Defending People

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 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.

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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.

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

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This entry was posted by Mark Bennett on Monday, October 4th, 2010 at 12:01 am and is filed under blawgs, connections, freedom. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.