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.


Radley Balko and the inexperience of the Justices when it comes to criminal law

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”

My guess is that brother Balko and I agree on very little. But that is not true for Mr. Balko’s The Supreme Court’s massive blind spot, Washington Post (January 22, 2015).

Mr. Balko asserts:

This term, the Supreme Court heard two cases involving the actions of police officers during traffic stops. How the court comes down on the two cases will likely have significant repercussions far beyond the facts of the cases themselves. The court’s decisions could affect how police target motorists, which motorists they target and how often, and how they interact with motorists once they’ve pulled them over. The decisions will likely affect how police profile motorists to look for drug couriers, who gets detained and searched, and who has property confiscated through civil asset forfeiture.

Here’s the problem: You’d be hard-pressed to assemble nine lawyers in America who as a collective are further removed from the realities of the facts of these cases than the nine justices of the Supreme Court.

(Emphasis added)

Mr. Balko is correct. And that is a big problem no matter your view about how criminal law cases should be resolved (or even taken up) by the Justices. There is a real world out there where cops interact with citizens. The Justices have no clue about how that world actually functions.


*Balko adds: “(*This post doesn’t look into that case [Rodriguez v. United States] specifically, but to see how the theme of the post applies to it, see this analysis by New York criminal defense attorney Scott Greenfield.) As frequent readers of this blog know, Rodriguez comes from the District of Nebraska.  As Scott noted, “But then an independent, intervening naked mud-wrestling match broke out, and being quite a fan, I sat on the sidelines, munching popcorn, watching intently.  In the comments to my post, Judge Richard Kopf and Lawprof Orin Kerr squared off.  It was a fascinating, and revealing, discussion.”


Some words mean the same thing like “Curmudgeon,” “Practicing Law,” and “Mark Herrmann.”

Mark Herrmann is a lawyer, and the best-selling author of The Curmudgeon’s Guide to Practicing Law, ABA Publishing (2006).  I was pleased when the publisher asked me to review the book, although I now see that I have taken on a daunting task.

Inasmuch as the book was first published in 2006, there are a lot of reviews of this book. So far as I can tell, all of them praise the book to high heaven. Indeed, when an organ of the Wall Street Journal says nice things about a lawyer’s book and then prints serial excerpts from it you know (1) someone paid someone else off or (2) the book is damn good. I have no concrete proof that Herrmann paid anyone off.

HerrmannWho the hell is Mark Herrmann?

First, it is obvious from his name that Herrmann, like me, finds his roots in the rich comedic soil of the “Vaterland.” Second, Herr Herrmann is a graduate of Princeton in 1979 and the University of Michigan Law School in 1983, n/k/a Harbaugh Hall. Third, Herrmann clerked for the highly regarded Judge Dorothy W. Nelson of the Ninth Circuit. After a stint at a relatively small law firm in San Francisco, Herrmann served as a trial lawyer and became a partner at Jones Day in Cleveland (the perfect places to hone one’s funny bone). He wrote this book in 2006, and not too long thereafter told Jones Day to shove it. He then became Chief Counsel and Litigation and Global Chief Compliance Officer at Aon, a provider of risk management services and other fancy stuff I don’t understand. He also took on the task of writing a column for Above the Law. See here for an example.

Sadly, this last New Year’s Eve, at an ATL party gone completely wrong, Herrmann died of an uncontrolled heart flutter. He did so while admiring the tattoos of another ATL writer, shortly after David Lat served him exquisitely aged cheese imported from beautiful Buffalo, New York. (I made up that last two sentences, I think.)

What the hell is this book about? Here is how a real curmudgeon, Scott Greenfield at Simple Justice, summarizes Herrmann’s book:

The Curmudgeon’s Guide is the sort of book that can be taken two ways. On the surface, it’s just a darn good guide to some very basic rules for being a good lawyer. Mark covers the essentials clearly and succinctly. While some might think this is some Biglaw roadmap only, it’s how every lawyer should do the job. These are the fundamentals of good lawyering that law school should, but never will, teach. That’s why we have guys like Herrmann to fill the gap.

But on another level, the subtle humor and good nature of its presentation was brilliant. For those associates who still watch Spongebob Squarepants, it probably won’t make a dent. You’re not ready for it. But for anyone who has shoes older than most first year associates, the wry wit that permeates the Guide will bring a twisted smile to your face.

It’s not laugh out loud funny. It’s the sort of humor one finds from having lived, watched and experienced years of young lawyers who think they know it all get the occasional well-deserved smack. Somebody has to tell them that they’re not as wonderful as their mommies have been assuring them all those years, and Herrmann does the job admirably.

Every law firm should have a partner like Mark Herrmann to mentor their youth and avoid the necessity of having to redo everything. There aren’t enough Hermann’s to go around, of course, which is why this Guide is so important. For solos, read it because nobody every told you how to be a lawyer. For Biglaw, buy a few hundred copies so you can hand them out to the next generation. Don’t buy too many, however, since there’s no telling how long you’ll be around and it would be a shame to waste them.

Greenfield is dead on.

By the way, I used a block quote from Greenfield–I didn’t break the quote into separate parts of 49 words or less. Admit it, you didn’t read it! Don’t lie. You didn’t read Greenfield’s f…… summary of this book that I so carefully selected in an effort to educate you young and dumb SOBs. Lazy little beasts, all of you!

In the book, Herrmann warned me that you wouldn’t read a block quote. And, he wrote many additional truths in the very first chapter of his book, “How to Write: A Memorandum from a Curmudgeon.” Every young lawyer should memorize those instructions. Next, each special snowflake should read, “How to Fail as an Associate,” detailing the top ten things that will assure doom. The remainder of the book proceeds apace full of elegantly simple but superbly smart advice written in an amusing tone.

For older lawyers, the book is extremely useful also. It is a mentor’s guide to mentoring. Beyond that, it will show you how to screw with the fragile minds of associates in ways that are fun in a knee slapping Germanic sorta way.

Despite being penned in 2006, the book is timely and will remain so as far into the future as I can see. Just ’cause I’m old, don’t discount my abilities as a futurist. I was an early adopter, and remain a committed user, of IBM Mag Card Selectrics.  (Admit it: You have no idea what they are. See!)

In short, if you want to become a real lawyer (or mentor a young’un to become one), and you really don’t know how, then this is really the book for you. Really, I’m not kidding. But, what the hell do I know? Really!


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