In which I advocate for the creation of a Law ____________, and it will be awesome.

Thanks to a post by my buddy Greenfield, I am now nothing more than a few minutes closer to death, via a video by one of the newest ABA “legal rebels.”

So, basically, what we’ve been needing is a “Law Laboratory” in order to deliver quality and affordable legal care to the masses?

I’m not sure about its actual delivery of legal services, but I’ve discerned from the video that the “Law Laboratory” does the following:

1. Holds events in various locations.

2. Has a spiffy website.

3. Talks about stuff with people.

4. Does not wear lab coats.

This sounds like a fantastic way to effectuate a paradigm shift in the legal profession, whatever that means. Granted, I only watched the video once. I can’t do it again, I won’t do it again, and you can’t make me.

Frankly, I think this young lady has it wrong. Laboratories, from my memories of them, are boring, overly sterile and filled with funky odors. That’s not an environment in which to change a profession. Let’s look at a few better options.

Law Amusement Park

Who doesn’t like an amusement park? Activities abound that pique the interests of almost any segment of the population. You can be turned and twisted. You can be turned upside down and caused to puke the undercooked turkey leg you consumed 20 minutes ago. Opportunities abound to scream “Wheeeeee!”, even at inappropriate times. Especially at inappropriate times.

At the end of the day, you are exhausted, grimy, and need to take a dump. Why, that’s just like the practice of law.

Law Bistro

Every restaurant wants to be a bistro. Why? They want to appeal to uppity clientele with deep pockets and a hankering for rich, creamy hollandaise sauce poured over everything. If you know what I mean.

Nowadays, many restaurants want to bring a bistro feel to the masses, just like some of of these legal rebels. What they fail to realize is that a Whopper is a Whopper, whether you call the joint Burger King or Burger Bistro. Changing the decor and name does not change the food.

Many in the practice of law attempt this same business model.

Law Carnival

Like a Law Amusement Park, but with freaks. Lotsa freaks. Just like the law! Have you ever attended municipal court in a large metro area? If you have, you know what I’m talking about. Remember what I said about ending an amusement park day feeling exhausted and grimy? In municipal court, you feel that way by 9AM.

Law Strip Club

Everyone enters expecting to leave a winner. In the end, the vast majority leave feeling nothing but hot and bothered. Then there’s coming up with an excuse for being covered in glitter makeup, but that’s another blog post entirely.

Law Supermarket

Walmart brought cheap stuff at a cheap price to the masses, all while employing cheap labor. Isn’t that what most of these “bringing affordable legal services to the masses” are seeking to do? They just think they’re above genuflecting to a portrait of Sam Walton every morning prior to leaving for work.

Law Outlet Mall

Those jeans seem like a great deal. That is, until that faulty seam in the back splits and you show your ass to the entire world.  But, hey, it was a great deal, and the savings were incredible!

I hear it from potential clients again and again, as they come to similar revelations about their prior legal representation.

Law Whorehouse

Now we’re getting somewhere. Consider the similarities to a courthouse:

–Some people are getting screwed.

–Other people are doing the screwing.

–Some people end their visit feeling satisfied.

–Others end their visit in pain.

–Some leave with diseases. Most are incurable.

–Some people never leave, having been buried in the basement and forgotten.

–Most people working there are selling services. And we all know that services is services.

–Those who are not selling services work in a losing effort to sanitize walls and floors.

Because that’s the law, and it sure as hell ain’t no laboratory. That’s where change, if it is to be made, happens–not in some sterile laboratory, but in the real world, with real lawyers, doing real stuff for real clients. Ugly, unseemly, and undignified, though it often is.


How will the USDB handle Chelsea?

What do you do if you are the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas, the place where Bradley Manning will, presumably, be incarcerated. Via Today.

Bradley Manning, the Army private sentenced to military prison for leaking classified documents, revealed he intends to live out the remainder of his life as a woman.

“I am Chelsea Manning. I am female,” the Army private wrote in a statementread on TODAY Thursday. “Given the way that I feel, and have felt since childhood, I want to begin hormone therapy as soon as possible. I hope that you will support me in this transition.”

Manning, 25, was sentenced to 35 years in prison on Wednesday after having been found guilty of 20 charges ranging from espionage to theft for leaking more than 700,000 documents to the WikiLeaks website while working in Iraq in 2010.

“I also request that, starting today, you refer to me by my new name and use the feminine pronoun (except in official mail to the confinement facility),” he continued in the statement. “I look forward to receiving letters from supporters and having the opportunity to write back.”

Manning signed the letter “Chelsea E. Manning.”

I’ve never researched the policies of the USDB in handling those with male genitalia who claim to be female or requests for elective medical procedures. It will be interesting to see what happens.

Thoughts from Dulles

10 random thoughts while waiting for my delayed flight at Dulles International Airport.

–Men exiting airport VIP lounges always walk as though they just received a blowjob. (If you don’t know what I mean, you didn’t pay enough attention during college parties.)

–Hearings that are not subject to rules of evidence (or weak ones) are disconcerting when you’ve grown accustomed to hearings governed by established rules of evidence.

–The Navy Yard in Washington, DC has a fantastic museum. The kids will be entertained, and you will be educated. If you’re in town, make sure you set aside a few hours to visit the museum and surrounding area.

Uber car service is fantastic.

–The more you prepare to successfully navigate airport security, the greater the chance of you being stuck behind the one family that doesn’t seem to understand airport security.

–How much do plastic surgeons pay to be part of of the “Best Plastic Surgeons in America” page in airline magazines?

–If you are really desperate for entertainment, walk by one of those quickie airport back/shoulder massage places while they are serving a morbidly obese customer. Works every time.

–It appears to be an unwritten rule that every flight is required to have a henpecked husband aboard. The easiest way to spot one is to watch for the guy led mercilessly to Au Bon Pain by their wife. All the while, he is looking longingly at the unregulated BBQ joint across the concourse.

–Families and small groups regularly recreate the bro walk at the beginning of Reservoir Dogs in a successful attempt to occupy as much concourse as possible.

–Time to get a membership to one of those VIP lounges.

Courts-Martial: Serious Business

Courts-martial are serious business. For that reason, you are not allowed to laugh about anything contained in the following excerpt from the Washington Post.

FORT BRAGG, N.C. — It was an illicit and volatile love affair that spanned two war zones and four countries. The married general couldn’t stay away from a captain on his staff. She fell hard for her boss and called him “Poppa Panda Sexy Pants.” The three-year entanglement ended disastrously for both, at a time that could not be worse for the Army.

All the raw and sordid details are spilling out in an austere military courthouse here, where the Army is girding — for only the third time in half a century — to court-martial one of its generals.


Military-Only Crime of the Day

The last few weeks here have been decidedly unfunny (except in morbid ways). In order to be a bit trivial, I’ll share something that is only a crime in the military–just for you to think about.

Article 84–Effecting unlawful enlistment, appointment, or separation.

Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order, shall be punished as a court-martial may direct.

Maximum punishment: Up to 5 years of confinement and a dishonorable discharge.

Minimum punishment: No punishment. (For those of you who’ve read this blog for a bit, you know I have a problem with news agencies that only tout the max punishment).

Compare the max for this crime with a few random others.

Disrespect toward a superior commissioned officer: 1 year, Bad-Conduct Discharge

Note: A Dishonorable Discharge is the worst you can receive. A Bad-Conduct Discharge is a bit better, but you still lose most useful benefits.

Cruelty and Maltreatment: 1 year, dishonorable discharge.

Unlawful Detention: 3 years, dishonorable discharge.

Wrongful use of cocaine: 5 years, dishonorable discharge.

Larceny of private property under $500 value: 1 year, bad-conduct discharge

Larceny of a privately owned vehicle: 5 years, dishonorable discharge.

Simple arson of a value over $500: 5 years, dishonorable discharge.

Assault consummated by a battery upon a child under 16 years: 2 years, dishonorable discharge.

Housebreaking. 5 years, dishonorable discharge.

Negligent homicide. 3 years, dishonorable discharge.

The Case That Knows No Bounds

Things just got real between the military judge and defense counsel in the Hasan case. Via CNN:

“This is nothing more than their disagreement with Major Hasan’s strategy in conducting his defense,” said the judge, Col. Tara Osborn, rejecting a motion by the standby counsel who are tasked with assisting Hasan as he represents himself.

The attorneys argued Wednesday that Hasan is trying to help the prosecution achieve a death sentence.

Osborn’s decision sparked a bitter fight in a trial focused on charges that Hasan shot and killed 13 people and wounded 32 in the November 2009 rampage at the Army installation near Killeen, Texas.

“We believe your order is causing us to violate our professional ethics. It’s morally repugnant to us as defense counsel,” said Lt. Col. Kris Poppe, head of Hasan’s legal team.

It’s all fun and games until someone says the judge’s order is morally repugnant.

Trying to Get Death

I don’t even know how to characterize or explain this.

Remembering back to Summer 2011, his civilian defense counsel left the case shortly after the the probable cause determination (called an Article 32 investigation). Right now, he’s looking like the most fortunate of those involved in this case.

Here are the highlights:

Major Nidal Hasan, the U.S.-born Muslim who admits he killed 13 soldiers and wounded more than 30 others in November 2009, is acting as his own defense lawyer with a standby team on hand to ensure his case is handled properly.

“Should he decide he wants to fight the death penalty, we’re ready to defend him today. However, since that does not appear to be the case, we request that we become truly standby counsel, that we not be ordered and forced by the court in assisting in achieving the goal of arriving at the death penalty,” one of the lawyers, Lieutenant Colonel Kris Poppe, said on Wednesday.

Hasan, wearing green fatigues and a full beard, disputed the assertion by the standby lawyer, calling it a distortion. Military Judge Colonel Tara Osborn ended the court proceedings for the rest of the day to consider the lawyers’ request to distance themselves from the case.

Questions About Hasan

I was flippant the other day in my assessment of the Hasan trial. One of my more dedicated readers called me for it and was right in doing so. They posed a series of questions which were good, and I’d like to address them here. While I still think the trial will have little educational value for trial lawyers, the questions deserve a response.

1. Is there Unlawful Command Influence in the Hasan case. I haven’t read anything that implies a credible allegation of UCI, nor do I have knowledge that defense brought a motion for the same. Generally, if there is UCI, then there will be some remedy (with the nature of the remedy depending on the specifics and severity). If there isn’t, then nothing. The problem with military sexual assault cases is that the POTUS spoke directly to possible results at trial. That’s a big no-no.

2. What about that $300,000ish that Hasan was paid pending trial? While awaiting court-martial, and individual is presumed innocent. While they are presumed innocent, they are entitled to full pay and benefits. Severance or reduction in pay is considered a punishment, which can only happen after someone is found guilty pursuant to legal authority. Could the victims (or their estates) get a piece of this? Maybe. This crosses into the realm of personal injury (an area of law in which I am woefully incompetent). Once the money is paid to Hasan, the government loses control of it (as the Army has no jurisdiction over individual banks). A fine can be adjudged at court-martial, but I’m not sure how or if this would be of practical assistance to the many victims. I’m sure some smart PI guy or gal has already looked at this, but reading about cases where a civil case is coupled with criminal responsibility, it seems that most lawyers want to (or must) wait until the criminal proceedings are complete (think OJ). Unfortunately, Hasan receiving pay and benefits is just something that will be distasteful to most casual observers. Congress is considering (last I read) something that might suspend pay for individuals accused of certain serious crimes. Though, I do not see this as a realistic change to current law, and it certainly will have no bearing on Hasan. Finally, when it comes to accused being paid pending trial, I’m hardly an unbiased party given my current vocation. So, take my comments here with appropriate grains of salt.

3. Why must the victims in this case be forced to testify and be subject to Hasan’s cross examination? First, we cannot escape the confrontation clause. That is just a reality (sometimes unpleasant) that will always be a part of our criminal jurisprudence. As for testifying via remote means, Rule for Court-Martial 702(b) states:

Each party is entitled to the production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary…

Exceptions are made regarding interlocutory (motions) witnesses, but not for testimony to determine guilt or innocence. Of course, the accused can waive personal appearance by any witness. Additionally, there are provisions for remote testimony for child victims/witnesses, but the government has the burden to prove that such means are necessary.

Update: Now, if Hasan were permitted (and chose) to plead guilty, then there would be no merits case, and the witnesses/judge would have the more liberal discretion afforded by pre-sentencing rules. However, the laws, as passed by Congress, prohibit a guilty plea if the death penalty is on the table. So, the merits portion must occur along with the more stringent rules on confrontation.  (Thanks to Mike Navarre at CAAFLog for reminding me of this.)

4. Workplace violence vs. terrorism. I honestly do not feel qualified to speak to this. I will say that I see this as a case of a religious fanatic nutjob doing something horrible. Though, I suspect the this is a function of how much coordination he made with organized terrorist organizations and how much is simply him listening to the voices in his head.

5. Medals for the victims. Let me preface this by saying a couple of things. First, I believe our military is far too liberal with the awarding of medals, devices, and assorted doo-dads. Second, most people I know who receive medals (myself included*) find them to be a generally unsatisfying addition to a sock drawer. Having said that, I think those who acted heroically and commendably on that day deserve recognition. For those who were injured on that day but did not or could not act further, the obvious question becomes whether they are eligible for a Purple Heart. While I’ve only researched this in a very superficial manner, the consensus seems to be that it may only be awarded to individuals who are in a combat zone. At the present time, no areas of the continental US are considered combat zones.

Knowing this, I have no doubt that all involved will be recognized, provided with appropriate benefits, and every attempt will be made to make them “whole.” It just may not be in the form of a medal.

*Note: While I have received medals, they were the occasional medals that are awarded in due course for performing one’s job. While I am proud of some of the devices I earned, I never received an award as a result of heroism, combat duty, or something out of the ordinary. For me, the pay and benefits were thanks enough.

Manning Update: Now only 90

Refer back to what I said here under #3. It concerns multiplicity for sentencing.

Defense did make such motions (they’d have been crazy not to do so), and the military judge agreed to the extent that Manning’s maximum possible punishment is reduced from 130ish years of total confinement to:

Reduction to the pay grade of E-1, total forfeiture of all pay and allowances, 90 years of confinement and a dishonorable discharge.

As before, the minimum possible sentence is as follows:

No punishment.

I give both of these because many news outlets like to tout the maximum punishment due to the shock value they may elicit. Ken White at Popehat often bristles when maximum punishments are presented in a way that makes them appear to be the most likely punishment, and my reaction is similar, if not identical. In reality, the maximum possible punishment is rarely given, though it is possible. It all depends on evidence presented in aggravation, mitigation, and extenuation. That’s why the sentencing phase of a court-martial is akin to a trial in itself.

Showing the Military How It Is Done……an Update

Remember the Air Force Lieutenant Colonel whose position as a sexual assault prevention bigwig made him the subject of numerous headlines when he was accused of sexual assault? You may have forgotten. Let me give you an update via Stars and Stripes.

The Air Force sexual assault prevention administrator accused of groping a woman in a public parking lot won’t be charged with sexual battery after all, but still faces potential jail time over the incident.

Lt. Col. Jeffrey Krusinski, whose arrest in May became a rallying point for critics of how the military handles sexual assault cases, now faces assault and battery charges. He was accused of approaching a woman in a parking lot and grabbing her breasts and buttocks, according to the crime report.

The charges carry essentially the same penalties as the previous ones — from steep fines to a year in prison — but don’t require the same proof of lewd behavior or intent.

Krusinski, 41, appeared Thursday in Arlington County Court for the legal moves. He ignored the 20-plus media members gathered for the event and did not speak during his minute-long appearance before the court.

Prosecutors said only that the new charges were more appropriate for the crime. Defense attorney Barry Coburn, while still insisting that Krusinski is innocent, agreed with the move.

“Charging decisions such as this one must be based on the facts and the law … not on politics or the desire to have a ‘teachable moment’ concerning issues such as sexual abuse in the military,” he said in a statement.

Funny, this charging decision is not receiving the same attention as his initial arrest. From what was said a few months ago, I thought we were going to resurrect death by guillotine to set a memorable and satisfying new standard.

So, this reminds me. Didn’t someone woof about how the civilian courts were going to show the military how real justice is delivered. Oh yeah. Petula Dvorak said this.

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.

Don’t get me wrong, Ms. Dvorak, I appreciate how those folks past McDonald’s and Macy’s are showing us that facts and laws must be respected and used logically despite political and social pressure to do otherwise. That’s fantastic. I’m sure that is what you meant when writing that o-so-calm-and-collected editorial. Right?

This gives me a chance to trot-out my all-time favorite poster, just for Ms. Dvorak. You’re welcome.


And so it begins…

If lawyers were running the Hasan defense, I’d be able to talk about their likely defenses, the manner in which they would handle witnesses and victims, and the motions and objections they’d make in order to preserve issues on appeal. It would probably be illuminating to see how they package the defense for the panel (jury).

But, lawyers aren’t running the Hasan defense team. He is.

So, expect to witness a complete train wreck. This will be a case where the accused flails with his own theories, whether they are persuasive to the panel or not. Meanwhile, prosecutors and the military judge will endeavor to minimize the number of appellate issues.

From an educational standpoint, this case is of little value. On the other hand, if you are a huge fan of the Maury Povich Show, this case is made for you.

Benchslap, Military Style

How to tell that the Court of Appeals for the Armed Forces (CAAF) is a bit miffed at prosecutors? The two-part test is as follows:

1. They mention the prosecutors by name. (Smile Captain Maya, you’re on Candid Appellate Decision).

2. They dismiss a CP case with prejudice.

If you’d like to read the most scintillating excerpts from said bench slap, click here.

Oh, and it also happens to have something about the prosecution screening the Military Judge’s personnel records in order to discover something with which to disqualify him. I’m sure that idea briefed well, at some point. Maybe.