Monthly Archives: May 2008

Much ado about douchebaging?

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The blawgosphere is up in arms about the 2nd Circuit’s decision today in Doninger v. Niehoff, a.k.a., the “douchebag” case (get the witty title? ;) )

I have not been inclined to follow this case very closely and I will admit that I made up my mind early on, stemming from some archaic sense of discipline and respect and other such nonsense. Reading the blog posts today, however, I wondered if I was wrong. So I decided to do the only sensible thing and read media reports the decision.

What I also found in the blawgosphere was a mis-reporting of the facts. Perhaps they thought they were the MSM for a day.

So let’s look at the facts, as found by the District Court and adopted by the 2nd Circuit:

  1. Jamfest was some sort of band-off, which was scheduled for April 28.
  2. At a student council meeting on April 24, the students were made aware that, for reasons that are unimportant, the date or venue needed to be changed yet again.
  3. That morning, four students, including the plaintiff, met in the computer lab, accessed someone’s e-mail account and sent out a mass e-mail to students, asking them to contact administration to urge them to hold Jamfest as scheduled.
  4. Both defendants received an influx of e-mails and telephone messages. One of them, who was away for the day on school business, had to be called back to deal with the situation.
  5. Later that day, the principal spoke with Avery in a hallway and advised Avery that she was disappointed that the student council had resorted to mass e-mails rather than going to her or the superintendent to resolve the issue.
  6. The principal also expressed disappointment that the e-mail contained incorrect information, because the administration was open to moving Jamfest to another location.
  7. Avery apparently agreed to send out a corrective e-mail. That never happened.
  8. That night, the infamous blog post appeared, which stated that “jamfest is canceled due to douchebags in central office” and exhorted students to write and “piss her off more”.
  9. Lots of students took up that request and wrote and wrote.
  10. The very next day, the student council and the administration decided that Jamfest would be rescheduled for June 8.
  11. Despite this resolution, the administrators continued to receive e-mails and calls about rescheduling.
  12. On May 7, the post in question was discovered by the son of the superintendent.
  13. The principal concluded that concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers.
  14. They declined to endorse her nomination for Senior Class secretary, though she was permitted to remain as a representative in the Student council.

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New York has full faith and credit

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In a very, very interesting move, N.Y. Governor David Paterson has directed state agencies to revise their regulations to recognize same-sex marriages performed in other jurisdictions.

This will make NY the first (and only?) state to have no legislation permitting same-sex marriages, but policies recognizing those marriages from other states.

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

In a videotaped message given to gay community leaders at a dinner on May 17, Mr. Paterson described the move as “a strong step toward marriage equality.” And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.

This is an novel idea and I have to commend Gov. Paterson for trying. It doesn’t seem as though the state legislature will legalize same-sex marriage anytime soon, so this, at least, affords same-sex couples the same protections that married heterosexual couples receive.

The directive cited a Feb. 1 ruling by a State Appellate Court in Rochester that Patricia Martinez, who works at Monroe Community College and who married her partner in Canada, could not be denied health benefits by the college because of New York’s longstanding policy of recognizing marriages performed elsewhere, even if they are not explicitly allowed under New York law. The appeals court said that New York must recognize marriages performed in other states that allow the practice and in countries that permit it, like Canada and Spain.

“He saw no reason to stand in the way of making sure these couples benefit from the rights and protections that come with marriage,” said Susan Sommer, senior counsel for Lambda Legal, a group that advocates for gay rights. “It shouldn’t be the burden of each lesbian or gay couple to have to advocate before an agency every time a new issue comes up.”

I agree. While the legislature sorts itself out, the citizens should not be at a disadvantage. Good for him.

The mess in Minnesota

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45 years after Gideon’s promise, it seems that Minnesota is going backwards. It always astounds me when I read stories from other states about their public defense systems and their inadequate funding. Makes me feel lucky and proud to be in CT.

But this is utter nonsense. Apparently, there was a problem with the budget in MN and funding for public defenders fell short by $4.7 million. This renders them unable to fill the 19 already vacant positions, but might lead to cutting sixty-one (61!!!) current positions.

“In a state where our public defenders already work well in excess of caseloads recommended by the American Bar Association, these new staffing reductions will certainly have an adverse affect on the speed and quality of the entire justice system,” Stuart said.

The public defense board provides criminal and juvenile defense services to people who can’t afford to hire a private lawyer. Stuart said there are currently about 525 attorneys are working as full- or part-time public defenders across Minnesota, handling about 170,000 cases a year.

Funding for public defense work comes entirely from the state in most counties. Stuart said the board operated at a $1.4 million deficit this fiscal year, which ends June 30, and was staring at a $1.9 million shortfall for next year even before the loss of $1.5 million in state funding for 2009.

This is not a good situation. The ramifications of this go far beyond simple unemployment for a few lawyers. This could lead to a complete and total breakdown of the criminal justice system.

I’ll let Accident Prone, a public defender in MN explain:

Prosecutors aren’t facing any sort of staffing cuts. They will still be charging cases. Judges will still be sitting on the bench to hear those cases. Cops will still be arresting my clients on the streets and filling the jail. But with 12 less public defenders in my district, those clients cannot be assured adequate representation. The whole criminal system will suffer. By law, indigent people in Minnesota must be represented by someone employed by the Minnesota Board of Public Defense. There is no such thing as private-bar appointments. As I sit here with at least 25 open felonies (and a slew of misdemeanors) on my desk that include Criminal Sexual Conduct and Attempted Murder, I wonder how I could take on more and still spot every legal issue, do all the investigation, and prep every trial with the level of comprehensiveness I find necessary.

This is completely irresponsible. Defendants will either be forced to take awful deals or go to trial without lawyers, thus denying them a basic Constitutional right. Prison populations will swell and there will be a lawsuit, either about overcrowding or the failure to follow Gideon.

But, ofcourse, a new parking garage for the Mall of America is more important than the right to counsel.

Tackling the real cause of recidivism

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It is no secret that one of the main causes of recidivism is a lack of opportunities for recently released offenders. As I’ve stated before, I’d like to see states take steps to ensure that, upon release, offenders have access to housing and jobs. If we provide them with a support system, then the need to turn to crime is greatly diminished.

So it makes me happy to see that one city is trying an innovative tactic. Philadelphia’s mayor announced today that employers would receive a $10,000 tax credit for hiring ex-cons.

Mayor Michael Nutter announced a program, being headed by an ex-offender, that gives $10,000 a year in municipal tax credits to companies that hire former prisoners and provide them tuition support or vocational training.

This is a fantastic program and one that should encourage more employers to hire ex-cons. Speak to any ex-con and you will hear stories of countless interviews, empty promises and, in the end, rejection, despair and frustration.

I can understand the point of view of employers, don’t get me wrong. People are hesitant to hire ex-convicts, because of the stigma. But that’s like asking which came first, the chicken or the egg. If ex-cons, who are willing to make a change in their lives, who want to make that change, aren’t given any opportunities, then they will get lumped in with those that have no such aspirations. They won’t get jobs, they won’t have housing or insurance or any money earned legally. Something’s gotta give and what better way to entice businesses than with money.

The scope of the ex-offender problem in Philadelphia was detailed in a report last fall that showed about 40,000 former inmates return to the city annually from federal, state and local incarceration.

At any given time, according to the study by the University of Pennsylvania’s School of Social Policy and Practice, the city of 1.4 million is home to 200,000 to 400,000 ex-cons, many in need of not only jobs but also education, health care and addiction counseling.

The study cites federal statistics showing that nearly two out of every three inmates released from state or federal prison are expected to be rearrested within three years.

This volume cannot be sustained. There has to be a way to provide opportunites for these masses and to curb recidivism. The savings in prison costs also warrant a mention. Let’s hope this program succeeds and that other states follow suit.

No state needs such an innovative program more than CT. Almost half the inmates in CT prisons are incarcerated for a violation of probation. I wouldn’t be surprised if more than half of those inmates returned to a crime for lack of legal employment.

One can hope.

6 tips for being an effective trial lawyer

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Mike at C&F reviews a book that he recently read (and recommends), entitled “Don’t Believe Everything You Think: The 6 Basic Mistakes We Make in Thinking.” It is primarily a book about the human mind and the tricks it plays on us. Prof. Greenfield astutely reminds us all not to fall into these traps, if we are to represent our clients adequately.

I looked at it from another perspective. I think, generally speaking, as defense attorneys we are aware of these “tricks”. Some of them read just like the problems with eyewitness identification that are the subject of many papers and lots of research.

But this “list” organizes them succinctly (which, incidentally, is one of the “tricks”). If this is truly how people think, then we have just gained an insight into the minds of our jurors. We need to be aware of these “tricks” and be ready to either use them or to expose them.

Consider the following, with Mike’s summary:

Confirmation bias. People hate being told they are wrong. People love being told they are right. Consequently, people only look for data proving themselves right. Yet, in so doing, who knows what evidence we are missing proving ourselves wrong?

Anyone who is up on eyewitness id research knows about this. Witnesses reinforce their own memory and come to believe very strongly that what they saw is what they recollect. (As a side note, this is why it is imperative in eye id cases to attempt introducing the testimony of an expert.)

We are super simple Simons. Why do stock markets rise and fall? Why did your wife leave you? We have one or two sentence explanations of very complex events. In a sense, our need to oversimplify stems from the narrative fallacy and our inability to appreciate chance. Give us a show story that makes the world seem logical, and we’re sold.

Because of that, we prudently invest in mutual funds and worry about the child molester next door rather than the one in our own homes.

This, I think, can work in two ways. Find that two sentence theory of your case and you might be able to convince the jury of whatever your position is. Again, this is not new, but just further reinforcement that you want to keep it as simple as possible. One of the first things I learned about trying a case to a jury was to keep is as simple as possible – and simple to us lawyers is not the same as simple to lay jurors. Break the case into small, bite-sized pieces and feed as few of them as possible to jurors.

The other way it can work is to understand that the State’s case is usually made up of such a simplicity. A man saw the defendant hit someone. Hence, the defendant is guilty. Knowing that people lean toward such simple solutions teaches us that we need to unravel them carefully, and simply. Take each strand, one at a time and deconstruct it.

The simpler the better. See Occam’s Razor (or Bennett’s Chainsaw). I’ll have to read the book, but in the meantime feel free to jump in with your thoughts on this.