealing the scans are. The latter were not assuaged by stories of airport workers getting upset at their colleagues “seeing them naked.”

This month, though, the skepticism seems to have morphed into fury and resistance, after the TSA instituted a new pat-down policy requiring those who refuse the full-body scan to undergo a fairly-aggressive frisking.


Normal people are utilizing basic technology — smart phone cameras and blogging platforms — to stage a fairly extreme resistance to the machines. Journalists like Drudge are curating the protests, as are social network communities like Reddit. It’s an epic battle of communication technology versus scanning technology.

The latest inflammatory post out of the blogging community comes from Gizmodo, which filed a FOIA request to get its hands on body scans stored on machines at a courthouse in Orlando, Florida. This machine was not at an airport and not run by TSA officers, but it does debunk the TSA’s claim that the machines do not store images (a claim already debunked — less visually — by EPIC, a civil liberties group who has sued the Department of Homeland Security over the machines).


Judging from the conversation around the Web, it seems that we may have finally reached the point at which privacy concerns trump security. But it’s not the images that pushed people over the edge this month; it was the pat-downs. Technological invasions of privacy are still not as offensive as the hands-on variety.
The Atlantic correspondent Jeffrey Goldberg has personally experienced the indignity and intimidation of the TSA's new procedures and has called for an "Opt-Out Day" on November 24th, which will be one of the busiest travel days of the year; this week, he had another suggestion to make Opt-Out Day even more memorable for the beleaguered TSA:
[C]ome November 24th, here's an idea you might try to make the day extra-special. It's a one-word idea: Kilts. Think about it -- if you're a male, and you want to bollix-up the nonsensical airport security-industrial complex, one way to do so would be to wear a kilt. If nothing else, this will cause TSA employees to throw up their hands in disgust. If you want to go the extra extra mile, I suggest commando-style kilt-wearing. While it is probably illegal to fly without pants, I can't imagine that it's illegal to fly without underpants.


So put on a kilt, and strike a blow against stupidity!
If you're not quite ready to participate in the Kilt Revolution (or if, like me, you'd simply prefer not to choose this holiday season whether to offer-up your young child to the TSA for nude modeling or molestation), Mark Bennett offered help:
Don’t like the idea of choosing between a full-body scanner and an “enhanced patdown” by a TSA thug? You don’t have to avoid flying; you just have to avoid flying out of the airports that use full-body scanners....

Americans aren’t yet ready to take up arms and start executing TSA mallcops en masse; few of us will even stop flying, even at the cost of being sexually assaulted.... But if enough of those who still must fly were to take our business elsewhere, eschewing airports with full-body scanners (and the airlines that fly out of those airports) for those without, some of the people who run this country (by which I mean the corporations) might feel enough of a financial sting to put a leash on TSA.
To summarize then:
  • Declining intrusive TSA screening and abandoning your travel plans: $11,000
  • Accepting government-provided handjobs and child molestation: $0
  • Standing up for personal liberty and dignity: Priceless/Pointless*
* To be determined.

Birthday Cake

Though it wasn't widely-discussed in the legal blogosphere this week, I wanted to highlight a case which struck a nerve with me. Perhaps I was over-sensitized to prosecutorial shenanigans after discussing a few examples in last week's post, but a Georgia case caught my attention after it was noted by Eugene Volokh and commented-upon by two criminal defense bloggers whom I particularly respect, A Public Defender's Gideon and Scott Greenfield.

As a trial for felony murder (resulting from child abuse) neared its end, the prosecutor, an assistant, and a courtroom deputy orchestrated a pre-arranged stunt. At the prosecutor's signal, the deputy dimmed the lights and the assistant prosecutor removed a birthday cake from a bag, lighting eight birthday candles on it. The prosecutors then sang "Happy Birthday" to the deceased child, who had died before his eighth birthday. The parents' defense attorney raised no objection, a decision on which the parents' appeal would ultimately turn. As Volokh reported, the Georgia Supreme Court found that "the prosecutor’s behavior was improper, but concluded that the defense lawyer’s decision not to object was a strategic judgment, and therefore not grounds for reversal." The dissent seems a more reasonable assessment:
There was no legitimate reason for what the prosecutor did.... The prosecutor’s birthday production was not meant to be argument or rebuttal: it was a theatrical stunt spun out of pure fantasy. Its sole purpose was to prejudice the rights of appellants before the jury in an impermissible attempt to invoke the jury’s passions and divert the jury from the evidence. It offended the dignity and decorum of the court and violated every precept of professionalism and fair play. Yet the trial court did absolutely nothing. The event played itself out without the trial judge performing his duty to maintain decorum in the courtroom. Moreover, after observing this “‘preposterous’” performance, the trial court took no steps of any kind to minimize the prejudice.
The defense attorney, Manny Arora, whom someone (other than himself, presumably) has ranked amongst the top five defense counsel in Georgia, decided not to object to the prosecutors' "theatrical stunt" because he thought it was "preposterous" and "absurd" and he hoped that the jurors would see it the same way. They didn't. Gideon had some choice words for Arora:
Sorry, Manny “Top 5 defense attorney in Georgia” Arora, but you’re an idiot. How any defense attorney worth the paper his degree was printed on could restrain himself from jumping up from his seat, and protesting the blatant appeal to jurors’ sympathies is beyond me.


“Strategic decision” is the language that full-of-themselves lawyers hide behind when they realize that they’ve – to put it simply – royally screwed up, but don’t want to take the hit to their reputation. It’s also the language that courts use to coddle these lawyers. Anyone who’s ever honestly practiced criminal law and who puts the client’s interests before their own will see this for what it is: bullshit.


So, just to be clear: the prosecutor performed this outrageous stunt, defense counsel sat silent because of some made-up reason and the trial court didn’t as much cough uncomfortably. The defendants were found guilty and now the Georgia Supreme Court has affirmed, despite the recognition that the behavior was outrageous. The majority’s reasoning simply was that the lawyer didn’t object, so the issue wasn’t properly preserved for appeal and “plain error” doesn’t apply because this isn’t a death penalty case (which the dissent points out is an incorrect interpretation of prior decisions).

Folks, the lesson here is that if ever a prosecutor unveils a cake during closing argument and starts singing happy birthday to the decedent, jury be damned, you object. Because if you don’t, it’s going to be your fault that your client was convicted in violation of the Constitution. And isn’t that why you’re doing the job in the first place? To protect Constitutional rights?
Greenfield was critical not only of Arora's performance — or lack thereof — but also of whomever ranked him amongst the top defense attorneys in Georgia:
[Arora] claims the decision was "strategic," as he didn't want to draw additional attention to the cake.

Right. Because there was a good chance that the jury wouldn't otherwise notice a lit birthday cake for a dead child pulled out a bag during summation.

Apparently, neither integrity, honest nor zealous representation are part of the criteria for making that list of the best lawyers ever. Then again, as long as lawyers are allowed to proclaim themselves the bestest ever, the criteria will remain a perpetual mystery.
The inherent problem in naming a list of five or ten "top" attorneys in any area of practice is that such a list is only as good as the criteria used to compile it; where those criteria aren't well-defined and germane to a prospective client's own circumstances and needs, the list becomes essentially worthless. Determining a lawyer's "effectiveness" depends on so many factors that any ranking will necessarily oversimplify things, but the importance of the decision to retain an attorney — particularly for one's criminal defense — is such that relying on a "best of" list is nearly criminal in itself.

Rankings make things easy; having someone else make one's decisions usually is. If you need to find a decent restaurant in an unfamiliar town, by all means take a blind chance on the local weekly's recommendations. If you need to make a major purchase, rely with some confidence on Consumer Reports' rankings (it's only money, after all). If you're looking for a place to live, consider using one of those "Best Places to Live" studies as a starting point for your own (hopefully extensive) inquiries. If you find yourself in unfamiliar territory legally-speaking, however, relying on a list compiled by someone you don't know (and who, more importantly, doesn't know you or your situation) is simply ludicrous. You wouldn't sell your house and move sight unseen to Eden Prairie, Minnesota simply because it ranked first in this year's Money magazine list of best small cities in which to live; when it comes to your reputation, fortune, and freedom, why would you rely primarily on one of the many lists of lawyers who are somehow "Best", "Super", or "Ones to Watch"? Fine, rant over.

Well, almost. Even the more informal markers of success can be deceptive, as Matt Brown has discovered. He wrote recently that many of the criminal defense counsel in his region who are considered the most successful or effective seem to be practicing — or malpracticing, perhaps — an entirely different brand of law than he aspires to practice:
It’s strange to look at someone who’s doing something so vastly different from what I do and realize that to almost everyone outside of our narrow little field, we’re the same. Really smart people hire terrible, high-volume lawyers for their criminal cases. The difference between a lawyer who personally works every aspect of your case and a lawyer who farms your case out to an associate carrying a caseload that would make a misdemeanor prosecutor blush isn’t that clear to most people. A lawyer is a lawyer. A person whose career seems as foreign to me as a day-trader or a sales rep looks an awful lot like me to many people.


The idea of using a profession like law as a means to an end instead of the end itself causes a lot of problems for me. I hate participating in any system where people can too easily confuse luck with skill. I try to set goals that I view as genuinely indicative of hard work and talent. Money doesn’t seem like one of those, so it isn’t my primary goal. I could win the lottery. I could create a giant Ponzi scheme. The government could redistribute fortunes right to me if I just convinced the right people it was a good idea.

A worthy goal for me is one that cannot be attained too easily, so if I can luck into it, whether it’s a business goal or a personal goal, the process probably won’t keep my interest. Maybe I’m just protecting my ego by participating in only those things where experience and knowledge and hard work will shield me from the uncertainty of every new upstart overtaking my position, but I don’t think it’s a bad way of looking at things. If business dries up, I could be broke in no time. If the goal is being a skilled professional, after I’ve achieved that, nobody can take that away. I still need money, but making it the primary focus would make my career feel awfully empty.
Reading Brown's post, Scott Greenfield was heartened, noting that Brown "restores my faith that the next generation isn't just Slackoisie"; he wrote that Brown has recognized something which eludes many criminal defense attorneys, not to mention many of us outside that field:
We're not all on the same team. We may all call ourselves criminal defense lawyers, but our teams are vastly different.

Most of the criminal defense lawyers online appear to be caring, aggressive and smart. We know because they tell us so. They assert their self-assessment and challenge others to disagree. Others are to accept their self-assessment and embrace them as one of the gang. One big happy family of wonderful caring, aggressive and smart criminal defense lawyers.


We're not all in this together. Some are in it for the money. Some just don't care. Some don't have the skills or desire to gain the skills. Some will never have the skills no matter how strong their desire to acquire them. Some are more dangerous to our clients than the prosecution or the cops.

And we are all on the internet. And we all look superficially alike on the internet. It's easy to do, and all the others on the internet searching for the embrace of others will squint their eyes and pretend that we're all part of the same gang.

Matt softly notes the most disheartening thing about this lesson, that the lawyers who suck don't realize they suck. They don't see what they do as purely mercenary, or inept, or scummy. They believe that they are good people and good lawyers, who rationalize the poverty of their representation. They not only want to be part of the gang, but sincerely believe they deserve to be. That's their self-assessment.

We are not all in this together. Some are and some aren't, but being a criminal defense lawyer isn't enough.

Odds n Ends Shop

Though many lawyers fantasize about enjoying a "Perry Mason" moment — dramatically producing that one document, uncovering that one fact, eliciting that one admission which turns the tide of a case — the reality is that few will ever experience it. David Sugerman, who's representing a number of National Guardsmen in a suit against Iraq War contractors KBR and Halliburton, may soon be one of those few. Dionne Searcey reported a development in the case:
National Guard soldiers in Indiana, West Virginia and Oregon for several years have alleged that defense contractor KBR knew it was directing soldiers to work in an area in Iraq coated with a toxic chemical that could harm them.

Now, a new document in the Oregon litigation purports to back up their claims.

The document, minutes of an Oct 2, 2003 meeting about blood and urine tests from workers at an Iraqi water treatment plant at Qarmat Ali, indicates KBR managers not only knew of the chemical’s danger but also knew workers continued to use it long after alarms were raised....
She noted that the defendants have complained that the plaintiffs are "selectively disclosing only a few documents out of the many thousands of documents produced in this case." Undoubtedly they are, but if those few are the few which truly matter... well, let's just say that once one has found the needle in the haystack, only an idiot would stick it back into the haystack. David Sugerman wrote about his side's "needle in the haystack":
In our case, Bixby v. KBR, KBR and Halliburton claim that they didn’t know about the sodium dichromate until late July or August, they claim that they told the Army immediately, they claim that they never used sodium dichromate, and they claim that no one was injured from the exposure.

Against those claims, this pdf document, Team RIO Mtg Min 02 Oct 2003 MCM00739, tells a very different story. The document is a summary of a meeting in Oct 2003 of members of Team RIO (Restore Iraqi Oil). Representatives from KBR, the Army Corp of Engineers (“USACE”) and Iraq’s Southern Oil Company (“SOC”) were discussing the sodium dichromate contamination of the Qarmat Ali Water Treatment Plant.
He dryly noted, "The document raises a few questions." Take a look for yourself; Sugerman has posted it online.

The Above the Law site has been home to a number of posts exploring whether attending law school is "worth it" financially, professionally, or personally. Despite some valiant defenses of the law school experience from Managing Editor David Lat, the evidence seems to indicate that, on balance and at least for now, it isn't. Elie Mystal wondered whether their cautionary tales, hard data, and carefully-crafted arguments are so much wasted breath:
Maybe, at the end of the day, prospective law students just don’t care whether or not they’ll ever be able to get a job. Maybe trying to get them to think about their own futures before they leap into law school is as effective as trying to convince a lemming not to follow his brothers off of the cliff. Maybe they just don’t want to learn.

A new study from Kaplan asked students what factors they considered before choosing a law school. Getting a job barely made the list. I say again, getting a job barely made the list of things people consider when choosing a professional school. You simply cannot help people who won’t help themselves….


Some people will argue that the reason people care so little about job statistics is that they don’t trust the statistics. If better statistics were available, they’d care more. Not to be circular, but I think that if they cared more, job statistics would be better. If there was a demand by prospective law students to see accurate job placements stats, I promise you U.S. News would start to care. And once U.S. News cares, everybody cares.

So sadly, I must say that these people — the 92% of people who said that something other than “jobs” was their most important consideration — these people deserve everything that is about to happen to them. They deserve every rejection letter, every useless moment they spend at career services, every no offer, every terrifying moment of 3L recruiting, every contract/staff attorney position, every second they think about moving to India, every $1,000 a month Craigslist ad, every yearly tuition hike, and every menacing phone call from every creditor. They deserve it all.
Though 92% of the younger generation are now dead to Mystal, Above the Law still shows the love to the rest of us. This week, it was my turn, as the site launched a new column for in-house counsel. That's the good news; the great news is that the new columnist is Mark Herrmann, VP and chief litigation counsel at Aon and the author of The Curmudgeon's Guide to Practicing Law, a book which I was fortunate to receive a few years ago and which I highly recommend.

This past week on both sides of the Atlantic we honored our veterans, the living and the dead alike, for their service. There were a number of outstanding posts on Veterans' Day and Remembrance Day topics, but the one which stands out in my mind above all others was that guest-written by Oedipus Lex at Charon QC's blog; Lex wrote:
Let us put the charity aside for a minute and concentrate on the topic. We can ignore the tub thumping jingoism, grim faced politicians and the donations of profits from memoirs; what does that red flower mean? To me it is apolitical and I think this is the most important point to remember.


War is hell. It is horrific and is the ultimate example of our failings as a society. Those that died were victims; they may not have been innocent, they may have been brave, they may have been guilty, they were often stupid and quite possibly they were the vilest individuals to walk the earth. However, that does not make them any less a victim of something that was not of their own doing, they were sent to face the forefront of scientific, processed, mechanical destruction and they did not return.

Every red poppy I see on a lapel encourages me. It means you remember people like my great-great uncle Walter who died in the trenches; you remember Mac, Stew and Cocky who were killed in Afghanistan last year and Steve who killed himself after numerous tours. For me Remembrance Day is just that, it is to remember. It is to think of those that are not here today to be with their families or who never had the chance to have a family.
The post is worth a careful and thoughtful read in its entirety, as are the "Fragments" posts which Lex featured on his own blog in the days leading up to 11 November.

Finally this week, there was some cheerier news from Old Blighty, as the British royal family announced that Prince William has become engaged. Charon QC was quick to offer for sale a commemorative wedding mug (Rioja not included). John Bolch remained sensible amidst the royal engagement uproar; his satirical "Venal & Grabbit" firm of solicitors penned a letter to the Prince, proposing to draft an appropriate pre-nuptial agreement for the (presently) happy couple. After all, they noted, "One cannot be too careful, especially when one stands to inherit such enormous wealth from one's grand-mama."

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Barking Moonbat Early Warning System, clusterflock.org, and Paris Odds n Ends Thrift Store.

No comments: