From Simple Justice: Talking about race

Over at SJ Scott writes a post entitled Why You Can’t Talk About Race (Or Anything Else). It is worth reading and I suggest that you do so. The essential thrust of Scott’s tough piece is this:

Stop the whining, the crying, the self-serving sensitivity and the narcissistic presumptiveness that you are entitled to decide the rules of life for others because they’re too feeble and delicate to speak for themselves. Show them the courtesy of being real people by treating them like real people.

We need to talk. If you can’t handle it, then move aside and let the grown-ups do it. And stay out of the way.

I agree entirely with what Scott wrote. But, I have an honest concern.

There are more than a few adult white people (like Scott) who see and will treat black people like real people. But, if we have a real conversation between grown-ups then black people need to approach the conversation in the same way.


Ultimately, we would get down to the issue of class and throwing away the lives of young black men in prison. What concerns me is that if we have that conversation the “real people” opposite must be willing to accept some horrible truths. I am not at all sure that the vast majority of “real” black people are ready to truly grapple with the truth as it regards class. But, then again, I am a racist old white man with a nasty history of sending legions of young black men to prison without so much as a blink.



You ought to read the post quoted above that is from Fault Lines (Mimesis Law) today written by Ken Womble. Here is the link.

In fact, the post should be required reading for criminal defense lawyers who worry about the integrity of crime lab scientists and their supervisors. Be sure to click on the link found at these words, “this bombshell of exculpatory evidence on the eve of trial.” The link will take you to some scary shit. (Per crime lab supervisor, don’t follow up on DNA found in a relevant place from someone other than the defendant–an international drug dealer–even though the FBI recommends it.)

By the way, both the substance and quality of the writing in Fault Lines has caused me to look forward to the daily e-mails telling me what’s up next. Since I am both old and jaded, that is high praise indeed! (I suspect that the estimable Scott Greenfield is secretly the editor-in-chief of Fault Lines.)


“Always acknowledge a fault frankly. This will throw those in authority off their guard and give you opportunity to commit more.” Mark Twain

Golden Lady Justice, Bruges, Belgium

Scott Greenfield has announced the beginnings of “Fault Lines” a collaboration of criminal law experts to write about what really goes on in the criminal justice system. See Scott Greenfield, Meet Fault Lines, And Show It Some Love, Simple Justice (June 1, 2015).

Here is Scott’s description:

Meet Fault Lines, the new criminal law and justice section at Mimesis Law. If you like what you read here (or hate it, we’re not picky about who reads), take a quick trip to Fault Lines, where you will get more pie than ever before.

The good news is that there will be posts from me, as well as Cristian Farias and Tamara Tabo, our inaugural team of writers. Expect more writers as well, the primary criteria being that they be knowledgeable and honest. We hope to have people writing from varying perspectives, challenging bias and each other. We look forward to making this as real as it gets when it comes to criminal justice issues.

The better news is that there will be no moderation of comments, except for spam. So if your comments failed to meet the threshold for thoughtfulness here, there is a soapbox for you at Fault Lines.

If done right, this endeavor could be a very big deal. It could become a super productive hybrid of the highly regarded Volokh Conspiracy and the equally highly regarded Sentencing Law and Policy, but with a different orientation. That is, a blog written by smart, knowledgable and frank people about the criminal law in general while also addressing specific issues that confront those who toil in the mine fields as practitioners. It is likely to appeal to practitioners and judges and even academics, but also to those in the laity who are fascinated by such things.

I urge the two or three people who read Hercules to make Fault Lines a regular read. I hope and trust it will be very much worth your time.


The other side of my “conflicted” feelings about the death penalty



Scott Greenfield and Jeff Gamso have fair but critical posts about about my earlier piece today regarding the death of Michael Ryan, a sadist and convicted killer. My earlier post was intended to illustrate one side of my conflicting views about the death penalty. Briefly, I offer an illustration of the other side of my conflicted feelings about the death penalty.

When I was a Magistrate Judge (and shortly before the White House began consideration of yours truly for nomination as a district judge), I recommended that the writ be granted in a death penalty case. The district judge adopted my recommendation, and the issuance of the writ was affirmed on appeal.  Rust v. Hopkins, 984 F. 2d 1486 (8th Cir. 1993).

I had concluded that the Nebraska Supreme Court created a reasonable doubt requirement for sentencing after the three-judge sentencing panel made its findings on aggravating circumstances using a lesser standard of proof, and even if the Nebraska Supreme Court could have remedied the invalidity of the sentencing panel’s determination by “resentencing” the defendant under the proper standard, the defendant would be deprived of his due process right to either a two-tier sentencing procedure or notice that the Supreme Court intended to “resentence” Rust on appeal. In a related vein, I was appalled at one of the factual findings by the Nebraska Supreme as the court grievously misstated the record as to whether Rust pumped bullets into the victim while the victim lay on the ground. (None of the members of the Nebraska Supreme Court that handled Rust are on the Court today.)

Mr. Rust came very close to being put to death, and that was so because of a screwy and blatantly unfair ruling by a state appellate court made worse by an important misstatement of the record. The Rust case is an illustration of the other side of my “conflicted” feelings regarding the death penalty.



Mark Herrmann and “Inside Straight”

What follows is a brief review of Mark Herrmann, Inside Straight–Advice About Lawyering, In-House and Out that Only the Internet Could Provide (ABA Publishing 2012).*  You will remember that Mark is the best-selling author of a classic entitled The Curmudgeon’s Guide to Practicing Law, ABA Publishing (2006).  I lovingly reviewed The Curmudgeon previously. Read that post again for more details about Herrmann. (Besides, I need the page views (Herrmann understands what I mean.))

Herrmann was a general litigator at a small firm, a general litigator at mega-firm (in Cleveland–that by itself is funny) and is now in-house counsel in some big insurance brokerage outfit. He is also a gifted writer with a flair for being both frank and funny in the twisted ways of a real trial lawyer whose heritage must be German. Refreshingly, he is not an ego maniac.

He also has a brilliant kid who Herrmann shamelessly uses in Inside Straight to illustrate the essence of the points made in the book. Herrmann really should give the kid all his royalties, ’cause the boy is clearly smarter than his dad. As Herrmann says, the “little turd is in medical school now.” But, I digress. (I first typed “regress.” Is that a Freudian slip?)

When not writing best selling books, listening to the “little turd,” and advising some corporate giant about how to screw widows and orphans and leave them nailed to Billy Bryan’s cross of gold, Herrmann writes a column for Above the Law not surprisingly titled “Inside Straight.” This book is a compilation of Herrmann’s posts at ATL between November 2010 and April 2012 together with selected comments (some of which are hysterically funny) that readers made in reference to the posts. Those posts have become required reading by corporate counsel and the outside counsel who represent these non-breathers (to use a description that Jerry Spence coined as he rode his gilded horse while pursuing his screwy Jihad for Justice). But, I regress.

You ought to put this book on your summer reading list. (F…, did I just write “summer reading list?” It sounds so, well, Rehoboth Beach-ish.) The book has 271 pages (excluding the obligatory lies about Herrmann’s claim to be able to fly like a bird) and is divided into a wonderful preface entitled “Flotsam,” followed by six relatively short chapters. The chapters discuss life as in-house counsel versus life as outside counsel, attracting business, corporate policies and politics, law firms, through the eyes of an insider turned outsider (my favorite), and succeeding in the law (also my favorite). The writing is clear, direct and wry. The perspective is that of a litigator who has either seen it all in real life or in his frequent nightmares.

Mark, appearing at a DC bar meeting, discussing  "Law & Cyberspace: Legal Blogging & the Courts."

Mark, appearing at a DC bar meeting, discussing “Law & Cyberspace: Legal Blogging & the Courts.”

I must confess that I am not impartial. I love ATL, and I really like Mark, although our relationship consists only of e-mail correspondence. That admitted, Inside Straight, the book, is both a great read and a great instruction manual for lawyers of any stripe.** The book has been highly praised by people who (unlike me) know a lot about “big law” and big corporations. But the book is not only for “big law” types. Solos and small firm practitioners will find a lot that will interest them between the folds of this book. As I say, take this book to your “summer place” and pursue it at your leisure. (Remember, don’t mix SPF50 with your gin.) I am betting that you will come away from reading this book far better informed about the realities of the practice of law and little sore from your constant chuckling.


*If you are a member of the ABA, you can buy the book for $19.95.  If you want to screw Herrmann and the ABA, Amazon will sell you the book for $15.37.

** OK, so you think I am Herrmann’s pimp and you don’t trust me. If so, consider this: Scott Greenfield, a criminal defense lawyer in New York and a preeminent blogger, wrote, “Inside Straight is a very quick read, replete with Herrmann’s hallmark humor and humility. Mark has inspired me on more than one occasion to riff off his thoughts, and given me a framework to think about some really important ideas. Most significantly, Mark Herrmann is the real McCoy, and that he has once again laid himself bare for our benefit makes this book worth your time. Get it. Read it. Enjoy it, but learn from it.”



Critical advice for young solo criminal defense lawyers

If you recently opened your own shop after graduating law school and you desire to make a name for yourself doing criminal defense work, I urge to read Scott’s post today at Simple Justice entitled David Aylor, The Other Shooter. It speaks to your dreams of getting the “big” case, thus marking your territory as a player.

I could add some things to Scott’s post–like a reporter is never your friend when he or she interviews you on the record for a story–but any contribution of mine would be of the marginal variety. Read Scott’s post, it is full of practical and ethical advice on taking a “big case” and speaking out publicly about your ticket to fame and lucre.


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