OK, this time it’s personal. It hasn’t been, lately; I’ve been watching the recent carnage in a sort of state of shock. It seems surreal, as if it can’t really be happening. Not part of my world. Too horrible. And sad. And depressing.

So, sometimes it’s just easier to distance yourself and hope it goes away; only it won’t. I knew that last Thursday night when I turned on my TV.

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How Technology Changed Law Practice

My law firm is older than the Internet.

I hate it when I say stuff like that. It makes me sound so old. I don’t feel old. I definitely don’t act old. I’m one of those annoying old guys who overuses the word “Dude” and still tries to stay on top of the current music scene. I’m certainly not sitting back at home quagmired “with my Beatles and my Stones”, as Mott the Hoople once said. (Although THAT makes me sound old – I know.)

As for technology, I was resistant. For years I proclaimed my independence from the coming onslaught by proudly maintaining that I was a Luddite, eager to smash the machines that were out to replace me. Let’s face it; I was hiding behind that self-righteous front in order to avoid change.

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Assault on Michelle Fields

I want to begin by thanking Donald Trump’s campaign manager. Just when I was wondering what new legal issues were floating around that were relevant to criminal law, there it was. Assault! Campaign Aides Gone Wild! Or not…

Which is what this is going to be about:

What, exactly, happened in that video that is all over TV news shows this week, showing some sort of physical altercation between Trump’s campaign manager and a reporter?

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You know that feeling you get when something seems very familiar to you but you know it isn’t?

I got that recently when I was listening to one of the Presidential candidates wax poetic about every little detail concerning their poll numbers, on and on ad nauseam. I’m not even sure who it was (other than it wasn’t Kasich – for obvious reasons). Listening to them, I got this knot in my gut that this was somehow an intimately personal experience I had once had. But I couldn’t see how. I am a lawyer, not a politician.

There was that one time I ran for election myself. But it couldn’t be that… I am pretty sure Gallup wasn’t running any major polls to monitor the Island County Superior Court Judge job at the time.  No, it was hard enough just reminding people to remember to vote in the primary when there was basically no press coverage.

Then it hit me.

Politicians and Criminal Defense lawyers are very much alike.

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Vote

image by Theresa Thompson, edited for size

Finally. I found a way to be able to talk about this crazy election. I’ve been dying to, but I haven’t been able to. You see, the problem is that I try to stay neutral here, and the fact is that it’s virtually impossible these days to say one word about anything online without being accused of being partial to one side or the other.

I mean, even when I write about the “God of All Things Conservative” for the past few decades, Antonin Scalia, and say what a great writer he was, or how sweet it was that he was able to be BFF’s with Ruth Bader Ginsburg, or how much I loved to read his opinions, or how important some of his opinions were, (e.g. masterpieces like Crawford or Blakely or Johnson), along comes my Marine Colonel brother in law describing my blog as “left leaning” (sorry Chris, but I owed you that.)

One of the fundamental rules of blogging for me is trying to stay neutral. Except that I do not know a single person who is neutral about this election. That’s the first time in my adult life that has happened – which got me thinking. Thinking about what the heck is going to happen once we get to the actual election. Of course, I’ve been wondering that for months.

I have finally found a very obvious framework to analyze this all in a legally oriented way that works. And if anyone calls it “left leaning” I give up. That would be hopeless. But there is hope.

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TV Lawyers

I try. I really do.

I really try to watch legal shows without shouting at the TV. It’s like watching the Presidential Debates without doing that – impossible.

That’s because these shows get so very many important things about what criminal defense attorneys really do totally wrong. What is especially disturbing is that the shows that purport to be true to life, such as The People vs O.J. Simpson, are the worst. It’s possible that those shows actually are accurate, and that really disturbs me.

The seminal work in this area, as we lawyers like to say, is Law and Order. The criminal defense attorneys in that show are all either stupid or unethical, or more likely than not – both. Simply put, either way, the “lawyers” on these shows make us all look bad. Horrible in fact. They do some of the stupidest, dirtiest things imaginable.

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Originalism and the Constitution
My entire purpose in writing these ditties is to show everyone how real life legal issues are handled by criminal defense lawyers. Sometimes that is as simple as discussing the answer to the number one question I get asked, almost daily: “How Can You Defend Those People?” Other times it is much more esoteric.

The last post fell squarely in that latter category, and, as always when the issues presented are complex, it unleashed a torrent of righteous indignation from the more challenged members of the reading public. But this time it also unleashed a torrent of thoughtful, careful and complex discussions about the balance between private rights and Government interests, in the context of strict constructionism. I could not be more pleased about that. My goal was to make people “think things” and boy did they! Lots of things.

Some of the most enlightened comments got to the root of Originalism, or Textualism (Scalia’s preferred term, actually), or, as I like to call it, Strict Constructionism. Too may ‘isms’ any way you look at it, if you ask me.

 

Constitution Protects iPhones

Last time, in what was arguably a “puff piece” about old judicial friends, I had the audacity to mention strict constructionism, thus unintentionally unleashing a torrent of umbrage. The Originalists defended their hero Scalia with a variety of indignant comments to the effect that “The Constitution is clear, and anyone who reads anything extra into it is stewpud.”

Hmmmm. Okay.  Let’s go. Welcome to law school. (Warning: this ain’t no puff piece.)

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Justice Scalia

By now everyone knows that Justice Scalia died last weekend. Most people also know that he was a bastion of Conservatives on the U.S. Supreme Court. At least, that is how he is usually described (it’s actually a bit more complicated than that.) And some people now also know about his unlikely friendship with Justice Ruth Bader-Ginsburg.

I’d like to focus on that last fact.

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The People v. O.J. Simpson

I know I promised to write more about Making a Murderer. But, two things happened: first, I got busy with my actual job. Second, O.J.

I watched Episode One of the new O.J. series, The People Versus O.J. Simpson, sooo aptly named. The People really are all either for or against him, let’s face it – with a passion. It is actually one of the only cases, ever, where it really does ultimately boil down to what we, the People, think. Just post a blog about it and you’ll find out… quick.

The main reason I write any of this is to educate people about what criminal lawyers actually do. It seems to be an area that needs some input, with a view towards dispelling some of the myths that exist out there about criminal lawyers and how the criminal justice system functions in real life. I will try here to show how that goal ties in with this new O.J. show, although I’m not so sure the O.J. case has anything to do with what criminal lawyers really do. It is truly surreal in that otherwise all too real world of criminal law.

But it actually happened.

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