Sunday, April 26, 2009

Don't Drink And Drive . . . And Drive Again . . .

A quick aside: Sorry for the lag in blog posts. This last month has been hellish, what with mock trials and real trials and seminar papers (oh my!) However, the last final of my law school career is tomorrow, so assuming I pass it, I should be free (after recovering for a few days) to resume blogging.

Until then, a quick hit:

From the "Wow, how stupid can you be?" Department: A woman who doesn't get that it's not such a good idea to drive home from the police station when you've just been written up for a DUI .

You know, I'd laugh, if (a) I hadn't had clients this year who'd done the exact same thing, and (b) this wasn't an extreme case of perhaps the worst luck I've ever seen. I mean, what are the odds you're going to drive past the very same cop who pulled you over the first time?

Sunday, March 22, 2009

The Eyes Have It

During my freshman year at Boston University, I was engaged to a girl from just outside of Houston. It didn't work out in the end, but it was a good relationship, and so I've tended to refrain from joining in on the jokes people like to make about Texans, particularly as pertains to their creative (i.e., absent) approach toward the rights of criminal defendants. But even I can't resist taking some jabs at the Texas Supreme Court for this decision.

To summarize: Andre Thomas killed his wife, 4-year old son, and 13-month-old niece. He then (and I honestly can't phrase this better than the article did)
walked into the Sherman Police Department and told a dispatcher he had murdered the three, then told officers he put his victims’ hearts in his pocket, left their apartment, took them home, put the organs in a plastic bag and threw them in the trash. He said G-d had told him to commit the killings.
This would probably be enough to give anyone pause, but it gets better (or worse, depending on how you look at it). Five days after that, while sitting in the jail awaiting trial, he removed and ate his right eye. Of course, Thomas' defense attorneys argued insanity, and the prosecutors argued that it was a ploy; their theory of prosecution basically broke down to, "He was high as a kite when he committed the crime, and voluntary intoxication negates a claim of insanity." The judge gave the jury instructions that heavily emphasized voluntary intoxication, and the jury convicted him and sentenced him to an execution. The case was appealed both because the instruction should never have been given because it suggested his drug and alcohol use and not insanity were responsible for his actions, and because Thomas' trial counsel was ineffective in not preventing that instruction from being given in the first place. The appeal was destined to be like the hundreds of thousands of other appeals that go through the system every year, but then Thomas made the news again this past December when -- sitting on death row at the time -- Thomas plucked out his other eye and ate it. So, to recap: Thomas has removed and eaten both of his eyes while awaiting an appeal on a conviction under the theory that his actions were due to his drug use and not some mental disease or defect.

But, apparently, having a little "eyeball marinara" (and I wish I could take credit for that joke, but that's all Gideon) isn't enough to be crazy in Texas. Or, rather, it is, but just not under Texas law, according to the 14-page opinion handed down by the Texas Supreme Court a few days ago. The Court upheld Thomas' conviction, arguing -- and I really can't believe they actually wrote this -- that Thomas "is clearly ‘crazy,’ but he is also ‘sane’ under Texas law"
“There was ample evidence to reject an insanity defense and support a jury finding that (Thomas) knew that his conduct was wrong at the time he murdered his wife and the children,” Cochran wrote. “There was also evidence that (Thomas) did not know his conduct was wrong at the time. This was a quintessential fact issue for the jury to decide, and it did so.”
First things first: my objection is not aimed at the Grayson County prosecutors, though I probably could cast some scorn their way for actually getting up there with a straight face and arguing that the eyeball removal/eating thing was some kind of ploy to avoid prosecution. I grant you that having one eye and being in a mental institution for life is still better than lethal injection (though I'm not sure by how much) but anyone who removes and eats even one of their own eyes is clearly not fit to stand trial, drugs or no drugs. Still, they were doing their job, and the system is supposed to be the check on the State to keep them from running too fast or going too far. Also, in case anyone doubted the sincerity of Thomas' mental illness, he has been formally diagnosed with schizophrenia. He suffers from delusions and altered reality and hears voices. He reportedly believed that his family was possessed by the devil, and that killing them was saving the world from evil. This isn't some defense argument, mind you; this has been independently verified by examining doctors. I've heard conflicting reports as to whether the State knew of this for certain prior to the completion of the original trial, but let's give them the benefit of the doubt and say that they didn't.

The Texas Supreme Court, however, knew about all this well in advance of their decision, and by the time they decided this appeal they also knew that Thomas had removed and eaten his other eye as well. So how on earth do they rule in this fashion? How exactly can someone be "clearly crazy" while also being sane under Texas law? Even if Thomas had been somehow medicated sufficiently to be calm in court, his eyeless state should be a psychic link to his utter insanity. I've sat with clients that are far less mentally unstable than Thomas as they've been deemed incompetent to stand trial. I know of no drug high that would last 5 full days after the last dose, which was the time gap between Thomas' arrest and his first eyeball snack, so there's really no logic behind finding Thomas to be sane OR competent. Furthermore, the fact that "voluntary intoxication" ultimately carried the day for the Supreme Court is a blatant shirking of their responsibilities. Even if you hold that he was sane around the time of the incident -- because if he was never sane around that time, the ball game is over -- and ignore the idea that the drugs were a form of self-medication (a point this blog does a far better job of arguing than I ever could), you have to appreciate the irony of this decision coming down within 10 days of the DVD release of Milk, which chronicles the life of a gay California politician who was assassinated by Dan White, a man who was ultimately acquitted for his actions based on -- wait for it -- the Twinkie Defense. So if you're high on legal substances, it's OK to murder someone, but don't you dare do it when you're high on illegal ones or else you'll be executed.

Bottom line: the Texas Supreme Court could have overturned the conviction, and the Court should have overturned the conviction. The fact that they didn't -- and that they rationalized it in such a ridiculous way -- feels like a slap in the face to the criminal justice system as a whole, and I sincerely hope this stance on the insanity defense isn't echoed by other state supreme courts in the future.

Thursday, March 12, 2009

$64,000 on Oklahoma To Win It All!

Austin Murphy wrote a column today on Courtney Paris, the transcendent Oklahoma women's basketball senior center who has vowed to return every penny of her scholarship if she doesn't win a national title this year. (Look here for another article, including a video clip of her actually announcing it.) According to Paris, she feels that by not winning a title, she's breaking the implied promise she made by accepting the scholarship in the first place. I have no doubt that she means it, as she's generally come across in her four years at Oklahoma as being someone who takes what she says seriously. I'm not sure if the Athletic Director will accept the money back though; I'd imagine he'd just make it another "foundation" scholarship like so many of the other named ones there.

Of course, everyone writing on this seems to be calling it the ultimate noble gesture, even if it does give unnecessary bulletin-board fodder for the other teams in the tournament. But that's not what my first thought was. After all, this is the NCAA, where Kelvin Sampson can show a blatant disregard for the rules and still end up promoted to not one but two NBA teams (first as a consultant for the Spurs, now as an assistant coach for the Bucks). So while Murphy muses -- somewhat tongue-in-cheek, I suspect -- that the NCAA will try to find some way to view this as a violation of some arcane by-law, my question is this: what's to stop coaches from trying to make this the norm? Sure, for the truly transcendent players, they'll almost certainly find a school who won't make them do this. But what about the borderline guys? Very few serious players will choose to be a big fish in a small pond by going to a D-2 school as opposed to struggling to find court time at a D-1 school. What's going to keep D-1 coaches from saying, "Well, I don't know that you're really good enough for my team, but if you want to go here, I'll make you a deal: if you win a championship in your time here, you keep your scholarship. Otherwise, you owe it when you leave?" And is that really all that different than the six-figure debt I just went in to just to get through law school? Schools would definitely love it; the odds that they'd be getting some of their money back are incredibly high.

Thoughts, anyone?

Wednesday, March 11, 2009

What’s in a Name?

Originally posted on the Faculty Blog on January 6, 2009.

A very interesting debate went on over at PrawfsBlog last month, as found here, here (in a post by Professor Esenberg), and here. It began with a discussion of how professors should address students in class (i.e., would I be called “Andrew” or “Mr. Golden”), and vice versa, but it has seemed to extend beyond that to how students are addressed outside of class and even what they are called once they graduate. Based on the posts and the bulk of comments I’ve seen over there, it seems the majority of the professors on that site tend to hold the opinion that it’s important for faculty to call their students “Mr. ___” or “Ms. ___”, be it to remain professional, show a level of respect, appreciate the formality of the law school process, etc. The level of importance indicated in their comments surprised me; I had no idea that this was something professors felt so strongly about!

But is it much ado about nothing?

Let me say this to begin: while I have had friends jokingly call professors by a familiar nickname (so as to imply that they’re best friends) while we’re all sitting at the bar or somewhere like that, I know of no student at Marquette Law who would call any professor here by anything other than “Professor ___.” In fact, I’d wager that most students here operate the same way I do: call everyone in a position of authority “Mr. ___” or “Ms. ___” until such time as they’re told by the person, “No, just call me ____.” It’s a sign of respect and authority, and I’d certainly argue that anyone who’s a faculty member at a law school has earned such respect. So while I have no doubt that in some law school somewhere there are students who treat the faculty members like equals when they shouldn’t, I’m not sure that’s really the main issue.

So what about how professors address students? Well, I think I’ve personally had about an even mix of classes in which I’m called “Andrew” versus classes in which I’m called “Mr. Golden.” I think the majority of them have started out as the latter and progressed to the former as the professors got comfortable with the members of the class. Frankly, it doesn’t matter all that much to me what approach is used within the walls of the classroom, and I don’t think it matters much to most other students; I think we’re all happy to go by either name (though I imagine many would prefer not being called on at all!). But what caught my attention in the PrawfsBlog posts were the comments by professors who insist upon calling their students “Mr. ___” or “Ms. ___” outside the classroom.

It’s that last point that I don’t understand. Why would faculty feel the need to create a barrier like that between themselves and their students? In an environment as stressful as law school is, wouldn’t it make more sense for professors to, at the very least, try to humanize everything outside of the classrooms? Some have argued that the power dynamic needs to remain clear to students; to that, I submit that no student’s actually going to forget who’s got the power when we’re talking to you in front of a lectern or sitting in front of the desk. It’s also my belief that if a faculty member puts up those barriers long enough, students will stop feeling comfortable asking questions or coming to office hours. After all, if it feels like you’re conducting a job interview students won’t want to show weakness, and that fear of looking weak compared to other students is already a big enough problem in law schools anyway. As to the other somewhat-related argument — that while the act of keeping one’s distance may feel cold and impersonal, students ultimately learn more and respect the professors more if it’s done — I’d suggest that anyone making that argument take a look at the teaching styles of the professors who vie for the Ghiardi Award every year and tell me how many of them put that kind of barrier up with their students. And if the logic is that in the real world judges and other decision-makers don’t refer to attorneys by their first names, I’d point out that if the goal of law school is to prepare students for how lawyers live their day-to-day lives, we have a lot of curriculum revision to do.

In my five semesters at the Law School, I don’t think I’ve met more than six administrators, faculty, or staff who consistently refer to me by my last name, and even then that number is probably skewed upward because most of those who do so don’t actually know who I am. Even Dean Kearney calls me by my first name! And, quite honestly, I prefer it; it makes me feel like I’m more than just a name on a roster to the faculty and staff, and I believe that I’ve done better as a result of that. I’m willing to wager that many students share that perspective. Why put up walls when we do better without them?

“When The Gods Wish To Punish Us, They Answer Our Prayers”

Originally posted on the Faculty Blog on November 30, 2008.

I am, without question, a spiritual man. I don’t know that I’d go so far as to call myself “religious”; it’s not easy to keep one’s faith while surrounded on most sides by a grab for the most money, as law school tends to be. However, I’ve always balanced my strong personal belief in the value of (and my regular practice of) prayer with what I consider to be the immeasurable importance of the separation of church and state. Usually, this means I just let public showings of religion roll off my back; I’m not offended by choruses of “Merry Christmas,” and I didn’t gripe when benedictions have been said at Marquette gatherings I’ve attended. By and large, I’m a big fan of keeping a healthy dose of perspective; if one puts oneself in situations where prayer is likely to be found (for example, by attending a Jesuit law school), one needs to expect that prayers are going to happen and not take it as an affront to the First Amendment. Put another way, who does it really hurt if I observe 30 seconds of silence so that someone else can pray uninterrupted?

All that being said, this PrawfsBlawg post — written by Mississippi Law Professor Chris Lund — got me thinking about whether it’s reasonable to accept prayer in all circumstances. Lund discusses the “legislative prayer controversy,” which he illustrates by linking to an article about a 70-year-old man’s arrest for praying loudly over a City Council’s moment of silence, as well as a video clip of protesters interrupting the opening prayer of last year’s Senate session, which was given by guest Congressional chaplain (and Hindu) Rajan Zed.

Lund goes on to say:

I discuss the Zed incident (and others) in a piece that’s coming out in the spring. The piece addresses the history of legislative prayer in this country; my thesis is that legislative prayer is more controversial and causes more division than some have believed. I take a bit of an issue with the history provided by the Court in Marsh v. Chambers, and in particular the Court’s statement that legislative prayer is “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” I don’t think that’s an entirely accurate summary of what legislative prayer has meant for this country. . . . As the incident with Zed indicates, what happened to Catholics [in the past] seems to be happening to other religious groups now — a frequent church/state theme these days.

Setting aside for a moment the fact that I think that Lund’s thesis is a bit of a straw man argument — is there anyone here who doesn’t appropriately recognize the divisiveness and controversy in legislative prayer? — I have mixed feelings about things like the Zed incident. Emotionally, I think anyone who’d be as petty and childish as these people were in the temper-tantrum-like stunts they pulled doesn’t deserve my or anyone else’s respect. There’s protest, and then there’s just being rude and disruptive because you can be. I think it’s stupid to be offensive when the message can be just as easily conveyed tactfully. “Civil disobedience” involves respecting the authorities for doing what they need to do; if these people thought they were reincarnations of the jailed civil rights advocates in the 1950’s and 60’s, they’re sadly mistaken.

Then again, while I don’t agree with the commenter to the post who equated “moments of silence” and wishes of “happy birthday” to violations of his First Amendment rights, I think having a Hindu chaplain giving an opening prayer illustrates why allowing opening prayers at any governmental event is a dangerous proposition. I can see how a Hindu prayer might make people feel a bit uncomfortable. They can make it fit what they believe, but it takes effort; it’s not as comfortable a transition as it would be for a Judeo-Christian prayer of some kind. But should anyone really have to make that effort at all? Does the fact that it’s been a “custom” for centuries warrant its acceptance today? After all, it was a “custom” to treat slaves as three-fifths of a human being; I’m not sure the majority today would support a continuance of that custom. And — if one were to argue my initial logic of putting oneself in a position to face these kinds of prayers — is it reasonable to say that if someone doesn’t want to deal with the opening prayer of the Senate, he or she shouldn’t seek election to the Senate? That seems a bit ridiculous to me. After all, not only is the Senate a public institution as well as a state actor, but allowing prayer here is a psychic connection between religion and government, and the Establishment Clause has long been construed to equate these kinds of showings of faith with “respecting an establishment of religion.”

So what do you all think? Is it worth sounding the alarm about, or is this a harmless showing of an acceptance of a deity from a nation whose very core is based on exactly that?

"The Power That I Have On You Is To Spare You"

Originally posted on the Faculty Blog on November 23, 2008.

While instant messaging a high school friend yesterday, she mentioned that she had just seen the final episode of The West Wing on DVD (in which outgoing president Josiah Bartlett pardons ex-Director of Communications Toby Ziegler from a conviction for leaking national security secrets to The Washington Post), and then linked me to a recent Slate article handicapping President Bush’s potential pardons, while commenting that “maybe if Bush was more like Bartlett, he wouldn’t have to pardon so many of his cronies.” I commented that President Clinton (and most other presidents) have done the same thing, which caused her to rephrase her statement by replacing “Bush” with “all the real presidents.”

I know: there are any number of things lame duck presidents can do that should probably be reviewed and reconsidered before we get to presidential pardons. I also understand that the pardon is a valuable tool that allows the executive branch to swiftly undo so-called “travesties of law,” setting free the wrongly convicted. Yet the Slate article got me thinking about whether it isn’t worth considering a check on this particular executive power sometime soon, both on a state and federal level (though the misuse tends to be more egregious on the federal level).

Is it really fair that Bush is able to pardon (for example) Scooter Libby as he’s walking out the door? What about Clinton and his brother Roger, or Marc Rich? For that matter, assuming you agree that what President Nixon did was criminal, how about Ford pardoning Nixon minutes after Ford took office? There’s a pretty obvious reason why presidents wouldn’t make these pardons until they had one foot out the door: no one would let them get anything else done for the rest of their presidency if they tried this mid-term. But what kind of message does it send to people when Patty Hearst can be pardoned because of who her family is, while a state defendant in the same position serves hard time?

Furthermore, what about the implications of pardoning on the sentencing guidelines and mandatory minimums? In Wisconsin, OWI charges become felonies as of the fifth offense (which is far too high, in my opinion, but that’s a story for another post). As governors have as much power to pardon state crimes as presidents do for federal crimes, what if Governor Doyle pardoned someone’s OWI-fourth conviction? If that person gets convicted again, wouldn’t it be another OWI-fourth? If so, that’s the difference between a misdemeanor and a felony conviction, the difference between a possible maximum sentence of one year versus six years. This problem is only exacerbated at the federal level, where — particularly with drug crimes under the Controlled Substances Act — prior convictions can jump the sentencing thresholds significantly. Really, what’s to stop an outgoing executive from pardoning someone’s prior convictions at the same time that the person is facing current charges? Sure, you can argue that the P.R. would be horrible, but I guarantee you most people don’t think about Clinton’s pardons in calculating his worth as a president now.

Finally (and this is a point I only realized tonight), acceptance of a pardon — at least at the federal level — carries with it an admission of guilt. Hence, in order for people to get pardoned, they have to essentially admit that they committed the crimes for which they’re being pardoned. Now, this isn’t as much of an issue when the pardon goes to someone already convicted (though I’d like to note the irony in pardoning someone for being wrongfully convicted while at the same time making the person agree that he or she did it as part of the pardon.) But what about those people pardoned while facing civil and criminal charges for the same act? If accepting a pardon means admitting guilt, than wouldn’t that work the same way that a guilty plea does (i.e., it basically makes the civil suit an open-and-shut case)? If you’re an attorney representing a client on both cases, how would you advise your client if a pardon were extended? If you do take it, your client’s dodged a criminal conviction, but basically handed a blank check to the plaintiffs in the civil suit; if you don’t take it, your client will have to roll the dice on both cases.

I’m not saying that pardons are an entirely bad thing. I think that anyone could point to completely valid pardons as evidence that the pardon power works. Still, I was raised with the moral viewpoint that if you’re unwilling to say or do something in public, you shouldn’t say or do it in private. Pardoning people as you run away from the conflict seems a bit cowardly to me, and when every president does it as he leaves office just because he can, while rarely (if ever!) doing it while in office, it may be time to review whether the power needs tweaking.

Is Our Partisanship A Poli-Ticking Time Bomb?

Originally posted on the Faculty Blog on November 17, 2008.

While trolling through PrawfsBlog to refresh my memory on a debate I wanted to blog about as to the teaching of Legal Writing and Research classes, I stumbled across this post from about a month ago in which FIU professor Howard Wasserman raised the question of how appropriate it is for professors to display their political preferences in the classroom and/or their offices. In reading it, I couldn’t help but think about a conversation I had had with a friend a week or two ago. In response to my joking about how important it was to read my blog posts while I was still able to post them, my friend commented that he/she refused to read the Faculty Blog because he/she didn’t want to read about the political beliefs of professors. Now, I don’t know that I find the posts here to be all that politically charged, but the fact that my friend was so adamantly opposed to that while at the same time being very vocally partisan regarding this past presidential election was something I found ironic. And now that this election has passed and the votes have all been tallied, I think it’s worth reflecting upon just how dangerous it is to be partisan in a learning environment.

I was sent this article about a 14-year old girl in Chicago, Catherine Vogt, who for one day wore a t-shirt that said “McCain Girl.” In what should be absolutely no surprise to anyone, she was subject to mocking, condescension, and extreme hostility from both teachers and students; some students even suggested she be “burned with her shirt on.” The few McCain supporters in her class felt the need to pull her aside and quietly relate their approval of her shirt, lest they be ridiculed as well. Then, when she wore a t-shirt labeled “Obama Girl” the next day, those same students were relieved that “her brain had come back.” The girl, of course, documented every comment made, good and bad, for the purpose of a sociological experiment for her class, leading to a great deal of much-deserved chagrin from her peers. Now, we could very easily sit here and shake our heads at how ludicrous this story is, but I think we’ve all been witness to the exact same situation somewhere in our day-to-day activities. In fact, I’d wager that many examples could be drawn from this Law School, or really from any school anywhere in the country.

Now, I fully support the right to vote and to hold political opinions. I wouldn’t suggest for a moment that anyone should be politically apathetic. But at what point do we cross the line from “freedom of expression” to “hostile work environment”? What if, even in a private university like Marquette, students were ridiculed, demeaned, and/or threatened for practicing Judaism instead of Catholicism? Or for being homosexual instead of heterosexual? Imagine if someone showed disdain for a member of a different race or ethnicity because “that’s what my family has always done, and it’s what I was taught to do”? Would you as students or faculty or staff feel comfortable being around an environment like that? Would it affect your ability to focus on your work if you were one of those ridiculed? And yet, when any of the examples I just gave — race, religion, sexual orientation — are replaced with a political affiliation, people accept it when it occurs, especially during presidential election seasons. And perhaps no one feels it if they’re part of the majority opinion — which seemed to be the Obama camp this time around — but if you are of the minority . . . one can only imagine how uncomfortable such a person is made to feel. And it gets even worse if you didn’t have a quickly formulated opinion on politics; truly, the only thing worse than supporting the minority position is being undecided, especially in an election as polarizing as this past one.

For the record, this isn’t a slap at any faculty or administrators by any means. You can’t penalize something like this unless it’s brought to your attention, and I don’t think many students would ever feel comfortable formally filing some complaint for fear that it would make them appear petty. I have no doubt that had someone said something, any sane teacher, professor, or administrator would have swiftly moved to squash the elements causing the discomfort. Nevertheless, I think the quote at the beginning of the Vogt article sums up the issue well:

As the media keeps gushing on about how America has finally adopted tolerance as the great virtue, and that we’re all united now, let’s consider the Brave Catherine Vogt Experiment.

Let’s consider it indeed. For if even one student, age 14 or 40, is made to feel uncomfortable in any learning institution because of his or her political beliefs, isn’t that one too many?

If The Drew Fits, Charge It?

Originally posted on the Faculty Blog on November 11, 2008.

Being fascinated with both the use (and misuse) of technology and criminal law in general, I have been intently following the Lori Drew case. For those of you who haven’t, however, Drew is the Missouri mother who — as a response to some animus between 13-year-old Megan Meier and Drew’s daughter — created a false persona, “Josh Evans,” on Myspace to flirt with and gain the trust of Meier, then insulted and demeaned her to the point where Meier committed suicide. Missouri state officials reviewed the case, but felt that there was no appropriate state statute under which to bring charges against Drew; federal prosecutors in Missouri declined to charge the case for similar reasons. However, federal prosecutors in California (where Myspace’s servers are located) disagreed; claiming jurisdiction, they charged and were subsequently able to indict Drew under 18 U.S.C. § 1030, the Computer Fraud and Abuse Act (CFAA). Specifically, the U.S. Attorney’s Office in California is charging her with violating 18 U.S.C. § 1030 (a)(2)(C), which makes it a crime for anyone to
intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] . . . information from any protected computer if the conduct involved an interstate or foreign communication.
The indictment can be found here, if anyone is interested in reading it, but the gist of the argument that the AUSAs in California are making is that by giving fictitious profile information, Drew violated Myspace’s Terms of Service, thus “exceeding” the access authorized by Myspace. Then, as she used this fictitious profile to “obtain information” from Myspace’s servers — personal information about Megan, as best as I can tell — to commit the tort of infliction of emotional distress upon Meier, and since to access Myspace’s servers she was required to send packets of data across state lines, she met all the elements of the crime.

Let’s ignore for a moment the “packet hopping” argument; it’s absolutely ridiculous — since I could send an e-mail to a professor at this law school while sitting yards away from him or her and have the packets cross state lines — but it’s a well-accepted way of establishing interstate communication, and in this case the servers were in a different state than Drew anyway. I’d also be willing to concede the “obtaining information” point, though I’d note that I really haven’t seen anything in the published e-mails between the two accounts that suggest any information was obtained that wasn’t immediately obvious to Drew, given that she lived only a few houses up the street from Meier and that the Meier and Drew families were good friends before this incident. Let’s even ignore the fact that the legislative intent of the CFAA was, quite simply, to criminalize hacking into servers to get information the server owners didn’t want a person to have; in fact, the vast majority of cases prosecuted under the CFAA involve exactly that.

But stop and think for a moment about the accusation that Lori Drew exceeded her authorized access of Myspace’s servers by violating its Terms of Service. Or, more accurately, think about the ramifications of the precedent set if the court allows this argument to carry the day. Does that put an end to Dateline NBC’s “To Catch A Predator” series, since the watchdog organization that carries on the chats (Perverted Justice) creates underage profiles and waits for the pedophiles to engage them? For that matter, what about the police stings in which officers have done the same thing? What about the recent Craigslist prostitution stings by the Milwaukee Police Department? And it’s not just deliberate decoy situations that this causes problems for. Marquette’s IT Acceptable Use Policy states that users may not

  • Send email chain letters or mass mailings for purposes other than official university business.
  • Engage in activities that harass, degrade, intimidate, demean, slander, defame, interfere with, or threaten others.

Hence, when someone sent a Republican friend of mine a chain letter mocking McCain, and he responded “I’m a diehard Republican, you idiot,” both the sender and the recipient violated the CFAA based on the arguments set forth by the AUSAs in the Drew case; the sender did so by sending the chain letter, and the recipient did so by demeaning the sender in his response. Another friend of mine placed a fake personal ad on Craigslist as a joke, to which she received half a dozen e-mails from local guys infatuated with her based on her (fake) photo. Some gave names, heights, weights, hobbies, etc. Should she be prosecuted? What about anyone who rounds down their weight in an instant message conversation with someone they like? At what point does the slippery slope end?

Let’s be clear for a moment: I find what Lori Drew did to be reprehensible. I don’t know if there’s enough here to warrant a wrongful death suit on behalf of Megan Meier, but I’d certainly support one if it came. But this prosecution under the CFAA reeks of desperation, a spaghetti approach (i.e., “throw everything against the wall and see what sticks”) to prosecution. It’s a crime that doesn’t address anything about the tragic suicide of Meier; in fact, it can’t, as the court ruled today, because evidence of the suicide has nothing to do with the crime charged and is unquestionably prejudicial. It’s time for the AUSAs in California to recognize what the people of Missouri did from the beginning: this was a horrible act, but one that was legal at the time it occurred. The way to keep Megan Meier from having died in vain isn’t to prosecute her offender under anything you can think of, but rather to close the loopholes by passing legislation criminalizing cyberbullying, which Missouri did this past July. To do anything but that is to sacrifice the principles of our criminal justice system for the sake of righting a perceived wrong.

Spin Doctoring and the Judiciary

Originally posted on the Faculty Blog on November 3, 2008.

I was extremely lucky to represent Marquette Law School this past Saturday night at the Wisconsin Equal Justice Fund’s Howard B. Eisenberg Lifetime Achievement Award Dinner, and the highlight of the event for me was not only my opportunity to meet and take a picture with Justice Louis Butler, but also to hear him present the Lifetime Achievement Award to Judge James A. Gramling, Jr. However, there were two things about Justice Butler’s speech that caught my attention. First, he began his speech by saying, “I’m Justice Louis Butler, and I’m not under investigation for anything.” Now, granted, this was an audience that had given him a thunderous standing ovation on his way to the podium, so he was certainly in the right crowd to make that joke. Nevertheless, it surprised me how eagerly everyone in the room applauded him; it certainly didn’t feel as though it was merely humoring him. Second, and perhaps more importantly, his tribute to Judge Gramling touched repeatedly on the Judge’s insistence in doing the right thing regardless of its popularity or public perception, both in his personal life and in the law.

As a result of those, I began to think again about the past judicial election, in which Butler lost his seat on the Wisconsin Supreme Court by about 20,000 votes to Michael Gableman. To summarize for those who didn’t follow this story in the news, Gableman attacked Butler with a flood of negative advertising, including one ad in which he suggested that Butler found a loophole that allowed a rapist to go free and molest another child. This was effective in getting Gableman the victory, but the “loophole” ad in particular has since been proven to be misleading, resulting in the appointment of a panel to review whether sanctions and/or impeachment is necessary. Of course, as we’ve seen in this presidential election, attack ads are nothing new. But somehow it feels different when it’s a judicial election, and particularly so when the attacks are as misleading as these were. And yet, at the same time, it’s almost shocking in that it doesn’t surprise me anymore (and I’m the same person who was heartbroken when the first McCain attack ads started rolling!). Hence, it begs revisiting the old question: is it better to appoint judges or to elect them?

There have been a wealth of studies done on this subject; a quick Google search on the topic turned up academic papers on the matter here and here. The general consensus in these papers can be summed up in arguably my favorite quote from the first link:

In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. Politicians want to satisfy the voting public, and this might mean deciding cases expeditiously and in great number. Professionals are more concerned about their reputation among other lawyers and judges, and are more interested in delivering well-crafted opinions that these others will admire.
Now, not all elected judges aren’t partisan hacks or ideological puppets. In fact, while lawyers will inevitably complain about this judge being too lenient or that judge being too strict, I’ve never heard any accusations that any of the judges I’ve seen are simply fulfilling some political mandate. Furthermore, there’s a lot to be said for judicial accountability to some degree; if a judge is giving disproportionately lenient or harsh sentences, or is acting with disregard for rules of evidence or procedure, I believe that that judge should be forced to answer for his or her decisions.

But despite all that, the fact that it is now noteworthy when a judge makes the right decisions even when they are unpopular speaks volumes about the fatal flaw of an elected judiciary. When judges need to be repeatedly re-elected, we’re going to see them err toward the side that bolsters their future candidacy, even when it’s not the right decision. After all, no one ever lost an election for being “tough on crime,” and to do otherwise in our era of instant information is tantamount to political suicide. But the other — and perhaps far worse — problem is that situations like the Butler-Gableman election are going to inevitably sour some brilliant legal minds from seeking a place on a judiciary that would benefit greatly from their presence. How many public defenders are going to try for seats on the bench when they see what’s happened to Butler? Could Supreme Court justices like Louis Brandeis and Thurgood Marshall have survived the election gauntlet? If Earl Warren hadn’t been life-appointed, would he have made it through the election cycle past Brown v. Board of Education without Eisenhower trying to throw him off the bench?

The greatest decisions of our nation’s history have come when a judge has stood up and said, “I don’t care what the people say; this is wrong, and we need to do something about it.” But our system makes the judiciary a “king of the hill” game, where judges need to glad-hand and tout the things people want to hear in order to get on the bench, then need to do enough to keep the people happy so that they can stay there. If we ask the people to vote on judges — at least when it comes to positions like the Wisconsin Supreme Court — we have to expect the kind of partisan maneuvering that is present in any other election. And where does that leave us? With a brilliant and eloquent legal mind off the bench, a new justice being sworn in while facing potential impeachment, and a black eye for the Wisconsin judiciary.

Welcome To The Jungle; We Have Fun And Games!

If you're reading this, you're probably ridiculously bored, and already know who I am. Nevertheless, welcome anyway! Allow me to give a little background here . . .

First, as of this moment I'm a soon-to-graduate 3L from Marquette Law School. Come May, I'll be entering the legal profession (I hope!), doing something in the realm of public interest law or government work. I'm a born-and-raised Bostonian planning on staying in Wisconsin post-J.D., mostly because I've fallen in love with the state. Despite being here for almost 3 years, I still haven't become a Milwaukee sports fan; my first loves will always be the Red Sox, Celtics, Patriots, and Bruins.

"Why make a blog, Golden" you ask? Well, I've had a couple of other blogs in my past, but they've all only really been used when I needed to vent about something, which gives the impression that I'm some emo-ish kid with a skewed pessimistic outlook on life. Given that my internet footprint is fair game in this era of Facebook-stalking and Google-searching prospective hires, I figured it wouldn't be worth blogging at all. Still, when Associate Dean of Research Michael O'Hear started up the Marquette Law Faculty Blog, I made it a point to regularly respond to the posts there that interested me, as well as ones around the web at local blogger's sites. Then, around October, Dean O'Hear contacted me and asked if I'd be willing to serve as the inaugural "Student Blogger of the Month," and I figured it couldn't hurt to spend one month writing posts there. Surprisingly (or unfortunately, depending on the perspective you choose to look at it from), I really enjoyed it, and my posts seemed to generate a great deal of interest as well. I vowed that I was going to continue writing posts, but then life (i.e., finals, extracurriculars, etc.) got in the way, and I stopped posting. Still, I kept seeing interesting articles and comments and thinking "Hey, I should write about that tonight!", only to abandon the idea after running out of energy at the end of days.

Then, several things happened. First, I realized that I was graduating very soon, and that this occasion would also likely terminate my posting privileges on the Faculty Blog. I also started seeing a lot more articles published by legal scholars suggesting that blogging about legal things (provided it was done intelligently and eloquently) was starting to gain acceptance as an alternative to publishing a law review article. But above all, I realized that blogging was helping me develop a better understanding of legal issues than simply reading textbooks ever would. Between all those things, I figured "Why not?", and so this blog was born.

I can't promise I'll be updating this every day (though I will spend a few minutes reposting my Faculty Blog posts here to be read at your leisure.) I can't even promise you'll like everything I blog about. But feel free to keep checking in here to read my thoughts as they come. After all, what do you have to lose, except for a few minutes of your time?