05 January 2011

A Round Tuit (51)

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.


It's been more than a month since the last of these Round Tuit posts appeared, making this the longest break between posts since I began this series back in September 2009. Is this month-in-the-making A Round Tuit (51) worth the wait? Probably not, but it's done and posted, which is more than could be said for A Round Tuit (50¼), A Round Tuit (50½), and A Round Tuit (50¾). I completed the urgent year-end work, survived the holiday travel, and recovered from the general ennui which prompted the break, and I appreciate your returning with me to this series. I'm not usually one for New Year's resolutions, but I'll make one here — this year, I may miss a Round Tuit when other commitments take precedence, but I'll put up or shut up. If I can't do a worthwhile Round Tuit on a weekly basis (well, more-or-less), I'll end the series rather than leave you hanging.

The turn of a new year prompts a few to reflect on the past year and others to look forward to the coming year. Some, like myself, prefer to focus our attentions on planning a spectacular Groundhog Day celebration. Those things don't just happen, people.

There were many "year in review" posts this past week, and one of the best was from Rick Horowitz. I've mentioned before that he's one of my favorite legal bloggers and I've featured his posts here several times. The last time I did so, he remarked that he hoped to lead-off a Round Tuit someday. Though I structure these posts more by topic and for narrative flow, if Horowitz considers the first link a place of honor, it's entirely fitting that he should have it. This week, he remembered the challenges of 2010 but noted that the year was ending better than it started, hopefully portending a better 2011:
This year has not only been a fast one, but a rough one. The economy being what it is and me focusing solely upon criminal defense in an ultra-conservative town where unemployment — currently just under 16% — has hit 20% at times, many of those who would hire me were unable to do so. For those whose cases I wished to handle enough to agree to payment terms, I found — as anyone practicing law will tell you I should expect to find — that most (not all) could not, or would not, make most of their payments. As Mark Bennett put it, “You don’t go to a bank expecting to hire a criminal defense lawyer. Don’t go to a criminal defense lawyer expecting to take out a loan.”


Not just the number, but the complexity of the cases I’ve been handling has increased. Friends — and I rely heavily upon friends to bounce ideas off of — have had their own problems. Which makes it tough because they’re less often available to bounce ideas off, but also because, since they’re friends, I naturally want to help them (and I can’t always).

My disillusionment with the law has continued to grow, making it hard to blog and, more importantly, hard to enjoy being a lawyer.


Whatever the cause — improved economy, finally reaping the rewards of past successes in handling cases, or just dumb luck — I’m finishing the year by being privileged to defend more people with what look like some definitely defensible cases. If I’m lucky, I’ll even get judges who eschew ex parte communications. Maybe those with conflicts of interest will recuse themselves before sentencing my clients.

At any rate, as this year ends and the next one looms suddenly before me, I have some hope that the coming year is going to be a better one, for me and for my clients.
Half a country away, Horowitz' fellow criminal defense legal blogger Jeff Gamso also paused to reflect and to appreciate his compatriots in the legal blogosphere:
I have motions and briefs to write, records to read, cases to prepare. I've got oral argument coming up in April in a death penalty case. I've got a memorandum due next week in another.

I've got people who've lost a time or two, who are out of standard process, and who want to know if I'll help them undo their conviction or sentence. Mostly, I can't do that; the law really does limit when you can reopen cases. But I'll look into them enough to see whether there's a reasonable chance and, if so, whether I want to be hired to pursue it.

There's a young criminal defense lawyer in Illinois who's been writing me for advice about one thing and another. I can't tell him anything about his local law or procedure, but I'm happy to do what I can for this man who seems genuinely interested in busting his ass for his clients.

I have the anger and bitterness and frustrations of 2010 but also the highlights. Every silver lining has a cloud, here and there I stumble across a cloud with a silver lining. Those are among the lessons of 2010. And of every year.


So to the others who toil in the vinyards of criminal defense, and especially to those who write about it with passion and grace, thoughtfully and with care, Brian, Scott, Mark, Mirriam, Gideon, Jamison, Russ, Sarah, Carol, Norm, Paul, John, Eric, Terry, Matt, Rick, Bobby, Ken and Patrick, and all the rest. Here's to you. To us. And to 2011.
Though I'm not the early adopter I once was, I do enjoy the many "tech trends" predictions which lead into any new year. Nicole Black writes regularly on these issues and predicts a rise in attorney usage of tablet computers and cloud applications and a continuing decline in BlackBerry's fortunes amidst greater smartphone adoption in the legal marketspace generally; she also discussed social media usage:
[F]or lawyers, professionals who stand to benefit from blogging, I predict that the use of blogs by law firms will increase slightly. Blogs serve the dual purpose of increasing a law firm’s search engine rankings while showcasing the firm’s legal expertise. However, legal blogging will not be as popular as was in year’s past and rate of the deployment of new law blogs will slowly begin to decline in 2011.

Twitter use by attorneys will either remain steady or decline, while their participation on Facebook and LinkedIn will increase drastically. This is because the functionality of Twitter is changing and is used to share information rather than interact. I predict that lawyers will flock toward sites that allow them to interact and network and thus Twitter use will decline.
Brian Inkster disagreed that Twitter was poised for a decline amongst lawyers overall and suggested that, in the UK at least, legal blogging would increase in popularity in the coming year:
I am not so sure about this as I still see Twitter as a networking/interacting tool as much as an information sharing tool. I just think that many lawyers have not got to grips with how best to use it yet.

2011 will I believe see more firms actually using Twitter, Facebook and LinkedIn in a more structured and meaningful manner. Tweeting in Convoy, as Jon Bloor coined it, will become more prevalent.


In the UK blawging is perhaps less mainstream (although still a healthy scene as evidenced yesterday by Charon QC’s Blawg Review #292).

I believe in the UK it is just about to mushroom and as @WardBlawG Tweeted to @TheTimeBlawg “2011 shall be the year of the Blawgs”.
Scott Greenfield offered a few more pointed — and probably quite accurate — technology predictions:
Unless you're in a discrete niche practice (like Dan Harris' China Law) or a very small market where people can't otherwise find you, social media will fill the time of your day that would otherwise be spent playing spider solitaire. Niki is right that twitter is fading, as people realize that it's boring and you don't "network" with anyone you would talk to in real life anyway.

People who like to write will continue to write. People who want to read what other people write will continue to read. Nobody will get rich off either writing or reading. As more people become aware of both, the quality of content, both posts and comments, will continue to go down and the deception will increase. It won't really matter, however, since it never really mattered.

Lawyers who are both skilled and provide excellent service to their clients will continue to have successful practices, regardless of whether they blawg, twit or maintain a lot of Facebook friends. Some will have Blackberries. Some will have iPads. Some will have legal pads. These are just the tools, not the goals, of practicing law. I predict that all will have pens in the coming year.
Is blogging amongst lawyers in decline entering 2011? Measured by quantity of blogs, it would seem not. I've suggested before, however, that when one looks more closely at the quality of what's being produced these days, there is something of a decline underway. There are some tremendous legal bloggers out there — certainly more in number than when I started this blog — but they're often becoming drowned-out in the noise generated by marketeers and marketing-driven blogs. Though the vitality of the legal blogosphere is somewhat dubious, those of us who care continue to highlight the breaths of fresh air in this increasingly-polluted atmosphere. Greenfield is one such caring soul and frequently highlights outstanding legal blogging (see below, concerning his annual award for criminal law blogging) and promising new bloggers; this past week, he cited two bloggers — Eric Mayer of Military Underdog and Matt Brown of Chandler Criminal Defense — who offer us some hope that the future for legal blogging isn't entirely bleak:
Both Eric and Matt offer exceptional, even brilliant, writing that has the depth, thoughtfulness and understanding that commands and deserves the attention of criminal defense lawyers everywhere. These guys are trying to feel their way through difficult times in the practice of law, but do so with integrity, humor and insight far beyond their years.

I don't miss a post by either of these two men. They are both on my blawgroll. They are both on my RSS feed. They are both writers whose words invariably impress me, make me think and make me laugh. They are both the sort of lawyers I hope to find bringing up the rear, the future of the profession. These are the guys who do us proud.
I'll second that (though considering the many who've read Mayer's and Brown's work recently or discovered them through Greenfield, I'm more likely thousandth-ing it). I'm also encouraged by the promised return of George Wallace's Declarations and Exclusions blog, the recent launch of the Doctor Who-inspired The Time Blawg by Brian Inkster, and the addition of much-beloved Twitterer Amy Derby's unique brand of snark to the Big Legal Brain site. This week, she advised us to find the right life-work balance by making time for ourselves and outsourcing our kids:
If you are a fake Starbucks lawyer, real lawyers think that all of your time is downtime. But they don’t understand how stressful it is to be thought-leadering, game-changing, and optimizing around the clock. Devise a schedule. Reserve time for downloading apps, retweeting, and interacting with colleagues at TweetUps, but also save some time for yourself to disconnect and work on your personal Facebook page or catch up on Ping.fm suggestions. The more you can schedule time to disconnect, the better you’ll find a good work-life balance.


Once you have a family photo, kids don’t do much for your personal brand. And once they reach that awkward pre-tween stage, they are usually no longer willing to pose for twitpics. They are essentially thankless timesucks. If you can’t afford a real babysitter, a virtual nanny is a more affordable option that will give you more time to spend accumulating new followers. And if you need new or updated family pictures, try iStockPhoto or photos.net.
Starting 2011, I for one am feeling cautiously optimistic. Sure, I might start to miss my outsourced kid around August, but thanks to Amy I now have iStockPhoto and photos.net bookmarked. This work-life balance thing is pretty sweet.

Sally Field

The end of a year is also the time for awards. Lots of awards. If somehow you didn't win one, go ahead and get yourself one of Charon QC's Blogging and Drinking awards. The most-discussed legal blogging awards are the American Bar Association's Blawg 100 "best of" prizes. Over their four-years' history, these have been a mixed-bag; some exemplary blogs are recognized, some are inexplicably ignored in favor of simply ludicrous alternatives, and the whole thing's overshadowed by seemingly-endless campaigning and self-promotion by many of the nominees. Still, if I'm ambivalent about the ABA's awards, others are openly hostile. Jim Walker is one of them:
Take a look at the "blawg 100" stream on Twitter and you see a hilarious spectacle. Lawyers desperately begging for votes to win one of the best "blawg" (law blog) categories hawked by the ABA Journal's Blawg 100 contest.

The ABA Journal has quite a scam going. The Journal is operated by one of the most obsolete and irrelevant legal groups around today, the American Bar Association. The game goes like this: self-appointed ABA Journal "judges," who are mostly former reporters or editors for rinky-dink newspapers and who have never represented a real life client in a courtroom, pick their 100 favorite "blawgs."

But that's just the beginning. The ABA Journal divides the top 100 "blawgs" into 12 arbitrary categories. There is a category for law professor blogs (what else are professors suppose to do but write?), one for labor law, one for "criminal justice" (what's that?), and even one "for fun." (Do we really need a category of lawyer jokes?)

Each category consists of anywhere from 5 to 12 law blogs, designed to compete against and simultaneously congratulate one another. Some obviously qualified blogs - like Overlawyered - are left out, to create controversy. The ABA Journal encourages the chosen bloggers to write something witty to promote the ABA Journal's contest. The bloggers and their shills solicit votes via a number of cute blog posts or solicitous tweets promoting themselves and the ABA Journal in the process. Kinda like trained seals, these lawyers are all-too-happy to balance a ball on their noses for the trainer.
Ouch. The awards were announced by the ABA this past week and for all the valid criticisms of their nomination and voting processes, it has to be said that there were some very worthy winners. SCOTUSBlog is undeniably the go-to source for Supreme Court blogging and should win every year just for Lyle Denniston's reporting. I confess to enjoying award-winners Above the Law and The Legal Satyricon more than is probably healthy. Still, there were a few very deserving blogs which didn't make the ABA's or their voters' cuts and considering the awards' widespread notoriety, that's a damned shame. In a crowded Criminal Justice field, Mirriam Seddiq's Not Guilty No Way was an excellent choice. Seddiq discussed the award and put it in its proper context against her ongoing struggle for her clients:
I got to the office at 6:15 a.m. yesterday. At 7:30 I got a call that my client was on his way out of town. Like, a long, long, long way out of town. This was the client for whom we'd filed the TRO. We had a hearing. Everyone had been served. How could they move him? But, the truth is, they could. If they wanted to. Which, clearly they did.


I was ready to do a ton of other work that was desperately needing attention. But this call knocked me off my feet because it was completely unexpected. I was angry, I was sad, I was thinking "why am I doing this? Maybe I should do worker's comp or cruise law." Instead of changing my website to indicate that I was now an expert in some other area of law, I ran around some, made phone calls, and talked to some reasonable people that work for the government (shocking, I know, but they do exist). Oh, and I won that Blawg award.... At 4:30 pm we got a message from ICE that said "your client won't be removed today because of the TRO, but he came damned close". At 7:30 pm the client's family called and said he was literally on the plane and they pulled him off of it because of that TRO. He is back in Virginia. I can visit him tomorrow. He will be in cold, gray VA and not on a tropical island. His family can go say hello. I did a dance, I high fived Rob Robertson because in the world of criminal defense and immigration, this is a win. Then I sat down to write those post-convictions. Today I am going to the jail to see those folks who were neglected yesterday. We live to fight another day.

I had lots of folks congratulate me on the ABA Blawg 100 thing. I don't want to appear ungrateful. But to be honest, there are lots of other blogs that are much better than mine. My blog is simple, and thus far it's doing exactly what I intend it to do.... At the end of the day though, this blog is me and will hopefully just continue to be.
Seddiq deservedly won an award she probably didn't want to receive, and certainly not one for which she campaigned; the same will soon be said of one of the dishonorable prosecutors in the running for Radley Balko's "Worst Prosecutor of 2010" award. This is one of those awards where all of nominees make you feel somewhat nauseous, kind of like the Daytime Emmys. Particular standouts amongst this year's nominees include former Maricopa County Attorney and Arpaio-enabler Andy Thomas, Eleanor Odom (who managed to make a birthday cake prejudicial), Colorado District Attorney Carol Chambers (who suggested that a child's "slutty" wardrobe explained-away an adverse DNA test result), and the District Attorney in nearby Santa Clara County, California, Delores Carr. Of Carr, Balko wrote:
[Carr] ran for the office in 2006 on a platform of ending what she called a “win at all costs” mentality that plagues too many prosecutors. She then spent much of her time in office fighting like hell to cover up and minimize a massive scandal in which her office failed to turn over exculpatory evidence in thousands of sex abuse cases. When the California bar disciplined a member of her staff in 2009 for misconduct in four cases, Carr fought to strip the bar of its power to discipline prosecutors. In February, when a judge released an accused sex offender because Carr’s office failed to turn over a videotape with the alleged victim that called into question whether the assault had ever happened, Carr announced that her office would be boycotting the judge.
Our friends to the North awarded the CLawBies — the Canadian Law Blog Awards — for 2010. Honorees included Michael Geist, whose criticisms of the Anti-Counterfeiting Trade Agreement (ACTA) were often linked here, for Best Canadian Law Blog, and Blawg Review and Charon QC, who were recognized for their diligent efforts to highlight Canadian legal blogging. One worthy recipient of the Best Practitioner Blog award was Antonin Pribetic's The Trial Warrior. Pribetic, who was noted for his "blunt and authoritative opinions" offered one this week when he called the dearth of Canada-based international law blogs (only four, including his own) "anemic" and "really lame":
I hereby thrown down the guantlet and challenge my fellow Canadian international litigators and arbitrators to start their own personal or firm blogs dedicated to international law from a uniquely Canadian perspective. Let’s make 2011 "The Year of the Canadian International Blawg".
One of the more meaningful awards given this past week was Scott Greenfield's for Best Criminal Law Blawg Post of 2010. Gideon of A Public Defender received the honor for his June post, "Life Without Possibility of Redemption"; Greenfield wrote:
The Best Criminal Law Blawg Post of 2010 goes to Gideon at A Public Defender for Life Without Possibility of Redemption, combining almost every aspect of what lawyers in the criminal law blawgosphere have to offer. Substance, passion, the banal aspect of our work implicating deep philosophical roots, integrity and brutal, clear honesty.

Gideon has been at the foundation of the criminal law blawgosphere for a long time, before I arrived, and has never wavered in his commitment to making every person who reads his words better for having spent the time. This year's award couldn't go to a more deserving blawger, and I'm honored to count myself among Gideon's readers and admirers.
I was one of several who nominated that very memorable post; in doing so, I wrote:
"Life Without Possibility of Redemption" was an example of what Gideon does better than any other blogger — he invites us to see things from his clients' viewpoint. He doesn't argue; he invites us to understand. He doesn't list all the reasons we should sympathize with his clients and others on the wrong side of the justice system; he shows us their humanity and the injustice of the system and leaves us to draw our own conclusions.
Congratulations, Gideon, on a well-deserved honor.

Odds n Ends Shop

As a prosecutor, Lester Blizzard argued for a life sentence in a drunk-driving case "to send a message to anyone who would drive while intoxicated." If he's convicted for the drunk-driving offense for which he was arrested recently, Blizzard surely hopes that his words don't come back to haunt him at his sentencing. Mark Bennett expressed a bit of schadenfreude in Blizzard's circumstances and discussed why separating one's feelings from one's function is at the heart of criminal defense:
Normal people... have an innate sense of fairness: people should get what they deserve, and no worse. But normal people also seem to have an innate sense of retribution: people who do harm should be punished, regardless of their culpability. Retribution is what makes a child angry at the sofa on which he stubs his toe, and retribution is what makes the punishment for DWI with no injury different than punishment for intoxicated manslaughter.


Blizzard and [co-prosecutor Kayla] Allen thought that Howard deserved life in prison. I think they might well have been wrong. Right or wrong, Blizzard and Allen harmed Howard, as prosecutors harm human beings every day. They think—how could you do the job and not think this?—that the people they are harming deserve the harm. And they may be right; the harm they do may be justified … but some of the risk that they are wrong falls on them. If they are wrong, and there is Justice, there will be consequences.


Retribution is one of many dangerous things—prejudice, lust, avarice, wrath, envy, and so forth—in the dark corners of our minds. If we—human beings—pretend those things don’t exist in us, they will control us. More to the point, if we—criminal-defense lawyers—don’t well understand those things in ourselves, we can’t counteract them in judges, prosecutors, and jurors.
A criminal-defense lawyer might feel schadenfreude at a cop’s or a prosecutor’s unfortunate encounter with law enforcement; this is entirely natural. When we feel it, we should note it, think about its roots, and not be ashamed: criminal-defense lawyers are allowed to have feelings, emotions, and even prejudices. We’re allowed to share our feelings among ourselves. Criminal-defense lawyers are even allowed to turn down cases because of our feelings. What criminal-defense lawyers must not do is give any defendant short shrift because of our feelings.
Former prosecutor and current defense attorney Murray Newman criticized Bennett's joy in Blizzard's misfortune and decried what he viewed as a "double standard" when a prosecutor becomes a defendant:
Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people's lives. They enjoy the power trip. They enjoy the chaos.

I am sure that there are probably some prosecutors and police officers that fit that description. And maybe I'm naive, but I truly believe they are in the small minority.


But for some reason, some of my brethren in the Defense Bar regard prosecutors and police officers as power-mad authoritarians who do their jobs solely for the reason of suppressing the rights of citizens who were simply minding their own business.

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything. Die-Hard civil libertarians who will (rightfully) proclaim any citizen's Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

It is a double standard beyond comprehension to me.
Matt Brown and Paul Kennedy disagreed with Newman's arguments. Brown wrote:
When a prosecutor gets charged and defense lawyers don’t just rant about the presumption of innocence, I hardly see it as cause for concern.


If this is indeed a double standard, it’s a justified one, if such a thing exists. This prosecutor is different. I do indeed relish the idea that this man, if guilty, should be treated more harshly under the law. I relish that because this man, if guilty, is different. I’m also saddened because cruelty and ignorance, when applied to one who himself has sought institutional cruelty and ignorance, is no less cruel or ignorant. I really am overwhelmed by this situation, and I’m having trouble grasping how Murray’s response can possibly make sense.


This isn’t something that would ever cross my mind if 99.9% of prosecutors I know were arrested for DUI. I would normally rant against the DUI laws and other bullshit legislation after hearing they were charged. The system is unbelievably unfair when you don’t sign up for the insanity. If you wrote it, enforced it, or upheld it, you won’t see a lot of sympathy from me when you break it, if in fact you broke it. Even if you didn’t break it, if you supported the laws that made you likely to be wrongfully convicted of breaking it, you won’t get any sympathy.
Kennedy wrote that prosecutors should expect to reap what they sow:
Our clients have lapses in judgment. Our clients choose the wrong course of action in the heat of the moment. Our clients do stupid things.

But our clients go to jail when they break the law while prosecutors shake their heads and say they need to accept responsibility for their actions.


Whenever a public servant breaks the law, he is violating the trust of the populace. If you're going to hold yourself out to be holier-than-thou, then you have to accept the consequences of your actions.
Brian Tannebaum saw no double standard in the case, just the application of the "Golden Rule" and the operation of basic human nature:
I've seen some of the most aggressive prosecutors, after arrest and on their way out of the office for good, become different people. It's a humbling experience. While I don't hope for the arrest of any prosecutor, I hope that every defense lawyer out there has the chance in their career to go up and shake the hand of a tough nose prosecutor after they were arrested and wish them luck and watch them almost driven to tears.

I've done it, several times.

The lesson here is that if you are seen as someone who uses what power they have, to the fullest extent, then when you are on the other side of that power, people are going to want to see you incur the wrath.

It's just the way things are, in criminal justice, in everything. We want celebrities to fall so we can say they are just like us. We want people who we perceive as abusing their power, to get abused. When people fall, there are those who want them to get up, and those that want to push them down. Some of this is revenge, some is of the person's own doing.

Kind of all comes down to the Golden Rule, huh?
Scott Greenfield touched on similar issues:
I don't know what sort of person Lester Blizzard is. Maybe he's a zealot, the sort of prosecutor who wields his sword like the avenging angel doing God's work on earth. Maybe he was ordered by his supervisor to seek the maximum for Jim Howard. Maybe he believed that life in prison was the right sentence for a particularly unsympathetic person who went on to kill two people while driving drunk.


We are all held to account for the things we say and do when we take a stand. Lester Blizzard took a stand. He announced to the world that drunk driving was a wrong of such magnitude that man must never again breath free air to send a message to all the others who would engage in similar conduct. Blizzard drew a line in the sand that, he argued, must not be crossed.

And then he goes and gets arrested for crossing it.

That's a problem. Not because of a double standard, where police and prosecutors are inherently undeserving of the same presumption as everyone else. Not even because of the wall separating good and evil in the minds of zealots. But because one guy, Lester Blizzard, uttered words from his lips for the world to hear that drew an immutable line in the sand for everyone. Everyone includes Lester Blizzard.
Whereas Greenfield chose to "go small" in his discussion of the matter, Jeff Gamso suggested a broader lesson in the Blizzard discussion and echoed some of Mark Bennett's thoughts:
[N]either schadenfreude nor retribution serves as much of a template for how any scheme of criminal "justice" should be employed.


We do what we do, we who are criminal defense lawyers, not because we don't have human emotions - fear, love, schadenfreude - and not because we believe that everyone charged with a crime is an innocent victim of police error (intentional or reckless or negligent or whatever). We do what we do in spite of those things.

I wouldn't defend the guy who broke into my car (aside from that whole thing about being a witness against my client) precisely because I couldn't set my own feelings aside. Beyond that, setting them aside is what we do.

If we can't do that, we're in the wrong business.

If we don't understand that, we may defend the criminally accused, but we're not criminal defense lawyers.
Anyone who's filled their Kindles and computers with the public domain works available at Project Gutenberg, Google Books, and many other sites will appreciate the value of the public domain. Many celebrate "Public Domain Day" each January 1, but as Mike Masnick noted, there's not much to celebrate in the United States this year:
Every January 1st is supposed to be "Public Domain Day," in which all works published in a certain year move into the public domain. And while some parts of the world get to celebrate Public Domain Day this year with the freeing of works by F. Scott Fitzgerald, Paul Klee, Leon Trotsky, Walter Benjamin and others, here in the US, we come up empty yet again. Not a single work entered the public domain in the US on January 1st, thanks (yet again) to constant copyright extensions, which include retroactive extensions. Retroactive extensions, of course, make absolutely no sense. If the point of copyright is to act as incentive for the creation of new works, that incentive obviously worked in getting those works created. To then retroactively extend the copyright is to, quite blatantly, go back on the deal, and take away the rights of the public with no recourse or compensation.

And, boy oh boy, were there a lot of wonderful works that would have and should have entered the public domain this past week, if we followed the laws as they existed when those works were created. Headlining the group, what could be more fitting than the famous play Waiting for Godot, which is all about waiting for someone or something that never comes.
The Public Domain blog provided an extensive list of those writers, artists, architects, composers, historians, philosophers, scientists, mathematicians, doctors, politicians, and lawyers whose works are now in the public domain in places with life+50 years or life+70 years copyright terms.

Finally this week, I'll end things as I began them — with a post from Rick Horowitz. Commenting on the forty-first DNA exoneration in Texas recently, he asked his readers to try to imagine themselves in the place of Cornelius Dupree, Jr., who was exonerated less than a week after being paroled, having served thirty years for a crime which he didn't commit:
When we look at crimes — crimes, and the victims of them — we become emotional. But as the drumbeat of exonerations increasingly demonstrates, our incessant concern for victims causes us to become confused. The feelings we feel, the pain, the fear or the hatred — all that which is inspired by looking at the crimes and their victims — are displaced onto the accused.

“Oh, thank God!,” we say. “Someone has been caught!”

Yes, someone has been caught.

But is that someone the one who committed this crime which has so inflamed our passions? Is that someone the one who deserves our wrath? Our hatred? Our unmitigated, desperately severe, unrelenting punishment? Or is that someone another victim of crime: our victim?

Our attitude towards crime, increasingly displaced onto the accused, who we think of from the beginning as “criminals,” even before trial, affects not just punishment. The safeguards built from hundreds of years of experience, built into our system for determining guilt, are increasingly dismantled.

Worse: our system is built for determining guilt. It is not built for determining innocence. It depends, preliminarily, upon a presumption of innocence.

Our emotionally-driven confusion between the crime and the accused has stripped our system of this preliminary presumption of innocence. Our fear means that people — the accused — are brought to court shackled. We dare not risk the possibility that something might go wrong, because occasionally something will go wrong.

Because we don’t think of these people anymore as accused: they are criminals. They are dangerous. They were caught. They are guilty.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Designs Collage, SF Weekly, and Paris Odds n Ends Thrift Store.


Rick Horowitz said...

Woo-hoo! You just made my day!

Thank you.

I needed it, too. All those new cases I mentioned in that post have me scrambling. I came in this morning with that old saying -- "Careful what you wish for" -- firmly repeating itself in my head.

On top of the world? I don't know. But I'm on top of A Round Tuit and that feels pretty good to me!

Amy Derby said...

Thank you for the flawg of Big Legal Brain. I will fax this post to Chank, the Big Brain upstairs, so he can bookmark it for later review.