Blawg Review #284

In recognition of the 40th anniversary of her October 4, 1970 death, this edition of Blawg Review is dedicated to Texas*-born blues wailer Janis Joplin.

If freedom’s just another word for nothin’ left to lose, where in America would we look for free people? In our prisons, perhaps? At Balkinization, guest blogger Sharon Dolovich explains why the Supreme Court’s Farmer v. Brennan distinction between prison conditions and punishment takes the teeth out of the Eighth Amendment’s protections for prisoners: “Farmer’s holding encourages and even rewards a prison official’s utter failure to pay attention. This is Farmer’s legacy: a no-liability zone where inhumane and even brutal conditions create no constitutional liability.”

Those serving life sentences in prison have less to lose than other inmates (arguably, those who can expect, with good behavior, to get out in this lifetime have the most to lose and are therefore the least free).  In Britain, murder is punishable by a sentence between some minimum term (after which the murderer could, if he satisfies the Parole Board, be released) and life. David Osborne (The Barrister Bard) proposes reforming the system so that the courts have (once again) the power to impose the appropriate sentence in each case.

The inmates with the least to lose are those on death row. Gideon (A Public Defender) argues that we’ll never get honest answers in our ongoing national debate about capital punishment unless we ask the right questions, including this: “if we support the death penalty, are we okay with murder?”

The government wants to make us all just a little bit less free, one way or another, and rationalizes its actions as making us safer. Sometimes, as in the Anthony Graber cop-recording case, it fails—Radley Balko (The Agitator) and Mirriam Seddiq (Not Guilty) write separately about the court’s dismissal of the charge. Mark Draughn (Windypundit) writes about the Department of Justice’s Suspicious Activity Reporting (SAR) initiative; Jeff Gamso, who thinks much and deeply about the problem of government intrusion on freedom, writes in a pair of posts—involving “stranger danger” and SAR—about the opportunity cost of casting too wide a net of suspicion: “We get distracted by the false reports. They have us worried about the wrong things hiding from the safe in the midst of what’s dangerous.”

The anonymous writer of A Public Defender’s Life in Alaska moved to Alaska expecting freedom; instead, he found “People who don’t know how to mind their own business. People who call the cops for every little bullshit thing you can imagine. I don’t know these people personally. Everyone I know in this part of Alaska cherishes freedom. But they are out there. Bible thumpers. Busybodies. People who demand the police control the people completely.” Still, the Kenai Peninsula is probably more free than the CCTV-and-DNA-loving UK (Charon QC).

(You know who else I’ll bet cherishes freedom? Hogs, that’s who.)

Janis’s Mercedes Benz, recorded a few days before her death, is about materialism and status (“My friends all drive Porsches / I must make amends”), the quest for which Mike Cernovich (Crime and Federalism) calls “the happiness killer”:

Status is also weakness, because it puts your happiness into the hands of others. Status is concerned with how other people rate you. Why give other people so much power over your happiness?

Top-tier law-school graduates have high status; the grass is greener, writes solo Randi Menendez at Legal Rebels, for such lawyers with tons of debt than for lower-tier grads with little debt. Menendez ignores  the counterargument—that, with $150,000 or more of law school debt, a young lawyer has status but doesn’t have the freedom to pursue any opportunity without a big paycheck attached—but Greenfield (Simple Justice) praises Menendez’s essay.

That’s odd, because Greenfield writes often about the things—ugly, unethical, or just silly—that the desire for material things and status makes people do, and the marketers who take advantage of that desire. In the concisely titled Sucker, for example, Greenfield pokes fun at Doug Berman (Sentencing Law and Policy) for falling for one such scam and linking with a straight face to an advertising website’s “50 Best Blogs Discussing Capital Punishment.” (No, “Chris Jacobson” and “Celina Jacobson,” I will not help you propagate your silly little websites, no matter how many lists you put me on.)

Speaking of Mercedes-Benzes, David Lat (Above the Law) discusses a D.C. divorce lawyer who sued a client (also a lawyer) for half a million dollars on top of the $378,000 he’d already been paid, and wound up paying the client the price of a new S-Class.

And speaking of Porsches . . .

Here’s Janis with her ragtop 356C:

Janis Joplin Porsche 356C

Janis Joplin with her Porsche 356C

Janis was 27 when she died of a heroin overdose. Too much of one drug killed Janis young; a shortage of another drug—Thiopental Sodium—is lengthening lives in at least two states because, as Jeff Gamso tells us, Kentucky and Oklahoma have run out of the first drug in the three-drug lethal-injection cocktail.

Like any young death, Janis’s broke the hearts of those who loved her. From Dave Archer’s 2002 account of knowing Janis for the last nine years of her life:

I was married and living in a cabin in the woods, in Woodacre, California, when I got the news Janis was gone and I cried for days.

From that day, and for over two decades I avoided her music because it would just break my bones. When “Bobby McGee” came on the car radio Iwould switch stations, half unconsciously. Once in a park in Sonoma, before I found sobriety, I was drinking Thunderbird with some local “farmers,” when one of them, a girl, sang “Bobby McGee,” and I mean, like she was being auditioned for Wino Idol. It was terrible. When she finished “singing” I mentioned that I had known Janis and she got madder than Courtney Love and started yelling I was lying, and four jerks, including her, kicked the crap out of me, right there in the sunlight and dog mess, on the lawn in the park in front of all the tourists. Then they left and I got arrested for drunk walking in public. Jeeze.

Heartbreak is palpable in Justinian Lane‘s post about his 83-year-old father’s loss of his mental faculties, which Lane attributes to his dad’s doctors’ failure timely to perform the tests that would have revealed cancer before it metastasized to his brain.

One of the more heartbreaking stories this past week was the suicide of a Rutgers freshman following the surreptitious webcasting of his gay sex encounter by his roommate. Amidst the outcry over the roommate’s actions and calls for criminal prosecution of the teenager, Elie Mystal (Above the Law) speaks of his own past as a college prankster and suggests that even—perhaps especially—when juvenile pranks have tragic consequences, we need to resist the urge to criminalize immaturity. Mike Cernovich (Crime and Federalism), asking “Who Killed Tyler Clementi,” writes: “Instead of staring at an 18-year-old who played a teenage prank, we should ask ourselves what we are doing to prevent another Tyler Clementi.”

Dan Solove (Concurring Opinions) sees a different lesson in Clementi’s suicide: “People are irreparably harmed by the disclosure of their personal data, their intimate moments, and their closely-held secrets. . . . Using the Internet isn’t an innocuous activity, but is a serious one, more akin to driving a car than to playing a video game.  Young people need to be taught this.” “Dissent” (Pogo Was Right), like Solove, blames privacy invasion, and more generally society’s failure to teach its children the value of privacy. Jeff Jarvis (Buzz Machine) doesn’t blame technology: “The Rutgers story is not a tale of technology creating tragedy. It is a story of human tragedy”; like Cernovich, Jarvis would hold society partly to blame. Peter J. Black tweeted a comment on Jarvis’s post: “isn’t it about homophobia and hate speech and not technology?”

(Apropos of homophobia and bullying, but otherwise not of Clementi, The Greatest American Lawyer asks if homophobic Michigan Assistant Attorney General Andrew Shirvell is gay. Probably—those who act most offended by homosexuality usually are; that’s why it’s called homophobia. Charles Davis [Change.org] mentions the Shirvell story in his roundup of the week’s criminal justice stories.)

I don’t believe that any of the Clementi commentators have more than a post-hoc-ergo-propter-hoc hunch about the connection between Clementi’s suicide and his roommate’s conduct. Absent a suicide note or other unambiguous statement of reasons by the decedent, those who live on can do little more than guess what lay behind the decision. (Eugene Volokh (The Volokh Conspiracy) explains why he doesn’t blog about some topics; a search for clementi site:volokh.com turns up no hits. Coincidence?) But while a person’s decision to end his own life is often inscrutable, we always seek, as I noted here (Ed., is it bad form to include oneself in a Blawg Review?), to make sense of suicide by placing blame, whether on others or on ourselves. And so the suicide becomes a sort of ink-blot upon which we impose our own meaning; our explanations say as much about us as about the facts.

The explaining-and-blaming impulse is not limited to suicide; we do the same with any ambiguous untimely death. Says Janis’s bandmate Sam Andrew of The Holding Company, after Janis’s accidental overdose, her family “thought we murdered Janis, not to put too fine a point on it. They thought we brought her into a room and shot her full of heroin. They were from Port Arthur, Texas. How would they know what it was like?” (New York Times).

(I recently had a case involving similar feelings of misplaced blame, which I may write about some day. There has been discussion in the blawgosphere lately, including by Eric Turkewitz (New York Personal Injury Law Blog) of when lawyers should write online about their cases; this is an instance in which, while the case is resolved and I think there are valuable and interesting lessons in it, the time to write publicly about it is not yet (and possibly not ever).)This urge to assess blame for our heartbreaks fits in with recent research, which Rita Handrich (The Jury Room) tells us about, showing that “outcome[, rather than intent] is really central to how punishment is assigned.”

Another suicide—that of a prosecutor implicated in the ethics controversy surrounding the prosecution of the late Senator Ted Stevens—was less than heartbreaking for Mike Cernovich (Crime and Federalism). He writes that the deceased “was a narcissist who was exposed as a criminal.  Why should I feel bad when someone who tormented innocent men died?  I’m not going to pretend to care.”

J. DeVoy (Legal Satyricon) tackles a practical problem arising after a heartbreaking suicide: who owns the suicide note? She discusses, in addition to ownership issues, liability concerns when republishing a note containing the decedent’s accusations against other individuals. (Apropos of nothing but Janis, Devoy also writes about America’s three-year Summer of Love with Guatemala: “This is one of the first times, though, that regrettable diplomatic relations have carried the same consequences of similarly ill-planned sexual experiences.”)

Young deaths like Janis’s remind us of the transience of our existence; Mike (Crime and Federalism) writes: “If you had unlimited time, engage in frivolous self-obsession.  Since the clock is ticking, perhaps there are better ways to distract one’s self from the imminent death awaiting us.”

As Keith Lee (The Associate’s Mind) noted in Blawg Review #281, “The practice of law is a hard one. It churns through people and spits them out. Sometimes it breaks them.” (Dan Hull (What About [Clients / Paris]) simplifies.) Christian deFrancqueville (Saratoga Lawyer) returns to blogging after suffering personal tragedy; Antonin Pribetic (The Trial Warrior) publishes a poem, Fugue State.

Any lawyer who has been practicing for a decade or more has, I will wager, seen peers and mentors self-destruct in one way or another—suicide (actual or career), drug abuse, or other behavior counterproductive to representing people. Bobby Frederick (South Carolina Criminal Defense Blog) has a rundown of criminal defense lawyers recently indicted, convicted, or disbarred. But when a lawyer’s trade—the defense of those accused of crimes, say—is intrinsically offensive to those in power, it can be hard to tell whether trouble is the consequence of professional derailment or of aggressive representation, as in this post by New Orleans criminal defense lawyer Townsend Myers (criminal activity).

In a clearer example of derailment, Bad Lawyer sums up his own rise, fall, and return from the brink. He also gives a quick lesson in dealing compassionately with contemptible commenters. (And we’d all better find Zen ways of dealing with contemptible people online, since, as Evan Brown (Internet Cases) tells us, websites are protected by federal law from liability for defamation by anonymous commenters; I consider that a small price to pay for not living in Iran (Eric Lipman, Legal Blog Watch).)

(The video is from an April 1969 concert in Frankfurt, Germany. Thirty-four minutes of that concert [split into four parts] are here, here, here, and here.)

Scott Greenfield also writes about “Instant Law Partner” and Norman “Storm” Bradford, who have a service for lawyers who would rather hire a self-professed “brain trust” than try just a little bit harder for their clients.

And, finally, Lindsay Lohan was recently compared to Janis Joplin:

According to one Hollywood chemical addiction specialist, Marty Brenner, at this point Lohan could be “history” if she doesn’t receive a lot more intensive help.
“It seems Lindsay is on the verge of going down fast. It is not if – it is when – she is going to die, unless she gets the right the help this time,” Brenner, who does not treat Lohan, told Pop Tarts. “I wouldn’t be surprised if Lindsay was the next Janis Joplin.”

Not even close. No matter how hard she tries, Lindsay Lohan will not be comparable to Janis Joplin, except in the sense that dying of a nosebleed would make her the next Attila the Hun.

Further Reading

Forty years after her death, Joplin’s guitarist remembers the blues mama.

Margaret Moser‘s bio of Janis.

The New York Times has a slideshow of seven great pictures of Janis.

Janis’s wikipedia entry may or may not be accurate [Idolator].

No Janis, but music: Tom Kirkendall (Houston’s Clear Thinkers) links to Texas Monthly’s blurb on UT Press’s Austin City LImits: 35 Years of Photos.

Speaking of Austin, here‘s a picture of Janis from her UT days.


Peter Black (Freedom to Differ) hosts next week’s Blawg Review #285; until then, check out Colin Samuels’s Infamy or Praise for its Wednesday “Round Tuit” collection of blog posts.

Seize the week. Write a Blawg Review.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.


* Where men are men, and politics is a lot like beer. (Eric Lipman, Legal Blog Watch.)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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3 Responses to Blawg Review #284

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