Crime & Federalism

I don't accept advertisement for this site, even though I could.  I don't use it for self-promotion.  My blogging is about as altruistic as a human being can be.  I don't even try to build my brand.  This blog is pro bono publico.

One thing I'm tired of is people parasitizing off of my efforts.  Here's a typical parasitic lawyer's modus operandi:

1. Person like me devotes time to develop a blog.
2. Rather than build their own blog, they troll my blog.
3. They post a one- or two-sentence comment.
4. Rather than use their name in the comment, they use keywords.  The goal is to trick Google.  
5. Here's an example: "Expungement Attorney said...This is definitely a tricky situation. I probably have to agree with Sam--trashing the client is going too far."

Who is "Expungement Attorney"?  Is that how people go around introducing themselves?  "Hi, I'm Expungement Attorney.  Pleased to meet you."

Of course not.  Instead, the person hopes that the following will occur:

1. Potential client Googles "expungement attorney."
2. Potential client finds my site.
3. Potential client clicks on link to "Expungement Attorney's" site.
4. "Expungement Attorney" profits.

This is spam and it's intolerable.  I've given "Expungement Attorney" 24 hours to apologize.  Otherwise, I'm going to put a huge post up with "Expungement Attorney's" law firm name.  I'm going to tell prospective clients that this person is so desperate for work that he's spamming sites.  

This is going to be my new counter-punch to these people.  If you think that all PR is good PR, feel free to spam my site, as I will gladly allow you to test that hypothesis.  

What is this?

Billionaire sex offender Jeffery Epstein has settled a dispute over legal fees that threatened a deal he made to avoid federal prosecution over alleged assaults of multiple young women and girls.

Court papers filed Monday in Miami indicated Epstein had reached a settlement with lawyers appointed to represent some of his alleged victims. The lawyers said Epstein owed them $2 million but terms of the settlement were not disclosed.

The lawyers claimed Epstein's failure to pay violated his agreement to avoid federal charges. Epstein said there was no violation and disputed the $2 million figure.

A registered sex offender, Epstein is serving house arrest in Palm Beach, Fla., as part of his 2008 guilty plea to two state prostitution counts.

I'll need to look into this issue more, but it wouldn't surprise me to learn that the billionaire rapist was able to avoid prison by paying off his alleged victims.  There are at least two problems with this.

The first is a tired-but-true complaint: The rich have a separate system of justice.  There's nothing novel for me to say about that.

The second complaint about involves the "privatization" of our criminal justice system.  Here is a trend I've noticed for the past half-decade, but that doesn't get enough attention.

A civil lawsuit is a private suit.  You hire your own lawyer.  You file a lawsuit to vindicate your private interests.  If someone breaches a contract with me, what's it to you, dear readers?  Nothing.  It's strictly an issue between me and the person who breached his contract with me.  It's private, not public.  When I sue, the case will read: Mike v. Contract Breacher.  

When I file my lawsuit seeking money, I don't get to rely on prosecutors to enforce my rights.  They won't act as my bullies or bodyguards.  Instead, it's mean against the person who violated my private rights.

A rape is said to be a crime against the State.  Thus, a criminal case reads: People of the State of California v. Rapist.  A rape against a fellow citizen is said to injure all of us.  

If this billionaire raped these women, then it was a crime against the State.  Whether the women want the State to file suit or not should be irrelevant.  It's not up to the victims: It's up to the State.  The State, again, is the victim.

Instead, victims get the best of all words.  They get the full power of the State - which means me and you, as taxpayers - while also enriching themselves.  

If prosecutions are to remain public matters, then settlements like that described in the article must be abolished.  Otherwise, let's return to the Roman system of private prosecutions.  An alleged victim should not be able to use the power of the State to extort millions from a rapist.

Moreover, if this billionaire is a rapist, why is he free?  Will he rape you, your daughter, wife, or friends?  He remains free because his alleged victims were able to get paid. 

The alleged victims played both sides.  They used the state to make millions.  Meanwhile, they ensured that a rapist remained free.

Just weeks before news of the BP oil spill hit, Goldman Sachs sold 44% of its BP stock.  You can see this information here, at a legitimate site:

• Institution Name                                   %Change in Ownership
• Goldman Sachs                                      -43.7%

Why did Goldman Sachs make this trade?  No one is asking.  No one in the mainstream media is asking.  No one in the White House is asking.

Look, this is not conspiracy theory stuff.  Read the source information for yourself.  It's verifiable that Goldman Sachs sold nearly half of its BP stock just a few weeks before the BP oil spill.  

Now, how could this be?  Is Goldman omniscient?  In a sense, yes.  How so?  To understand this, just understand Goldman's relationship with other businesses.

If you're a lawyer, haven't you heard about case outcomes long before the public did?  Friends of mine have given me case scoops and copies of opinions that haven't been publicly issued.  And I'm just humble Mike.

In every business, Goldman Sachs has extensive contacts.  BP's executives attended college and business school with Goldman's traders.  Goldman Sachs hires former BP executives to work as traders.  Who better to help Goldman manipulate the oil market than those who, well, manipulated the oil market?

It's banal to note that Goldman Sachs has extensive contacts within BP.  The implications, however, are less routine.

Did someone on the ship know that there was a problem with the oil well?  When did this person learn that innocent oil well workers were going to die?  

All we Americans only know is what BP has told us.  There has no been no independent investigation into BP's knowledge of the risk of an explosion.  No one is asking BP any hard questions.  

When did the well actually explode?  When did people know that the well was in danger of exploding?  

Eleven working people died in an explosion.  Who knew of this right of explosion?  When was this known?  Who told Goldman Sachs about the risk of an explosion?  

These are questions that the Department of Justice will no doubt ask.  Right?

A client, not the lawyer, is the "holder" of the attorney-client privilege.  By holding the privilege, the client alone can decide whether and to what extent a lawyer may share confidential details of the lawyer's representation of the client.  There are some rare exceptions - among them is self-defense.

When a client files a grievance against a lawyer, the lawyer may breach some aspects of the attorney-client privilege to defend herself.  If a client says, "My lawyer never returned my e-mails," the lawyer may share e-mails with the State Bar to prove that he was responsive to client demands.  That rule is fair, since a client shouldn't be able to deny his lawyer the right to defend herself.  

Enter the Internet.  

What if a former client writes: "My lawyer was terrible.  He never returned my calls or e-mails.  I had a million-dollar case, and she blew it!" 

Some prospective clients might read that blog entry, and thus never call the lawyer.  Current clients might get nervous.  Other lawyers might decline to refer a case to the bad lawyer.

Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: "John Smith called me 5 times each day.  He asked the same questions over and over again.  After evaluating his case through discovery, we realized his case was marginal.  We told him to settle the case for $25,000 - nuisance value.  He refused.  The trial court dismissed the case on summary judgment.  Now he's angry.  By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case."

Does that Rule make sense?  A lawyer can lose business.  Online reputation matters - not for a lawyer's ego - but for his business.  The law offers trademark protection.  A brand matters.  A lawyer is only as good as her name.  Shouldn't a lawyer be able to breach some aspects of the attorney-client privilege in order to protect her name?

Now, trashing a client would be a bad idea.  As a perspective client, I might think, "Damn.  I don't want that guy representing me.  He's just going to bash me to make himself look better."  So I can think of many reasons why it would be bad business to breach privilege.

My question is narrower: Where a client trashes a lawyer online, should that lawyer be allowed to break the attorney-client privilege (on scope, but not details of representation) to defend her reputation?

Or does it make you smarter?  There's substantial debate about the effect of the Internet and other gadgets on user attention and intelligence.  All of these attacks on the Internet fail to ask: What's the alternative?

In other words, what were people doing with their time before reading blogs?  Pre-blogs, were people translating Homer in between solving quadratic equations?  

I don't watch television or make small talk at the office.  I do spend a lot of time online.  

Today a friend on Facebook noted in his status update that today was the anniversary of D-Day.  I went to Wikipedia to read about the Normandy Invasion.  From there I clicked links to read about General Erwin Rommel's joining the assignation plot against Adolf Hitler.  The assassination attempt failed, but Rommel was allowed to kill himself rather than be tried before Germany's kangaroo court.

What does it matter that a German general was given the opportunity to kill himself rather than face trial for his joining the conspiracy against Hitler?  There was a fascinating insight into Adolf Hitler's success.  Hitler gave Rommel a free pass because it worked to Hitler's advantage.  Rommel was very popular with average Germans.  If Hitler had taken the assassination personally, Hitler would have acted against his own self-interest. Hitler let an enemy win because it meant Hilter won, too.

Most of us would want to crush anyone who tried killing us.  Hitler let it slide.  Wisdom involves learning from others' mistakes and successes.  Isn't there wisdom to gain from Hitler's treatment of Rommel?

If I had read this stuff in a book, would that have legitimized it?  Would it have then made me smarter?  Since you read that stuff on my blog, does it all become inconsequential?

I read blogs about many high-end subjects, and banter with smart guys on Twitter and Facebook.  Should I watch TV and talk at the water cooler?

The ADD aspect of e-mail and the Internet is real, but unalarming:

Scientists say juggling e-mail, phone calls and other incoming information can change how people think and behave. They say our ability to focus is being undermined by bursts of information.

These play to a primitive impulse to respond to immediate opportunities and threats. The stimulation provokes excitement — a dopamine squirt — that researchers say can be addictive. In its absence, people feel bored.

Yes, but that's due to the larger trend of focusing on the novel.  Without the Internet, most people wouldn't be sitting around pondering anything important.  They'd be looking for new restaurants to dine out at; complaining about eating leftovers; and clicking through the TV channels for something "new."  Or maybe go buy another pair of shoes.

The Internet and its related gadgets would be an alarming trend if people suddenly stopped reading books and pondering life's deeper questions.  For better or not, people today are no less frivolous and ignorant than they were yesterday.

Those who want to learn have an incredible opportunity.  Go to Wikipedia some late night.  Pick a subject.  Any subject.  Start clicking link after link.  

One night I went from reading about Pink Flloyd's "Time," to the philosophical concept of memento mori.  From there I found some art that spoke to me.  If I had gone to a museum, I'd be called cultured.  Because I remained online, suddenly I'm stupid?

The Internet is a great joy and great opportunity.  Like most things in life, what matters is what you choose to focus on.  You can watch Internet porn or forward e-mail jokes to friends.  Or you can spend a Sunday afternoon reading about D-Day, and learning from the successes and mistakes of others.

Scott Rothstein is some lawyer who ran a Ponzi Scheme in Florida.  He pled guilty to a bunch of felonies and is going to be sentenced to prison.  Like every sophisticated criminal who gets caught, Rothstein understands the game.  Here's how it's played:

1. When you a write a sentencing letter to the judge, you must offer an explanation for your conduct.
2. Make this explanation abstract.  It's about "things" and "desires" and "drives."  Be vague and pseudo-insightful.
3. Do not - this is most important of all - blame the abstract concepts for your problems.
4. Instead, blame yourself.  
5. Kind of.
6. When blaming yourself, write about how you were ensnared by the trap of temptation.
7. This allows you to accept responsibility for your actions without being candid, and all the while sotto voce making it about a fall from grace.
8. P.S. If you can blame a mental illness, do so.  Also mention God and family.  

Here is a sentencing letter to God, written by Adam:

Dear God: 

I accept total responsibility for eating that apple.  I don't expect any breaks from you.  I do, however, want you to understand why I ate the apple.

Have you ever heard an apple snap when you bite into it?  The juice explodes into your mouth and runs down your face.  Have you ever had a beautiful woman ask to share an apple with you?  

I should not have eaten the apple.  It looked so delicious.  Eve was so hot.  She went around naked, you know.

Again, I accept responsibility for eating that apple.  I am a flawed human being.  I am sorry.

In that light, let's look at Scott Rothstein's letter.

The money and the power were intoxicating. I began to live a life both personally and professionally that my business could not support.... I began to spend like the wealthiest of my friends and colleagues. I began to live like them.

Notice that he's vague.  He "began to live a life."  He began to "spend"?  What does that even mean?  Today I lived my life.  What does that tell you about me or what I did today?  Nothing.  Maybe I tossed balls to my dog on the beach; maybe I threw rocks at oncoming traffic; maybe I dropped a quaalude in your vodka tonic.  Who knows?

If he were honest and concerned with redemption rather than manipulation, here's what he'd have said:

I'm an old, fat, balding nerdy guy.  Do you know what women say about guys like me?  When they are not ignoring me, they call me a creep.  With money, everything changes.

On my boat, I snorted cocaine off of Maxim model's tits.  There was so much cocaine that when a thin layer of powder formed on a model's tits, we wouldn't bother snorting it.  We'd go straight to licking it off.

When I rolled up to the coffee shop in my Ferrari, women stared.  All I had to say was, "Want a ride to my boat," and the panties came off.  Men much younger than I stared in awe.  I sometimes let them on the boat, because that, too, is intoxicating.

Men younger than I would tuck their dicks between their legs when around me.  I'd tell them to get a beer out of the cooler for me as a dominance display.  They hung around for the crumbs, and knew my crumbs were better than their bread.  

Having this power over men was almost as pornographic as my cocaine-fueled sex sessions with models.

Let's be honest, right?  Rothstein wasn't going around feeding poor kids with his stolen money.  He was fucking whores on his yachts.  Own it.  Yet owning it would not engender sympathy with a judge.  Thus, be abstract.  "I began to live a life...."  

Hopefully the judge will project his Middle Class values onto the abstract phrases.  The judge might think that, "I began to live a life both personally and professionally that my business could not support," means tailored suits and fine dinners rather than Summer Friday's with coke whores.  Not everyone knows how the rich really live, and most probably think it's all charity galas rather than orgies.

Of course Rothstein's need to snort cocaine out of the ass cracks of strippers wasn't a prurient drive that all men have.  No.  He was mentally ill:

Looking back, however, lurking just below the surface was a person so fearful of failure and so terrified of ever having to struggle the way his parents did, that it translated into an acute anxiety disorder that was, at times, debilitating, and for which I continue to seek treatment today.

Isn't it great that his at-times-debilitating-anxiety disorder didn't stop him from stealing from people?  Somehow he found the inner strength and intestinal fortitude to overcome his disorder.  What a man among men.

He writes much more, but you get the point.  

Oh, wait, he does mention God, so let's discuss:

I understand that this Court must, and I expect it to, sentence me to a significant term of years. I only ask that you deal with me fairly and that based upon the fact that the record now exists, from my decision to return from Morocco and all that I have done since, that I am truly a changed man and that I have sincerely tried to redeem myself, that you consider giving me an opportunity to live at least part of the remainder of my life as a free man with an opportunity to do some good in this world. I will never forgive myself for what I have done nor do I expect anyone else to forgive me. But I will spend the rest of my life doing everything in my power to make right all the harm I have caused and to restore my family's good name as best as G-d will allow.

The G-d-spelling-thing is great.  Jack Abramoff used it, too.  Hey, guys, I have a memo to you from Mother Fucking God: She's a lot less offended about your putting the "o" in her name (what woman doesn't love an "o"?) than she is with your being scum-fucking crooks.  Ya know?

Also, isn't this great that this changed man needs to be free to redeem himself?  There are a lot of people in prison who need ministry.  In fact, a G-dly person can do way more good inside a prison than outside of a prison.

Doesn't Rothstein know that free people often spend their weekends inside prison?  Read the Bible or Torah.  God wants us in prison.  

And so we can only pray to G-d that Rothstein gets his chance to redeem himself.  A lifetime spent in prison ministering and providing comfort to the damned may indeed even the cosmic ledger.  

The sentencing judge should step over the wall between Church and State for Rothstein's sake - who, after all, is the one who invoked God.  Rothstein spent a life of on Earth full of sin, but will now redeem himself by spending the remainder of his years in prison.  Fortunately there is an Afterlife, and knowing that God will meet Rothstein with open arms for eternity far exceeds a few trivial years as a free man here on Earth.

May God - and the trial court - give Rothstein what he deserves.

A federal prosecutor got mad at a lady who was "interfering" with the prosecutor's case. The "interference" seems like classic free speech to me. She gave media interviews--saying the case against a third party was absurd, unfair, etc. When the lady paid for a billboard, the prosecutor got even more angry and tried to obtain a gag order against the lady.

After the judge rejected the gag order gambit, the prosecutor used grand jury subpoena power to go after all mannner of records belonging to the lady. She refused and was cited for contempt.

Jeff Parker, law professor at George Mason, wants to help the lady file cert to the Supreme Court. Parker knows criminal law, but needs some first amendment expertise. If you or someone you know can help out, please contact me or Parker at George Mason Law School.

Another very odd twist to the case--the whole case seems to be sealed in the Tenth circuit. Even amicus briefs filed on the lady's behalf were ordered sealed! This is kafka-land.

Additional background info here: http://www.forbes.com/2009/09/01/siobhan-reynolds-pain-relief-network-wichita-justice-department-opinions-contributors-harvey-a-silverglate.html