It is probably the first legal advice I ever received. In law school, the teachers told us if the police say do this or do that, do it. Do not argue your rights with the police on the street, they emphasized. On the street, you do what the police officers say. Period. If the police violate your rights, you can file a complaint later. But, on the street, you do what they say.

So, it may not be popular to say this, but I feel that Sterling Brown was in the wrong when he refused police officer direction to remove his hands from his pockets. See NBC news report. Mr. Brown’s response to being told to take his hands out of his pockets was, “Hold on. I’ve got stuff in my hands.” The situation quickly escalated after he told the police to “hold on.” When the police tell you to do something, you need to do it. Police have a target on their back. They have to control the situation.

I am sure the Milwaukee police could have handled this situation better. But, when law enforcement says take your hands out of your pockets, you have no choice.

Way back when, when I was in my twenties. I was passing through “Fleasville,” also known as Leesville, Louisiana, heading to my then home, Alexandria. I was passing through about midnight. The police stopped me for some reason. Out of habit, I slipped my hands in my pockets without thinking. Immediately, those small town police officer shouted for me to remove my hands from my pockets. The urgency in their tone was clear. As quick as I could, I removed my hands. To me, it was no big deal. My hands can rest wherever.  But, to the police, it was a potential threat to their lives. Just do what they say. To you, it is no big deal. To the police, it is about life or death.

Comal County is adjacent to Bexar County. The County seat for Comal is New Braunfels. Recently, a woman was charged with trafficking a girl for sex. While the jury was out deliberating, Judge Jack Robison interrupted them and told them God had told him the woman, Gloria Romero Perez, was not guilty. The jury ignored the judge and found the woman guilty. Judge Robison recused himself before sentencing. the Defendant asked for a mistrial, but was denied. See Austin American-Statesman report.

Judge Robison explained to the jury that he could not ignore God’s wishes. No, he should not. But, that interruption does provide the Defendant with a basis for an appeal.The defense attorney explained that she submitted a motion for directed verdict at the close of the prosecutor’s case. The judge could have simply granted that motion and avoid a lot of drama. See San Antonio Express News report.

Judge Robison has been previously sanctioned by the State Commission on Judicial Conduct. I think I see a another visit from the State Commission in the judge’s future. Usually, the jury room is sacrosanct. No one may enter.

The jury later sentenced the defendant to 25 years. They gave Ms. Perez the lightest sentence possible. She was accused of bringing her under-age niece to the U.S. and selling her to a 32 year old man. The man then impregnated the niece. The jury foreman said some jurors felt the Defendant should be released and given credit for the time she has already served.

Online legal help has grown tremendously in the past 10 years. But, the truth is many of those websites are providing legal advice – without a law license. In lawyer talk, we call that unauthorized practice of law. Unauthorized practice of law was developed to protect consumers from charlatans, person who claim legal knowledge, but lack it. I am not sure what to think about the online legal service providers.

But, Raj Abhyanker knows what to think. He has sued several of those legal service providers, LegalZoom, FileMyLLC, and others. Mr. Abhyanker practices patent and copyright law. As he points out, those online providers can provide services without incurring expenses for continuing legal education, for malpractice insurance, and the many other expenses actual lawyers incur. The online legal providers have an advantage. Mr. Abhyanker says bar associations are unwilling to push the issue. But, the bar associations all know these providers are providing legal advice, meaning they could be prosecuted. See ABA Bar Journal report.

I think bar associations are holding back also because at least so far, there have been no significant scandals arising from these providers. Until or unless they cause harm to consumers, it is hard to criticize them. They are indeed providing legal advice, but much more cheaply than seeing a lawyer. In most of the world, civil law countries have an institution known as “notaries.” In a civil law country, a notary provides the more routine and mundane legal services more cheaply. In France or Mexico, you can see a notary to draw up a contract for you, and it will cost much less than seeing a solicitor. In the U.S., we do not have an equivalent of the notary. We have notaries, but they cannot draw up legal, binding contracts. There ought to be a cheaper way to obtain the more mundane, routine, legal services.

Part of the reason bar associations hang back from going after these online providers is that they do fill a niche.

I go to Starbucks sometimes. In my experience, they always fill my coffee cup with too much coffee. It is hard to add cream., because there is so much coffee. But, I choose to live with it. Some folks have chosen not to live with it. Drinkers of lattes objected because Starbucks under-filled their cups. The latte drinkers filed suit. They argued Starbucks under-filled the cup by filling the top 1/4 inch with foam. Foam is not part of the drink, they argued.

The court disagreed. A federal judge in California dismissed the lawsuit. The plaintiffs essentially conceded that milk foam is indeed part of the drink. No reasonable consumer, wrote Judge Yvonne Gonzalez Rogers, would be deceived into thinking the foam was not part of the drink. Too, Starbucks pointed out their cups are slightly bigger than advertised to make up for that 1/4 inch of foam. See ABA Bar Journal report.

Yes, justice lives…….

Matthew Spencer Petersen has withdraw his nomination for a federal judicial post. See CBS news report. I wrote about his awful testimony before the Senate Judiciary Committee here. Mr. Petersen essentially admitted that he had no background in litigation or criminal law. Being a judge, he would need to know a bit about trials, lawsuits and criminal law. We can assume the Trump administration asked him to withdraw his nomination after his terrible performance before the committee last week.

But, one has to wonder why his name went forward, at all. It is rare enough for the ABA standing committee on federal judiciary nominations to award an “unqualified” rating. That fact alone should have raised a red flag. But, then the administration apparently did nothing to prepare Mr. Petersen for his committee appearance. The administration threw him to the wolves with little or no preparation.

Pres. Trump has nominated some crazy folks for lifetime federal judgeships. Four have been rated unqualified by the ABA’s volunteer committee of some 160 lawyers on federal judicial nominations. One such nominee, Matthew Spencer Petersen was questioned by Sen. Kennedy (R-La). Mr. Petersen could not answer the most basic litigation questions. Mr. Petersen is just not qualified for a federal judgeship, or any judicial post. He admitted he has never tried a case, meaning never appeared in court as attorney for a client for a trial, has never conducted a bench trial (i.e. no jury), or a jury trial. He attended some 5 depositions, but did not conduct those depositions himself. He is just not qualified to deal with litigation. As a judge, he deals with litigation every day. He has never argued a motion in federal or state court. He has not reviewed the federal rules of evidence since law school.

He is not familiar with basic litigation devices, such as a motion in limine, a Daubert challenge, abstention doctrine, all basic litigation concepts.

He is currently working as a commissioner at the Federal Election Commission. Matthew Spencer Petersen. He admits up front his back ground is not in litigation. He was rated “not qualified” by the ABA, a rare enough event. See CBS news report.

I previously wrote about Pres. Trump’s questionable nominees here. We expect some degree of political advocacy when judges are nominated. But, this administration could not even find someone who could find his/her way to the court room?

Some work places are just so toxic. When my unit was deployed to Iraq, we inherited work and living space from the unhappiest, most dysfunctional Army unit I have ever come into contact with. The living space was filthy. They never cleaned it up. The members of this unit, some 50 persons, had filed about a dozen Congressional complaints. Dozens of Article 15’s had been processed. IG investigations were common. And, their work was the worst. They accomplished nothing in their 12 months in Iraq. Work place atmosphere matters. We see a pretty bad place in Congressman Farenthold’s office.

One former Communications Director says he often vomited on the way to work. Rep. Farenthold was abusive and degrading. Just before Michael Rekola left for two weeks to get married, Mr. Farenthold called out to him, “Better have your fiancee blow you before she walks down the aisle – it will be the last time.” He then joked about whether his wife would wear white at the wedding. When Mr. Rekola returned from his two week vacation, he turned in his resignation.

Mr. Rekola explains that Congressman Farenthold was often abusive, with screaming fits of rage, fists pounding on the desk. He often referred to aides as f***tards. Congressman Farenthold admits to using the term f***tards regarding employee, but says he meant it in jest. See CNN news report.

When my buddies and I replaced that Civil Affairs unit in Iraq in 2005, we met with and worked with our predecessors for two weeks. We got to know some of them. Some few officers and NCO’s hated their work environment. I will never forget their dismay, their disgust at the low quality of work they had to endure for 12 months. Congressman Farenthold was not in Iraq. But, he apparently knows something about low quality of work.

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

The American Bar Association hs been reviewing proposed judges’ qualifications for decades. The President nominates a federal judge, and the ABA reviews and assigns a rating. For the first time since 2006, it has publicly rated a judge “not qualified.” It found Leonard Steven Grasz, a Nebraska lawyer, unqualified for the the position of judge on the Eighth Circuit Court of Appeals. The ABA’s standing committee found that it did not believe Mr. Grasz could set aside a “passionately held social agenda” to respect precedent, including Roe v. Wade. See ABA Bar Journal report here and here.

Some senators, such as Ted Cruz, respond that the ABA is a liberal advocacy organization. Cough Cough. No, not quite. The ABA is composed of hundreds of volunteer lawyers who’s serve in various capacities. The ABA is composed of dozens of various volunteer committees and organizations. Yes, some activities or committees of the ABA are more liberal than others. But, the standing committee on judicial nominations is not and never has been. It is a nonpartisan committee. It is unfortunately a reflection of these very partisan times that the President has been nominating some extremist judges.

The standing committee on judicial nominations has assigned four not qualified ratios so far this year out of 53 nominations. The ABA standing committee has found other judges not qualified in years past, but sometimes, those nominations were withdrawn and the “not qualified” rating was not made public.This is the first time since 2006 that the “not qualified” rating has been made public, not just with Mr. Grasz but with three other nominations. Ultimately, it will be the American public who will suffer when they have to appear in front of marginal judges.

Among Pres. Trump’s recent nominations for a judgeship is Brett Talley, Harvard graduate, and conservative blogger. He is rated as “not qualified” by the American Bar Association standing committee on judicial nominations. The committee’s vote to rate him not qualified was unanimous. He is also a paranormal investigator, a ghost hunter. He is young for a judge at 36 years old. He has only practiced law for three years. He has never appeared in court for trial. See BBC news report. He has never tried a case. If he is confirmed, as seems likely, he will go from being an intern to performing brain surgery.

Mr. Talley is a member of the Tuscaloosa Paranormal Research Group. That apparently means he and others will go sit in spooky houses all night and observe activity. They apparently seek rational explanations for strange events. So, we can expect they apply some science to things that go bump in the night.

Still, I do not know whether to laugh or to cry. A judge who has never tried a case, but who has searched extensively for ghosts. Is a law degree necessary anymore? Is Jethro Bodine available? After all, Jethro “done gradee-ated” from 6th grade and moved to Beverly Hills with his Uncle Jed Clampett.