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November 2005
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Happy New Year!

I offer my best wishes to Crime & Federalism readers.  It has been a very good year for the blog, with solid increases in traffic.  Dec. 2005 was, by far, the best month ever.

I was blessed to have lunch, dinner, or drinks with three people met through the blog.  Thank you for welcoming me into your circle of friends.  Meeting new people and developing relationships is my favorite aspect of blogging.  Having a lot of readers is a nice ego boost, but I have never really needed much outside help with my ego.  It's the relationships we've developed that I value most.

Norm joined C&F last February, and it's been a joy having him.  It's odd how our friendship developed.  During my first semester of law school, I read one of his weekly columns in the Connecticut Law Tribune.  I liked it, and became a regular reader.  After a while, I sent him an e-mail telling him how much I enjoyed his writing, and that his columns were a welcome distraction from the oppressive first year of law school.

Before long I was working on a few projects from him, and a year later, I was a guest at his home.  It's funny how a law student from California and lawyer from Connecticut could become friends.  But the Internet offers a great way to meet new friends.

This year should be exciting.  I like the direction C&F has taken.  It has a good mixture of legal analysis and ass-kicking.  I've been nagging a friend who occasionally guest-posts, to write here more often.  It would be nice to have hear her voice more often.  We'll have to see what develops.

My non-blog life is going well.  A motion to dismiss I wrote convinced a judge to dismiss the only murder count in an indictment, and also persuaded the judge to dismiss several counts of perjury.  Getting a murder case dismissed after being out of law school for not even a year, is pretty exciting.

I also had a worked on a few small scholarly projects (I call them scholarly-lite), writing a book review on Constitutional Chaos for Engage: The Journal of the Federalist Society Practice Groups, and a half-dozen entries for a forthcoming legal encyclopedia.  I have a larger project in the works - one that I've been advised will likely be picked up in a law review.  I hope to have the time to finish it.

Which I might not have because, along with a friend from college, I've begun building a new company.  When the ink has dried on the incorporation documents, and the website is finished, I'll let you know the details.  That's enough about me.

Though I'd love to hear how you all are doing.  As always, you're welcome to leave a comment.

And with that, let me wish you all... Happy New Year!

UPDATE: Other end-of-year posts are up at the Volokh Conspiracy and How Appealing.

Thanks To CTLA Readers

Not long ago, a newspaper requested permission to reprint one of the blogs appearing on this page. The post was one appearing in the series we have labelled "The Sociopathy Project." It was playfully entitled the "Hee-Bee Gee-Bee Test," and it was about how to spot clients who need medication more than they need litigation.

Of course, I was flattered to have the essay reprinted. But the comments that have flowed on the Connecticut Trial Lawyers Association listserve during the past week have not been quite so flattering.

I am not a member of the listserve. Generally, I dislike the devices. They are very distracting, yielding plenty of email smoke, but little more. A few friends have been shooting over the comments on the blog. Let me preface what follows by thanking all for reading.

The Connecticut Trial Lawyers Association is a plaintiff-oriented club. I've really never understood why lawyers form clubs for those representing only one side of an aisle. I represent civil plaintiffs and civil defendants -- although over the years I have represented far more plaintiffs. It seems sort of silly to say, as does a famed Trial Lawyers College in Wyoming, that prosecutors and insurance defense lawyers need not apply. We are all officers of the court, serving clients with the doctrine at hand. Neither side of the aisle has a monopoly on virtue, or truth.

Did I unfairly characterize all plaintiffs? No, I did not even write about all plaintiffs. I wrote about the wolves-in-sheep's-clothing sociopaths whose smiles and facile demeanors are masks for rage and the mere destructive desire for revenge. Nothing I wrote, and nothing I believe, suggests that the doors of the courts should be closed to those injured by the acts and omissions of another. All I am saying is that a significant percentage of plaintiffs bring deep-seated psychological injury to their cases that is not caused by a defendant's misconduct, and these clients transfer all their anger and disappointment onto the first available target, whether it be defendant or lawyer. I suspect any lawyer practicing more than a couple of years can draw this distinction with ease.

Was I suggesting that defendants are somehow devoid of the same sociopathy? Not at all. I suspect many defendants are disturbed as well. But there is a crucial difference -- the defendant did not choose to be in court. Sue my client, and I must defend; but I am not required to bring suit in response to every phantasm shaking my plaintiff's soul.

Finally, why did I not speak out against outrageously stupid and wasteful defense conduct? The filing, let's say, of baseless motions for change of venue, or the stupid stonewalling of the white shoe firm on discovery? Can't sociopaths also wear the lawyer's suit?

There is no doubt that a lot of lawyers are practicing law without moral compass. And I do not doubt that many of them are on the defense side of the aisle in civil litigation. I stand rightly rebuked for not having paid enough attention to them in "The Sociopathy Project," which is, I remind you, just gathering steam.

So thanks to all the good folks at the Connecticut Trial Lawyers Association for reading. I haven't lost the will and zeal to fight, far from it. But I do get to choose not to become more than the blunt instrument of those client's whose cases lack merit, and whose psyches bring nothing but hatred and rage to a courtroom.

Just Move Padilla

Much though I love to the see the Bush administration take lumps for its lawlessness, the Fourth Circuit Court of Appeals' decision to refuse to permit Jose Padilla to be transferred to civilian custody seems like judicial gamesmanship run riot. Let the man be transferred, even if it renders moot the controversy over whether an American citizen can be held indefinitely as an enemy combatant.

Mr. Padilla has been in federal military custody since May 8, 2002. Earlier this year, the Fourth Circuit upheld the Government's right to hold this man absent criminal charges. The case is now on the docket of the United States Supreme Court. It is perhaps as important a case as any the Court shall decide in the years to come.

But just recently, a federal grand jury indicted Padilla, finally. The Government now wants to do what it should have done all along -- permit this citizen to test the Government's assertions about him by demanding a trial by jury.

The Fourth Circuit concludes that the Government's decision to seek transfer of Mr. Padilla from military to civilan custody amounts to "at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the United States Supreme Court."  The Circuit also concludes that the issues raised in Mr. Padilla's case are of sufficient national importance to warrant consideration by the Supreme Court.

I agree with both conclusions, but still find the case, and the court's ruling, bizarre.

Mr. Padilla has been held unlawfully by the military. The president does not have the right to suspend habeas corpus in such a manner, and to hold citizens by fiat. The very assertion of such a power is shocking. Should the Supreme Court hear this case, I hope for a ringing denunciation of the practice of indefinite detention.

But I don't think the Fourth Circuit, or any court, for that matter, gets to tell the administration that it cannot transfer Mr. Padilla from military to civilian custody. The very fact that such permission was sought is an act of staggering stupidity. An administration brazen enough to thumb its nose at Mr. Padilla's fundamental rights for three years has suddenly become so coy as to ask permission to move the man from one deck chair in the executive branch to another?

What triggered the Fourth Circuit's reaction was apparently the administration's desire to have the court vacate its earlier ruling. Don't mess with judicial economy, the court seems to be saying.

Here's what should happen. The administration should simply transfer Mr. Padilla to civilian custody. It does not need court approval for that. It should then move to dismiss the case pending before the Supreme Court as moot.

Were Mr. Padilla's rights violated by his three year sojourn in military custody? Absolutely. Let him bring a Bivens claim. Then let the administration pursue its criminal case against Mr. Padilla subject to all the limitations the constitution imposes on Government conduct. No evidence seized during his unlawful detention should be admitted.

All this pussyfooting aroung creating special rules, precedents and issues relating to the so-called war on terror devalues the currency of liberty. There is but one constitution, and it speaks not of special rules to permit the abuse of Mr. Padilla, or, for that matter, of you and me. The Fourth Circuit is not standing tall for liberty in this battle. Rather, it is doing precisely what the administration has done: It is asserting powers it does not have in the name of a war with enemies we cannot see.

The administration has not been rebuked by the Fourth Circuit. Rather, both are playing a dangerous game by pretending that there is a special set of doctrine and rules flowing from neither the text nor the structure of the constitution permitting the government to do what it pleases, when it pleases, to whomsoever it pleases. Shame on both president and court.

I'm Outta Here, Thanks, And Merry Christmas

I cleared my docket, and so for the next ten days, I am doing nothing but reading books, smoking cigars, and enjoying Tennessee with my wife.  If any Nashville readers want to meet up on the 29th, send me an e-mail.  My plans on that day are open, so if I'm able to get to e-mail, I'll try to meet up with you.  If you smoke cigars, all the better, as I always travel with good ones.

Also, thanks are due to William Adler, a Nashville civil rights lawyer; and Raymond Chandler.  Mr. Chandler deserve congratulations for winning his first trial.  Both of these guys gave me great tips on things to see and do in Nashville.  Thanks much.

I hope everyone enjoys Christmas, or whatever holiday (or unholiday) you celebrate.  I grew up with some religious fanatics who refused to celebrate Christmas.  They still gave gifts, mind you.  On the day after Christmas, they celebrated "International Gift Giving Day."  Which reminds me of one of my favorite stories from Benjamin Franklin's autobiography:

I believe I have omitted mentioning that, in my first voyage from Boston, being becalm'd off Block Island, our people set about catching cod, and hauled up a great many. Hitherto I had stuck to my resolution of not eating animal food, and on this occasion consider'd, with my master Tryon, the taking every fish as a kind of unprovoked murder, since none of them had, or ever could do us any injury that might justify the slaughter. All this seemed very reasonable. But I had formerly been a great lover of fish, and, when this came hot out of the frying-pan, it smelt admirably well. I balanc'd some time between principle and inclination, till I recollected that, when the fish were opened, I saw smaller fish taken out of their stomachs; then thought I, "If you eat one another, I don't see why we mayn't eat you." So I din'd upon cod very heartily, and continued to eat with other people, returning only now and then occasionally to a vegetable diet. So convenient a thing it is to be a reasonable creature, since it enables one to find or make a reason for everything one has a mind to do.

Enjoy the festivities.

Transit Woes

Every time a clerk from the United States Court of Appeals for the Second Circuit calls, my heart leaps to my throat. I appear before this court often. A call usually means a decision has been rendered in a case, or that some irregularity has been spotted in my papers. My heart leapt again when the phone rang yesterday.

"If the transit strike continues, court will open one hour later," the clerk said. I am due to argue today the appeal of a trial court ruling granting immunity to a prosecutor who altered a court set bond without seeking court approval. "You are required to be here at 10:30, in that case," she said.

"But I have signed up for video argument," I said. Routintely, I argue from a video conference center in Hartford. It takes 45 minutes to get to Hartford, as opposed to two and one half hours of rush hour traffic into New York City.

She put me on hold, and in moments, my video argument was confirmed. Somehow it was reassuring to know that even a mighty court can err in small things.

Wish me luck today. The case is called Root v. Liston,, 05-2004-cv.

Readers, Readers Everywhere

They're out there, all right. Angry eyes. Looking for a fight. Finding offense everywhere. And they are looking for you.

These posts yield unusual correspondence. The other day, a newspaper called to ask for permission to run an old item. I granted permission, and now my email box is replete with messages from new readers, in this instance members of the plaintiff's bar, not at all happy that I wrote about my sense that not all cases have merit.

But the oddest emails come from potential clients. Some folks use the blog as an entry as they pitch their case.

Sometimes current clients read the blog. Most say they like it, but not all.  Why just the other day, a client wrote to complain that I hadn't responded to a letter quickly enough. Perhaps, it was suggested, I was spending too much time writing "unsolicited" blogs.

Thanks to one and all for reading.