Earlier today, Doug Mataconis got frustrated with the Casey Anthony trial analysis on CNN. This is understandable since most TV trial analysis is bad – wrong and dangerous, even. This time, though, I couldn't see what was wrong at all. Here was his tweet:

This was, to him, a head-slapping bit of analysis because, as he tweeted when I wondered what was surprising about the talking head's analysis, the Constitution says, and the jury instructions will make clear, that "no conclusion is to be drawn from someone exercising their rights." When pressed on whether that would really keep juries from drawing their own conclusions, Doug got all philosophical on me and replied "One never knows what a jury thinks, of course".

But are juries really that inscrutable? Are people really that unpredictable? No, I don't think so. I don't care what the law is, I don't care what the jury instructions are, I don't care how it works on TV shows, when a person doesn't testify in their own defense, the jury wonders what they are hiding. Aside from viscerally knowing that this is true, I've served on a jury. While most of what I learned on jury duty isn't germane to this post, the one thing I learned with absolute certainty is that if a juror is aware that a party is keeping information from them, she is going to assume that it isn't helpful to that party's case. And when the judge gives a stern look and says "The jury will disregard counsel's question…" what the juror thinks is "But I want to hear the answer to that question!"

And if that's how the jury reacts to an individual question in a whiplash case, how do you think they react to a trial where one witness after another comes up and calls the defendant a murderer and she doesn't even respond?

This does not mean that the defendant should always testify; in fact, I think the standard belief is similar to keep the defendant off the stand. As bad as it looks to have the defendant say nothing in their own defense, there are worse things than having the jury think "hey, why didn't she speak." There's a saying in football about the forward pass: "There are three things that can happen and two of them are bad." While it is possible that the jury may decide that your client doesn't sound like a murderer, as soon as the cross-examination starts a lot can go wrong in a hurry. The testimony may open the door to the admission of inculpatory evidence that had been previously precluded or the client may come off like a lying asshole to name two big risks.

So what we have is a delicate balance: is the definite, but semi-quantifiable harm from not testifying worse than the possible, but impossible-to-quantify harm that can come from a bad cross-examination? The ability to weigh these options correctly is why good trial lawyers get paid the big bucks.

I don't think there is a single lawyer who would tell you that no balancing is required. Juries aren't that unknowable.

When I indulged in an infuriated rant against Secretary of State Hillary Clinton last week because her reaction to questions about the legality of our Libyan bombing campaign was a Rovian "whose side are you on," some people suggested that I had taken her out of context. They say that the Obama Administration does not really mean to create a with-us-or-against-us dichotomy to discredit people who have concerned about compliance with the War Powers Act or limits on executive power.

Fair enough. Let's ask the Big Guy himself:

I’m not a Supreme Court justice so I’m not going to — putting my constitutional law professor hat on here. Let me focus on, initially, the issue of Libya. I want to talk about the substance of Libya because there’s been all kinds of noise about process and congressional consultation and so forth. Let’s talk about concretely what’s happened.

Muammar Qaddafi, who, prior to Osama bin Laden, was responsible for more American deaths than just about anybody on the planet, was threatening to massacre his people. And as part of an international coalition, under a U.N. mandate that is almost unprecedented, we went in and took out air defense systems so that an international coalition could provide a no-fly zone, could protect — provide humanitarian protection to the people on the ground.

I spoke to the American people about what we would do. I said there would be no troops on the ground. I said that we would not be carrying the lion’s share of this operation, but as members of NATO, we would be supportive of it because it’s in our national security interest and also because it’s the right thing to do.

We have done exactly what I said we would do. We have not put any boots on the ground. And our allies — who, historically, we’ve complained aren’t willing to carry enough of the load when it comes to NATO operations — have carried a big load when it comes to these NATO operations. And as a consequence, we’ve protected thousands of people in Libya; we have not seen a single U.S. casualty; there’s no risks of additional escalation. This operation is limited in time and in scope.

So I said to the American people, here’s our narrow mission. We have carried out that narrow mission in exemplary fashion. And throughout this process we consulted with Congress. We’ve had 10 hearings on it. We’ve sent reams of information about what the operations are. I’ve had all the members of Congress over to talk about it. So a lot of this fuss is politics.

And if you look substantively at what we’ve done, we have done exactly what we said to do, under a U.N. mandate, and we have protected thousands of lives in the process. And as a consequence, a guy who was a state sponsor of terrorist operations against the United States of America is pinned down and the noose is tightening around him.

Now, when you look at the history of the War Powers resolution, it came up after the Vietnam War in which we had half-a-million soldiers there, tens of thousands of lives lost, hundreds of billions of dollars spent — and Congress said, you know what, we don’t want something like that happening again. So if you’re going to start getting us into those kinds of commitments you’ve got to consult with Congress beforehand.

And I think that such consultation is entirely appropriate. But do I think that our actions in any way violate the War Powers resolution? The answer is no. So I don’t even have to get to the constitutional question. There may be a time in which there was a serious question as to whether or not the War Powers resolution — act was constitutional. I don’t have to get to the question.

We have engaged in a limited operation to help a lot of people against one of the worst tyrants in the world — somebody who nobody should want to defend — and we should be sending a unified message to this guy that he should step down and give his people a fair chance to live their lives without fear. And this suddenly becomes the cause célèbre for some folks in Congress? Come on..

Give this to President Obama: he has a lighter touch than his Secretary of State. He's not only employed a bit of subtlety, he's also give us a change-up, moving from the Rovian "you're objectively pro-enemy" trope to the Rovian "concern about the President blowing shit up is all about politics, not about sincere concerns about war powers or limits on executive power" trope.

But it's still part of the same core message: people who question the extent of my power are insincere and/or disloyal.

Fortunately for Obama, we're much more likely to focus on whether it's civil to call him a dick on the teevee than we are to focus on whether he's adopted the rhetoric he once criticized to defend discretionary expansions of executive power.

Wearing high heels in a gravel parking lot?  That'll be a blood test, ma'am. Embarrassed a North Carolina State Highway Patrol trooper? That'll be a trip straight to jail. Remember how the North Carolina Highway Patrol treats dogs? Imagine how they treat suspects.

As an aside, and since I blog pseudonymously this isn't worth much, I have tried a case against the aggrieved attorney in this story. I found him to be an honest man in a hotly contested trial, which is more than I can say for many patrol troopers.

But otherwise I fully recommend this story about District Attorney Susan Doyle of Johnston County, North Carolina, who, by availing herself of North Carolina's "alienation of affections" law to sue the "other woman" for adultery, has turned her private "mental anguish, humiliation, injury to physical and emotional health and the loss of assistance and financial support of her spouse" into a public joke.

District Attorney Susan Doyle has a nice smile

Taxpayers of Johnston County, who vote for their District Attorney, may wonder if they're getting full representation from Mrs. Doyle as she splashes her private venom for the other woman all over the courthouse.

As for attorneys, well in the words of one who practices in a county nearby, "The opportunity to be humiliated in front of your peers is not something elected officials often seek."  If Mrs. Doyle thinks she's suffered agony thus far, wait until she seeks reelection.

A short voter's guide for those who believe, as I've come to, that an Ivy League education is synonymous with hubris, at least where politics is concerned.

Michelle Bachmann: Winona State University, Oral Roberts Law, William & Mary Law

Herman Cain: Morehouse College ("the black Harvard"), Purdue.

Newt Gingrich: Emory, Tulane.

Jon Huntsman: Penn.

Gary Johnson: University of New Mexico.

Ron Paul: Gettysburg College, Duke Medical.

Tim Pawlenty: University of Minnesota.

Mitt Romney: Stanford, Brigham Young, Harvard Law / Business School.

Rick Santorum: Penn State, Pittsburgh.

If he chooses to run, Rick Perry attended Texas A & M.  I do not believe that Sarah Palin will run, but if she does, she attended the University of Idaho. If and when the Libertarians nominate a candidate, I will address his or her educational demerits. Should he choose to run as an independent, Michael Bloomberg attended Johns Hopkins and Harvard Business School.

President Obama, of course, attended Occidental College, Columbia, and Harvard Law.

By way of full disclosure, I attended an American state university, as well as a university that has been described as the Yale of the Soviet Union (which was also a state university). I have no intention of running for dog catcher.

It's not much of a secret that I'm not a fan of modern legal marketing. I mean, I'm not a crank on the subject on the level of a Greenfield or a Tannebaum, but I'm a critic. I think that modern legal marketing is epitomized by comment spam, legal search engines that produce mostly calls from crazy people, sham referral services, and aggressive flimflammers trying to make money from lawyers.

So I wasn't exactly surprised to see Antonin Pribetic's link to a Canadian site extolling Klout for lawyers. However, I was, like Antonin, appalled.

No, Klout is not an East German techno-pop band. It's a meta-social-networking company — not one that lets you post on Facebook or tweet, but one that measures how many people might conceivably give a shit when you do. Klout helps you focus on things like this:

Reach
Are your tweets interesting and informative enough to build an audience?
How far has your content been spread across Twitter?
Are people adding you to lists and are those lists being followed?
Demand
How many people did you have to follow to build your count of followers?
How often are your follows reciprocated?

Klout does not have a metric for whether, as a professional, you have the faintest grasp of what you are doing. (I sure hope they're working on it.) But to the drinkers of modern legal marketing's Kool-Aid, that's not the right question. Neither is "how does Klout influence actually translate to clients hiring me?" Rather, the question is how much the other people who like this sort of thing are liking the way that you do this sort of thing:

Legal marketers and others who advise lawyers (myself included) have been gently prodding lawyers to start using social media in marketing their practices with such services as: Twitter, Facebook, blogs and others. Oftentimes, we are asked: “How do you know if this is effective or just a waste of time?” Well now all of us can start gauging our effectiveness via a growing number of websites that seek to place a quantitative assessment of your clout (or Klout as it may be) in social media circles.

. . .

Klout is a great way to determine whether your social media message is strongly focused, whether it is reaching your target audience and whether you are seen as an influencer or not. Or as they would put it, do you have Klout?

To legal marketeers, Klout — like Twitter followers and Facebook friends and search engine hits — is its own reward. Marketeers would prefer that you not focus on how one uses this to deliver effective service to clients (if you're feeling noble) or at least how one monetizes it (if you're feeling crass). If you focus on that, you're going to know that you can't stand up in court and say "Your Honor, the prosecutor may have a good argument about the admissibility of that statement, but allow me to point out that my Klout score is much higher than his." If you focus on that, you're going to realize that, in terms of actual calls to you, what Klout and Twitter and such tools most reliably produces are calls from marketeers wanting to sell you (a likely sucker) on some other marketing widget. Meta-marketing geegaws like Klout, in short, are effective money-making tools only for people who operate them or who make money telling you to use them, not for lawyers.

Such things are also colossal time-sinks. Look, I love watching hits roll into this site on Woopra as much as anybody. But that's a hobby. We don't promote our real-world employers on this site, and we don't delude ourselves that our Popehat-marketing activities produce anything other than people who like to read free stuff. Lawyers who spend long hours tracking how many people are retweeting them might imagine they are contributing to the bottom line — but they are deluding themselves.

Antonin made this point for us all at the Canadian site that touted Klout. Here's the part they left in:

Are you seriously promoting Klout as having any value to lawyers? Do you actually believe that Klout or any other social media snake-oil metrics measure “influence” or offer anything remotely useful or quantifiable? Are you not aware that Klout and other so-called social media metrics can be gamed, just like any SEO crap tactics? Your bio states that you are a “lawyer and Practice Management Consultant” [...] Instead of the same-old, same-old, why not write a post about whether lawyers need practice management consultants, instead of spending 5 minutes to open a Twitter and Facebook account and 10 minutes to get a WordPress or Blogger account? What about the pitfalls of social media credential fraud and the ethical implications of lawyers using social media?

Here's the part they cut out as against site commenting standards:

So, have you given up your gig and now spend your time helping lawyers harness the awesome power of the internet? No, not interested? Figures.

I'm waiting for a response. But not holding my breath.

Look, legal marketing has always been susceptible to shallow babble. Anyone who has ever watched late night TV, with its cheap-suited lawyers standing in front of mismatched books, knows that. But modern legal marketing is insidious in new and exciting ways. The incessant hum of marketeer bullshit is calculated to encourage both lawyers and clients to mistake solicitation and substance. Marketeers and their acolytes are pushing the notion that's not just descriptive, but proscriptive — that not only do clients choose clients for stupid reasons like finding them first in a Google search, but that this is a good thing. In fact, any competent and honest attorney will tell you that picking an attorney out of the yellow pages, be they paper or digital, is an awful idea to be avoided if at all possible. That's how the Rakofskys of the world get hired. Moreover, as Antonin suggests, the focus on marketing's SEO power, as opposed to its honesty and accuracy, continues to mainstream dishonest marketing tactics among lawyers on this relatively new medium.

Technology can help lawyers, and help lawyers help clients. A good web site can provide valuable, specific, honest information to prospective clients. Email is an effective and money-saving way to communicate with clients, co-counsel, opposing counsel, and others. Sites that let lawyers share documents with colleagues and clients are marvelous. But technology is not its own justification or its own reward. For grown-ups, shinier is not automatically better.

I wish I had enough Klout so more people could hear me say that. Maybe if I added some more key words and tweeted at key hours and RT'd to some opinion-makers.

Spare a thought for Lab Rat and Stingray, authors of the excellent Atomic Nerds blog, who've been forced from their home by the wildfire in Los Alamos, New Mexico.

I live in a hot, wet part of the country where hurricanes pose a much greater danger than fire, but my friend Ken wrote a series of posts on his own experiences with wildfire two years ago.  Here's hoping that, like Ken, Lab Rat and Stingray are able to return home safe and sound.

Oh Karen, my Karen, our vile culture is rife
With "fuck!" and "cocksucker!" and other such strife
Nobody's polite. Nobody keeps cool.
Nobody uses nice words for their stool.
Instead of discoursing in the way that we should,
We all swear like that guy getting blown on Deadwood.

Even kids — O, sweet Children! — are subject to scorn,
We curse them! We rue the day they were born!
We damn their behavior, we laugh when they weep,
We employ cruel invective to tell them to sleep!

Well, not to their faces. We're not all that rude.
But in private, our venting is terribly crude.
It's as if we were human, and sorry to say —
As if parenting's foibles were funny! No way!

You know better, dear Karen. You know kids are no joke
You know bad words hurt those about whom they're spoke
Even if they don't hear them. Bad words hurt us all
They cheapen the culture, they lower the wall.
Between us and barbarians. For isn't it said
That the Etruscans, who cursed, are all now mostly dead?

We need you sweet Karen. We need you to flit
To wherever there's call for a nannying twit
We need you in comics. We need you in games
We need you if someone says womyn are "dames"

But we don't know that we need you. Oh, for shame
Our permissive culture is surely to blame
We imagine we're able to think for ourselves
About which dirty books to put on our shelves
We believe there's a difference, a key one in fact,
Between in-private fun, and company tact.

So please, Karen please, spare a thought for us churls,
As you faint on your couch and clutch at your pearls,
One day we'll admit you know best for our health,
But not today, Karen. So go fuck yourself.

(Hat Tip To Nick Gillespie, and to my dear wife, who gave me the offending book in question for Father's Day.)

Nearly everyone's heard of the CSI Effect – the hypothesis that the ubiquity of crime-scene-technician shows on TV has led juries to demand more tangible forensic evidence of crime, and has led them to disdain eyewitness evidence and circumstantial evidence that doesn't seem "scientific" enough. Whether the effect exists or not, it's become a staple of attorney conventional wisdom.

That conventional wisdom leads people to assume that the CSI Effect is good for the defense — it makes jurors more skeptical of prosecution cases and prosecution witnesses. This may or may not be true. But to the extent it's true, it's a double-edged sword: the glut of look-at-the-pretty-lab-technician shows on TV encourage a credulous approach to the sort of scientists who wind up on the stand.

Why is that a bad thing? Because some of the "scientists" who wind up on the stand — not to mention the "scientists" who convince police and prosecutors to bring charges in the first place — are hacks, or are relying upon scientific fads that do not stand the test of time.

To see the impact that credulity can have, consider the series this week jointly produced by NPR, Frontline, and Pro Publica In that series, "The Child Cases," those three journalistic entities identified two dozen citizens of the United States and Canada who were accused of the murder of children in their care and later cleared by more scrupulous scientific analysis. Each was a victim of junk science, rush to judgment, and our inability, as a society, to keep our head on straight when we perceive a threat to children.

The NPR/Frontline/ProPublica series is appalling, but ought not be surprising. Critical observers of the criminal justice system have known for some time that it relies upon junk science, particularly when kids are involved. When the flavor-of-the-week threat to children is British nannies thrashing kids around like a ShakeWeight, the system pushes the highly questionable "shaken baby syndrome." When we're in one of our periodic witch-hunts for elaborate, ritualized child abuse, the system relies upon highly questionable child-victim-interrogation techniques favored by "child advocates" but later widely recognized to be likely to produce false reports of abuse. Bite marks have risen and fallen again in the esteem of the scientific community. And, of course, all scientific testimony is subject to GIGO: if the scientific process of evidence collection is tainted, or the nuts and bolts of analysis are blundered, then the ultimate conclusions are not scientifically reliable.

Should we discourage jurors from favoring science-based evidence over circumstantial evidence or questionable eyewitness testimony? Absolutely not. But we should be concerned about the pendulum swinging too far towards unquestioning acceptance of people with degrees and lab coats and published papers. Scientists are no more entitled than law enforcement to our uncritical belief. Junk science, and the powerful temptation to use it to do something, anything, about crime, is always with us. Confronting it will require properly trained and funded defense attorneys and rationally skeptical jurors. The alternative is more innocent people convicted based on the modern equivalent of dowsing and phrenology.

It's uncommon for two of us to blog about the exact same thing here at Popehat; usually one of us strikes first and the other snipes from the comments. However, rather than pollute Patrick's thoughtful piece about art and taste with my banal legalities, I've decided to blog separately about Brown v. Entertainment Merchants Association, today's Supreme Court ruling striking down the California law restricting the sale of "violent video games" to minors.

I write separately (and in far less entertaining fashion) to point out that Entertainment Merchants Association illustrates one of the themes that I've been belaboring: the government's use of categorical thinking to build its own power. The government most often does this politically — for instance, by trying to sell us the war on drugs or movie piracy as fitting into the anti-terrorism category, or trying to convince us that shameful sex offender laws are really about defending children. However, the tactic also also crops up in legal analysis. As Patrick referenced, the Supreme Court recently struck down another censorious law in U.S. v. Stevens, firmly rejecting the government's invitation to create a new categorical exception to the First Amendment for depictions of cruelty to animals.

Stephens aside, and despite today's good result, Entertainment Merchants Association demonstrates that the categorical temptation remains. Take Justice Thomas' dissent. Thomas appeals to the original intent of the Framers to resolve the dispute, saying that California's law passes muster because the men who drafted the Bill of Rights never intended for the First Amendment to apply to an entire category of speech: talking to other people's kids:

In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents.

This rather breathtaking conclusion demonstrates that the "conservative" and "liberal" political labels are often a poor fit for constitutional analysis. Justice Thomas suggests a an approach to the First Amendment that is nominally "conservative" (in that it is based on original intent analysis and declines to strike down a statute based on a Constitutional right) but would be appealing to many "liberals", among them nanny-state ninnies who want to restrict commercial speech to all children rather than parent their own.

Justice Breyer is not quite as ready to carve such abroad categorical exception from whole historical cloth, but he's perfectly ready to find one amidst the Court's precedent:

In doing so,the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante, at 8, but rather the category of “protection of children.”

Kids: America's social and jurisprudential buzzkills.

SCOTUS went 7-2 against California's violent video games law, but two of those seven thought that a narrower law might pass muster. That's encouragement for the likes of the law's author, California legislator Leland Yee, who waved your kids around like a bloody shirt against the evils of the Supreme Court, the First Amendment, and Corporate America, somehow neglecting terrorists and child molesters:

In a statement, Yee said: “Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children. As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.

Come play games with me, Leland Yee. I badly want to headshot you and then teabag you. For the children.

It won't surprise long-time readers to learn that I approve of Justice Scalia's majority opinion in Brown v. Entertainment Merchant's Association, which struck down California's ban on the sale of violent videogames to minors.  The opinion is more or less mandated by United States v. Stevens, another case we cheered.

So I won't dwell (other than to applaud it briefly) on the majority's holding that minors do have First Amendment rights, nor on the cynicism of California's attempt to end-run the First Amendment by claiming that all speech may be regulated in the name of protecting children.

I want to dwell on the concurring opinion of Justice Samuel Alito, which shows the danger posed by statutes such as California's Violent Videogame Act, and of judges who believe their opinions as art critics ought to be the law of the land.  This passage:

It is certainly true, as the Court notes, that “ ‘[l]iterature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’ ”  Ante, at 11 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)).  But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads thepassage in Crime and Punishment in which Raskolni- kov  kills the old pawn broker with an  axe.  See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950).  Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill  the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hearsthe thud of the axe hitting her head and her cry of pain;who sees her split skull and feels the sensation of blood onhis face and hands.  For most people, the two experiences will not be the same.

illustrates the problem perfectly.

For those who haven't read it, spoilers follow:

Continue Reading »

We would like to think that the Third Circuit's recent sage decisions are due in no small part to our diligent and forceful coverage of the issues.

Yep.  That's what we'd like to think.

We've been toying with the idea of converting some of our tags — at least the most popular and most used ones — to categories. Examples might include "War on Drugs", "TSA", "Cops", "Free Speech", "SLAPP", "Nanny State", etc.

The thought is that (1) this would improve visibility of the taxonomies by moving them to the top of the posts where categories go, rather than to the bottom of the posts where tags go, and (2) we'd be more likely to be consistent in our usage, since categories come from a drop-down menu and tags must be typed in (albeit with a slow auto-fill).

Question: do folks think it's worth it?

I see categories and tags as a way for an interested reader to browse other posts on the same topic — and a good way for new readers of the blog to view the sort of things we've written before. However, I'm not sure they're used all that often — perhaps I use them most in constructing posts.

Thoughts? Opinion? Experiences from your own blogging? Rants about site design?

Sixteen years ago, during the Simpson trial, I used to walk past Camp O.J. on my way to lunch. The dove-sellers-in-the-temple were hawking bumper stickers, banners, flags, and t-shirts — many, many t-shirts. I distinctly remember one of them: it had the word "sidebars" in a circle with a line through it. The vendor grokked a key complaint of viewers — they hated it when questioning stopped and Judge Ito entertained some legal argument away from the microphones. That one word and symbol neatly encapsulated the dominant mindset of the audience at the Simpson circus: that the function of a trial is to entertain, and that anything that is not cinematic is objectionable.

Nothing's changed. Turn on one of the cable networks, or click the #CaseyAnthony hashtag on Twitter, and you'll see that the circus is back in town.

If the wall-to-wall coverage were calculated to educate citizens about how the criminal justice system works, warts and all — or if the public fascination reflected a concern with rights and procedures, rather than reality-show drama — then this could be a good thing. But it's not — it's not even close. Television and radio coverage are choked with inanity, rank speculation, dumbed-down generalizations, and sound-bite-spewing legal-generalist "experts." The result is a relentless promotion of disinformation and ignorance, and very little useful education about constitutional and statutory rights or trial practice. That's the natural and probable consequence of a media culture that profits from wall-to-wall coverage when the circus is in town. They've got to fill up all those hours with something. They've got to make mundane developments sound earth-shattering and routine courtroom maneuvers sound devious, outrageous, or brilliant. They've got to make it sound like their talking heads have unique insights that viewers can't get on any other channel — which requires them to generate hours of useless and misleading speculation. Want to know what's going to happen next, or what the judge or jury are thinking, or what the defense strategy is? You'd be better off looking for the answers by rooting around in the entrails of a sheep than listening to the average cable-channel "expert."

If the media is acting badly, their audience is worse. If you can stomach it, check out the #CaseyAnthony Twitter feed. It has all the charm of a depraved and demi-literate crowd hooting at a hanging. Today, when court was abruptly adjourned, the criminal-justice-is-here-to-entertain-me attitude was paramount:

@ashleebella: "#Caseyanthony trial is infuriating me right now -Thankyou! Im so mad 2. Why are they putting this pretty girl through this?"

@5tephertiti: "Relieved #caseyanthony trial didn't happen today so I wouldn't miss anything. I never want it to end."

@dnllmchll: "Part of the reason I'm excited to have the next 3 days off of work is the #caseyanthony trial… Shits so crazy."

@robrff: "If I've watched all this #CaseyAnthony trial and a plea deal or mis-trial is called, and there is no jury verdict, I'm not going to be happy"

@RAWss23: "Must b something big today in the #caseyanthony trial…court is in recess allday no explanation, now wat am I supossed to watch? "

(Not to mention the deep legal insight:)

@bluejean24: "Why doesnt Caylee have a lawyer to protect her interests #caseyanthony" "Are you as pissed off as I am that they did not hold court today? #CaseyAnthony/ YES!"

@scout35: "Check out this video… a dog's reaction to #CaseyAnthony!"

What I'm saying may sound like a you-kids-get-off-my-lawn old-man rant, but it's not merely a rant about entertainment culture — it's also the impact of that culture on the criminal justice system that protects citizens from their government. The trial-as-circus ethos has any number of regrettable effects:

1. Promotion of ignorance: The circus culture encourages the media to offer sound-bite-based, exciting, controversial, and "interesting" explanations for complex issues. Those explanations are rarely complete, accurate, or fair. The media therefore promotes ignorance about the criminal justice system — the mechanism by which some of our most important rights are determined.

2. Promotion of Unquestioned Government Power: The circus culture naturally seeks swift, exciting, simple resolution — like the bad guy being caught, conclusively proved guilty, and punished in the 42 minutes of a TV drama. The media coverage encourages that attitude — and therefore encourages citizens to be impatient of anything that's not cinematic and angry at anything that seems to interfere with a 42-minute resolution. But "swift and cinematic" favors unquestioning acceptance of government claims, not careful testing of the sufficiency of government evidence, and certainly not respect for rights or the rule of law. The trial-as-circus culture promoted by the media for its own financial benefit is all about promoting the age-old "tough on crime" mindset that constitutional and statutory rights are merely devices by which sleazy defense lawyers evade justice.

3. Promotion of Misconduct: The trial-as-circus atmosphere, with its attendant big money, brings the nuts, the con artists, and the crooks out of the woodwork. Crazy people show up claiming to be witnesses. Minor witnesses exaggerate or change what they saw in pursuit of their fifteen minutes and a book deal. Lawyers abandon their ethical duties in pursuit of a quick buck.

One of the state's most formidable powers is its ability to imprison or even kill a citizen by accusing that citizen of a crime. Sometimes the state gets it right, and imprisons people who did what they are accused of doing. Other times the state relies on bad evidence or panic about kids, and gets it wrong. How do we know which is which? We have to respect the rule of law and rely upon competent professionals — including vigorous and capable defense attorneys — to apply it. By promoting trial-as-circus, the media and the madding crowd are undermining the rule of law. They're doing it for money and attention (in the case of the media) and entertainment (in the case of the crowd). They ought to be ashamed of themselves.