Projecting one unintended consequence from the November ballot.

As you may know, there is an initiative on the November ballot that would abolish the death penalty in California.  This leads me to an interesting question.  No, I am not speaking of my own views on the death penalty, which are probably not that interesting.
(But I suppose that since this post is sort of about the death penalty, I may as well give a thumbnail sketch of my own views:

I have never supported the death penalty, although my reasons have evolved over the years.  When I was in high school, I didn't support the death penalty because I believed that capital punishment was immoral and was unnerved by its finality.  But having worked as a prosecutor, I have seen the terrible things that people do to others, and I no longer believe that capital punishment is immoral.  If anything, it's a better fate than many of the condemned deserve.

However, I am still troubled by its finality, inasmuch as I am certain that innocent people have been sentenced to death.  However, I do not believe that this is a systemic problem in California in 2012, and I also believe that additional safeguards can and should be built into the system in order to prevent it from being a problem at all.

So why then do I oppose the death penalty?  I oppose it because it is costly - both to try capital murder cases to house the condemned - and I oppose it because it is ineffective - deterrence works best when consequences are both immediate and severe, and the prospect of a relatively painless death 25 to 30 years down the road fits neither of those criteria.

So unless and until the death penalty becomes both foolproof and effective, I will continue to oppose it, even though I am no longer morally opposed to it.)

On to the interesting question: What effect would the abolition of capital punishment have on California criminal jurisprudence?

First, a note about the California appellate system.  California has a three-tiered approach to direct appeals.  Infraction and misdemeanor appeals go to the appellate division of the superior court, which is basically just a three-judge panel of superior court judges.

(In larger counties that have a lot of judges, judges might actually serve on this division as a full-time assignment.  In smaller counties like my own, judges only sit on this panel as needed.)

Next up are the district courts of appeal, which have direct appellate jurisdiction for almost all felony appeals.  But the careful reader will note that I wrote almost all felony appeals, and it is the exception that is interesting in this instance.

That exception is capital murder cases.  Like the United States Supreme Court, the California Supreme Court generally has discretionary appellate jurisdiction over any case that it finds interesting.  Like the United States Supreme Court, the California Supreme Court usually finds cases interesting when they present novel issues of law, or when they resolve splits between the lower appellate courts.

But unlike the United States Supreme Court, the California Supreme Court also has direct and mandatory appellate jurisdiction over all capital murder convictions.  In other words, if someone is sentenced to 50 to life, the DCA will hear the direct appeal, and the Cal Supremes may then decide to hear the case through certiorari.  But if the person is sentenced to death, the appeal leapfrogs the DCA, and the Cal Supremes must hear the case.

In practical terms, this means that the Cal Supremes spend a lot of time reviewing twenty year-old death penalty convictions; inferentially, this also means that they spend an awful lot of time deciding dead-letter law, since many of the statutes that they are interpreting have since been repealed or superseded.

This also means that most criminal case law comes from death penalty cases, which is problematic for two reasons.  First, it is not especially useful as precedent, since few cases will mirror the facts of a capital murder case.  Second, and this is what really interests me, it may have made criminal case law more prosecution-friendly than it would be in the absence of direct capital appeals.

Why do I say this?  Because as even the most ardent advocates of doctrinal law must concede, you can't divorce decisions from their underlying facts and equities.  (See e.g. Rose Bird and Cruz Reynoso.)  In other words, the Cal Supremes may be more apt to find no error - or only harmless error - where the underlying crime is horrific than they would in a case where the underlying crime is not.  For example, let us assume that the police make a questionable (in the Fourth Amendment sense of the word) traffic stop.  I don't think that I'm stretching belief when I say that courts are more likely to uphold the stop if the police subsequently discover a dead body in the trunk than if the police subsequently discover that the driver's license was suspended for failing to pay traffic fines.  Why?  Because courts - perhaps rightly - don't care about suppressing evidence that leads to the dismissal of a suspended license prosecution; courts - again, perhaps rightly - do care about suppressing evidence that leads to the dismissal of a first degree murder prosecution.

Thus, in capital murder decisions, we see all sorts of intellectual acrobatics to ensure that cases aren't overturned, or that if they are overturned, they are overturned only as to punishment and not as to guilt.  (Now, legally speaking, the prosecution may generally retry a case that has been completely overturned on appeal.  However, because death penalty appeals are often twenty years post-trial, practically speaking, the prosecution would be unable to retry many of these cases.  And don't the Cal Supremes know it!)

So all of this is a fancy way of saying that the high stakes involved in death penalty appeals has probably created a more prosecution-friendly universe of criminal law cases than would exist in a world where the Cal Supremes had discretionary appeal, and occasionally had time to decide the odd driving on a suspended license case as well.  And this in turn likely makes the entire system more prosecution-friendly, since those death penalty decisions are just as citable in motions in limine for suspended license cases as they are in capital murder cases.  And few trial court judges are going to publicly call bullshit on these decisions by saying that they only apply to serious cases.

So what does any of this have to do with the November ballot?  Well, if we get rid of the death penalty, we also get rid of direct, mandatory criminal appeals to the California Supreme Court.  This means that the Cal Supremes get to spend a lot more time monkeying with district splits and deciding interesting issues from mundane cases.

Because the stakes will necessarily be lower, I would suspect that this will also create a more defendant-friendly universe of criminal case law.

Semantics (jargon, euphemism, and shorthand) and a prosecutor's worst nightmares.

It's funny how every group develops its own codes, and I have spent a great deal of time wondering why this is the case.  Proponents will tell you that it allows insiders to be both short and precise.  Thus, we have "Roger" (military) and "10-4" (policing), each of which effectively conveys the message that the speaker has heard, understands, and will carry out the request.  Similarly we have "expedite" (aviation) and "stat" (medicine), each of which imports to the listener that they need to accomplish the request as quickly as humanly possible.
My own field is one of the most egregious offenders, what with our patchwork of code sections, case names, legal Latin, and police jargon.

But codes also serve as barrier to outsiders.  Maybe this is only an unintended consequence of codes, but then again, maybe it is part of their fun.  After all, I can sit in a restaurant and tell my colleague that the defendant in the deuce trial invoked Faretta after his Marsden was denied at the MIL date, and know that no one else there is going to have a clue.  (And yes, that is what passes for fun when you're a lawyer.)

(As an aside to this aside, Navy Times publishes a comic called "Broadside," which occasionally likes to poke fun at the khaki-blue divide. One that I have always remembered featured an enlisted man speaking in technobabble to a junior officer. The JO - who doesn't want to reveal his ignorance - pauses for a moment, then says: "Uh . . . carry on.")
But codes also dredge up memories of Orwell's "Politics and the English Language," and I believe that there is something to be said for the notion that big words are often used to make small ideas seem more respectable.  This is especially so when the idea can be expressed as easily in plain language as it can in code.

Example: When I took statistics in grad school, my professors devoted a fair amount of class time to the concepts of Type I and Type II errors.  Now, I always forget which is which, but these two types of errors correspond to false positives and false negatives, or, in slightly different words, overinclusion and underinclusion.  Now, it is not more difficult or less precise to use these latter phrases.  The only difference is that someone who hasn't taken statistics is going to be less stupefied (and perhaps, more able to intelligently understand and respond to the information).

I bring all of this up as an aside to the real point of this post, which is that a prosecutor's worst nightmare is related to these two types of error.  Overinclusion is probably the more obvious.  Although I have had one prosecutor confess to me that she doesn't care that she may have sent innocent people to prison, most prosecutors that I know are terrified of this possibility.

The other prosecutorial nightmare is not exactly a false negative, inasmuch as provable cases tend to resolve favorably for the prosecution.  Rather, you fear the case where you have a legitimate rationale for doing something other than punishing the defendant to the maximum extent of the law, that defendant goes out and does something really, really bad, and you sit there and wait for the inevitable phone call from a reporter.  You know why you did what you did - or, if you don't remember the case, you at least know that you must have had a good reason to do it - but you know that no explanation, no matter how rational and honest, is going to sound like anything but an excuse in the court of public opinion.

I got one of those phone calls this week.

The Expectations Game

It's funny how your expectations color your view of your performance on a given task.

When I was twelve years old, I had a pretty good Little League season.  I finished something like third in the league in batting, with an average of well over .500.  Yet the two things that I remember most about that season are the fact that I never hit a homerun (although I must have hit line drives off of that high left field fence at least a dozen times) and that I hit an easy comebacker off of one of the worst pitchers in the league.

It bothered me that I never hit a homerun during the season because I had hit one during tryouts, and because I had visions of setting some sort of league record that season.  But the fact that I didn't ever loft one up over the fence didn't bother me as much as the fact that I made an easy out off of Jordan B.  He was a horrible player, and to make matters worse, I had spent the prior season languishing on the bench so his dad could make sure that his precious got to play every inning of every game.  The irony is that I'm sure that my fury didn't even register with Jordan - he hated baseball and only played because his dad made him play, and I'm sure that he would happily have traded spots with me on the bench if only his dad would have allowed it.

I bring this up because I got my first hang in this county last week.  Objectively, it was a tough case.  I had a .08/.09 PAS and a .08/.08 EPAS, no bad driving, weak objectives, and two FSTs that weren't much help either (an improperly administered HGN and a satisfactorily performed finger count).  Additionally, there were (apparent if not actual) issues with Title 17 compliance on both breath test administrations.  Stepping back from it, it was a tough case, and I probably should have been happy that it was a hang on both counts rather than two not guiltys.

And yet I wasn't.  Instead, I was furious.  Why?  Because I didn't believe that my opposing counsel was a good attorney, and the idea of hanging a case with him was intolerable.  But after stewing all weekend, I have to grudgingly admit that he made the points that he should have made, and that, perhaps more importantly, he did a much better job of evaluating this case than either the issuing attorney or I did.

We're not so different, you and I . . . or are we?

(The following may well be offensive to many of my defense attorney friends, and all I can say is that I mean no personal slight by it.  They are nice, hard-working people who take their professional ethics very seriously, and they play a very important role in the system that we have.  Unfortunately, the system is the problem.)

I had lunch with the best defense attorney in town several weeks ago.  (You might think that it's not that hard to be the best defense attorney in a town of 16,000 - and you'd be right - but this defense attorney would be a standout anywhere.)  During the course of the meal, he said something profound.  In a single sentence, he summed up the reason that I became a prosecutor far more precisely and eloquently than I could have in a paragraph.

"It's easy to be a prosecutor," he said, "All you have to do is stand up and tell the truth."

And he should know.  In his career, he's been a public defender, district attorney, and private defense attorney.  (Judging by his $800 shoes, private practice suits him . . . literally.)

But his offhand remark got me to thinking.  So long as the DA's office is making a reasonable offer, most defense attorneys will lean on their clients to plead out before trial.  There is some self-interest in this - private defense attorneys know that as their fees increase, their odds of collecting those fees decrease; public defenders simply have too big a caseload to waste time going to trial on obvious losers - but they are also serving their clients' interests, inasmuch as their clients are generally guilty and will generally be worse off in terms of sentencing after trial, when the judge might impose a longer sentence (that is in no way intended to be a trial tax pour encourager les autres, because that would be unconstitutional).

But at the end of the day, the defendant is always the one driving the trial bus.  And if the defendant decides to go to trial, the defense attorney must transmogrify from consiglieri to zealous advocate.  In many cases, this means making arguments that could be true, even if the defense attorney knows very well that those arguments are - to put it in a light most favorable to the defense attorney - highly improbable.  In many cases, this means engaging professional defense "experts" to further these improbable theories.

And I put expert in quotation marks because the roles of the prosecution expert and the defense expert are quite distinct.  The law only provides for expert testimony when it helps the jury understand complex issues that are beyond the realm of common sense and everyday experience.  But in practice, defense experts will often do their best to muddy the waters and make the jury less able to understand these complex issues.  This is because in criminal law as in baseball, a tie goes to the runner.

And the more you deal with defense experts, the more you realize that battles between experts cannot be described as honest intellectual disagreement between two highly qualified professionals.  It is instead the lifeblood of a cottage industry - a cadre of highly-trained, highly-paid intellectual prostitutes who will massage the facts into whatever story will help their client beat his or her charge, without any regard for such niceties as truth or honesty.

Now, I am not saying that defense experts spend their whole time in court lying.  What I am saying is that they spend much of their time putting on a dog-and-pony show, telling half-truths, and engaging in semantical battles with the scientific literature (and the prosecutor, if he or she is any good).  A defense expert can consider his or her testimony successful if the jury walks away knowing slightly less about the topic than it did after the prosecution rested.

And that's the tragedy of our system.  One of the parties is ethically committed to telling the truth.  Seriously.  I get that horror stories emerge where prosecutors lie and withhold evidence, but that in itself is the affirmation of the prosecutor's role in the system.  If I'm trying to keep the truth from the jury, I'm not doing my job.  Sadly, the same can't be said of the defense attorney, because, in most cases, the truth will not set his or her client free.  Thus, he or she must try to convince the jury of something other than the truth.

And I am convinced that it is a problem to have a system in which the sides are treated as equal participants in the process, despite the fact that they have fundamentally disparate tasks and fundamentally different methods.  And I am convinced that it is a problem to have court-sanctioned purveyors of bullshit who are paid big money to come into court and do their level best to do the antithesis of what they are legally permitted to do.

And I am also convinced that - at least within the contours of our current system - I can see no way out of this dilemma.  The Constitution guarantees defendants the right to come into court and tell their story, no matter how fanciful it may be, and no matter how much it may gall me that they can enlist the assistance of someone with the right credentials and the wrong sense of ethics.

Candy is Dandy, but Liquor is Quicker: Possible solutions to two mysteries of DUI prosecution?

In many states, DUI encompasses two distinct crimes.  The first is impairment at time of driving.  We prove impairment both circumstantially and directly: He looked like a drunk, smelled like a drunk, and quacked like a drunk, so he probably was a drunk, and oh yeah, his BAC was at three times the point at which any person would be impaired.

The second crime - which we call the "per se law" - is driving with a blood-alcohol concentration (BAC) at or above a specific percent by weight (in my state .08%; in some others .10%).   The tests that we have are both numerous (on a properly conducted DUI investigation, we will have two PAS results and either two EPAS or one blood result) and accurate.  Thus, on all but the closest of cases, the only real challenge is to convince the jury that the BAC at the time of the test reflects the BAC at the time of driving.  Interestingly, at least one state has sidestepped even this problem by adopting a law that makes it a crime to have a BAC that exceeds the legal limit at the time of testing (so long as the test was adminstered within a few hours of driving).

As an INTP, I seek patterns, and after looking at thousanfs of DUI cases, patterns have emerged.  You wouldn't expect BAC to be normally distributed - and in fact it isn't - but you might expect the mode of BAC to be the lower bound of .08%, since presumably more people will drink to the point of being .08% than will drink to the point of .15% or .30%.  It isn't.  Rather, BAC tends to cluster around .12%, with fewer cases at the lower bound than you'd expect.  I can only offer three possible reasons for this.

First, people who limit themselves to a low number of a high number of drinks may tend to be more sytemically responsible, and may employ cabs or designated drivers.  I find this dubious, since it still takes quite a bit of alcohol to get to .08% BAC.

(By way of comparison, after having exactly one mixed drink and one beer after work the other day, I felt kind of tipsy.  After I got home - and no, I didn't drive - I self-administered FSTs and a (decently good fuel cell) PAS.  My results?  My tipsy self believed that I did pretty well on the FSTs, although I noted definite sway on the one leg stand, and my PAS came out, as I predicted, at exactly .05%.  That said, given how I felt after drinking, I would not have driven home.)

Second, because drivers at .08% are signficantly less impaired than drivers at .12%, drivers at .08% may be less likely to engage in the sort of driving behaviors that serve as red flags for "deucebusting" police officers.  But this isn't just my assumption.  Research suggests that the effect of BAC on driving impairment is geometric rather than linear.  For example, a .08% driver is 2.6 times as likely to get into a traffic collision as a .00% driver.  If this were a linear curve, a .16% driver ought to be 5.2 times as likely as a completely sober driver.  In fact, a .16% driver is almost 30 times as likely to become involved in a traffic collision.  So there's that.

Third, the objective signs of alcohol consumption are simply less evident at .08% than they typically are at .08%.  For example, the driver is less likely to have a hard time finding his driver's license, and less likely to look, smell, and sound like he has been drinking.

And these latter factors may be synergistic.  Because .08% drivers engage in fewer driving patterns that would justify a DUI stop, if they are pulled over, it is far more likely to be for something like a busted tail light or an expired registration sticker.  And when a police officer makes contact with the driver on a stop for an equipment violation, that officer may simply not be looking for objective signs.  Compounding this is the fact that those objective signs may be more difficult to spot in the first place.  So I guess that this is a long-winded way of saying that, compared to .12% drivers, a lower proportion of .08% drivers are pulled over in the first place, and of .08% drivers that are pulled over, a higher proportion may be sent on their way without FSTs and a PAS.
So that's the puzzle of the lower bound.  On to the puzzle of the higher bound.

It's always a shocker to get a case where the BAC is truly extreme.  The highest that I've had was probably a .37%, but some of my colleagues have had cases in the .40s.  Oddly, there are generally only two classes of people who are caught driving with such high BACs.

The first are professional alcoholics.  These are people who rarely fall below a .08 in their waking hours.  Thus, it is no mystery that they occasionally get popped after an especially bad binge with BACs that would incapacitate mere amateurs.

But the second subset is more surprising, inasmuch as it consists of youngish, skinnyish girls.  It took me a while, but I think that I finally figured out why this happens.  I'll give you a hint, my hypothesis isn't that youngish, skinnyish girls are more likely to be alcoholics.

First, the obvious.  A person's BAC at a given time will be determined by many variables.  However, for this hypothesis, the only ones that really matter are sex, weight, and amount of alcohol consumed, as follows:

a) If a man and woman who weigh the same consume the same amount of alcohol, the woman will end up with a higher BAC than will the man.

b) If two women who weigh the same drink different amounts of alcohol, the woman who drinks more alcohol will end up with a higher BAC than will the woman who drinks less.  (Note that I am talking about standard drinks, which are essentially 12 oz., 4% ABV light beers.  It is probable that a person who has had two Long Islands to end up at a much higher BAC than a person who has had three Coors Lights.)

c) If two women drink the same amount of alcohol, the heavier woman will have a lower BAC.

The inference is pretty obvious: It takes fewer drinks for a 120 pound woman to reach .30% BAC than it takes for a 200 pound male to reach .30% BAC.  But I don't think that this completely explains why youngish, skinnyish women are more likely to have shockingly high BACs than men.

The second premise is that people tend to get DUIs after going out for drinks or food rather than after drinking at home. This isn't to say that people never get DUIs after drinking at home - after all, people do run out of booze or get into fights with people they live with - but in my experience reviewing thousands of DUI cases, the overwhelming majority of DUI stops that don't involve professional alcoholics occur as people are driving home from a bar or a restaurant.

This gets us into the economics of getting to a high BAC.  As we all know, drinks at bars and restaurants are marked up.  A lot.  So let us say that a 200 lb male wants to get completely tanked at a bar, and let's say that he devotes three hours to this.  Over those three hours, he will need to consume something in the neighborhood of twenty drinks to do it.  For a 110 lb. female, she will only need to consume about ten drinks to get to the same BAC.

Now let's look at some of the variables in this part of the equation.

First, payment.  If we assume that each person is paying for his or her own drinks, we already begin to see differences emerge.  Assuming even well drinks, the guy can end up with a tab of $100; the girl meanwhile will end up with a tab of $50.

But what else do we know about alcohol consumption at restaurants and bars?  Women often don't end up paying for their own drinks, and I don't think that it's much of a stretch to assume that the proportion of drinks that a woman pays for out of her own pocket diminishes along with her age and her weight.

(Don't blame the author for this comment, blame society's perception of beauty; in Ruben's Antwerp, there may have been far fewer high BAC DUIs.)

And I think that there's yet another factor that you can derive from this.  Many bartenders will at least pay lip service to the idea of not serving an obviously drunk customer, which serves as a form of high BAC DUI control.  This control goes out the window when the bartender doesn't know who the drink is for.  And although the bartender may wise up if the same guy keeps buying drinks for the same girl, it is certainly not unheard of for attractive girls to attract free drinks from multiple suitors over the course of a night.

So there you have it; my contribution to the literature on extremely low and extremely high BAC DUI arrests.

Thoughts on the criminal justice system.

In any business - even my own, which is strictly speaking not a business - it is tempting to believe that because things are done a certain way, that is the way that things ought be done.  But every once in a while, it is interesting to step outside of one's own experiences and question whether the way things are done actually makes sense.

To an outsider, I imagine that the criminal justice system would seem mysterious, full of arcane incantations, impenetrably dense language, and stone-faced players.  This is both the great failing and great triumph of our system.

It is the great failing of our system because it encourages cynicism in people who think that they know better, be they law school professors or community members, and much of what these people think is wrong about our system is a result of flawed assumptions.  The fact that our system is unashamedly esoteric only encourages these misconceptions.
But mystery is also the great triumph of our system - our system is dense enough, arcane enough, impenetrable enough that people are often sufficiently awed by it and scared of it to do what they're supposed to do: come to court, play by the rules, serve their jail time, pay their fines, and not strangle the judge or the attorneys.

Although serving within the system may create a sort of tunnel vision, it also gives you a lot of insight into human nature.  When I started working as a prosecutor, I forced myself to watch Cops during dinner.  My rationale for this bizarre nightly ritual was not that I found the show particularly entertaining, although I found it far more entertaining after having taken crim pro than I did as a child.

My rationale for watching it was that I needed to force myself out of my liberal safe zone.  In my safe zone, people were generally honest, and if they failed the system, it was because the system had first failed them.  Thus, the person who came into court for (being caught) driving on a suspended license for the eighth time was being honest when she said that she just needed a little bit of time to get the money together to pay off her fines and get her license back.  And besides, I knew that driving on a suspended license was just a trap for poor people, getting them deeper and deeper into debt that they were never going to be able to pay off.

When I started working, those were my assumptions.  I needed a show like Cops to remind myself of the great flaw in my liberal conscience: Even good people tend to rationalize and minimize in order to get out of trouble, and a small percentage of the population (which is perhaps not shockingly overrepresented in my courtrooms) lie through their teeth as a general rule, even when honesty would serve them better.

But the more cases I dealt with, the less I needed to watch Cops.  This was because I saw the same players over and over, got getter at recognizing bullshit, and drew a few sweeping conclusions.

The first is that it's very easy to distinguish those who will keep their promises from those who won't.  We all make mistakes, and a lot of good people end up in my courtrooms, but what separates promise keepers from promise breakers is the steps that they have taken to rectify these mistakes by the time they get to court.

To borrow from Highlights, Gallant - the person who is going to live up to his or her end of the bargain - has already done the legwork, figured out what he or she needs to do, and created an action plan to bring to court.  Goofus - the person who won't - comes to court and just asks for more time.

Nine times out of ten, Gallant will take care of business, and will come to court with paperwork verifying this fact.  Nine times out of ten, Goofus won't take care of business, and will come to court  armed only with another bullshit excuse, another plea for time, and another promise that he or she has no intention of keeping.

But that won't stop Goofus from trying again and again and again.  Long after Gallant has foregone small luxuries to pay down his or her fines, Goofus will come into court and talk about how bad things are financially because he or she doesn't have a job and only has SSI.  Never mind that many people in my county draw SSI despite making more money than I do in cash transactions from MJ growing/transporting/distributing.  Never mind that Goofus is wearing $200 shoes, carrying an iPhone, and has suspicious scratch marks on his/her face from the meth habit that hasn't cut into his/her budget for said luxury goods.

Which is another way of saying that Goofus's biggest issue isn't poverty so much as it is priority.  Goofus wants bling or rims or meth, and Goofus gets what Goofus wants; Goofus ignores everything else.  (And how nice would it be if Goofus wanted birth control!)

Then, when the court exercises its compassion for poor, jobless Goofus, and lets Goofus pay off fines in community service hours rather than money, Goofus will usually decline because he/she is too busy doing nothing to do community service.  And around and around we go.

It rankles, and it rankles more and more every time I sit in court and listen to these exchanges.  But it's so annoying that it begins to be funny.  These people who come to court after failing to appear for the twentieth time in two years, these people feel sorry for themselves, they feel like they're being victimized by society.  All of that isn't comedic and may even be true in the outlying case, but the joke of it is that they are usually stopped because of their own crappy driving.  The same sort of antisocial decisionmaking that leads them to play the court for a sucker leads them to drive 95 down the freeway while talking on a cell phone on expired registration and insurance.  To think that the mean CHP officer then had the gall to tow their car after finding out about their ten prior convictions!

But I guess that Goofus wouldn't be a habitue of my court if he or she made good life choices.  See, what rankles me is not so much the bad life choices as it is that these people come into court and try to manipulate the system by playing on sympathy.  What rankles me even more is that this sometimes works.  I think that it is a great failing of our system that the person who mans (or womans) up, who takes responsibility for poor decisions, is often worse off than the person who manipulates the system.

Sadly, this sort of behavior starts young.  I covered a juvenile calendar recently, and one of the offenders, only fourteen years old, was on his third theft offense in less than one year.  Additionally, the probation officer told me that his grandmother had caught him red-handed, stealing from her purse.  When she confronted him, he completely denied it.  His hand was literally hovering over her purse.  Although he hadn't been charged with this, it did put everything else in perspective.  The big issue was that he wanted to get out of juvenile hall on Friday so that he could play in his baseball game over the weekend, and he had written such a nice little note to probation (which, by the way, he had ready for her by the time she came to pick him up and take him to juvenile hall) asking for one more chance, just one more chance.  Disgustingly, probation bought into this, the court bought into this, and so it fell to me, the biggest asshole in the room, to stand against the insanity of rewarding these crocodile tears.

Your honor, I argued, he needs to learn that the consequence of doing things like this is that you don't get to do things you want to do, like playing in baseball games.  But my plea fell on deaf ears, and while the Latino who smoked pot got the full ten days, my cute, white, budding psychopath got to play in his baseball game, and learned a valuable lesson about manipulating the system to boot.  I'll be seeing him again.

But if my bullshit meter was not sensitive enough early on in my career, I feel that it is overly attuned now.  I was dealing with the family of a DUI-crash victim a few weeks ago.  The victim is a retired ER nurse and the widow of a former Army officer.  Her daughter is a teacher.  They are, in the daughter's words, the silent majority of my community.  She is absolutely right, and that is something that I remind myself of every day when I walk to work and pass people in the streets.  Those are my people, the ones who just want to live a quiet life free from crime and violence.  And they are honest people, which is not to say that they don't make mistakes, but when they do make mistakes, they come to court, own up to it, and get on their way.  They are the minority of the people I deal with, but make no mistak, they are the majority of my constituents.

Off of that soapbox, and on to another.  How could our system be improved?  First, the ground rules.  I am not going to waste my time imagining a completely different system from the ground up.  The reason for this is pretty simple.  We have a constitution that is decent enough, and, more importantly, that is not going anywhere.  In other words, no castles made of clouds.  Rather, I am going to point out some structural problems within our own system, and some minor tweaks that could be made to it without significantly altering the rules.

First, completely revamp the misdemeanor system to provide for court (i.e. not jury) trials in misdemeanor cases with 90 day maximum sentences.  This complies with federal constitutional standards, makes sense given that we have aligned many other facets of our criminal justice system to federal standards, and would allow low-level cases to be brought to trial quickly and efficiently, without wasting a jury's time.  Under this umbrella, I would include things like driving on a suspended license, and maybe even low-level petty thefts, and drug possession/UTI.

The only reason that most of these of these make it to trial is that defense attorneys hope that juries will be angrier at the prosecution for wasting their time than they will at the defendant for committing the offense.  In other words, they are looking for jury nullification, and prosecutors are well aware of it.  Don't think that this doesn't color my offers.

But to allow these crimes to go completely unpunished undermines the law.  To allow them to be punished only through fines is little better, since habitual offenders will simply never pay their fines, and must therefore have something else hanging over their heads.  And if it sounds weird for a prosecutor to be advocating for lower maximum exposure, the reality is that courts almost never sentence people to the maximum anyway; getting 2 days on a 90 day max is, in practice, no different than getting 2 days on a 6 month top.

Which brings me to my second point: Abolish 4019 credit.  Penal Code section 4019 is ostensibly good conduct credit.  In reality, it is a way to reduce the inmate population without seeming soft on crime.  Let me be clear: I have no problem with the Legislature reducing sentences; that is the Legislature's prerogative, and some crimes are probably over-punished.

I do have a problem with the Legislature doing it in a sneaky, underhanded, thoughtless way.  By enacting half-time 4019 credit, the Legislature implicitly reduced the maximum sentence on misdemeanors from the de jure maxima of one year, six months, or ninety days to de facto maxima of six months, three months, and forty-five days.  Again, that is the Legislature's right, but the Legislature should do this in a way that is obvious to voters as well as crime victims.

My other problem with 4019 credit is that it rewards prisoners for doing what they are already supposed to be doing, and my inner jackhole believes that prisoners should get time beyond their sentence for misbehaving.  I understand the rationale for this, just as I understand the rationale for rewarding your kid for getting good grades, but it still kind of rankles me.  After all, I don't get a bonus for winning jury trials.

Third, juries should have the option of returning a verdict where they find the charges true, but assign no fault.  The argument against this is of course that it encourages jury nullification (which everyone seems to be simultaneously for and against, depending on the facts of the crime).  The argument against the argument against is that juries already do nullify, it is worse to make juries lie, and at least prosecutors and legislators would be able to differentiate between lack of proof and nullification.  This may encourage different resource allocation and changes to the law, which, after all, should reflect the will and beliefs of the people that it serves.

Fourth, prosecutors should be able to comment on a defendant's decision to remain silent.  This in now considered prosecutorial misconduct, but was the law for many years in California, and remains the law in England (which, I am assured, is not going to hell in a handbasket).  If I can bring up anything that they say, it only seems fitting that I should be able to bring up the fact that they don't say anything at all.

The joke of course is that even if I can't mention the defendant's refusal to testify, the jury is already thinking about it.  The bigger joke is that the defense attorney usually brings it up in voire dire, opening, and closing.

Fifth, the person who comes to court and confesses to his or her sins simply needs to be better off than the person who comes to court and refuses to acknowledge guilt.  This would be better both morally - since we should reward honesty - and economically - if a defendant imposes costs on the system, the system should return the favor and impose costs on the defendant.

The good news is that this is easily solvable through plea bargaining that gets progressively harsher as trial approaches.  The bad news is that many judges are so afraid that appellate courts will view this as a trial tax (rather than a reward for good behavior) that they are reluctant to use their discretion to impose harsher sentences on the eve of trial or after a guilty verdict.

(As a caveat, there are close cases.  As I write this, I am set to go out on a .09/.08 and 08/.08 DUI.  This is a triable case, and I wouldn't necessarily punish this defendant too harshly, since I'm sure that he believes that he's innocent.  My beef is with the ones who game the system.  Discretion goes both ways.)

Anyway, just a few thoughts on the system.  As always, I welcome comments.

Turning an Aircraft Carrier

Back in the day when I was sure that I was going to spend the rest of my professional life wearing khaki, I had to learn various fun things like station keeping using mo boards, the propogation of electromagnetic radiation through various media, and the Rankine cycle.  Although these concepts were interesting, they have not been of much use in my post-khaki career.

But one topic has remained useful.  The rules of the sea - which I also had to learn - dictate that certain vessels have priority over other vessels; vessels with lower priority must surrender the right of way to those with higher priority.  These rules of priority reflect generalizations about the relative maneuverability of various classes of vessels.

For example, disabled vessels, which are unable to maneuver at all (ships' rudders only work when water flows over them - no flow, no turn), have the highest priority, followed by ships engaged in certain activities that prevent them from turning (e.g. fishing) and then sailboats, whose manueverability is completely tied to the direction and strength of the wind.  The lowest priority of all goes to motor vessels.

Although these rules make sense as generalizations, they also lead to some absurd results.  For example, an aircraft carrier, which is 1,000 feet long and displaces 100,000 tons, must ostensibly surrender the right of way to a 15 foot long sailing dinghy that displaces less than half a ton.

This is nice in theory, but of course a sailboat is to an aircraft carrier as a butterfly is to a car's windshield; thus, in practice, the sailboat's skipper would be well-advised to shake his fist at the aircraft carrier and keep out of its path rather than giving his heirs fodder for a wrongful death suit.  This common sense approach to the rules of the sea is known as "the law of gross tonnage," and is nothing more than an acknowledgment of what everybody really knows: Despite the fact that the rules insist otherwise, aircraft carriers are simply less maneuverable than small sailboats.  And when a law of convenience conflicts with a law of nature, the law of convenience must inevitably yield.  (Of course, even aircraft carriers must pick their battles.)


Which brings us to the real topic of this post: Large organizations - like aircraft carriers - do not adapt to changing conditions easily or quickly, and outcomes that seem to be logically self-evident are in fact adopted and implemented slowly (if at all).

In fact, an aircraft carrier is a good metaphor for many other large organizations for two reasons that transcend the carrier's sheer physical size.  First, there is a greater disconnect between an aircraft carrier's ultimate decisionmaker (i.e. its captain) and those that implement his or her decisions (i.e. its junior enlisted personnel) than on most Navy ships.  This is true in two senses.

First, given the size of a carrier's complement, each layer of management (i.e. senior enlisted and junior officers) has greater pressure to act as a gatekeeper for the next level of management.  This is not insidious; rather, there are simply not enough hours in the day to deal with all of the problems that emerge.

Second, an aircraft carrier is a prestige assignment, meaning that the captain (who is usually a senior O-6, rather than the O-5 or even O-4s who command other Navy ships) is perenially in the spotlight.  Furthermore, when the ship is at sea on deployment, the carrier usually houses the admiral who commands the battle group.  Although the captain has complete command of the aircraft carrier by law and tradition, only a foolish captain would forget that there is an admiral peering over his or her shoulder.

Consequently, decisions on aircraft carriers may tend to be risk-averse and slow in coming, and may reflect conventional wisdom rather than best practices.  So too with decisions by any large organization where the decisionmaker is subject to immediate, public scrutiny.  (An interesting example of this in high school football.)

But slow, risk-averse decisions that conform with conventional wisdom rather than best practices are, obviously, rarely great decisions and often not even good decisions.

For example, these sorts of decisions often ensure that large organizations are not at the bleeding edge of technology.  The reason for this is pretty simple, and is related to the decisionmaking cycle that organizations adopt.  Something that is very clearly a problem to those in the trenches - be they actual or metaphoric - does not become an official problem until the powers-that-be decide that is is a problem; until then, the problem is merely a gripe.

Once the powers-that-be decide that a gripe is actually a problem, they must officially study the problem and establish specifications that potential solutions must meet.  Potential solutions that meet these specs must then be tested before they can be officially adopted.  This process takes time, and by the time the official solution is adopted, it is very likely already obsolescent.

One example of this is the video system that the CHP (finally) installed in its patrol cars in 2011.  This system is low resolution, is fixed to point directly ahead of the patrol car, and writes to DVDs rather than to solid-state memory units.  In other words, this system would have been state of the art in 2001, but in 2011, where HD, solid state camcorders can be purchased for less than $200, this system is sadly lacking.

But perhaps the biggest problem with this system is that it doesn't provide prosecutors with a recording of the defendant's field sobriety tests; these tests are given to the side of the patrol car - out of the video system's field of vision - for reasons of officer safety.  Now, officer safety is something that I can buy into, but it's difficult for juries to understand exactly why the CHP is able to record the back of the defendant's car but not the defendant's FSTs.

Contrast this with the way that decisions are made in my small agency.  I am the junior attorney in my office, but when I have an idea that I think is good, I am able to walk into my elected DA's office and present my idea to him.  If he likes my idea, he will either immediately approve it, or tell me what he needs in order to approve it.  This significantly cuts down on the time and cost of implementation, and ensures that any technology that we purchase will be modern and capable.

So how do larger agencies get to the same place?  Most obviously, they need to push decisionmaking authority down the chain-of-command, and use their subcommands as laboratories for policy experimentation.  Of course, in order to do this, the powers-that-be need to give their subordinates the right to be wrong without fear of reprisal.

(Interestingly, before the days of instantaneous communication, subordinate commanders within large agencies were often given broad orders and told to implement them in whatever way they found suitable.  With instantaneous communication came micro-management.)

Taking even small decisions out of the hands of subordinates - or punishing innovation that is sound in theory but eventually fails - creates a culture in which fear and risk-aversion rule.  The result?  Governmental McDonald's - the same mediocrity no matter where you find it.

Invitation

As a few of my older posts will tell you, this blog was originally intended to be a forum for discussion.  For some reason, that never quite happened, and so this blog has mostly been me ranting into the wind, hoping that at least something would be audible above the maelstrom.

That said, I haven't abandoned my dream of a blog that will actually serve as a forum, and it occurs to me that there is a great need for a discussion of prosecutorial best practices.  I know that when I started, I would have loved to be able to read anything on topics as simple as laying foundations and cross examining experts.  Come to think of it, I would still love to read others' thoughts on these topics.

Please send me an email or a comment if you're interested in contributing, and I'll set up a new blog devoted to that topic.

Why law schools must change.

When I sat down to write my last post, I was actually going to write on a completely different topic, but then I digressed, and then I digressed again, and then, finally, my digressions and my digressions from my digressions swallowed the entire post.  It happens.

Anyway, on to the actual post.

One of the great ironies of law is that there is an enormous disconnect between the legal academy - which trains lawyers - and the legal profession - which hires lawyers.  The most obvious and unforgivable consequence of this disconnect is that recent graduates are initially useless to their employers, and remain useless until they have sufficient experience (perhaps euphemized as "on-the-job training") to understand the way that the law actually works.


Does this disconnect exist?

Absolutely.  Some examples:

Law students are taught that there are general principles of law that can only be divined from careful scrutiny of ancient and arcane opinions by judges long since dead. Lawyers know that most laws have been codified, and that the easiest way to figure out the state of the law is to open up Westlaw or LexisNexis and look at the notes that accompany the relevant code section. (Or, better yet, read the CEB right before going to court.)

Law students are taught that, for the most part, only US Supreme Court opinions matter. Lawyers know that state supreme and appellate court decisions - and even AG's office opinions - are often far more relevant to their daily business, and that even landmark Supreme Court decisions must be interpreted, fleshed out, and occasionally distinguished or attenuated by the state courts before they have any precential value meaning within a given state.

Law students are taught that cases are like equations. Punch in laws and facts on one side, and a result pops out of the other side. Lawyers know that you still need to convince at least one - and maybe as many as twelve people - that they should care about the law and the facts.

Law students are taught that the journals and law reviews that they run actually matter. Lawyers couldn't tell you the last law review article that they read or saw cited in a court opinion.

Law students are taught to place an undue significance on appellate law, and tend to look down on activities like mock trial and ADR.  Lawyers know that the vast majority of cases in both civil and criminal law resolve well before trial with some sort of negotiated disposition, and that most cases that do go to trial will not generate an appeal.


Is this disconnect a problem? 

Generally, yes, and for all parties.

Most obviously, this disconnect is a problem for clients, who end up subsidizing the training of these nascent lawyers.  Although many firms write off much of the work performed by their young associates, at least some of these costs are still generally passed on, either directly, or in the form of hours billed by more senior associates or partners who must spend their own time reviewing and revising the work of junior attorneys.

It is also a problem for employers because - on the private side - they are going to pay their new lawyers exorbitant salaries, knowing that their new lawyers are going to be a net financial loss for several years, that their more experienced lawyers are going to need to spend valuable time supervising their new hires, and that many new hires will leave as soon as they have acquired sufficient experience to actually become useful and profitable.

(As an aside, once you get past all of the mumbo-jumbo about duty and ethics, law firms are businesses and law is an industry rather than a profession.  The law firms that recognize this ask for cash up front and tend to stay solvent; the firms that don't recognize this end up accepting promises, which leads these firms into all sorts of nasty ethical and financial consequences.)

Finally, it is a problem for new lawyers as well.  Law school ain't cheap (tuition at my "public" school was $35,000 per year by the time that I graduated, and it's gone up since then), and a recent grad who is lucky enough to get a job may well find out that being a lawyer sucks.  This would be a better lesson to learn during or before one's first year of school, while the debt is nonexistent or manageable.

(For the record, not all law jobs suck.  I love mine, but I am also paid far less than my classmates who went into private practice; I would guess that I am happier than many of them.)

And of course, in today's economy, having a job that you hate is a good problem to have.  Knowing that no recent grad can be evaluated on actual, relevant skills, employers are forced to use proxies when they make their hiring decisions.  These proxies include law school rank, participation on law reviews and journals, and of course class standing.  But these metrics are imprecise at best, and plain backwards at worst.

For example, using law school rank seems like a nice shortcut to ensuring that employers end up with the best and the brightest, but the reality is that you can trace a lot of an applicant's law school rank back to an applicant's SAT (and no, not LSAT) scores and (perhaps) arbitrary decisions in middle school and high school.  Why?  Because a person who attends the "right" undergraduate school is far more likely to end up in the "right" law school.  How relevant are those factors to whether someone will become a good attorney?

Another example: Using class standing also seems like it would be a useful predictor, since most law schools use a strict curve.  Wouldn't this help an employer know that it was getting the best and the brightest out of any given class.  Not particularly.  My grades improved dramatically after my 1L year.  Did I suddenly get smarter or begin working harder?  Not at all.  I just figured out that I sucked at the three hour issue spotting exams that had been de rigeur during my 1L year (and which do not simulate lawyering), and I made sure to pack my schedule full of classes that had take home exams or term papers (which also do not simulate lawyering).

So, to tie this into a previous post, employers treat these silly metrics as though they're sacred and meaningful, but the hiring decisions that these employers make have too much in common with the NFL draft: A lot of Ryan Leafs and a lot of Tom Bradys.


So why does this disconnect exist?

This is a trickier question.  This disconnect has existed for quite some time, and it is puzzling to imagine why nobody has bothered to fix it.  I think that the easiest - but not entirely correct - answer is that - much like the military and fraternities - law schools are many years of tradition unhampered by progress.

The problem with this hypothesis is that law schools are themselves a fairly modern invention.  The American system of law is fairly well grounded in the English system (with smatterings of Roman law that are more immediately apparent in states with strong French or Spanish traditions), and the tradition in the English system was to learn law through apprenticeship.  In the United States, this system continued, and was called "reading for the bar."  For many years, this was the rule rather than the exception, and even now today one may read for the bar in a select few states (among them California).  But even with the advent of law schools, the core curriculum tended to be pragmatic.

This changed when Harvard dean Christopher Columbus Langdell adopted the case method in the latee 1800s.  All of a sudden, law schools were not concerned with teaching their students how to practice law, but were instead more concerned with teaching them how to divine great principles of law through analyzing opinions. 

(One particularly stupid side effect of this revolution was the idea that judges don't actually create law when they interpret statutes and other cases; rather, judges merely find the law that has always existed.)

Although some of the more spurious assumptions of this method of teaching - for example, the concept of found law - have created pushback - for example, legal realism -, the core method itself remains fundamentally unaltered even to this day.  And at higher ranked law schools, classes that teach practical lawyering skills are often sparsely offered and implicitly institututionally frowned upon.

At my own school, both of these conditions were present.  Despite being situated in an area replete with talented trial lawyers, my school tended to offer only a couple of practical classes each semester, and with few exceptions, these classes tended to be ungraded - in other words, we were not allowed to be evaluated on how good we were at lawyering.  Despite these shortcomings, the students' demand for these classes was overwhelming, as evidenced by the fact that they were always filled beyond their capacity.

So why - again - does this disconnect exist?  Well, I think that both the schools and the employers are to blame.

Let's start with the employers, because their complicity is easier to pinpoint.  By overvaluing law school rank and by continuing to hire grads who have no practical skills, they are acting as enablers for a system that refuses to acknowledge that it has a problem.  As soon as employers start hiring graduates from schools that favor practical skills - and those schools do exist, though they are few and far between - the top law schools will be forced to change their ways or suffer.

One problem of course is that many of the people who do the hiring are themselves graduates of these top law schools.  Rather than viewing these problems for what they are - waste and ineffeciencies - these decisionmakers may view them as a sort of Darwinian process - after all, the decisionmakers tend to be near the top of the heap, and their egoes may demand that they look at themselves as champions rather than flukes.

Another problem is that employers seem to believe that clients place more value on the degree on an associate's wall (or biographical webpage) than on whether or not that associate is able to produce efficient, high-quality work product from the moment that he or she is hired.

Thus, it may be necessary for clients to force these changes on the employers by insisting that they not foot the bill for on-the-job training.  There is evidence that this has already begun, and it will be interesting to see whether it continues after the recession.

But it's not really the employers who drive all of this.  The schools themselves are mostly to blame, and I suspect that the underlying cause of this problem is an institutional inferiority complex.  Law schools are essentially glorified trade schools - that is, that they are the training grounds for people who will eventually serve as technical experts within our society.

But unlike the other white-collar trade schools - medicine and engineering spring to mind - which tend to be based on immutable principles, law is based entirely on bullshit.  I don't mean that entirely as an insult, since our law actually tends to make sense (which is, I believe, the hallmark of a good system of law), but the truth is that legal laws are not natural laws.  So when an engineering professor does research, he can find a better way to conduct heat.  When a medical professor does research, she can invent a better way of transplanting organs.  When a law professor does research, he can . . . uh, well, write a long paper that will probably not influence the real world at all.  Worse yet, while society tends to respect the end product of engineering and medical schools, society tends not to respect the end product of law schools.

So what's the legal academy to do?  Empirically, the answer seems to be that the academy will distance itself from its end product and withdraw even further from the real world by pretending that law is more akin to a pure science than an applied art.

Thus, the legal academy devotes its time to finding Langdellian laws, frowns on practical classes, and trends toward hiring JD/PhDs rather than experienced lawyers.

It's this last issue that I want to devote a few more words to.  The path to professorship - at least at top law schools - seems to be fairly straightforward.  Successful applicants will have clerked for an appellate court for one year, gone on to clerk for the U.S. Supreme Court for another year, and then will have generally worked for one or two in practice years before seeking employment as a law professor.

Interestingly, it is incredibly tough to find employment as a law professor after you've worked for more than say five years.  I believe that this is telling.  After only one or two years of real world experience, a prospective law professor simply does not know the law or how to be a lawyer.  They've read - and will read - a lot of cases, and they may have even written a few opinions, but they fundamentally do not know about the practice of law.

In any other trade school, this would be a problem.  Can you imagine ITT Tech hiring an instructor who had designed a car but never fixed one to teach its students how to perform an oil change?  But law schools don't look at it that way.  In fact, law schools rarely hire experienced lawyers to teach, and when they do, schools euphemize away from the dreaded L word and call these professors "experienced practitioners" - as though it's so horrible to be called a lawyer.  Paul Fussell would have a field day with this.

But in so doing, law schools sow the seeds of their own real world impotence.  After all, it's not hard to understand why the real world resists being taught lessons by people who've largely chosen to remove themselves from it.


Is there a fix?

I believe that there is.  I believe that law schools need to fundamentally change their hiring practices and their curricula to better reflect the real world practice of law.  It is insane to me that law students spend hundreds of thousands of dollars to learn almost nothing of practical value.  It is even more insane to me that employers - and their clients - continue to implicitly sanction this.  This system is unsustainable, and it needs to change.

A few ideas for how this change might be accomplished:

First, hire experienced lawyers to teach.

Second, hire experienced lawyers to teach.

Third, fundamentally rethink the curriculum.  Get away from the traditional 1L classes, which often teach students pieces of the puzzle, but leave students confused about the big picture.  Instead, teach shorter modules that integrate procedure, theory, and practice.  For example, on the first couple of days of the criminal module, take the students through a criminal case from arrest through Supreme Court habeas appeal.  Then spend the next few weeks examining in greater detail the Fourth Amendment issues posed by the arrest and search, the Fifth Amendment issues posed by the subsequent interrogation, and the Sixth Amendment issues raised during court proceedings.

Fourth, make deals with local firms and agencies, and make shortish internships in multiple areas of law compulsory.  (For NROTC grads, think CORTRAMID.)  Force students to spend a month shadowing attorneys in various areas of law at the outset, and they will have some idea of whether they want to practice law, and if so, what area of law they want to practice.  Better yet, make this part of each module.

Fifth, focus on practical materials rather than useless casebooks.  For example, use the CEB books.  If you want your professors to get royalties, have them write a better CEB.  I'm sure that the argument against this is that many students will go on to practice in other states, but the law doesn't change that much between states, and learning the law of one state is certainly better than learning the law of no states.

Unintended Consequences, or: The long and winding road . . .

It's weird to think about, but I've been out of law school for almost two years now.  Of those two years, I spent the first two and a half months studying for the bar exam, and the next three and a half months awaiting bar results while simultaneously looking for a job.

(As an aside, that was hardly the position that I expected to find myself in after taking the bar.  In a typical year, approximately 90% of my school's graduates have received job offers by commencement.  My year - 2010 - was pretty much the nadir of the legal hiring recession that began in my first year of law school and that still has not ended.  The implications of this imbalance between labor supply and demand are interesting and worthy of their own post, but for the purpose of this post, suffice it to say that I was part of the approximately 50% of my class that was unemployed at graduation.)

Thankfully for me, US News & World Report stepped in and helped me get a job.  No, not directly, but law schools are particularly concerned with how that magazine ranks them against other law schools.  Although I am pretty sure that the rankings are arbitrary and substantively meaningless (and no, this is not sour grapes - my law school does just fine), perception is reality, and these rankings do probably impact a law school's ability to attract donations, as well as "quality" students and faculty.

(As further asides, a "quality" student has the right pedigree (preferably an Ivy or East Coast liberal arts school), good grades (inversely related to the ranking of the undergraduate school), and a good LSAT score.  Interestingly, many of the smartest people that I knew in law school had gone to "lesser" undergraduate schools - this makes sense if you think about it, because the top students in pretty much any college are going to be roughly equally intelligent, and the ones from the "lesser" schools had to stand out that much more in order to get a position at a top law school.

A "quality" professor has: 1) a law degree from either Yale or Harvard; 2) clerked for a U.S. Supreme Court justice; 3) published several papers on arcane areas of law that maybe five people really care about, and that the applicant only became aware of because of his or her work as a law clerk; and 4) not spent enough time actually practicing law to have become tainted by learning anything useful about the way that law actually works.)

Anyway, so there I was, with neither a job nor a bar license, living at home, sponging off of my parents - again - at the should know better age of 28.  Suddenly, my school called up and offered me a great opportunity.  They would pay me a small wage to go to work on a public sector / public interest fellowship that would last through December 31.  All I needed to do was find a job that met these criteria.

(Yet another aside.  The reason that my school gave me this postbar clerkship was that US News considers the employment rate of the graduating class on December 31 as part of its ranking criteria.  By giving me this postbar fellowship, my school was technically employing me, and this of course artificially inflated my school's graduate employment statistic.)

So after sending out hundreds of resumes and writing samples, I finally was offered an unpaid position by several DA and PD offices.  There were aspects of both that I found intriguing, and after a lot of soul searching, I eventually settled on a postbar clerkship at a large county DA's office.

But even when I took this postbar clerkship, I had not really thought beyond December 31 - I just knew that I needed at least something to put on my resume - but after working on my first case (which I wrote about several weeks ago), I was hooked.

Fast forward to now.  I have picked twelve juries, taken eleven cases through to closing argument, and ten through to verdict.  In two weeks, I will have spent exactly one year as a prosecuting attorney - five and a half months working as a volunteer attorney at the large county, and six and a half months working as a real DDA in my new home.  For some reason, this really excites me.

Life's funny that way.  When I entered law school, I never would have predicted that I would end up working as a deputy district attorney in a small county in Northern California. At that time, I had a stick up my ass, and I thought that DA's offices were far too provincial, that they focused on issues that were far too mundane to waste my life on; after all, I was going to save the world.

But the world begins at home, and after spending half a year working in this small office, I now realize that I have far more impact on my universe than I would have had if all of my 1L plans actually had come to fruition.