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.

RGK

*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!

RGK

Are New York cops special?

Scott Greenfield has been like a dog with a bone on the awful behavior of New York cops (e.g., here), and their mouthy union president, regarding the cops turning their backs on the Mayor of New York in a very public show of disdain.  The cops expressed their open disrespect for the Mayor following the killing of two perfectly innocent New York City police officers.

Photo credit: AP Photo / John Minchillo

Photo credit: AP Photo / John Minchillo

For what it is worth, I strongly agree with Scott that such behavior is disgraceful. It represents an intolerable insult to the voters of New York and, what is far worse, a not too subtle attack on the important principle of absolute civilian control over the police. This is true no matter what the cops think of the liberal Mayor.

I wonder whether the behavior of these police officers and their union president is unique to the cop culture in New York? My question is a serious one, albeit perhaps naive. Are New York cops special?

Any guesses?

RGK

 

A MOMENT OF SJ

Scott Greenfield is not into self-promotion.  That is not him. Moreover, he doesn’t need it. But, I noticed something very interesting on Simple Justice recently. Off to the right side under the heading “A MOMENT OF SJ” is a link to a series of videos featuring SHG on a variety of subjects. They were produced by Lee Pacchia at Mimesis Law.

Although Scott has never mentioned these interesting oral essays on his blog, I urge you to take a look at them.They are extremely well done. More importantly, and to use a phrase SHG likes, “they make us less dumb.” Indeed, each of the 12 essays are thought provoking. Number 12, dealing with law schools, the excessive number of law students, and the health of the legal profession is my favorite. Scott uses the word “toilet” and I like that!

I have only one complaint. At times, SHG appears in a tweed (I think) sport coat (e.g., video 5). That deceives my old eyes into thinking that Scott is wearing fabric infused with atomic number 10 neon.

RGK

Revenge of the Poor House

Just because I expressed my anger at Scott Greenfield for sticking the banana boat song into the frayed neurons of my aging mind does not justify his vicious attack on me for wanting to put poor people in debtors prisons.

I bet he even liked the movie version of Les Misérables (2012), with all that horrible screeching masquerading as singing. What a lefty! No more bacon for him.

RGK

On sulfuric acid, designer gowns, Harry Belafonte and crime

H₂SO₄

H₂SO₄

Brother Greenfield skewers the glitterati in a post dripping with sulfuric acid entitled, Can Tina Brown Make Reform Sexy?* You should read it. If nothing else, take a look at the comments from those who are so offended. As they say, the truth hurts.

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought. 

RGK

*I am slightly angry with Scott. ‘Cause of him, I can’t get these damn lyrics out of my head:

Day-o, day-o

Daylight come and me wan’ go home
Day, me say day, me say day, me say day
Me say day, me say day-o
Daylight come and me wan’ go home

Work all night on a drink of rum
Daylight come and me wan’ go home
Stack banana till de morning come
Daylight come and me wan’ go home

Come, Mister tally man, tally me banana
Daylight come and me wan’ go home
Come, Mister tally man, tally me banana
Daylight come and me wan’ go home

. . .

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