Alan Dershowitz says that Lois Lerner can be held in contempt for taking the Fifth in response to questions asked by Congress after making prefatory comments about the same subject matter:

“You can’t simply make statements about a subject and then plead the Fifth in response to questions about the very same subject,” the renowned Harvard Law professor said.

“Once you open the door to an area of inquiry, you have waived your Fifth Amendment right … you’ve waived your self-incrimination right on that subject matter.”

Scott Greenfield says he reluctantly agrees with Dershowitz.

Much as I am of the view that the sweep of the Fifth should be broad in order to fulfill its purpose, I am also of the view that once a witness offers denials to particulars, she opens herself to being questioned on what particulars she’s denying.  Which rules and regs is she referring to? What about this statement? What about that? Isn’t it true that you said.…  Well, that’s how examination happens sometimes.

Dershowitz is wrong, and Greenfield has missed the point (as has Volokh*). When subpoenaed to testify before Congress, you can simply make statements about a subject and then plead the Fifth in response to questions, and there’s not a damn thing Congress can do to you. Whether Lerner has waived her privilege by making statements is entirely irrelevant to what happens next.

Congress has delegated to the courts the power to punish people for contempt of Congress. There is actually a statute, 2 USC 192, governing a person’s refusal to answer pertinent questions, as well as caselaw:

Our view that a clear disposition of the witness’ objection is a prerequisite to prosecution for contempt is supported by long-standing tradition here and in other English-speaking nations. In this country the tradition has been uniformly recognized in the procedure of both state and federal courts. It is further reflected in the practice of congressional committees prior to the enactment of s 192 in 1857; a specific direction to answer was the means then used to apprise a witness of the overruling of his objection. Against this background s 192 became law. No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added burden was placed upon the witness and that a ‘mere substitution’ of a judicial proceeding for punishment at the bar of Congress was intended. The reason for enacting s 192 went to the punishment and not the offense. It was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the life of any session.  By making contempt of Congress a crime, a fixed term of imprisonment was substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had been called to testify near the beginning or the end of a session. But there is nothing to indicate that this change in the mode of punishment affected in any way the well-established elements of contempt of Congress. Since the enactment of s 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail.

Quinn v. United States, 349 U.S. 155, 167–69 (1955).

Before Lerner can be held in contempt for taking the Fifth, Congress must direct her to answer despite her objection. (Just like court, or a grand jury.) (It appears that someone has explained the law to Representative Darrell Issa, who intends to recall Lerner and, I suspect, specifically direct the recalcitrant witness to answer.)

The selective invocation of the Fifth, discussed by Greenfield and Dershowitz and others, is a red herring. If I am a witness in court, before a grand jury, or before Congress, I get to decide whether to take the Fifth. I don’t have to show good faith and nobody can second-guess me. “I take the Fifth” is a magic phrase with legal power. It might be nice for AUSAs to pretend that I can only take the Fifth in response to questions that, as Greenfield says, have a “good faith potential to incriminate,” but it’s a fantasy. As a matter of fact, as a witness I can take the Fifth for any reason or none at all.

Observe:

• If I refuse to answer a question on grounds of my Fifth-Amendment privilege and a court does not order me (or Congress does not direct me) to answer the question, I cannot be held in contempt or otherwise punished.
• If I refuse to answer a question on grounds of my Fifth-Amendment privilege, a court orders me (or Congress directs me) to answer the question, and I do not answer the question, I can be held in contempt of Congress or the court.
• If I refuse to answer a question on grounds of my Fifth-Amendment privilege, a court orders me (or Congress directs me) to answer the question, and I answer the question, I cannot be held in contempt or otherwise punished for taking the Fifth.

As a practical matter, I can take the Fifth in response to any question (“what color tie am I wearing?”). If someone asks me to justify taking the Fifth, I can take the Fifth. until I am ordered to answer, I cannot be punished for taking the Fifth.

If I am ordered (or directed by Congress) to answer the question and I answer the question, I have effectively been given use immunity for that answer. Why? Because the answer is compelled—I had to choose between answering and being punished—and compelled testimony cannot be used against me.

Can Lerner be “questioned on what particulars she’s denying”? Sure she can. And in response to questioning she can take the Fifth. 

Whether Lerner can be—or is—ordered to answer a particular question does not depend on whether she has “opened the door” or offered denials to particulars; it doesn’t depend on whether she had a good-faith reason for taking the Fifth; it doesn’t depend on whether she has “waived” the privilege. It depends only on whether the court or the Congress is willing to immunize her to get an answer.

(If Dershowitz were right, and Lerner could be held in contempt for simply taking the Fifth, all testimony before Congress would be compelled by Section 192, and therefore would be effectively compelled and legally immunized.)

Look for Issa to recall Lerner, for him to ask her a question, for her to take the Fifth, and for him to direct her to answer the question. At that point, if she answers her answer cannot be used against her. If she does not answer, she can be prosecuted (2 USC 194 requires Congress to refer the case to a U.S. Attorney to take before a grand jury) for the misdemeanor contempt of Congress (she gets a jury trial, since she could be imprisoned for more than six months). If she refuses to answer after being directed, though, Issa won’t stop there. She and Issa will repeat the routine with every question he wants to ask, each of which is prosecutable as a separate offense.

The pundits have made much of the advice that Lerner’s lawyer gave her. Here’s Greenfield:

No doubt her lawyer, William Taylor III, thought long and hard about her opening statement, how far it should go, how far it can go, before Lerner took one step too far.  It’s not an easy decision, given that there is no clear line.  Some might have counseled Lois Lerner not to step anywhere near the line so that there would be no question of waiver.  Some might push the envelope, allowing her to toe the line as closely as he thought possible.  And when the second option is chosen, maybe a toe goes over the line.

And here’s Dershowitz

He said the fact that Lerner went ahead with her proclamation of could be considered malpractice on the part of her attorney — although it’s possible she overruled the advice she received.

“It should never have been allowed. She should have been told by her attorney that the law is clear, that once you open up an area of inquiry for interrogation, you have to respond,” he said.

I’m no pundit, just a humble trench lawyer, but in Taylor’s tasseled loafers I might have advised Lerner to do exactly what she did: put your innocence on the record, and then take the Fifth. The worst that can happen is that you get directed to answer, and then we have to decide whether you do so (with immunity) or risk going to jail. In the meantime, maybe something shiny catches Darrell Issa’s eye and he moves on to something else.

In fact, as a courtroom lawyer I disagree outright with Dershowitz’s suggestion (has the man ever had to make a living thinking on his feet?) that advice to do what Lerner did might be considered malpractice. To the contrary, allowing her to answer the committee’s questions without being compelled would have been the malpractice: if she had done so, the answers might in the future be used against her in a criminal prosecution in ways that he cannot now foresee. But advising her to take the Fifth, he ensures that this will not be the case.

(Yes, I’ve written about this time after time after time after time; I’m the Johnny Appleseed of the Fifth Amendment.)

*Volokh and Greenfield quote dicta (that is, language not necessary to the decision) from Mitchell v. United States for the proposition that a witness cannot selectively take the Fifth. The dicta are based on: a) Rogers v. U.S., in which the witness took the Fifth only as an afterthought after she was dragged before a judge for refusing to answer for other stated reasons; and b) Brown v. U.S., in which the witness was held in contempt for refusing to answer questions even after a judge ordered her to.

A recent Gallup poll names the Houston, Sugar Land, and Baytown region among the least safe U.S. metro areas, according to resident confidence in the safety of where they live.

Only 63 percent of those polled in the Houston area responded that they felt safe walking alone at night in the area they reside.

* * * * *

Compare that to the 80 percent in the Minneapolis-St. Paul area who feel totally secure walking after dark. Texans might scoff that with frigid Minnesota temperatures, criminals would be stymied to commit violent acts in five layers of clothing. Houston must have crime-friendly weather, for the most part.

(Houston Chronicle.)

Maybe. Or Minneapolitans might more realistically scoff that Houstonians are more frightened than their crime rate merits.

The headline on the Chronicle article is Poll of residents puts Houston on list of least-safe U.S. cities. “Most-frightened” would have been more accurate: there is no strong correlation between violent-crime rates and residents’ fear.

According to FBI Uniform Crime Reporting Statistics for 2010*, Houston’s violent-crime rate (as reported by HPD) edges Minneapolis’s (as reported by MPD) only narrowly: 1071.3 violent crimes per 100,000, compared to 1062.3 for Minneapolis. (So much for the “too cold in Minnesota to jack people” theory.)

Jacksonville residents are as scared as Houston residents, with a violent-crime rate one-third lower (664.4).

Residents of San Bernardino, with a violent-crime rate of 773, are more frightened (61% “yes, safe”) than either Houstonians or Jacksonville residents (63%).

New Orleans has an even lower violent-crime rate (754.4) and more frightened (59%) residents.

Memphis residents’ fear is more in line with their danger. In line, but not necessarily proportional. Whereas out of 100,000 Memphis residents 1,607.8 will be victims of violent crime in a given year, fifty times as many don’t feel safe walking alone at night.***

“Math is hard” is my shorthand for Americans’ tendency to treat fear as risk, and this Chronicle article typifies the problem. Houston is one of America’s least safe cities (in the top third of the biggest 50, albeit safer than Tulsa, Nashville, or Indy, among others); there are solid statistics to put it there. A Gallup poll showing that Texans aren’t as brave as they like to pretend doesn’t show that Houston is unsafe; it shows that they’re unbrave.

*UCR stats are by police department rather than by metropolitan area. I’m using the major city in the area as a proxy for the entire area. Crime rates are generally lower in the suburbs, so metropolitan-area crime rates are generally lower than city-only crime rates. The image is of the fifty largest cities, sorted by violent crime rate.

**Neither Detroit nor Chicago residents appear to have been included in the survey.

***The fear of victimization is partly self-fulfilling. The more people are afraid to be outside at night, the fewer people are outside at night and the greater the likelihood that any of them will be victims of violent crime.

When I got a copy of Mark Geragos and Pat Harris’s Mistrial: An Inside Look at How the Criminal Justice System Works … and Sometimes Doesn’t in the mail, I was primed to be either outraged or bored.

I’ve expressed my view of L.A. legal culture and lawyers who rep celebrities qua celebrities before and clients who hire lawyers who rep celebrities, and I was prepared to be bored, when reading Mistrial, by Mark Geragos and Pat Harris, by a self-adulatory story book about the criminal-justice system for the TMZ set. The publisher sent me the book for free; I resolved to read at least fifty pages of it, no matter how atrociously celebrity-worshipping.

Pat Harris’s intro—in which the fomer Tennessee PD describes meeting Mark Geragos accidentally while looking for a high-profile lawyer to take his girlfriend Susan McDougal’s case for the media coverage, challenged my resolve to read at least fifty pages. A former public defender, of all people, should recognize that some of the best lawyers get the least publicity, and that “for the publicity” is a lousy reason for a lawyer to take a case (on that point, if publicity is the only currency you have, that’s the currency you spend). A former public defender, of all people, should not shy away from taking an unpopular case, as Harris later describes doing with the Scott Peterson case.

But I plugged on, and after I’d read those first fifty pages I tweeted a brief preliminary review: “doesn’t suck.” 

Geragos and Harris see the criminal-justice system through a California lens. They see a couple of things wrong (in what universe are judges “held to a very high standard by judicial commissions across the country”?); they’re narcissistically churlish two or three times (before they were removed from the defense of Michael Jackson, “[t]he case had become such a slam dunk that we doubted it would even get to trial”), but they’re right about the problems with the system, and they illustrate some of those problems well with anecdotes both from the defense of celebrities and from the defense of ordinary clients.

And mostly they’re right about the solutions. They close the book with nine meritorious suggestions for improving the American criminal-justice system, which if adopted would make the system much more fair and just (and one atrociously, hideously, ridiculously bad idea, which deserves to be mocked in a separate blog post).

And here’s a problem that this book solves: if you’re an ordinary trench lawyer and you write a blog or a book—even an eminently readable and entertaining book such as Mistrial—about the problems that slant America’s criminal-justice system unfairly against the accused, then most of your readers are going to be people such as me (and Greenfield, and Lat, and probably you) who already recognize that there are problems that bias America’s criminal-justice system unfairly against the accused. Most Americans, who have been sold by the Angry Blond White Women on the idea that the system gives guilty! guilty! guilty people too many breaks, are going to pass over your book—they’re too busy watching Nancy Grace, and if they’re reading anything law related, it’s The Complete Idiot’s Guide to the Criminal Justice System. This is a function of confirmation bias: most people, having concluded that the world is a certain way, will seek out evidence to confirm their conclusion and actively avoid evidence that might refute it.

So if a little bit of name-dropping by Geragos and Harris will get a few of those folks whose view of the criminal-justice system is informed by the talking heads on TV to read it—if they’ll come for the celebrities and stay for the diagnosis and the prescription—if the book itself helps cure one of the diseases it diagnoses—then godspeed to Geragos and Harris.

Can you think of someone who doesn’t already know that the system is screwed, but who might be open to the idea? Tell me about them in the comments; I’ll send my copy of the book (I resisted the strong temptation to annotate it) to the most worthy recipient.

One of the few great virtues of American criminal justice is that it is committed in the light of day. Courts are open to the public, and generally—not always; anonymous juries are becoming more common, which ironically means that the terrorists have won—the accused gets to know who is judging him. In any case, he gets some say, through the process of jury selection, in who judges him.

He doesn’t get any say in who makes the accusation against him, but in Texas, where there is a constitutional right to be tried on a grand-jury indictment, he can at least know who the grand jurors were.

Article 19.08 of the Texas Code of Criminal Procedure lists the qualifications for a grand juror:

1.  The person must be a citizen of the state, and of the county in which the person is to serve, and be qualified under the Constitution and laws to vote in said county, provided that the person’s failure to register to vote shall not be held to disqualify the person in this instance;

2.  The person must be of sound mind and good moral character;

3.  The person must be able to read and write;

4.  The person must not have been convicted of misdemeanor theft or a felony;

5.  The person must not be under indictment or other legal accusation for misdemeanor theft or a felony;

6.  The person must not be related within the third degree of consanguinity or second degree of affinity, as determined under Chapter 573, Government Code, to any person selected to serve or serving on the same grand jury;

7.  The person must not have served as grand juror or jury commissioner in the year before the date on which the term of court for which the person has been selected as grand juror begins;

8.  The person must not be a complainant in any matter to be heard by the grand jury during the term of court for which the person has been selected as a grand juror.

Only by knowing who the grand jurors are can the accused know that they have overcome these low hurdles. Fortunately, under Texas Code of Criminal Procedure Article 19.42 grand jurors’ names are a matter of public record: 

Art. 19.42. PERSONAL INFORMATION ABOUT GRAND JURORS. 

(a) Except as provided by Subsection (b), information collected by the court, court personnel, or prosecuting attorney during the grand jury selection process about a person who serves as a grand juror, including the person’s home address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, court personnel, or prosecuting attorney.

A bloated senator from Wichita Falls, Craig Estes, would change that, amending Article 19.42 to make the names of grand jurors secret, revealable only on a showing of good cause. Estes’s bill has passed the Senate, and is up for hearing on Monday in the House.

Estes styles himself a “conservative”; I don’t think that word means what he thinks it means: there is nothing conservative about turning grand juries into star chambers. 

Aside from the effect on the accused’s ability to ensure that he has been indicted by a lawfully composed grand jury, there’s the little matter of the public’s right to know what its government is doing. If Estes has his way and grand jurors are allowed to go to work disguised with hoods (quick: in your mind, are those hoods black or white?) stories like this one will never come to light.

Read Scott Greenfield’s closing keynote address for Lawyernomics this week in Las Vegas. There’s a race to the bottom in lawyer online marketing—“ultra-competitive business landscape,”* as Lawyernomics huckster Avvo would have it—Lawyernomics is there to psych lawyers up for that race—using Yelp! Twitter! Google! Virgin America!**—and Greenfield will*** exhort Lawyernomics attendees to go out there and win it:

* * * * *

Whatever sleazy thing the virtual lawyer does that angers you, frustrates you, makes you wonder why you checked the “Yes, I’m a’coming” box on the Cooley response card, don’t let it get you down. Just lace up those running shoes and be one step sleazier, one lie better, and you become the winner in the race to the bottom.

Until, of course, the virtual lawyer will then slide in beneath you. But there is always something you can do to go lower. Just don’t be like me and blush, or you will never make it in the ultra-competitive landscape of internet marketing.

Now, go out and be the best virtual lawyer you can be. Remember, you can always go lower.

Read it all.

*N.B. not “professional” but “business.”

**Wait, what?

***won’t really

Former Williamson County prosecutor (and now Williamson County District Judge) Ken Anderson has been charged by a court of inquiry with 1) criminal contempt of court; 2) tampering with or fabricating physical evidence; and 3) tampering with governmental records for his prosecution of Michael Morton. (Findings of Fact and Conclusions of Law, PDF, OCRed.) Which is nice—prosecutors who tamper with evidence and records to convict people of crimes (most especially, but not only, a prosecutor who, like Anderson, “does not believe in the release of [exculpatory] evidence if it may result in freeing an individual that he believes is guilty”) should be prosecuted, and should have to do every day of the sentences that their misdeeds brought their victims—but to little effect.

The statute of limitations for tampering with governmental records with intent to harm another and for tampering with physical evidence, both third-degree felonies, is three years. There is no “discovery rule”—no argument that the statute of limitations begins to run when the bad acts are discovered. Anderson’s bad acts were in 1987.

I have been told that some Texas lawyers think the criminal contempt allegation is not barred by the statute of limitations. Criminal contempt is not a felony—the maximum punishment is six months in jail and a $500 fine—but six months in jail will do more to deter future Ken Andersons (I see incipient Ken Andersons in the Harris County Criminal Justice Center every year) than will nothing.

I haven’t seen the argument fleshed out yet. But I don’t see how it works. Article 12.41 of the Texas Penal Code defines as a Class B misdemeanor any offense that “is not a felony” and has jail as a possible punishment. The statute of limitations for a Class B misdemeanor is generally two years. Criminal contempt is not a felony; it has jail as a possible punishment. Unless it is not an “offense” Anderson’s alleged criminal contempt is a Class B misdemeanor with a two-year statute of limitations. There are many Texas cases in which criminal contempt is described as an offense, including several applying the Blockburger test (whether each offense requires proof of an element that the other does not) to determine whether a criminal contempt conviction barred prosecution for the same act).

Anderson wins on limitations, and I have no faith that all those voters who have fled the scary urban milieu of Austin (white flight from Austin?) to live in the Constitutional backwater of Williamson County will return him to private life based on the monstrosity that he committed twenty-five years ago.

Everyone knows the Miranda warnings. We have heard them ten thousand times on TV.

Not everyone knows their significance—clients often ask me whether it’s significant that they were not read their rights when they were arrested. It is not; the rule of Miranda is this: A statement made by a defendant as a result of custodial interrogation is not admissible against him unless, before making the statement, he was advised of certain of his Constitutional rights. So the police only need to read you your rights when they are going to question you while you are in custody. Under Texas law the mere reading of rights has no legal significance—the reading must be documented by audio recording or acknowledged in writing by the defendant—so Texas cops don’t bother to read arrestees their rights.

In New York v. Quarles the Supreme Court created a “narrow” exception to the Miranda rule. The reasoning was that public safety trumped Miranda’s stated goal of ensuring that subjects of police interrogation knew their rights:

The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.

In a sense, any questions calling for incriminatory answers might be seen as “reasonably prompted by a concern for the public safety.” But that’s not the sense in which the Court decided Quarles:

The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

(Mr. Quarles was not thought to have an accomplice, so this is really about guns being so terrifying that the possibility of a law-abiding citizen finding one creates a sufficient danger to public safety to change the rules. Scratch that: it’s really about nibbling away at the Constitution.)

For a situation to justify unwarned interrogation, the information sought is—by definition—important independent of its admissibility. If something is going to be trumped by public safety, it should not be the procedures the police must follow if they want the information they obtain to be admissible. It should instead be the police desire that all information be admissible.

Even before Quarles, if the police wanted information that they thought they wouldn’t get from an arrestee who knew his rights, they could seek that information without advising the arrestee of his rights. Before there was a Quarles public-safety exception to Miranda, society was no worse off for the police decision to conduct an unwarned interrogation seeking inadmissible information rather than giving the warnings in hopes of garnering admissible information.

The press has talked about the government “invoking the public-safety exception,” but the exception is not some magic spell that gives the FBI forty-eight hours to talk to a heavily drugged arrestee without Mirandizing him and then use the information obtained at trial. Quarles clearly does not cover information gleaned with questions other than those “reasonably prompted by a concern for the public safety,” and while the government may want to broaden it, they cannot without the cooperation of the courts. When the Boston Police Commissioner says, “We’ve told the people of Boston we feel that they’re safe at this point in time,” that’s a good indicator that further interrogation is not prompted by the “immediate necessity” that existed in Quarles.

But where the Supreme Court makes an exception, the Supreme Court always broadens the exception. Quarles is the top of the slippery slope…the jackbooted foot in the door…the flesh-eating camel’s nose in the tent.

Others have pointed out that the police do not need to get admissible evidence through interrogation if they have enough against him already. Maybe what Tsarnaev tells the FBI won’t matter to the trial of his case. Maybe the government will have a cut-and-dried case against without using the product of his interrogation. Maybe the admissibility of the product of his interrogation will never be litigated. But “maybe” implies “maybe not,” and here I suspect not.

I expect that the admissibility of Tsarnaev unwarned statements to the government will be litigated, and I expect that the outcome of that litigation will not be convivial to our freedom. The spirit of the times, carefully cultivated by the government and the media, is one of fear, and the courts will move in rhythm with that spirit, making it easier for the government to put terrorists in boxes.

But when the government talks about “terrorists,” they’re talking about the people who they can claim are terrorists. And when they are talking about the people who they can claim are terrorists, they are talking about you and me. 

Five years from now we’ll be talking about U.S. v. Tsarnaev as another step closer to tyranny.

(See also Gideon and Greenfield on Quarles, Burney on Miranda, and Greenfield again on two-step interrogations.)

This is from the arrest warrant affidavit in the case of Kim Williams, the wife of Eric Williams, the former justice of the peace who is suspected of murdering three people in Kaufman County, Texas:

On April 16, 2013 an interview with defendant, Kim Lene Williams was conducted at the Kaufman County Law Enforcement Center. During the interview, Kim Williams confessed to her involvement to the scheme and course of conduct in the shooting deaths of Mark Hasse, Michael McLelland and Cynthia McLelland. Kim Williams described in detail her role along with that of her husband, Eric Williams whom she reported to have shot to death Mark Hasse on January 31, 2013 and Michael and Cynthia McLelland on March 30, 2013. During the interview, the defendant gave details of both offenses which had not been made public.

Kim has a privilege not to testify against Eric. She can waive it, though, and testify about what she saw and heard, including communications made to enable him to commit a crime.

But if her claim that he shot the three to death is based on his telling her about it after it was done, he has a privilege to keep her from testifying about that. She cannot waive that privilege.

So:

He loaded his gun and drove toward the McLellands’ house she can testify to, but doesn’t have to.

He told me, “Honey, this is what I need you to do…” she can testify to, but doesn’t have to.

He told me, “Honey, this is what I did…” she can’t testify to if he says no.

I don’t think the “Furtherance of crime or fraud” exception to the spousal-communication privilege has been widely litigated, but I foresee it getting a thorough workout here.

I heard Thane Rosenbaum on NPR yesterday, and was instantly struck by how juvenile this law professor’s understanding of justice and human nature is. (Greenfield wrote last week about Rosenbaum’s Chronicle of Higher Education piece.)

Rosenbaum’s stated premise is that justice equals revenge: “A call for justice is always a cry for revenge.” This is transparently false. There are many different notions of justice, and often when an injured person calls for justice he seeks restoration rather than retribution.

Rosenbaum asks, “Now, in cases where we have the worst of the worst, where there’s no question of someone’s guilt—heinous murders—why is it that we’re so ambivalent about actually providing just desert?” One answer, obvious to anyone who has ever shook hands with the criminal justice system, with ethics, or with Philosophy 101, is that the result of our actions is not necessarily an accurate measure of what we deserve.

In the CHE piece Rosenbaum writes, “America is no less civilized or law-abiding because bin Laden was assassinated.” This is at best arguable. I get the impression from listening to and reading Rosenbaum that he is trying to make his personal impulses the norm. But society serves to moderate, rather than amplify, personal impulses.

On further reflection, I can’t believe that a law professor is really so much of a simpleton. It’s not that Rosenbaum has a juvenile understanding of justice and human nature. I think it’s that he’s trolling us.

There is an interesting discussion to be had of the proper role of retribution in the American criminal justice system: retribution is a natural impulse; why should it yield to our moral intuition that punishment should be proportional to responsibility? Why should society strive to be “better” than its members, where being “better” means not satisfying members’ undeniable retributive impulse?

Unfortunately for that discussion, Rosenbaum overstates his case to the point of triviality to get attention (you’re welcome) and to sell books.

Quoth Papa Greenfield:

Shortly after an instructor first arrives at Cardozo’s Intensive Trial Advocacy Program, after settling in with a bagel and coffee, Ellen Yaroshefsky would give a speech about how to critique the students’ performance. It’s been the same speech for years: First, tell them something they did well. Give them praise. Then, when you tell them what they didn’t do so well, be gentle and constructive. End up on a positive note.

This is the new rule of teaching.…

This is not the new rule of teaching; it is an old rule of management. I remember hearing it from my dad some thirty years ago: when  you are giving a correction to someone you’re supervising, sandwich the negative between positives. 

It is a broadly accepted social convention. The question is, is it an obstacle or an aid to teaching?

Greenfield seems to think it’s an obstacle:

The directions to say something positive first, offer “constructive” criticism (and I use [doubt] quotes because construction is in the eyes of the student) and close on a positive note, creates what the study aptly describes as a Praise Sandwich, designed to make the student feel good at the expense of teaching the student to do better.

I am unconvinced.

Teaching and trial lawyering have a lot in common. In trial, we tell our client’s story the way we tell it not because of some idea of the “correct” way to tell a story, nor to convince some idealized jurors, but because we think that the way we tell the story will be the most effective way to get the actual jury to agree with us.

Scott, who would never try a case as though to idealized jurors, wants to teach as though to idealized law students:

While one might hope, even expect, law students to be both tough enough and interested enough to be capable of handling more serious instruction, including the occasional harsh recognition that they are totally off the mark, the evidence is otherwise. They can be just as fragile, entitled and narcissistic as any kindergartner.  Should they end up before a judge or jury one day holding another person’s life in their hands, their praise sandwich isn’t going to do them much good. But as long as they feel they were fabulous, that’s what really matters.

Yes, law students can be just as fragile, entitled, and narcissistic as any kindergartener. So, for that matter, can criminal-defense lawyers, even very successful ones. But just as the trial lawyer’s job is to convince real jurors, the trial advocacy instructor’s job is to convince real students. The Sandwich Theory has become social convention because it works. It works because most human beings—not just law students—are fragile; by sandwiching constructive criticism between slices of praise, the teacher sends the message that the criticism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sandwich Theory is a teaching tool—perhaps an effective one—and if you want to teach people you’ll use whatever tools come to hand.

There’s an ongoing philosophical debate among those of us (we happy few) who think about such things: whether, when a lawyer’s request for help reveals that he is out of his league, it is better to provide him with the help he asks for (enabling his continued blundering, but helping his current client) or to decline to help (not helping his current client, but not encouraging the lawyer to continue punching above his weight). Should we help the accused at the cost of nurturing incompetence, or make incompetent practice difficult at the cost of the accused?

At some point those who aren’t cut out for this job need to figure it out. Those who can’t stand being told that they are wrong, wrong, wrong should find their way into other ventures (like prosecution, or bonsai gardening). This is likely to happen eventually, though clients may be hurt in the interim.

But law school is not the place for this cull to be made, and where the Sandwich Theory is the advocacy program’s rule, it is not the instructor’s role to weed out those students who aren’t going to make it.