Entire Blog Feed

Why the New Orleans Saints Bounty Penalties are Too Harsh

Steph Stradley — Tue, 27 Mar 2012 17:33:00 GMT

As a lawyer and as a NFL fan, I can't say I am a fan of the NFL-enacted penalties against the New Orleans Saints for bounties and the cover-up of the bounty program. Though much has been said and written about this, nothing really captures my fan-focused thinking. Here's some thoughts:

1. Bounties are bad. I'm not defending bounties, or that it is a good idea to lie or cover up things to the NFL Commissioner's office. Just getting that thought out of the way.

2. What is the purpose of NFL punishment? The NFL, unlike the legal system, doesn't have a set of penalties for different offenses. They are just making things up as they go along.

In this matter, the NFL enacted by far the harshest penalty they have done to any team (details of findings and penalties from NFL.com): Suspending Gregg Williams indefinitely (presumably a harm to the Rams if you like him as a defensive coordinator), suspending Sean Payton for the season (costing roughly a reported $5.8 to $7 million in salary), suspending GM Mickey Loomis for the first 8 games, assistant coach Joe Vitt for first 6 games, losing a 2nd rd pick this year and next, and a $500,000 fine for the team, and penalties of unknown severity to various players, some of whom may have already fined for player hits.

These harsh penalties should be a concern whether you are a Saints fan or not. If the NFL commissioner can do this to the Saints, he can do this to any team (and their fans). From the looks of it, the purpose of punishment for the NFL looks to be vengeance not deterrence: Anger about not changing the bounty program in 2009 after a warning, and covering up the extent and duration of the bounty programs.

Certainly, the aim of the NFL's punishment isn't just deterrence. You could do punishment that is less of half as bad as the currently enacted one along with the public shaming, and it would make sure that the "culture of bounties" and cover-ups ended once and for all. If you don't believe me, how much of your salary taken away would deter you or others from bad actions?

3. Arbitrary, strong punishments bad for fans. The problem with vengeance instead of deterrence apparently being the model for NFL punishments is that it hurts NFL fans. Saints fans had nothing to do with the bounty program or cover-up.

I know what it is like to pay large quantities of money to watch bad football (paid to watch the David Carr Texans from day 1 of franchise), and I only pay for one ticket and a parking pass. Plenty of fans pay a ton more. Maybe the Saints can overcome these penalties, but I don't think Goodell remembers what it is like to write a big, fat, painful check to watch bad football. It's Saints fans that are paying to eradicate the wide spread practice of bounties, and the vengeance over the cover-up. And they aren't at fault.

Who advocates for fan interests? It isn't the NFL. Saints fans weren't mentioned once in the NFL discussion of the penalties.

4. The investigation process and appeal. So what if Sean Payton thinks the punishment is too harsh or believes the NFL investigation was not as "conclusive" as the NFL says it was? The appeal goes to the Commissioner. How do you say that the punishment and investigation sucked to the guy who did the punishment and investigation?

"Delicately" isn't delicate enough of a word.

I've been involved with in-house corporate investigations. I've tried cases. And what I've learned is that the result of investigations and litigation is never the God's-eye, one-truth of a situation. It's an approximation. Some approximations are better than others. The best version of truth you can find given the differing memories, interests of different people.

Sean Payton in his brief recent statement about the penalties says that he does not believe he lied to the NFL Commissioner in his two trips to see him. It is quite possible that Goodell thinks he did, and Payton thinks he didn't. But given that Goodell is the judge, jury and appeals court, it's not likely that Payton's view matters.

It's hard to investigate anything when people are afraid of the results of the investigation. This is especially true when punishments are just made up on the fly. Like investigations using torture, you sometimes end up hearing what people think you want to hear. Or people who have knowledge lay low and try not to get involved.

And this situation isn't done. To approximate justice, the NFL is continuing to investigate individual player penalties and possible other team involvement in bounties. I can't say I am a big fan of the grandstanding, league commissioner as sheriff model. Never have been. (See this old blog post from 2009).

Today the Saints, tomorrow…?

What Not To Wear: Harris County Criminal Court Edition

Steph Stradley — Tue, 06 Mar 2012 22:15:00 GMT

The husband Bill reported seeing a guy at the Harris County Criminal Justice Center wearing this t-shirt. He wasn't sure if the guy was a defendant or visitor, but I don't have to tell you that's not an appropriate look anywhere.

I don't think this would impress the judge in a case...or the ladies.

If you disagree and feel the need to broadcast your manhood status to the world, you can find this shirt at Spread Shirt for $20.90. Bill thought about taking a picture of the actual guy wearing the shirt, but you don't want to be busted taking that particular picture. Ew.

Have you seen anybody wearing anything crazier than this at the court house? It wouldn't surprise me one bit. On some days it seems like there's more people dressed inappropriately casual than wearing respectful attire.

Clipper Darrell and The Legal Issues of Super Fandom

Steph Stradley — Mon, 05 Mar 2012 17:02:00 GMT

I've been watching the sad Clipper Darrell super fan saga with great interest. He says he is devastated that the Clippers told him that they preferred for him to drop the "Clipper" out of his name. Upset enough that just talking about it makes him cry (Part 1 and Part 2 on YouTube)

The Clippers responded with a crushing, ugly statement saying that that Clipper Darrell "has not returned our support in an honorable way. He is not actually a fan of the Clippers, but a fan of what he can make off of the Clippers."

A followup article by Dan Wetzel from Yahoo! Sports muddies up this more. Clipper Darrell says that "not a fan" statement was "hurtful man…They said I was never a fan."

The Clippers crawfished a bit from their statement, telling Yahoo! Sports they actually, "never questioned Mr. Bailey's role as a fan at games. This matter concerns Mr. Bailey's activities outside of Staples Center games."

I don't know. That Clippers statement was a brutality.

The Legal Issues of Clipper Darrell's Super Fandom.

I'm a lawyer who also is a sports super fan—the fandom came through a strange, unplanned evolution. I know a lot of super fans of all sorts (super-tailgaters, bloggers, forum managers and moderators, dressup types) across the country so it is easy for me to sympathize with Clipper Darrell.

Thought it would be interesting to create a discussion about the legal issues relating to super fandom. This gives me an excuse to write a blog post with one of my high school buddies who happens to be a very smart guy. Gene Spears is an intellectual property lawyer with Baker Botts, LLP. While his practice primarily involves patent litigation, he claims to "know enough about trademark law to be dangerous -- and to be fascinated by this whole Clipper Darrell business."

If you are in the need of intellectual property and patent law counsel, Gene is a very handy person to know. Here's our emailed discussion of this topic (weasel caveat: not legal advice, personal opinions to not be put on clients):

Legal Actions Against Nicknames?

Steph: "Clipper Darrell" was a nickname given to Darrell Bailey by radio folks. Not an unusual occurrence for big fans of a particular team to have that team name be a part of their nickname. Every sports radio station hears from team name guy, every message board has team name guy forum names and often message boards have team names in them. There are thousands of these sort of nicknames, though probably not too many for the Clippers given their history.

Common sense and advisability aside, can a sports franchise from a legal standpoint stop a fan from going by a nickname that includes the team name? What are some factors involved with that?

Gene: A sports franchise would have a very hard time stopping their fans from adopting nicknames that include the team name. Trademark law regulates uses in commerce of trade marks or trade names. Calling oneself "Clipper Darrell" or "Texans Chick" or "Cowboy Clueless" does not amount to a commercial use -- though blogging, publicly speaking, or hawking t-shirts and whatnot under those names would qualify.

As in copyright law, there is a "fair use" doctrine in trademark law, which, e.g., allows you and your commentators to comment on how the Texans defense sucks (or rocks, in the case of the 2011 season). The same doctrine should allow you to use the Texans name to identify yourself as a Texans fan. I don't see much difference between Mr. Bailey's saying "I'm Darrell, the Clippers fan" and "dude, I'm Clipper Darrell".

Trademarks are not property in the same way that patents and copyrights are. They are property surrogates that enable interested persons and firms to police the marketplace for consumer confusion relating to their products and services. In the case of the Clippers and Texans, the law's more for the fans than for the team. As long as Clipper fans don't expect that Clipper Darrell or Clipper Biff, Clipper Buffy or anyone else with a Clipper nickname is using those names with the team's permission, I don't see how there can be a trademark problem. As you indicate in your question, this sort of nicknaming is pervasive.

In Darrell's case, the Clippers would have another problem -- that they've allowed him to hold himself out (very publicly and with much flamboyance and flair) as Clipper Darrell. Federal trademark law has no statute of limitations.

Instead, the timeliness of suit is governed by a loosey-goosey equitable doctrine called "laches." In applying this doctrine, a federal court in California would consider the strength of the trademark, the plaintiff's diligence, the harm to the plaintiff, defendant's good faith, the degree of competition, and the harm to the defendant caused by the plaintiff's delay. The Clippers may be historically lousy, but their mark (like all the NBA marks) is strong.

The next four factors are pretty straightforward. The last one's pretty interesting. If the Texans were to come under the ownership of a sociopathic tooljob (is that you, Bud Adams?) and try to stop you from blogging as Texans Chick, you'd have a pretty good argument that changing your handle might lose some of those readers whose interest you've worked so hard to hook. In Darrell's case, I'm not exactly certain what the prejudice would be. There may be some personal existential crisis involved in surrendering a name that one's worn comfortably for years, but that may be a bit too Zen for a federal judge.

Steph: I don't know. How do you stop people calling you a sports nickname you've answered to for years?

Clippers Chasing Nickles. Do They Have an Obligation to Monitor Interviews and Financial Gains?

The Clippers seemed concerned that Clipper Darrell wasn't advising them of his interviews and public appearances as a super fan. They complain about his "unmonitored financial gain." He wasn't an employee or had a personal services contract with them. Do sports franchises have a legal obligation to monitor this sort of thing? Why should they even care?

Gene: This is an interesting question, but it's well outside my field and any answer I'd provide would be more-or-less pulled from my nether regions. I do know that the agreements between the Clippers and the NBA are very lengthy, very comprehensive, and may touch on this very issue. But that's pure speculation on my part.

Steph: As a super fan, I think it is sort of bizarre. The Clippers statement basically says "he was not an employee, so they did nothing wrong in telling him not to be Clipper Darrell." Who thought he was anything other than a big time fan?

The Wetzel article claims "The team told the Los Angeles Times it offered him a $70-a-night job as a cheerleader. Darrell said it never happened."

I don't think people that might have wanted to hire Clipper Darrell for appearances were hiring him because he had Clipper in his nickname. They would hire him because of his unwavering enthusiasm and ability as a hype man. When people like super fans, it's because they think it's cool that someone is as out there loving a team as much as they are. And they probably want a picture to put on Facebook. You can't get pictures of the players easily but you can of silly dressed up fans. Clipper Darrell is not remarkable just because his enthusiasm but because he clearly wasn't a bandwagoner in a town where it is easy to become one.

He says in the Wetzel article he's made about $7500 as a super fan over 18 years. Generally speaking, I can tell you from personal experience that superfanning for most fans is a money and time suck. Team-oriented fan-run sites often have a hard time getting enough money to pay for site hosting. Show me someone who runs a crazy-over-the-top tailgate, and I will show you someone that has spent a ton of time and money that they will never get back.

I am certain that the Clippers have received more than $7500 in good will publicity (prior to recent events) from Clipper Darrell, whether he was doing things for free or being paid.

I will not confess to how much money I've spent over the years on Texans tickets, clothing, events etc. It's embarrassing.The biggest expense is the time spent doing Texans stuff that could have been spent doing other things. Not complaining, just saying.

Team Website Names.

Back to question time: The Clippers apparently were concerned that Darrell made money from his association with the Clippers. His website shows a few trinkets that he likely didn't sell much of. And perhaps some personal appearances. Do the Clippers have a legal obligation to stop Darrell from making money from his super-fandom skills?

Gene: This question does raise an issue of trademark law. So in I go!

Very Bad Things can happen if a trademark owner does not police his mark. If enough unauthorized users enter the market, the mark's "secondary meaning" (the public's identification of the mark with a specific source of goods and services) can be undermined. Because the Clipper's marks are mature and likely incontestable in all fields where they're used, secondary meaning's likely not an issue for them.

"Genericness," i.e., the equation in the public's mind of the mark with the product it's sold under, is a potential problem and a trademark owner's chain-rattling nightmare. For several decades in the last century, Hoover could not enforce its trademark for vacuum cleaners, as the public was referring to all vacuum cleaners as "hoovers." A similar thing nearly happened to Kleenex. This is why the owners of valuable trademarks -- the Coca-Colas and Apples of this world -- can get downright nasty in their enforcement practices. Many trademark owners respond to unauthorized users in the same way you'd respond to a cockroach in the kitchen -- with a stab of visceral disgust followed by an uncontrollable urge to squish it flat.

Even a historically lousy franchise like the Clippers makes some money from merchandising, though I imagine it's a drop in the Pacific Ocean compared to the other LA team. Clippers t-shirts, bobble heads, foam hands, and other branded made-in-China whatnot are not like vacuum cleaners or facial tissues. No matter how many unauthorized sources enter the market, nobody's ever going to refer to a t-shirt or bobble-head as a "Clipper." The risk of genericization (I don't know if that's a word) is minimal. Nonetheless, cockroaches and unauthorized users being what they are, the response to them is almost autonomic.

Clipper Darrell could create some serious headaches for the Clippers if he starts sticking his name on stuff they haven't yet branded. This could interfere with the franchise's ability to enter those markets in the future and seriously impede their ability to secure trademark protection in those spaces. Were I trademark counsel to the Clippers, this is likely the reason I'd be looking to curtail Darrell's money-making ventures.

More on Nickname Control, Use.

Steph: Yet another level of weirdness to this matter is the Clippers objecting to Bleacher Report being credentialed to do a story on Clipper Darrell because it benefits them and provides no benefit to the Clippers. I am thinking given how their owner has conducted himself over the years, he doesn't really care one way or another for the concept of good will or utilizing fans as their best brand evangelists.

It's like they wanted to control Clipper Darrell's media activities because they gave him free tickets to do his thing. So what? Can you imagine other franchises trying to do that with their super fans?

Next Question: It is not uncommon for sports teams/layers to ask websites to change their website name, design to clearly reflect no affiliation. Usually they are firm and very nice about it. Given the long history of fans having fan/player names as part of their nicknames, do they have an obligation to tell fans not to go by a nickname?

Gene: If the Clippers (or the Texans) want to regulate the nickname usage of their fans, then yes, absolutely, they need to be getting those cease and desist letters out. While I have a hard time envisioning how a team name can go generic for branded merchandise, I can easily imagine how, through nickname usage, the team name can go generic as a reference to fans of the team. For any team with a significant fan base, the horse has likely already left that barn.

The Texans would have a hard time walking-back Texans Chick (or Texans Biff, Texans Buffy, etc.). Which is why you aren't going to see those cease-and-desist letters unless the team's acquired by an owner who's both a sociopathic tooljob AND a trademark lawyer.

Web site affiliation raises another interesting issue. As a blogger on All Things Texan, I assume that you (and your readers) value your independence, that your lack of association with the team makes your voice more objective and credible. It's great that you have that spiffy chronicle logo in the upper-land hand corner of your front page, to make it all the more clear that you are not some spokeswoman or propagandist for the team. If the Texans were to offer you the position of official blogger to the franchise, would you accept it? I'm guessing that the answer's no.

Steph: I think that fan nicknames are so ubiquitous that nobody seeing my writing would confuse a Texans Chick Stephanie Stradley blog at the Chronicle with an official website. Actually, someone from the Texans once asked me if I had interest in blogging for their website, but at the time I was writing for AOL Sports' FanHouse. After considering it some, I decided that I could do more for fans and the team at the time if I were writing for that site given the people I met through that, and the things I was learning at my time working with them.

I am a crazy dressed fan because I think sports are a special event, and you go to special events wearing appropriate style. Makes games more fun and sports are supposed to be fun. I started writing about the Texans because I couldn't find stuff I wanted to read about the team. I thought it would be a good thing for fans to encourage more reasoned dialogue about the team. (There weren't many Texans blogs after a 2-14 season).

But I am not objective. I am totally biased. But I am transparent with my biases: I want the Houston Texans to win with the fire of billions of immense suns. But I think you can want that outcome and still write with the intent of being fair and accurate. As a fan, I don't want to read people blowing smoke at me. I like writing with a point of view, and ones supported by logic and facts. Sometimes people think that I'm Texans Pravda, and sometimes they think that I'm too critical, but I figure the only way to agree with everything that is written is to write it yourself.

Interestingly, there's become a trend of hiring journalists to write for official sports websites. They claim to write the stories as journalists and not flaks, but there will always be skepticism from those who do not agree.

I've been offered a lot of money for some of the outfits I wear, and have been told I should sell my blinged jerseys. I'm not messing with NFL licensing one bit. "Texans Chick" is a descriptive nickname, and my outfits are for my own personal use (or for my friends when they need to borrow something for a game).

I've said this before, if I knew I would end up writing about a team for a newspaper blog, I likely wouldn't pick that name. I know it turns some people off. But I answer to it, and it's how some people know me, so it has stuck.

Ultimately, if I were to go from super fan sort (dress up fan/blogger) to employee of the team, likely the best use of my unusual background, connection with fans and blogging would be in more of a fan engagement management sort of role with a blogging/social media component. If you work in for a team, you likely were some sort fan first. I think Daryl Morey, GM of the Rockets is a most amazing example of someone whose brains, passion and enthusiasm for sport turned into something monetized into fabulous. It's a sports dork's dream.

And just because he makes money doing it, it doesn't mean he is any less of a fan. He's just now evolved into a different sort of fan. And if you talk to some of the people who work for teams, they say it can be fun but it can be very long-houred work. It's a job. Sometimes people can make their hobbies into jobs, but it can be challenging doing so without sucking the joy out of it.

Defamation?

Another topic: Clipper Darrell was "DEVASTATED!!!" (three exclamation points!!!) in his blog post written before the Clippers statement about being asked to take the Clipper off of his nickname. The team's statement read like a team kicking someone when they were down. It gratuitously slams Clipper Darrell stating, "We hold all of our fans in the highest esteem and we have been patient and generous with Mr. Bailey. He has not returned our support in an honorable way. He is not actually a fan of the Clippers, but a fan of what he can make off of the Clippers." (my emphasis)

Seems to me that no matter how much money he made from being a Clipper super fan, you'd have to be a fan to watch that many games of bad basketball and be supportive of the team. Can you imagine how much grief you get driving around Lakers territory in a BMW with a Clipper logo on it? Per se fandom.

I cannot fathom how painful this would be. I understand him crying. To be that completely vested in a particular team for most of your adult life, and for that team to publicly trash the nature and motives of your fandom?

Gene: I agree, this is PR fail of epic proportion. I also agree that going out of one's way to disparage someone, especially someone who is not a public figure (or only marginally so) is a very bad idea. If Clipper Darrell were Clipper Debby, is there any doubt in your mind that Gloria Allred would already be on the case, calling her press conferences and hogging the cameras?

Steph: It makes me wonder if litigation or bad PR is why in their interview with Yahoo Sports!, the Clippers seemed to edge away from their blanket statement impugning Clipper Darrell's fandom and motives. If you are someone with deep pockets, you have to be very careful of public statements that seem to go beyond opinion.

Gene: This has been a lot of fun, Steph. I'd like to conclude by contrasting you and Clipper Darrell with a different class of super fans -- the literary and dramatic property fanatics. Those writers of Harry/Draco slash fiction, those trekkies making fan videos with production values superior to the original series, they're all copyright infringers. With its statutory damages and presumption in favor of fee shifting, copyright law is VERY plaintiff-friendly.

Yet (in contrast to the Clippers) you don't see Scholastic or Paramount lawyering-up against their fans. The difference may be one of ownership and management. Whatever tooljobs inhabit the publisher and studio boardrooms aren't sociopathic enough to act against the interests of their firms.

Steph: The Yahoo Sports! article ends with this (rhetorical?) question from Clipper Darrell, "Can you still love a team and hate the organization?"

The answer is yes. Happens a lot. I think the old diehard Houston Oiler fans know the answer to that question. Some Cowboy fans know that feeling too, either dating back to Tom Landry's firing and/or more recently with frustrations over their GM structure.

There's a lot of muddled facts with this situation, but from what is known publicly, there is little to like about how the Clippers dealt with the situation. I truly hope they can find an accommodation that suits both Clipper Darrell and the organization. Not sure if they will be able to.

Though Gene and I have discussed this topic some, I'd like for others to share their experiences. I am sure that there are a number of fans that have encountered over-enthusiastic, nasty letters from team attorneys. And some who have received firm but kind letters from teams. I'd like to continue this dialogue.

Sharing Amazing Pictures: Life-Size Longhorn Grill

Steph Stradley — Fri, 02 Mar 2012 16:24:00 GMT

You love the Texas Longhorns? You love grilling? You love gigantic yard animals? Me too. All right-minded people love those things.

Well how about this life-size metal longhorn grill? You cook your favorite dead animal and/or vegetable of choice, and the smoke comes out of its nose. Really.

The husband Bill emailed me the picture on the right saying that he bought this. Got a tremendous deal. I'm not sure what constitutes a great deal on something like this, but it was less money than a unhorned boring small grill. The hard thing was transporting it--he was afraid it might come through the back window of the pickup. Being gored by a metal Longhorn grill would be one of those odd death stories that would certainly make the papers.

Alas, even though both Bill and I are Texas alums, we are not keeping it. Bill's law partner Matt Alford is the biggest UT fan we know, so the grill goes to him. It's just the right thing to do.

More pictures:

Longhorn in the back of the truck:

His noble Longhorn face:

Lots of grilling room. Mmmmmm:

His metal anatomicals. Craftsmanship!:

Don't ask me how to purchase one. I think there were two made, and we got the guy's extra one.

NOPE

Steph Stradley — Mon, 27 Feb 2012 17:07:00 GMT

NOPE!

I guess from now on when I want to say "Nope" to someone with a face that says "Really??!," I will just link to this page.

-------------------

This is a picture of the spouse Bill when we visited the Houston Modern Market this weekend. I'm not sure you want a gigantic mod sign saying "NOPE" in your house or place of business. Think if there's a Feng Shui rule on enormous signs, this one would bring too much negative energy.

I didn't end up buying anything at the market this year, but like last year, I find it inspirational. Think my goals these days involve buying less, getting rid of things I don't love so I can more easily find the things I do. Living simply. Like supporting the Houston Modern Market because part of the proceeds go to Houston Mod.

It used to be a challenge to get people to appreciate modern architecture and design, but I think every since the TV show Mad Men, it's been sneaking up on people. For sure, the prices have gone up. Check out this great article from the The Mid-Century Modernist blog entitled, "'Mad Men' Furniture: Don Draper’s Office."

It's amazing how much mid century you see in the set design of commercials trying to make products look cool. I usually like the houses in car commercials better than the cars.

Sharing Amazing Pictures: Giant Bull

Steph Stradley — Thu, 23 Feb 2012 17:30:00 GMT

For sales pictures, photographers usually stage pictures carefully to make the product more attractive. I don't think this picture was staged, but you never know.

Is the bull smiling?

If you wish to purchase this gigantic bull or any number of gigantic yard animals, you can find this at Aluminum Critters.

How did I find this picture?

The husband Bill sometimes travels out of town to work on criminal defense cases, and apparently on the way to College Station, there's a place that has various yard animals and statues. The small rooster that's in the blog header picture is a result of one of those travels a few years ago.

But they also have a gigantic rooster. That resulted in this faux serious picture on the way home:

Bill wanted to purchase the rooster but they wanted thousands of dollars for it. Which is thousands of dollars more than our budget to spend on yard whimsy.* But it would look perfect in the yard because you can never go wrong with a gigantic rooster, so I decided to go online to see if I could find a better price on It. We could pretend it was sort of a Jeff Koons sort of arty thing.

No dice. The emailed quote I got on the "Giant Rooster Chicken" was $3959.44 delivered.

Whilst looking for the Giant Rooster Chicken, I ran into the Mexican Bull picture at the Aluminum Critters website. Looked at the bull statues because I wanted to see how similar they were to the ones outside of Reliant Stadium. Not the same at all.

-------

* One of my favorite writers in the Universe is Jenny Lawson aka The Bloggess. She is hilarious, and a much braver writer than I could ever be, and if you click on that last link, you can burn a lot of time in a fun way. She too appreciates Giant Rooster whimsy but sensibly chose the much more economical, less hyper-realistic metal variety.

Please go pre-order her upcoming book,"Let's Pretend This Didn't Happen." Why? Likely because it is very good. And also because it's good to make a point of going out of the way to support good things and good people because a society gets what they support. (Insert whatever reality programming name makes you want to vomit the most). And if you find pictures of strangely-staged large statues of bulls amusing, then you will certainly appreciate her writing.

Talking to Your Kids About Jail, the Law, and Avoiding Dumb Choices

Steph Stradley — Fri, 10 Feb 2012 17:31:00 GMT

Most of the people who hire our criminal defense firm have never been in trouble with the law before and see themselves as law-abiding people. Everybody wants to throw the book at criminals unless it is them or their loved one that becomes part of the legal process.

In our practice, we see many cases of people who get arrested due to random dumb things, misunderstandings and/or a weird set of circumstances. And one of the most difficult situations is when kids become a part of the legal system. It can disrupt their school and life plans. Seems like there is no such thing as "youthful indiscretions" anymore.

Recently, read some interesting articles that may be worth talking to your kids about.

Evin Mintz of the Memorial Buzz wrote an article entitled, "On a Bad Day, Anyone Can End Up in Jail." The article talks about booksmart kids who sometimes do dumb things. In some ways, kids can't help but doing some dumb things because of their brain chemistry. Neuroimaging research suggests that the frontal lobes that govern things like impulse control and sensation seeking are still developing up through the mid-20s.

Even when people don't do dumb things, they can be pulled into the legal system. George Flynn of The Houston Press wrote a chilling cover story called, "A Wrong Turn:Once Galveston emergency personnel discovered the dead motorcyclist was 'one of us,' a Bellaire teenager's nightmare revved into overdrive." Very concerning story about media rushes to judgment, and how difficult it can be to get the authorities to drop unsupportable charges, particularly when it involves public servants.

In my observation, the criminal justice system seems more throw-the-book at people than it was when I was growing up. Instead of getting warnings, kids are going to jail. It's worth talking to your kids about the science of their developing brains. About making good decisions. About the consequence of bad decisions. Keeping an open and truthful dialogue with them, even when they are telling you things you don't want to hear. I'm sure you do this already, but sometimes discussing articles that talk about real kids can make this seem more real.

Unfortunately, sometimes talking isn't enough as experience is the harshest of teachers.

Why Does the Sheriff's Department Want to Censor Our Law Firm Website? Issues at the Harris County Jail.

Steph Stradley — Wed, 01 Feb 2012 13:50:00 GMT

If you practice criminal defense law in the Houston area, you may not be terribly surprised at the article in Sunday's Houston Chronicle entitled, "Discipline problems persist at Harris County Jail." The article relates stories of excessive force and humiliation at the Harris County Jail.

What you might not know is how the Sheriff's Department uses taxpayer resources to send over-wrought letters complaining about people's opinions about the jail experience.

Here's my story about our taxpayer dollars at work....

Last year, I helped revise our law firm website. Shortly after this was completed, we received the following email and hard copy letter from Alan Bernstein, the Director of Public Affairs for the Sheriff's Department and former journalist for the Houston Chronicle (Yes, this is real and unedited with the exception of deleting email/web/phone information):

From: Bernstein, Alan (HCSO)
Sent: Wednesday, June 08, 2011 10:02 AM
To: Legal Assistant
Subject: Serious allegations

(By e-mail and U.S. mail)

Dear attorneys:

As a newspaper reporter and editor from 1976 to 2009, I learned how to identify – and to abhor -- an erroneous allegation. You know what I mean, because on your law firm web site you state that “a painstaking assessment (of a charge) involves a review of all statements . . . to determine if any errors exist that could lead to an early dismissal” of the allegation.

So I hope you will live up to your principles by deleting from said web site this inflammatory and highly dubious statement: “The jail personnel, especially in Harris County, seem to take a perverse pleasure in making the jail visit as unpleasant as possible. Their actions sometimes border on the sadistic, and the client who is finally released on bail, fatigued, dehydrated and humiliated, vows never to go back.”

I’ve got to admit, there are some crafty “weasel words” in there. It says that jail personnel in Harris County “seem to” take a perverse pleasure in making the jail visit as unpleasant as possible. But the damage of an unproven allegation has been done regardless.

Question 1: What specific evidence do you have to justify the statement that our “personnel” (meaning more than one) seem to take a perverse pleasure in anything? If you have none, please withdraw the statement. If you have some, please provide it to me and I will relay it to jail commanders for corrective action.

Question 2: What specific evidence do you have to justify the statement that “their actions” (meaning the actions of multiple people) border on the sadistic? If you have none, please withdraw the statement. If you have some, please provide it to me and I will relay it to jail commanders for corrective action.

As for the rest of your noxious phrase, I do not doubt that many clients leave the jail fatigued and humiliated. But this leads to . . .

Question 3: What specific evidence do you have to justify the statement that “the client” is “dehydrated” in situations where they have not refused sustenance? If you have none, please withdraw the statement. If you have some, please provide it to me and I will relay it to jail commanders for corrective action.

Question 4: In your visits to jail clients, what have you witnessed that supports your allegations?

Question 5: Since you describe yourselves as former prosecutors, were the conditions you now describe present when you prosecuted?

Question 6: If so, what did you do about them as officers of the court?

Sheriff Adrian Garcia and staff strive to provide the public with a safe (for inmates, staff, visitors and others) environment that complies with and often surpasses all regulations and accreditation standards. No one guarantees a fun experience there, but we do take allegations seriously, unfounded or not, as should be obvious by this letter.

In the meantime I look forward to your responses.

Alan Bernstein
Director of Public Affairs
Harris County Sheriff's Office
1200 Baker St.
Houston TX 77002

Alrighty then. My first inclination when I read that was to send a response something similar to the infamous Cleveland Browns stupid letter.

Ultimately, I am certain that running one of the busiest jails in the country isn't easy. And at least, Bernstein agrees with our law firm site that Harris County Jail is not a fun experience that leaves some people feeling fatigued and humiliated. But doesn't the Sheriff's Department have better things to spend their money on than scouring the web to find unhappy words about them and send long, whiney letters? And what's with a former journalist using his position to try to censor other people's points of view?

Or in the words, of County Judge Ed Emmott relating to the recent Sheriff Departments felony database debacle:

"This is proof that we need more budget professionalism and less focus on public relations. We need to be about the people's business rather than trying to win our arguments in the press whatever that might be."

Just inexplicable.

Q&A on the Jerry Sandusky Child Sex Abuse Cases

Steph Stradley — Tue, 13 Dec 2011 18:05:00 GMT

As a former assistant district attorney and current criminal defense lawyer, my husband, Bill Stradley is known for working on difficult trial cases that other attorneys do not have experience handling. Recently, he was asked by Ian Simpson of Reuters to comment on the Jerry Sandusky child sexual assault case. This Q&A format may help expand on his thoughts and help further understanding of the situation.

Our Q&A:

Q: In the article, you were quoted as saying "This is going to be a difficult trial. It's going to be brutal." Can you explain further?

A-Bill Stradley: The difficulty of most criminal matters relating to sexual crimes against children is that usually there are no third-party witnesses. In those circumstances, it can be extremely difficult to distinguish true reports of sexual abuse versus false accusations. Sometimes when there is a witness, the witness isn't clear about what they saw or perhaps has a reason to lie, for example with a contentious child custody dispute or wanting to receive financial gain. (Yes, that is a sick thing to allege without basis, but it happens).

Often, these cases result in a not guilty verdict due to obvious reasonable doubt.

To have multiple witnesses to a sexual assault of a child is extremely unusual, and more unusual for no action taken against the assailant for many years. To have police officer witnesses to what amounts to a confession? How could this happen?

Evil exists. Why people see evil and don't stop it is one of those all time questions. Some try to explain it with science.

It's enraging to read the Sandusky grand jury investigation [pdf], or the summary of the investigation. If all is taken as true, it becomes difficult to think that in order to protect the reputation of a school and a sports program, most of the parties involved became willfully ignorant of such crimes. Don't know if that says more about the excesses of sports or the worst of human nature.

Or perhaps it suggests that the facts are more muddy than the grand jury investigation suggests. Already, there have been conflicting public reports about what the graduate assistant witnessed.

As bad as the grand jury investigation document is, the trial will be much worse. It is hard on the accusers. It's difficult to find impartial jurors to even impanel a jury, and these cases are emotionally difficult on those jurors. The details by the nature of the crime will be graphic.

Some times plea deals happen to avoid putting the accusers through the difficulty and emotion of a trial. However, with so many accusers and Sandusky's age, it is possible there's no plea deal that could be acceptable to both sides.

Q: In the article, you talked some about merging the cases. Please explain more about this.

In Texas, in a case involving multiple accusers, the defense may choose to try each case separately. In doing so, only the evidence of that one case gets in front of the jury. The defense counsel then needs to take care not to ask questions that would allow for the prosecution to argue to the judge that the defense has "opened the door" for the other offenses to come into evidence. The down side to that approach is 1. having to defense multiple trials; 2. if found guilty, the defendant having to face sentences that are stacked on top of each other instead of running concurrent.

The positive side of doing that is if there is a not guilty verdict, depending on the evidence, it can lead to a favorable plea deal or the dropping of all the other charges. In addition, it is easier for jurors to find reasonable doubt involving one incident than if many people are saying the same thing.

Strategically, given the publicity in this case, many of the benefits of trying each case separately go away because it would likely be impossible for the defense to find jurors that do not know about the multiple accusations against Sandusky.

Q: Were you surprised that Sandusky's lawyer waived his right to a preliminary hearing?

It depends on what Sandusky's lawyer is attempting to accomplish. If he is truly preparing to try this case, a preliminary hearing could have been very helpful to know what the specifics of the testimony were going to be and how good the witnesses would be for the prosecution. The defense counsel in this circumstance would not need to do any cross-examination.

If a plea deal were being contemplated, then all that the preliminary hearing would do would be to inflame the public and create unnecessary emotional hardship for the accusers. Even so, Sandusky can't make a plea deal with himself. If the prosecutors do not want to make any reasonable deal, Sandusky's lawyer will have to go to trial without the benefit of the information from the preliminary hearing.

Theoretically, you might want to avoid the hearing so as not to taint the potential jury pool further, but as it is, it may be difficult to find people who haven't made their minds up about this matter.

Also something to consider is potential civil cases against non-Sandusky defendants, like the university. The accusers may wish to obtain a quick plea that unequivocally gets Sandusky to admit guilt and his actions, and then use Sandusky's cooperating statements to find civil liability against others.

Even when people are guilty of crimes of this nature, it is often difficult for them to admit their guilt to anyone. Sometimes they would rather have a jury convict them of the offense and risk maximum sentences than to admit to their families and the world what they have done by pleading guilty.

Q: What complications arise from Sandusky's phone interview with Bob Costas?

Typically, attorneys do not want their clients to speak to anyone, even if the defendant is actually innocent and wants to publicly maintain their innocence. Few good things come from that.

In high media attention cases, sometimes attorneys can make the strategic decision to have the defendant make a statement in order to get their side of the story public to help minimize damage to the jury pool. Sometimes the defendant sounds sympathetic and truly innocent in their statement. In addition, it may allow the defendant's side of the story to be known without the well-known dangers of presenting the defendant as a witness.

In the interview, Sandusky admits to showering with children and engaging in horseplay. Including the time witnessed by the graduate assistant. This means at time of trial, his defense attorney can't maintain that the event never happened. Hard for a defense counsel to claim that showering with unrelated children was completely innocent, or that Sandusky in the interview sounds sympathetic at all.

Q: The Sandusky matter also involves university personnel who failed to report the injury to children. Some people think not enough of the people who knew of the abuse were charged. What are your thoughts on that?

A: Failure to report child abuse cases can be complex. What did the witnesses know and when did they know it and did they do enough. Getting accurate information on that becomes more difficult the more highly charged the subject matter and the more publicized the case.

For example, I recently defended a failure to report child abuse case involving a school administrator. The case involved an assault that was filmed on video and widely distributed on TV and social media, so there was a great deal of public pressure to prosecute.

It turned out that once the true facts came out, a jury decided to find the defendant not guilty after deliberating for about 10 minutes. The facts demonstrated conclusively that the defendant did not know and shouldn't have known the nature of the assault, tried to do further investigation in a timely way, and had no reason to go to the police with the information he knew at the time.

I do not think that case applies to the Sandusky matter given what's contained in public reports. What I do know from my dealings with the criminal justice system and the law is that I am highly distrustful of public information about legal matters, especially involving emotionally charged, high publicity cases.

It is cases like this that challenge people's feelings about "Innocent until proven guilty" abstractions when faced with the reality of terrible allegations.

*******

I'd like to thank Bill for helping me put this together. It's difficult sometimes explaining legal things in a way that is clear but also accurate, and I like when I am able to help with that. If any media members wish to get additional questions answered on this topic, please visit Stradley Chernoff & Alford's contact page and ask for Bill.

My Sister Deb's Thanksgiving Message to Us All

Steph Stradley — Wed, 23 Nov 2011 14:56:00 GMT

I learned about blogging from my sister Debby. She wrote an inspirational blog that started off talking about her life and her love for daughter Zoe, and sadly ended talking about her fight against leukemia that eventually resulted in her death [her obit]. She beat leukemia once, but relapsed in November 2008.

On Thanksgiving of that year, she became very sick from the effects of the chemotherapy, and I rushed her to the MD Anderson ER. I've never been as thankful as I was that Thanksgiving. Sad we couldn't be with our family, but thankful that hospital workers were there to take care of her, and cafeteria workers provided an imperfect turkey dinner.

Debby stayed in the hospital from Thanksgiving 2008 until her death in May 2009. For the last 6 months of her life, she was confined in loud ICU wards. She could only breathe through a respirator, could barely move, was in near constant pain and could not speak. She fought hard, painfully to live, and when they finally told her that she would never get off the respirator and that her death was certain, she asked me to update her blog with a message that would be posted after her death.

The following is the only post she did not type herself. She mouthed the words to me over months, and it was very difficult communicating with her, writing this all down. Even helpless and in pain and waiting for her death, she wanted to make a difference to others. She was trying to find any sort of meaning in her terrible suffering. This is Debby's message of Thanksgiving to you, reprinted from her blog that sadly no longer exists:

"I am writing this blog post to say a more proper goodbye to all the interweb peoples who have helped me keep it together. Who have given so much support to me through the years. Who are my friends and family. Who were strangers who became friends.

In my blog, I often give assignments for people to do. Here's the ones that are on my mind....

1. Appreciate everything. Even stupid stuff. Since I've been sick, I've communicated with a number of service members abroad. We understand each other well because we both know how much we miss just the normal stuff that most people take for granted. Driving. Driving in traffic. Complaining about stupid stuff is for people who have no idea how good they have it.

2. Be a force for good. There's enough bad stuff in the world without adding to it. Forgive people and leave grudges for others. Do kind things just because. Figure out what you are good at and do good with it.

3. Seek a higher power. I believe Jesus Christ is my savior and this gives me comfort. As it takes faith to believe, it takes faith not to believe. I believe God doesn't want us to live our lives on an island, and that finding a community of faith that is uplifting and supportive to you can make a huge difference in your life. If you have that cool. If you don't, consider it. But don't wait until you are looking death in the eye because you will miss out on some neat things. (Love you ACTS community!)

4. If you have kids, squeeze them. And then squeeze them again. Give yourself a pat on the back if you are responsible and work hard to give your children a good life and better opportunities. Sometimes you don't give yourself enough credit. If you have people in your life that you love, tell them that. Often. Don't save your I love you's for a rainy day.

5. Take care of yourself. I understand more than most that there are injuries and illnesses that you can't prevent by eating well and moving, but that doesn't mean you should be fatalistic. Nothing like being hooked up to a respirator to make you appreciate just getting going, doing and breathing. Treat yourself at least as well as you treat your car--you put the right type of fuel in your car and you drive it safely most of the time--you are more important than a car so treat yourself that way.

6. Enjoy life. Life is meant to be enjoyed, and as long as it isn't hurting yourself or others, go for it. Bring joy to others. Find passions in your life that make you want to get out of bed in the morning, unless your passion is sleeping and then go ahead and sleep in.

7. Be open to new things. Listen. Doesn't mean you have to change your mind, but who knows, you might learn something.

8. Support sensible health insurance reform. I'm not sure what that ends up looking like, but injuries and illnesses shouldn't fate people into a life of insurmountable debt and bill collectors. I spent the last “healthy” months of my pre-hospital stay, worried and scrambling to find insurance because my COBRA insurance ran out. Patients should be able to focus on getting better and not crushingly large mountains of papers telling them that their credit is forever screwed.

9. Ask for help. This is a hard assignment. For a lot of people, it isn't easy to ask for help when you need it. But what I've discovered is that it is a part of the human condition for people to want to help those in need. People enjoy helping others. Sometimes you get help where you don't really expect it. So if you need help with something, go to the appropriate people and get it.

I sometimes think that the bad stuff that happens in life is one of the few things that bring people together. It still sucks, but maybe it sucks a little less.

There are too many people to thank for the help they gave me and my family over these difficult times. I would list you individually but am afraid I would leave someone important out. My last days have not been easy at all, but it has been a great comfort to know about all those who gave me prayers and love.

In my life, I've looked for love in a lot of wrong places, and as I die, it is nice to know I am surrounded by love.

10. Last assignment. There is no last assignment. You create your own assignments every day. Choose wisely.

.....

To sum it all up....I love you internets! I love you friends! I love you family! I love you Zoe!

All my love,
Deb"

Want to Save Taxpayer Money? Stop Federalizing Crimes.

Steph Stradley — Thu, 17 Nov 2011 17:10:00 GMT

One way that politicians on both sides of the aisle get elected is being "tough on crime." Nobody wants to take laws off the books that make them look soft.

If there's a high profile bad act that happens, the first action is a politician grandstanding to fight that evil with a new law. There's also big money lobbying interests who want to criminalize acts against their businesses. That protects businesses, but taxpayers end up paying for this enforcement service.

Problem is more laws mean more money. Money to prosecute those cases and to have judges hear them. Money to investigate those cases. Money to warehouse criminals in jail. The problem of the increaes in Federalization of crime isn't a recent point of view. Advisor to President Reagan, Edwin Meese wrote about this issue in 1999 in a Wall Street Journal article called, "The Dangerous Federalization of Crime:"

Following a two-year study by experts in all segments of the criminal justice process, the [American Bar Association] task force documented the explosive growth of federal criminal law, including the startling fact that more than 40 percent of the federal criminal provisions enacted since the Civil War became law in just the past three decades. Most troubling is the high percentage of these federal crimes that duplicate state laws that have been on the books for years. This endangers the constitutional principle of decentralized law enforcement authority that has worked well in America and that has been a bulwark against the centralization of police power at the national level.

And nothing has been done about this. Look at the numbers listed in this interesting Reason.com article, "Washington's Biggest Crime Problem:"

1981 - 20,000 Federal prisoners; 1989 - 53,000 Federal prisoners; 2004 - about 171,000 [According to the Federal Bureau of Prisons website, the number in 2011 now roughly 218,000 Federal prisoners with over 38,000 employees] In 2001, about 10% of people in Federal detention had committed violent crimes.

1981 - 1500 Federal prosecutors; 2004 - over 7000 Federal prosecutors

It's not just new laws that are at issue. It is also the broad interpretation that the Department of Justice wants to use to interpret current laws. A recent example that made me think of this is the DoJ wanting to be able to use website's "Terms of Service" as the basis of criminal charges under the Computer Fraud and Abuse Act.

What does that means in simple terms? The DoJ in its tremendous discretion could make it a Federal crime for you to lie about yourself on the internet or any number of things that are violations of "terms of service" that you've likely not read. Interested in this subject? Read: Professor Owen C. Kerr's testimony on the threat to civil liberties of the DoJ's reading of the CFAA [pdf].

We can't afford this. And yet nobody will likely do anything about it because no politician wants to be painted as soft on crime.

Blogging Fundamentals: A Guide for Beginners

Steph Stradley — Mon, 14 Nov 2011 13:35:00 GMT

I've been asked to talk to a high school class about fundamentals of blogging. Instead of giving out handouts, I figured the best thing to do was to write a blog post. Here's some Blogging 101 tips:

What is a Blog. The word "blog" comes from the word web log. In the legal world, they are sometimes called "blawgs." The wiki on blogs defines it as:

"type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in reverse-chronological order. Blog can also be used as a verb, meaning to maintain or add content to a blog."

"Although not a must, but most good quality blogs are interactive, allowing visitors to leave comments and even message each other via widgets on the blogs and it is this interactivity that distinguishes them from other static websites."

The word blog refers to the website as a whole. If you are referring to a particular entry in a blog, you call it a "blog post" or a "blog entry" but you shouldn't call it a blog.

Purpose of Blog. First things first. Why are you blogging? What is it that you wish to accomplish? To blog well takes a lot of time and effort, and you may not choose to take the time to do it.

To make money? For your business? To provide information about a subject that people have an interest in but there's little information out there? For creativity? To put information you want to say but don't have a place to say it? A place to store words and images? Some combination of that?

To do any sort of writing well, you need to know who your audience is and what they would like to read. Sometimes knowing what you wish to accomplish with your blogging can suggest whether you wish to have an independant blog or whether you wish to become a part of a blog network. What audience you want may also drive which blogging platform you wish to use as some blogging platforms support sharing better than others.

Writing Style of Blog. Blogs can be written in a formal way or informal way. Some are conversational. The style and tone of your blog may depend a lot on what your blog's purpose and audience is. Some people who start writing for blogs copy other people's styles. Sometimes it takes a while to develop your own blogging voice.

Take Care in Your Words. The internet is forever. Except in exceptional circumstances, it is considered very poor blogging etiquette/form to erase a blog post. Even if you erase it, a cached version of a blog post can exist on the web. So the best course of action is to never write things you may later regret.

Anything you write on the web, whether blogs or otherwise, your family, friends, future employers, etc may read. A good rule of thumb is to never post anything on the web that you would be ashamed for your pastor to read.

That is my own personal bias. There's plenty of people who try to live their real lives in a Christian way but in their internet lives, they act sort of like web gangsters, saying snarky, nasty things. That's always struck me as a bit hypocritical.

Some people try to avoid having things attributed to them by using a pen name. Even that isn't without concern because sometimes pen names become public.

Ultimately, if you write enough words, you may write a few you regret. But you should try to keep those down to a minimum.

Be Link Generous. If you obtain information from another source, it is proper to link to that source and if very reliant on that source, specifically name where you got the information in your post. There's nothing more frustrating than putting original content on the web and then discover someone else used your content without attribution.

Blogging can be a sort of community, and linking to blogs is a good way to support quality content.

Writing for Web Different Than Paper. Though there are a number of journalists who are excellent at using the blog medium, writing for newspapers is different than writing for blogs. Newspapers typically have word counts. They don't allow for linking to related articles or including video content. The best blogs take advantage of the blogging medium by doing those things you can only do for the web.

Also be aware of the phyiscal space of your particular blog. Sometimes with the size of the print/margins, it may dictate shorter paragraphs.

Don't Violate Copyright. Just because you write something online, doesn't mean you are exempt from following the law. You are not supposed to use other people's creative content, like photos, unless permission is already granted or you get permission. The rules on this can be rather involved, and I think this Q&A from the US Copyright Office does a nice job of summarizing what is allowed.

Pictures can certainly make your blog more reader friendly. You can use your own pictures, or there are a number of sources online where you can find free or lowcost pictures you can use for blogging.

Write Regularly. To get people to visit your blog regularly, you should update your content frequently. I'm better at doing that on my Houston Chronicle Texans site than I am here. At that site, the subject matter and readership sort of dictates the frequency of posts. Because I have a bit more freedom here, I write when inspired, and lately, I must confess I just haven't had things I feel like saying. This blog is more of a repository of writing that doesn't fit on other platforms, like microblog site like Twitter or Facebook, or at my Texans blog.

This isn't going to be the only things discussed in my talk to students, but I think these things are the basics.

My Favorite Houston Email/Website of 2011

Steph Stradley — Wed, 12 Oct 2011 21:39:00 GMT

Most emails I get aren't terribly uplifting. Through accident, I found one that truly has benefited my day to day life. Everybody I've shared this with agrees with me, so there must be something to it.

Click here and add your email address. You will receive a short email every day before you wake up. Read it. Think. Be inspired. Improve your life.

Dr. Jim Jackson is the Senior Pastor of United Chapelwood Church in Houston. He uses a variety of radio and internet methods to reach out to people. The blog that contains the daily emails is called "Jim's Daily Awakenings." It's from a preacher but not too preachy. I prefer receiving the emails versus going to the blog because you don't have to think about it.

I was going to list some of my favorite of the emails, but I think I like most of them. The Random Thoughts series is particularly good.

The emails are uplifting and thoughtful, but not enough for a lot of folks. If you are visiting here, you might have a criminal defense, family law or other legal issue and may be experiencing the worst time in your life. Lawyers, even if they are particularly empathetic, aren't very equiped to help when people's depression is serious.

Know that there is help out there. There are resources that can help with mental health issues and/or substance abuse issues. They can help you rebuild your life. I will also suggest from my own experience that religious faith can be helpful in both good times and bad.

The Amanda Knox Case: Character Assassination Versus Evidence

Steph Stradley — Tue, 04 Oct 2011 01:43:00 GMT

Today, Amanda Knox was found not guilty of murdering and sexually assaulting her roommate by an Italian appeals court.

As a lawyer, I find the differences between the Italian criminal defense system and the American system fascinating. (In Italy, they review all the evidence at the appeal level in front of a jury that includes judges). As someone who has worked as credentialed media, I find much of the coverage of the Knox trial repulsive.

After years of exploitive media coverage, the case has been described in many American news sources today as "Character assassination versus evidence." Lurid, irrelevant personal details about the defendant leaked. Every action of the defendant, even ones with innocent explanations, characterized in the worst light. I don't know. Sounds like most TV coverage of trials in the United States.

Can't blame media for that. Television is about ratings not justice. Many parts of criminal cases are boring. If you have a choice of flashy video or audio versus subtle details, guess what TV is going to choose?

For background on the Amanda Knox case, I suggest reading this fascinating opinion piece in the New York Times entitled,"An Innocent Abroad." In it, the author, Timothy Egan quotes someone talking about the differences between the Italian and American systems of justice:

“In Italy, the general assumption is that someone is guilty until proven innocent. Trials – in the press and in the courts – are more often about defending personal honor than establishing facts, which are easily manipulated.”

As I've mentioned before relating to the NFL Personal Conduct Policy, I think public opinion in America already has already evolved to presumption of guilt.

Fined for a Typo? The Story of the 'Wicked Bible'

Steph Stradley — Sat, 01 Oct 2011 17:10:00 GMT

Interesting story today in the New York Times about King James Bible exhibit hosted at the Folger Shakespeare Library in Washington DC. They are commemorating the 400 year anniversary of the King James translation of the Bible by showing rare and unique Bibles collected from around the globe.

One of the more interesting Bibles featured is the so-called "Wicked Bible." The original printer of the King James Bible, Robert Barker, got in trouble for leaving out the word "not" in a subsequent edition. Unfortunately, the offending sentence read, "Thou shall commit adultery." Oops.

The Wiki on Robert Barker says that he and his co-printer Martin Lucas in 1632 were fined £300 for the mistake. Apparently, King Charles I of England was not amused. In today's dollars, that would be roughly the equivalent of 33,800 pounds.

All the Wicked Bibles were supposed to be destroyed, but apparently 11 survive, including the one on exhibit.

I am very glad I do not get fined for typos, and I miss having an editor. Great editors are like great legal assistants-they just make your life better (and more more literate sounding).