Boy Scout Update. Some Progress, but Still Exclusionary.

In a significant decision that will certainly benefit Boy Scout youth, the muckily-mucks in the Boy Scouts of America decided to allow openly gay scouts under the age of 18. (Age 18 is the point in Boy Scouts where a youth becomes an adult.)

In a significant decision that will continue to support my assertion that the muckity-mucks in the Boy Scouts of America are exclusionary and hardly positive examples of morality, understanding, and acceptance, they also voted to keep the gay-18-and-over crowd out of the program.

Essentially: Gay youth under the age of 18 are safe, moral, and eligible to be Eagle Scouts. At 12:01AM on their 18th birthday, they become immoral outcasts with a penchant for pedophilia.

Or, if you prefer a graphical representation and missed this graphic in my earlier post (click to embiggen):

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It’s In The Books

Published by the American Psychiatric Associat...

Published by the American Psychiatric Association, the DSM-IV-TR provides a common language and standard criteria for the classification of mental disorders. (Photo credit: Wikipedia)

You can tell a lot about a lawyer’s practice from the books on his shelves.

The three most tattered and dog-eared books on my shelf (in order):

1. Manual for Courts-Martial

2. Department of the Army Pamphlet 27-9 (Military Judges’ Benchbook)

3. Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV)

Will the DSM-5 replace my beloved DSM-IV? At this point, my magic 8 ball says “outlook hazy.”

 

BigLaw vs. ShitLaw

If you’ve ever read “Above the Law,” you know that there are two distinct flavors of private law practice. The first is BigLaw. These are big firms with big clients with big budgets with big offices in big buildings and paying big salaries. They are the ones who advertise to law students that they will only consider those in the top 5% of the class to come and provide janitorial services in hopes of getting a shot to do lawyerly stuff.

There are many good reasons that these BigLaw jobs are coveted, as the brass ring is huge.

The other segment of private practice is called ShitLaw. This is everyone who is……well……..not BigLaw.

I freely admit that I am in the ShitLaw.

Though, I’ve said before that I don’t consider myself to have a small practice. Nope. I’m fun-sized.

Anyhow, a lot of ShitLaw practitioners bash BigLaw. Some of it is jealousy. Some of it is because the BigLaw lifestyle is undesirable to them. Some were excreted by BigLaw after a year or two. There are many reasons. BigLaw ignores ignores all the criticism, because they are BigLaw.

I’ll just be honest, and the best way to be honest is with an honest infographic. I determined the following categories to be important in framing my analysis of BigLaw vs. ShitLaw.

Salary. Be honest with yourselves. You’re looking to provide for your family and yourself in the best possible way. Salary matters, regardless of how you slice it.

Prestige. Everyone who goes to law school has an ego. The ego needs to be fed. Prestige is the most robust way to feed it. There are two types of lawyers out there: those who admit that they have a big ego and those whose ginormous ego prevents them from admitting the same.

Fine Dining. The fastest rising demographic in America are the idiots who call themselves “foodies.” That fact coupled with the average belt size of Americans gives a clear indication that dining is important. Rich, fine, fatty dining.

Paying for Stuff. How you pay for stuff says a lot about you. How you are are able to pay for stuff says even more.

Client Intake. No clients means no salary, abysmal prestige, no fine dining, and no paying for stuff. Some are handed the Glengarry leads. Others need to steal them.

Cleaning the Toilet. This is perhaps the most important factor, as it alone is an honest indication of who you are and the practice you have. The biggest benefit of going to a place of outside employment is that you aren’t required to maintain toilets and toilet cleanliness. If you coordinate your daily routine accordingly, this can even save  time at home. Us guys in ShitLaw clean a lot of…..well……you get the point.

Having said all of that, here’s the infographic:

(click the picture to embiggen)

Screen Shot 2013-05-16 at 1.36.17 PM

That being said, we ShitLaw guys have the ultimate trump card during conversations with BigLaw folks (when they’re forced to mingle with the smelly lawyers of the world). It goes like this:

A Job for Everyone in the Army

Just for fun, here are a few of the lesser-known specialties in the Army (with corresponding number designation for when you, in an excited fit, visit your local recruiter after reading this).

12K Plumber

12G Quarrying Specialist

15H Aircraft Pneudraulics Repair

25M Multimedia Illustrator

25E Electromagnetic Spectrum Manager (Note: Otherwise, electromagnetic spectrums would be forced to wander the Army as a leaderless mess.)

350Z Attaché Technician (Note: When you need to fix your attaché, you obviously need an attaché tech.)

40C Army Astronaut

420C Bandmaster

56D Clinical Pastoral Educator (Praise Jeebus (in a clinical way))

88U Railway Operations Crew Member

92S Shower/Laundry and Clothing Repair Specialist

Azimuth Check: Military Sexual Assaults

Just a few notes, and perhaps a bit of direction, about the recent hubbub regarding Army and Air Force sexual assault commission personnel.Compass

Army

Yesterday, the story broke about an Army Sergeant First Class who worked as a battalion sexual assault prevention and response coordinator at Ft. Hood, TX. Evidently, he is being accused of some flavor of sexual assault, maltreatment of a subordinate, and pandering. The pandering charge will be particularly interesting from a Jerry Springer perspective.

Let’s start with the bad stuff.

  • What he is alleged to have done is bad. Assuming it is true, people have been harmed as well as the reputation of the Army. Nobody should ever be the victim of sexual assault/sex-related misconduct.
  • He was a trained leader in the sexual assault prevention community. Not only has he received days and weeks of training, but he also delivered the training to others. If anyone should know better, it is him.
  • As a Sergeant First Class, this is an individual who is regularly trusted with higher levels of responsibility compared to the average Noncommissioned Officer.
  • Pandering? Oh, this has the potential of being interesting, and salacious.
  • He is part of a bigger, well-documented problem.

There’s the bad. Now, let’s give ourselves some perspective.

  • He is a battalion sexual assault response coordinator. In the Army sexual assault prevention community, he is a small fish. Unlike the Air Force Lieutenant Colonel who currently faces prosecution in Washington, DC, this Sergeant First Class is not a bigwig on the policy level. Not even close. As a battalion coordinator, he oversees approximately .13% of the Army’s sexual assault prevention, response, and training programs (assuming he is in a particularly large battalion).
  • His primary duties? Teaching classes and referring allegations of sexual assault to more competent agencies for support and investigation. He probably also tracks statistics within the battalion.
  • At the battalion level, the job of sexual assault prevention coordinator is not a full-time job (there’s not enough work to justify having someone doing it full time). So, he is someone in anther job who is pulled to perform the SARC job as an extra duty. So, aside from some additional training, there is nothing that makes him particularly special.

Air Force

The Lieutenant Colonel Jeffrey Krusinski alleged sexual assault is a bit different. He headed the program at Department of the Air Force level and was, truly, at the strategic policy level. His is worthy of much more attention than that of the Ft. Hood Sergeant First Class.

Even so, some interesting developments arise from this case.

First, Ms. Petula Dvorak at WaPo published a very harsh take on Air Force culture, making many insinuations that seem to belie a hard-nosed bias. (H/T to CAAFlog) She ends her article with the following:

Hey, Pentagon commanders: Look beyond that 395 freeway on-ramp, just past the McDonald’s and Macy’s, and see how allegations of sexual assault ought to be dealt with. Like a potential crime.

OK, let’s see the folks in the DC area school us on how to handle sexual assaults. I’m waiting to see the blood-splatter.

Per US News:

Lt. Col. Jeffrey Krusinski, 41, maintained a stoic facial expression throughout his brief arraignment. He did not speak, except briefly to acknowledge that he understood his charge of sexual battery.

Wow. Sexual battery sounds harsh. I bet they’re going to teach him a very powerful lesson. He’s really in for it.

The misdemeanor charge carries a maximum penalty of 12 months in prison and a $2,500 fine.

Ummm. Misdemeanor? No more than 1 year? Wow, Petula, so this is how we should deal with sexual assault?

Let’s see how the military would probably charge him. This is just my guess from a brief (but action-packed) stint as a military prosecutor. Given the notoriety, I don’t think it would be a stretch. After all, there are some important military people who are a bit pissed that their efforts to deal with military sexual assaults are harmed by his alleged actions.

  • Wrongful Sexual Contact (Article 120). This is the typical charge for run-of-the-mill ass-grabs (even drunk ones). Must register as a sex offender in most states. Maximum punishment: 1 year confinement and a Dishonorable Discharge. Assuming that the evidence is solid, this is an easy guilty verdict for prosecutors.
  • Conduct Unbecoming an Officer (Article 133). Assuming he is found guilty of Wrongful Sexual Contact, this is a gimme. It adds one year to the potential maximum confinement and also carries the possibility of a Dishonorable Discharge (called a “Dismissal” for officers).

Granted, all of these are maximum punishments. As Ken White at Popehat has frequently noted, maximum punishments are rarely approached, especially for first-time offenders. However, considering his rank and position coupled with the dishonor he brought to the Air Force, a dismissal is very likely, and that cuts-off all meaningful military benefits and stigmatizes him for life. Those folks just past McDonald’s and Macy’s can’t give him one of those, Ms. Dvorak. Only at court-martial.

An Anecdote (because certain blawgers just love anecdotes)

I’ll never forget a case from years ago during my aforementioned stint as a prosecutor. A soldier was accused of sexual assault off of the military installation, giving local authorities equal right to prosecute. I called the local DA to inquire about which of us would take the case. His response:

This is a shitty he-said/she-said case. We won’t be wasting our tax payer dollars to prosecute it. It’s all yours.

We took the case. The commanders insisted on prosecuting him to the fullest extent. A panel (jury) found him not guilty. It included a female member who rolled her eyes during my closing argument. We spent over $25,000 to prosecute the case (not including the man-hours for judge, prosecutors, appointed defense, jury members, court reporter, and paralegal support).

Most military prosecutors have a story like this, but you don’t hear about those statistics.

Now the Army?

I just received a “Breaking News” report stating that the Army’s Sexual Assault Prevention Office coordinator has been accused of “abusive sexual contact.”

Please tell me that this is one of those “oops, it’s really an Onion article” moments.

If true, it seems that, perhaps, a thorough housecleaning is in order. This is simply too bad to consider as a coincidence.

I Got a Bonus! Why? Dunno.

How about a nice, healthy, taxpayer-funded bonus? Yes, yes, we know that there’ve been some problems with your office’s productivity and performance, but we think you deserve one anyway. Just don’t ask us for specifics. When in doubt, blame it on someone who’s not in the room when you’re asked the question.

We Have Ways of Making You Pay (for School Lunches)

On a military installation, life is different in many ways. For instance, if your kid goes to school at one of the on-installation schools, paying lunch money is a bit more……..draconian.

From an actual email sent to military parents:

The Child Nutrition Department reminds parents and guardians that as the end of the 2012-2013 school year approaches, all student meal accounts must be in a zero or positive balance by close of business May 24th.  Any account in a negative status after May 24th is subject to a wage garnishment thru the DD Form139 process with an additional $50 service fee added to the total wage garnishment.

Despite What Your Lawyer Said, It Follows You

In the military, there is a misconduct adjudication process called Nonjudicial Punishment (NJP, also called an Article 15 after the corresponding section of the UCMJ). Typically for lower-level misconduct, it is a way for a military commander to adjudicate and punish misconduct in an expeditious manner, short of court-martial. Possible punishments include a loss of rank, loss of pay, freedom restrictions, and extra duties. The paperwork from the proceeding can also be filed in a way that prevents further advancement in the military.

It is not a conviction.

The servicemember’s commander acts as judge and jury.

Here’s the process, in a nutshell:

  1. Evidence of misconduct surfaces.
  2. The servicemember’s commanding officer reviews the evidence and consults with his/her JAG prosecutor. A decision is made to offer NJP.
  3. Servicemember (SM) is presented with the proposed NJP and all evidence that will be considered.
  4. SM consults with counsel (usually)(or a non-lawyer representative sometimes in the Navy or Marines).
  5. SM decides whether to accept NJP or demand trial by court-martial (unless in the Navy or Marine Corps and assigned to a vessel, in which case you’re just stuck with the NJP). For our purposes today, we’ll assume they decided to accept NJP.
  6. Commander reviews all relevant evidence (no rules of evidence apply to this proceeding) during a hearing at which the SM is usually present.
  7. SM presents evidence in defense, mitigation, and extenuation.
  8. Commander makes a decision as to guilt and punishment.
  9. SM can appeal the decision to the next-higher commander.

That’s it. It can take as little as a few days from beginning to end, or a few weeks if particularly complex.

For years, the boilerplate advice given to clients is that, if the evidence is decidedly against them, they should take the NJP because it will not follow them outside the military or result in a criminal record. After all, it is not a conviction (misdemeanor or felony) and is a purely military action.

Unfortunately, this is not entirely true. Department of Defense Instruction 5505.11 specifies that criminal information may be recorded for anyone who is investigated by military police/investigative entities and later adjudicated using nonjudicial punishment. In the military database, it is recorded as nonjudicial punishment with a listing of the specific punishment imposed.

This type of record is generated one of two ways:

  1. Individual is investigated by military police/investigators and titled in their database as a suspect.
  2. The servicemember’s commander chooses to impose NJP. Guilty. Punished.
  3. Results are reported back to military police/investigators who update their database accordingly.

or

  1. Command discovers misconduct. They are angry, very angry.
  2. They arrest the servicemember in question. (Yes, commanders and certain others have this authority by virtue of their military rank/position.)
  3. They take the accused to the military police station to be processed, fingerprinted, etc.
  4. Command later imposes NJP. Guilty. Punish.
  5. Command reports the result back to the military police who update their database accordingly.

While military folks understand the system and nature of punishment, databases are usually lacking in specificity. Something gets lost in translation when the military database synchronizes with NCIC (the National Crime Information Center (the big, national, FBI database in the sky)). See for yourself. In this case, the individual was caught using cocaine and given NJP (FYI, E-1 is the lowest enlisted pay-grade.

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This is precisely the type of information that is returned in a routine civilian background check by a potential employer. What would it tell someone who didn’t know or understand NJP?

Arrested. Court. Charge: Cocaine. Sentence (people are only sentenced when they are convicted, right?). No need to go further, this guy has a conviction for cocaine. Throw his job application into the trash.

Compare this with the records of someone who is actually convicted.

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To a person without specific knowledge of NJP, these two examples look the same. They both appear to memorialize conviction history. Yet, only one was an actual conviction.

While I often have problems with the punishment imposed on certain individuals, my gripe here is, first and foremost, about process. Right now, it is lacking. Badly.

The vast majority of uniformed defense attorneys advise that NJP does not follow a servicemember once they leave the military. This makes accepting NJP much more palatable. The servicemember relies upon this advice, accepts NJP, and moves forward to civilian employment and acquiescing to a background check with confidence.

As lawyers, we have a duty to give correct advice. Why? It allows our clients to make a fully informed decision, and the ability to do so is the foundation of the best possible defense. Yet, advice is given concerning NJP records again and again, year after year. And, it is dead wrong.

But, uniformed defense counsel are not the only culprits. Consider a purported retired Sergeant First Class from the Army who has the #1 Yahoo Answer to the question of whether NJP results in a criminal record:

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How about this military defense counsel who has been practicing law much longer than me? He proudly publishes his expertise on Avvo Answers (as a level 9 contributor, no less):

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At least partially in his defense, he is one of a handful of lawyers on Avvo who answered this question in the same manner. Wrong. Consistently wrong.

Of all the potential clients and clients who call me regarding an unexpected and shocking entry in their NCIC background results, 100% of them tell me they were advised that the NJP would not result in a criminal record. Their lawyer told them so.

Exacerbating their misery is the fact that the entry in NCIC is horribly misleading. Sure, the former service member can attempt to explain, but the damage has already been done. In an understatement of major proportions, the database system and link with military records is horribly flawed. Its purpose is to be a source of absolutely correct information, and it fails miserably.

My beginning response to clients is to paraphrase George Carlin.

“It’s all bullshit, and it’s bad for ya.”

Sadly, that’s the truth.

 

UPDATE

One thing I didn’t mention is that changing, correcting, or deleting NCIC records is an insanely difficult (and occasionally impossible) process. Today, over at Simple Justice, SHG discusses the difficulties faced by those who seek to correct and/or expunge their criminal records. It is further proof that, from the moment a person is arrested, it is not about whether they can win. It is about damage control.

Leo’s Donuts: Setting the Bar at ∞

I already raved about Leo’s Donuts in Radcliff, Kentucky. They are the best. I spend my disposable income there. The proof is my body-fat percentage.

On Friday, they set the bar even higher.

Picture, if you will, a small-town donut shop experiencing late-morning doldrums after the breakfast rush.

I enter and look at the case. The maple bacon donuts are gone. I sigh and say “It looks like I missed your morning batch of maple bacon donuts. Bummer.”

The lovely employee at the counter replied “I can make you a couple right now.”

I had no words. I merely nodded my head and wept softly.

No Love for Cooperation

From the weekly conversation department files:

Potential Client: How can they prosecute me for this?

Me: Well, you confessed to doing __________, not to mention the video and 2 eye witnesses. So, the law permits them to prosecute you.

PC: But I cooperated!