Simple Justice

Drug Warrior Has Special Needs

2013-05-24T11:12:00Z

As regular readers know, I have long had a deep concern for the intersection of police and special needs children, whether with physical or intellectual disability, as they are both enormously vulnerable to abuse and often incapable of processing or comprehending what cops are doing with/to them. While "do it for the children" is the mantra usually employed to subvert reason, these children are different. Easy pickin's, and unable to defend themselves.

So it was for an autistic Temecula, California, high school student. Via ABC:

[Father Doug] Snodgrass said his 17-year-old son, whose name has been withheld at the request of his parents, transferred to Chaparral High School, a public high school in Temecula, for his senior year. District discipline records from his previous school, Temecula Valley High School, “showed 10 discipline referrals” between August 2011 and May 2012, according to court records, but Snodgrass said the reason for the transfer was the family’s move to a different section of Temecula.

He was placed into an art class at Chaparral where he met Daniel, who befriended him. Not having any friends, his father said, his son quickly latched on to Daniel.

Snodgrass’ son began texting round the clock with his new friend, which at first thrilled his parents, happy that their son had made a new friend, Snodgrass said.

What they didn’t know was that Daniel was an undercover police officer, who the family claims would pressure their son to procure drugs.

Before dealing with the guts of the problem, I can't help but note how ABC was constrained (/sarcasm) to note how the unnamed autistic student had "10 discipline referrals" prior to coming to a new high school. This smacks of the mandatory prior arrests/convictions used in every report of police involvement, even if it had absolutely nothing to do with the issue at hand.

In this case, however, it's particularly absurd as autistic students typically have behavioral management issues, and hence a behavioral plan in their IEP. Were the referrals for talking in class? Perhaps having shirt tails out? It's unknown. But it's also irrelevant, unless the student happened to be an autistic drug dealer in his old school, and given what happened, that seems remarkably unlikely.

So we have a lonely newcomer to a high school, who also happens to be autistic such that his social anxiety, a normal feature of autism, prevents him from making friends and being accepted, and the only guy in school who wants to play with him happened to be an undercover police officer? What could possibly go wrong?

On the second day of school, Snodgrass said, Daniel asked the boy to buy drugs. “He asked my son if he could find marijuana for $20,” Snodgrass said. ”Three weeks later my son was able to bring back a half joint he received from a homeless guy.”

Wow, they hooked a big fish here. But the cops weren't satisfied that they had plumbed the depths of this criminal's heinousness.

Later, Snodgrass said, “he asked to purchase my son’s prescription medication, but our son refused.”

After all, why not add insult to injury by making efforts to undermine this young man's health in their zeal to find a drug dealer? It's not like there was anything seriously wrong with this student that was more important than making a bust, right? Oh wait. There is:

Snodgrass said his son had been diagnosed with autism, bipolar disorder, Tourette’s syndrome and various anxiety disorders.*

What a fabulous life he must have had, being a big time drug dealer who took three weeks to get a half joint from a homeless man to appease his one and only new friend. Except for all that he suffered from otherwise. And so the police made sure to put a stop to this fab drug dealing lifestyle:

“Our son went to school the morning of Dec. 11 and he didn’t show up at home after school, because he was arrested in his classroom,” Snodgrass said. “Police went into his classroom armed, and handcuffed our son. We were not notified by anyone, and he was held for two days, and we were not able to see him,” although he said they got his medication to him the first night he was in detention through a nurse.

After diversion in juvenile court on the charge, and a due process hearing where the school's expulsion was reversed, "citing that the court knew my son was targeted and was special needs, and yet the district did nothing,” the parents filed suit, claiming the district administration continues to "harass and intimidate" their son. After all, he is a drug dealer.

In response, the district offered a press release:

“The district continues to act lawfully and in furtherance of its mission to educate students and better prepare them for successful adulthood. Any and all claims filed with the district will be considered and processed in accordance with district policy and procedure, and the law. The district continues to research and consider its options for addressing the administrative law judge’s decision, but no appeal has been filed at this point.”

Well, of course the district "continues to act lawfully." What else could it do? But the claim that its acting in furtherance of "its mission to educate students" falls a bit flat in light of the consequences of what happened to this autistic young man befriended by an undercover.

Snodgrass said his son is now three months behind in school and will not graduate as originally planned.

The wages of sin? More like the price of being a vulnerable disabled young man targeted by a our heroic drug warriors and a school district that was only too happy to let the police have their way.

H/T Ed at Blawg Review, via Radley Balko

* Snarky Aside: Too bad that this young man didn't have Asperger's Syndrome, since the DSM-5 published May 18, 2013, has eliminated it. Cured!

Okay, more seriously, Asperger's has been swept into Autistic Spectrum Disorder in the latest version of the Diagnostic and Statistical Manual of Mental Disorders, the "bible" of its kind. But ask any Aspy and you will learn that despite the fact that it may be an ASD, the ignorance with which almost everyone approaches autism (duh, look at the retard) taints the crucial distinction that Aspy's not only have intellectual and social deficits, but also extraordinary intellectual skills in specific areas. But hey, why maintain a meaningful distinction when it's easier to save a page and throw everyone in the same hole?

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

The Feds Burn 830 To Get Ajemian

2013-05-24T10:34:00Z

The physician at the heart of the LIRR disability scandal, Peter Ajemian, is scheduled to be sentenced today in the Eastern District of New York, and chance to toy with the United States Sentencing Guidelines is too much for the government to ignore. From John Riley at Newsday:

Manhattan federal prosecutors revealed in a court filing this week that they have compiled a list of more than 800 "potential" unindicted co-conspirators in the Long Island Rail Road disability fraud scandal.
The number appeared in a sentencing memorandum on Dr. Peter Ajemian of Syosset, a doctor at the center of the scheme to collect on phony disability claims. Ajemian, who pleaded guilty, will be sentenced Friday. The government wants him to serve at least 10 years in prison.

So how do you crank up the number to reach 121 months? It's all in the loss calculations, and the only way to get there from here is to manufacture 830 "unindicted co-conspirators" out of every Long Island Rail Road retiree on disability who was a patient of Dr. Ajemian. So what if only 32 people were actually indicted. There are hundreds more where they came from, even though there is nothing behind the allegation but a sweeping, blanket accusation.

But it also told the defense that its trial theory was that, because Ajemian was known for approving phony disabilities, all of his patients were co-conspirators, and the 830 were nothing more than his known LIRR patients.

The list came up in arguments on sentencing because Ajemian disputed the government's claim that his fraudulent disability certifications would have cost $100 million to $200 million. He said he did not certify some of the people listed.

The government on the other hand, contends that the list of patients wasn't used to generate loss calculations, which leaves no explanation for the existence of the list. It's pure kismet that this huge number of "unindicted co-conspirators" coincidentally provides the foundation for the government's sentencing calculations. What are the chances?

Is it possible that some of the individuals on this list engaged in fraud with the assistance of Peter Ajemian? Certainly. At the same time, there is no claim, nor anything remotely reflecting any factual basis, to suggest that everyone, or even the vast majority of these retirees, did not have fully legitimate disabilities.

The government has yet to go anywhere near parsing the list for evidence of individual wrongdoing. That would be much too much work, when they can just offer a laundry list and engage in facile speculation that if a retiree was certified as disabled by Ajemian, he must be dirty. The absence of logic is almost as astounding as the failure of proof.

Having contacted Peter Riley and his editor, Monica Quintanilla, to find out whether Newsday planned to release the names on the list, no answer was forthcoming. The next concern for the 830 sacrificial lambs is whether they will be publicly smeared, not for anything they've done but for their association with Ajemian.

Following Ajemian's guilty plea, the government took its effort to scare the crap out of these disabled retirees a huge step further. A letter went out from the Rail Road Retirement Board, which manages the disability program, alerting them that every retiree whose disability was certified by Ajemian was being reviewed, but that Ajemian's medical report which formed the basis for establishing the disability, was not be considered. Why? Because Ajemian was a criminal, a fraudster as he admitted in court.

Of course, he was also a physician to whom the retirees were referred by the LIRR itself, not to mention the facilitators the LIRR urges its older employees to see. So many went to Ajemian because that's what they were urged to do. And many had disabilities and just needed a physician who knew how to do the paperwork correctly, and Ajemian was the man. It would be crazy to do otherwise, not because there was any fraud involved but because knowing how to deal with government red tape is itself a virtue.

Two days after the RRB alerted retirees of the review, the other shoe dropped. Their disability was denied. Of course it was, since there was no basis for the disability when you eliminated all the supporting paperwork. It's not as if they offered the retirees an opportunity to provide supporting documentation from a different physician, or their surgical records from their double hip replacement, or their decade of physical therapy. Nope, two days later, before there was any chance of responding, it was a done deal. DENIED.

The wholesale absence of due process, but substantive and procedural, in this scheme to oust a generation from disability is overwhelming. Had this been done to cop, you can bet the union would have had a cadre of lawyers beating down the courthouse doors with an action for this baseless deprivation of due process. But these were LIRR retirees, and they were left to dangle in the wind, as nobody wanted to stand up for them after they were collectively tarred and feathered in the media. So they are left to deal with a bureaucracy determined to deny them benefits on their own.

And now they learn that they've been made the pawns in the government's chess game with Ajemian over sentence. They have the fear of a public outing by Newsday hanging over their heads, despite the fact that no one has ever parsed their individual circumstances to determine whether there is even the slightest taint of wrongdoing on their part. But it's far easier to just label the bunch "unindicted co-conspirators" than actually ascertain whether any one of the 830 engaged in fraud or are men and women who gave decades of their life to work on the railroad, and now live in pain from the disabilities of a hard life on the tracks.

Who cares if we just pile on to their suffering? What comes after their benefits being baselessly and absurdly cut off and they wake up every morning in fear of the potential for a public smearing? After all, everybody hates the LIRR, so let's take it out on every disabled retiree regardless of how honest and injured they are.

Waving Good-Bye To The Fifth

2013-05-23T11:04:00Z

Lois Lerner, following her planted question and "leaked" response about the IRS's targeting conservative political groups for special love, was hauled before a congressional committee because the politicians couldn't bear a front page story that didn't include their names.

Lerner, along with her counsel, appeared before the House Oversight and Government Reform Committee, under chairman Darrell Issa (R-CA) and gave an opening statement that included these words:

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

And while I would very much like to answer the committee’s questions today, I’ve been advised by my counsel to assert my Constitutional right not to testify or answer questions related to the subject matter of this hearing.

After very careful consideration, I’ve decided to follow my counsel’s advice, and not testify or answer any of the questions today.

Oh boy. And so the storm began, with Issa and Trey Gowdy (R-SC) calling foul.

Republicans protested. "She just waived her Fifth Amendment right to privilege. You don't get to tell your side of the story and then not be subject to cross-examination. That's not the way it works, " said Rep. Trey Gowdy, R-S.C. "She ought to stand here and answer our questions."

But Chairman Darrell Issa, R-Calif., dismissed Lerner, saying she could be recalled if committee lawyers determine that she waived her rights by delivering an opening statement. At the end of the hearing, Issa said he is "considering" recalling Lerner because "she made assertions, under oath, in the form of testimony" in her opening. He struck the gavel saying the hearing was in recess, not closed.

As Orin Kerr explains the general rule at Volokh Conspiracy:

The general rule is that a witness can’t testify about her version of the facts and then invoke the Fifth Amendment when facing cross examination. Here’s what the Court said in Mitchell v. United States, 526 U.S. 314, 321(1999):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. See Rogers v. United States, 340 U.S. 367, 373 (1951). The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination,” Brown v. United States, 356 U.S. 148, 154—155 (1958). “The witness himself, certainly if he is a party, determines the area of disclosure and therefore of inquiry,” id., at 155. Nice questions will arise, of course, about the extent of the initial testimony and whether the ensuing questions are comprehended within its scope, but for now it suffices to note the general rule.

Unfortunately, the language is loose and provides little guidance, either for this circumstance or Lerner's words. No doubt her lawyer gave extremely careful thought to the language offered in her opening statement, concluding with her invocation of her Fifth Amendment privilege, but that doesn't mean she didn't tread too close to the line.

An assertion of innocence is not, in itself, an assertion of fact, but a conclusory assertion. For Lerner to have said "I violated no law" would certainly not have constituted a waiver of privilege. But that's not what she said, as she went a bit farther, getting closer to the nitty gritty by speaking to IRS rules and regs, and false information.

Initially, a very important aspect to the invocation of the Fifth needs to be made crystal clear. It is not tantamount to an admission of guilt. Not even close. It is the invocation of a right not to say anything that could be used to incriminate you in a criminal prosecution. The use of otherwise truthful statements of fact to convict otherwise innocent people happens, and by no means does any reasonably intelligent person think that innocent people have nothing to hide and should therefore have no reason to assert their rights.

But the assertion of the privilege is generally not acceptable in blanket form, instead being limited to a specific query. Ask a person 100 questions and they will answer maybe 70 (just an arbitrary number), while refusing the remainder. That's because most questions don't evoke a response that has a good faith potential to incriminate.

Many are just basic background questions used to form the foundation for what happened. Just because questions are asked that relate in some way to a matter of concern doesn't mean that answers can be avoided by invocation of the Fifth. There must be a specific good faith basis for the assertion.

While the storm swirls around the media and blawgosphere, the question remains whether Lerner's opening statement, where she gets in the part she wants people to hear but refuses to subject herself to unpleasant questions, constitutes a waiver of her Fifth Amendment privilege. Like so many such issues, people tend to find it "simple" to answer based upon their politics or perspective. Simple it ain't.

Had she merely proclaimed innocence of wrongdoing, it would be fairly clear that her words did not constitute a waiver. But she went well beyond a mere conclusory assertion of innocence, and touched upon the specifics of the matter. IRS rules and regs? False statements? Those go deeper than "I didn't do nothin' to no one."

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

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

I fear Lois Lerner put a toe on the line. I write this with a small sense of shame, knowing that Dersh and I are in relative agreement for the first time in decades, but even a blind squirrel finds the occasional nut. And the occasional nut can be found on the floor of Congress, if not Sutton Place.

Teach What To Whom?

2013-05-23T10:19:00Z

When my son was young, he was fascinated by cooking. Alton Brown was still doing his cooking show, and he adored the chemistry element of food, a scientific approach to cuisine. It didn't hurt that he also had a peculiar palate for a kid, preferring the French preparation of snails and organ meets to hot dogs.

Whenever Dr. SJ cooked something interesting, which was fairly regularly, my son would be her sous chef, learning how to cook from someone who knew. It was a paradigm: someone with skill and knowledge would teach someone with passion and interest, but who had yet to become accomplished.

What happened to this paradigm?

At the Puddle, a few recent posts have struck me as scary. It's unclear whether they would be better characterized as crazy or stupid, or maybe just a reflection of a shift where the basic paradigm was turned on its head, but it was plainly wrong. In the most recent post, a new lawyer, Sybil Dunlop posts A New Lawyer's Guide to Teaching a CLE.

I’m teaching a CLE with a colleague today, and I’m excited about both the topic and the presentation. Teaching a CLE, however, can be a lot of work. I have heard more senior attorneys wonder if the non-billable work (creating the materials, the powerpoint, and the presentation) is worth it. Will the CLE help their reputation? Their business? I have no idea, but I can speak first hand to benefits new attorneys can reap when they jump into the CLE-teaching arena.

Look, ma! I'm teaching a CLE!!! It's not that she has no concerns, curiously raised by "more senior attorneys," but none of those concerns have anything to do with the paradigm.

Are you working on an excessive force case? Now is the time to sign up to teach a qualified immunity CLE. This method has the advantage of honing your skills in a necessary area as well as motivating you to create the best possible CLE materials (they can double as case research).

There was once a time when a lawyer, burdened by humility, would think (and perhaps even say aloud if asked) that they were not yet qualified to teach other lawyers to do something that barely knew anything about. There was a shameless quality to the hubris of assuming that they could teach before they achieved any mastery, a reputation for expertise. What could they tell another lawyer when they were first testing their own ability to survive the crucible of court?

Gone. There is no reflection, no concern whatsoever, about whether the least knowledgeable person in the room would be the one standing in the front doing all the talking. Of course, given the opportunity to manufacture a bio as a teacher of other lawyers, qualifications be damned, it's good for the n00b, Dunlop explains. And isn't that the most important thing about teaching?

Similarly, Randall Ryder at the Puddle wrote a post a while back about how not to impress your law school professor, which related that he was an adjunct instructor at a local law school. Given the many, and sound, concerns about the relevance of law school to practice, many have put adjuncts on a pedestal, actual experienced practicing lawyers who can share what they've learned rather than just the obtuse theory that scholars adore. Cool, right?

But then, Ryder posted his reflections on his experience at the conclusion of his first year of practice. Huh? So you were a law school adjunct when only months before you were still paying tuition and praying for a decent grade? This is the experienced, practicing lawyer that upon whom students rely, with all of twelve minutes in the trenches?

Ryder's pontifications caused me to think about another Puddle regular, Josh Camson, whose plan was to live-blog his first year of practice. It was an interesting concept provided it was presented as a window to his journey, but instead it quickly turned into punditry, Camson telling others what to do and how to do it, even though he had yet to figure out whether he would be successful or a spectacular flop in full, public view.

Camson explained the other day that he no longer takes telephone calls from clients, using the Alexis Neely method that sent her into bankruptcy. Important lawyers, apparently, are too busy to take calls from clients, and instead schedule times to return calls at their convenience, thus showing clients who is more important. Camson told of how this freed up his time in his new practice:

When we first opened our firm, we got a thrill every time the phone rang. But now that we’ve built up our client base, the phone rings a lot. Of course it’s not just clients. It’s opposing counsel, officers, and so forth. But the phone rings constantly.

How wonderful that he has so many clients who think so well of him that they are thrilled to await his return call when he finds the time. Being a criminal defense lawyer, Camson's rocket-like success is inspiring, especially when compared to another new lawyer whose career crashed and burned when he took on a murder case as his first jury trial. Camson would never do anything that insane, that unethical, that disgraceful, which is why his experiences are worthy of attention.

Even after 30 years of practicing criminal defense, I take client's telephone calls if possible. If I'm next to the phone, I pick it up myself. The people calling are the people who have entrusted me with their lives, and I consider it an honor and duty to defend them. I've never been so special, so important, that I can't answer a phone. But then, I've never gone bankrupt either, so what do I know?

In a couple of weeks, I'm off to Memphis to do a CLE for the Arkansas Association of Criminal Defense Lawyers. I'm never satisfied with the CLEs I teach, always thinking I could have been more interesting, and at the same time, failed to cover as much ground as I hoped. Even though I try to limit my presentation to a very narrow slice of law, I feel constrained to not tell the fun anecdotes that make things interesting for fear that I will leave something important out. Too many years, too many experiences, too many problems seen and too many answers learned can do that to a lawyer.

It strikes me that lawyers with 5, 10, 20 years experience feel the same way I do. On the other hand, I can't imagine how a first year lawyer feels giving a CLE, where everyone In the room knows more than they do. And yet, there is neither shame nor humility in taking the podium.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

The Best Wrong Answers

2013-05-22T11:35:00Z

At Techdirt, Tim Cushing does an excellent job of parsing the FBI's no-recording-of-interrogations policy. Tim always does an excellent job at spreading the word from the legal end of the internet to the geek side of life. But what gives rise to this post isn't Tim's post, but the comments thereto.

In the past, I've explained the proper response to police interrogation. I've repeated the explanation in subsequent posts. Other lawyers have written similar things, though perhaps the nuance is lost in translation. And yet, the message not only isn't getting through, but non-lawyers are "instructing" other non-lawyers how to deal with police interrogations in a way that will likely fail miserably.

Why? Why do you not pay attention? Why must you, clueless non-lawyer who reads crap in the interwebz of varying quality, inform others about how to deal with things when you have no idea what you're talking about? Why do you listen to the other idiot who has no clue what he's talking about? Why?

What am I talking about? This comment and this one. And then there are the plethora of "just shut up" comments. Actually, they really aren't so terrible, and there are some very good comments in there, but I'm exaggerating the problem in order to justify my repeating the stuff I've written in the past for those who weren't around then and keep offering advice that is, how do I say this kindly, is less than precise.

The problem is that silence (as in, just shut up), is not an invocation of either the right to remain silent or the right to counsel. Silence is an invitation for the police to persist in the interrogation until, maybe, the silence ends. Unfortunately, most people can't "just shut up." Even if they can, it's only for a brief period, after which the words of police interrogators cajoling them to help themselves, just clear a few things up so you can go home, whatever point in the Reid Technique they're at, overcomes the three word warning and out comes the confession.

It's not that just shut up isn't good advice, but that it's inadequate and takes your eye off the ball.

At the time police take you into custody, you have at least two (there are more, but that's for another day) constitutional rights at risk. You have the right to remain silent under the 5th Amendment, and the right to counsel under the 6th Amendment. These are separate rights, even though they are put at risk at the same time.

In order to invoke your constitutional rights, you are required to do something: invoke your rights. What does that mean? You must make a clear and unequivocal statement to the police that you are exercising your rights under the Constitution.

Note that silence is no longer an invocation of rights, following the Supreme Court's decision in Berghuis v. Thompkins. There are so many things silence could mean, aside from, well, silence, and so just shutting up isn't good enough anymore. Besides, as the Berghuis case (and about a million others) have shown, even a fellow inclined to just shut up may eventually crack under pressure and cease his just shutting up. It happens. A lot.

Now for another nuanced detail that seems to confuse so many people. The police do not have to read you Miranda rights for you to be lawfully arrested, but you already know that. What may not be as clear is that the police do not have to read you Miranda rights until you are subject to a custodial interrogation. In other words, it doesn't kick in until you are in custody.

What does that mean? Custody means that a reasonable person would understand that he is not free to leave. To the Supreme Court, a reasonable person is one who has no fear of saying to police officers, "Gentlemen, as much as I enjoy your company and pleasant conversation, I no longer feel like engaging with you, so I will now be on my way," without concern that they will thereupon be beaten, tased, tackled, kicked in the head a few times until their orbital socket is fractured beyond repair, or shot. I have yet to meet this reasonable person.

Nonetheless, you have these rights even if the police have failed to tell you so, whether because they will claim you weren't yet in custody or they simply don't want to. By realizing this up front, you will be empowered to assert your rights regardless of whether the police give you Miranda warnings. They are yours to use or lose.

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words that leave your mouth, that you are invoking your rights. This is how you do so:

I do not want to answer questions.

I want to speak with my lawyer.

This is how you do not assert your rights:

Do I have to answer questions?

Do I need a lawyer?

Or this:

I don't think I should answer your questions.

I think I should speak with a lawyer first.

Or even this:

<crickets>

But it's not over yet. Oh no. Even if you have effectively invoked your right to remain silent, you can blow it when, feeling confident and bold in having outsmarted the police by speaking the magic words, you then choose to vomit words in the absence of provoking questions. In other words, if after the invocation of your right to remain silent, you voluntarily make statements without having been provoked into doing so by the police, you have in essence un-invoked your rights and your statements can be used against you.

One last tip is that it is wise to repeat the invocation of your constitutional rights each time a new officer comes to say "hi," so that everyone is aware of your invocation and no one can later claim that you offered up the statements freely. Yes, the police may think you're a repetitive bore, but they weren't going to invite you to a party anyway, so no loss.

And if all of this is way too hard to remember, or fear overcomes your sound discretion when the time comes to utter the magic words, then the fall back position is just shut up. No, it's not the same as an invocation of rights. No, it is not the right way to handle the situation. But it beats the hell out of spewing your guts out and hanging yourself.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Sgt. Dennis Workley and a Jail Safe Enough

2013-05-22T10:23:00Z

He lied. He made stuff up about Claude Suggs, that he was selling pot out of his home, in order to get a search warrant. He was so careless, so cavalier about it, that he didn't even give the minimum effort to make it look good, cutting and pasting from old warrants, leaving in the "cocaine" language even though this was for marijuana. Baltimore Sgt. Dennis Workley was a liar.

"It was like a SWAT team. They had the big shield and guns," Mary Johnson said. "They had weapons drawn to animals, people, babies."

[Reporter Jayne] Miller reported there were irregularities in the affidavit Workley signed to get the warrant. In one section, he said marijuana was sold from the house, Miller reported. In another section, he said the house was used to traffic cocaine.

Miller said the discrepancy suggested that Workley cut and pasted text from another case.

And some judge signed it, discrepancies and all, a detail that appears to have faded in the mist from all subsequent accounts. Workley wound up finding two $10 bags of pot, which did not make him happy, so they took a sledgehammer and destroyed the family's Christmas presents. That will teach them to not be not drug dealers. Two under for the baggies, both dismissed. Hardly worth dragging out the bazookas.

Without explanation as to how exactly the lies made it onto someone's radar, Sgt. Workley's perjury brought him prosecution for misconduct, and he was convicted.

And he was sentenced.

Workley apologized, saying in court he got lazy and cut corners in writing the warrant.

He faced 10 years in jail, but a judge determined he couldn't think of a jail safe enough to house Workley so he will serve a suspended sentence and supervised probation.

Is there a "jail safe enough"? Cops in prison face tough times, whether from the possibility of meeting face to face with somebody who didn't care for the way they were treated when the officer was god, or just not happy with police in general. There are a few people like that in "jail." Prison too.

Or is it that jails just aren't safe places for much of anybody, but when it comes to people who never wore a shield, the judge just couldn't work up enough empathy to concern himself with the risks he imposed. After all, do criminals deserve to be coddled in jails where their safety is assured? Prison too.

Other prisoners aren't always treated with kindness and gentility. Child molesters are universally despised in jail. Rapists aren't well received in jails. Effeminate prisoners, those with slight builds, those who are less than capable of defending themselves, often find jails to be an unforgiving place. Prisons too.

The idea is that jail, not to mention prisons, aren't supposed to be death sentences for anyone. Defendants are sentenced to a term of years, not to rapes, beatings and murder. Among the many duties the state has, keeping those in its care safe from harm is one. One that isn't always done very well. Is that the judge's point, that the jails of Maryland are incapable of providing safety to its inmates? Prisons too?

The judge's concern, while speculative, is understandable. What it is not is acceptable. Among the primary legitimate purposes of incarceration, general deterrence is big. Huge. And it's especially huge for police, a group largely inclined to believe that no matter what they do, what laws they break, what people they harm, they will receive special treatment.

No matter how bad a cop may be, he will still get the special courtesy reserved for a cop. And only a cop.

The explanation often used by judges for sentencing a convict to a term of years in prison, usually a lengthy term that will leave infants fatherless for the duration of their formative years, families destitute, even employees without jobs when their employer goes down, is that they must send a message. They must. It is so critical that the message be sent that it justifies the suffering of innocents this time so that others are not harmed another time.

So too was a message sent by the judge, Baltimore City Circuit Court Judge John Howard, that Dennis Workley, former sergeant of the Baltimore police, leader of the SWAT Team that smashed Christmas presents with a sledgehammer, liar, cannot be sent to jail because his safety might be compromised. Prison too.

The argument, likely made by Workley's lawyer, is a sound one. Workley would likely be at grave risk of harm if he was sentenced to jail. Prison too. While it would be a similarly sound argument for many other defendants, it's highly unlikely it would meet the same reception. Child molesters simply do not get nearly as much understanding from judges as dirty cops.

So Workley doesn't go to jail for his crimes. Not even prison.

And still, nobody mentions the judge who signed off on the cut and paste warrant that couldn't figure out whether it was for marijuana or crack. He won't be going to jail either. Prison too.

You're The Ginchiest (and other lame linkbait)

2013-05-21T12:47:00Z

Ah, the ego validation that blawgers so crave. The email just arrived, informing me that SJ has been selected as one of the Top 30 Law Blogs of 2013! Woo hoo!!! I want to thank the Academy...oh, wait. It's not from the Academy. Not the Pulitzers. Not even the ABA Journal.

It's from Best Degree Programs dot org, that deeply meaningful website that sends out the weekly inane infographics because they love us blawgers so very much and want to help us. Just please, please, include the backlink. But the infographic scam can only work so many times before the flawgers figure out that it's really not a matter of deep appreciation, but just your basic backlink scam.

And so, every once in a while, they put together a "Best of" list. It's brilliant, as it plays on the foremost issue in the minds of so many in the blawgosphere: Do they love me? Plus, they give you a really cool badge.

Impressive, right? And you have to work really hard to eliminate the code that installs the backlink no matter how often you delete it, because there is nothing more important to being the best than good backlink code.

Then comes the real question, how many blawgers will bite on this scam and post their deep appreciation for the important recognition on their blawgs? Ego much? Validation? Patsy?

Besides Lat at ATL (who fell for it once but was inexplicably left off the list this time) and lawprofs, who are honored by an award given by Busy Bee Nursery School, who will bite? I have some suspicions, and will check tomorrow to see which "winners" are humbled by the great honor.

But since making fun of such a transparent ego play isn't enough to fill me up, it's time for dessert.

While In San Francisco to speak at the monthly San Francisco LMA luncheon on Website trends (with Barbara Abulafia, Keker & Van Nest, Jeff Yerkey, Right Hat and Per Casey, Tenrec), my colleague Keith Wewe, another couple and I were hosted by Elizabeth Lampert for dinner at Twenty-Five Lusk.

[I have no clue who all these LMA attendee types are, but they must be impressive in the legal marketing world since the post's writer, Deborah McMurray, felt them worthy of some butt-kissing mention.]

Twenty-Five Lusk features a dessert called "Textures and Chaos" that lists only four ingredients on the menu, but clearly had several more (as you can see by the photo below). This photo can't begin to communicate the plated disaster that was proudly delivered to our table.

Perhaps, in a desire to elevate the participation among his team (and create a sense of inclusion), the chef tried crowd-sourcing to create this dessert - where each member of the kitchen staff added a favorite ingredient - and, voila! - Textures and Chaos was born. The result was so poorly conceived and executed that I was inspired to write about it. It's not only seriously ugly, but the tastes were as cacophonous as 5 p.m. rush hour in New York.

Why do I ask you to endure this nonsense? Stay with me. There's a payoff. I promise.

What can lawyers learn from this?

Not to order dessert at Lusk?

Firm strategy should start back in the kitchen-equivalent (not at the dinner table) and be a thoughtful consideration of audiences, markets, geographic reach, competition, threats and opportunities that are just cresting over the horizon. This positioning stake in the ground informs what practice and industry teams could do, and what individual lawyers on those teams can do. When well-intentioned, but overly independent lawyers go off and create their own Internet presence with no regard for their law firm, they miss the most important advantage available to them - leveraging the investments (strategy, time, reputation and money) made by the mother ship.

When many lawyers in a firm do their own thing without regard for the firm and practice group strategies, the result won't be far away from "Textures and Chaos."

True 'nuff. So instead of a result like "Textures and Chaos," you can shoot for the focused, cohesive if untasty result achieved by Best Degree Programs.

Bon appétit!

A Lot of Misjudgment of Suspicion

2013-05-21T10:39:00Z

Without a doubt, Judge Shira Scheindlin has a way with understatement. During closing arguments in Floyd v. New York, the stop and frisk trial finishing up in the Southern District, the court said the obvious aloud.

Observing that only about 12 percent of police stops resulted in an arrest or summons, Judge Scheindlin, who is hearing the case without a jury, focused her remarks on Monday on the other 88 percent of stops, in which the police did not find evidence of criminality after a stop. She characterized that as “a high error rate” and remarked to a lawyer representing the city, “You reasonably suspect something and you’re wrong 90 percent of the time.”

“That is a lot of misjudgment of suspicion,” Judge Scheindlin said, suggesting officers were wrongly interpreting innocent behavior as suspicious.

Yes. Yes it is. To the untrained eye, this might have been a foregone conclusion, Mayor Bloomberg and Police Commissioner's adoration of the tactic notwithstanding. And yet, the City remains adamant that the massive failure of a 90% error rate in what they contend to be reasonable suspicion is protected under the ancient legal doctrine of stercus accidit.

The problem is that despite the fact that the individuals stopped were almost invariably black or Hispanic, there has been no evidence introduced of racial slurs during the course of the stops, which the City argues reflects the absence of profiling or racial animus. Judge Scheindlin wasn't entirely persuaded.

In the absence of overt racial slurs, Judge Scheindlin repeatedly asked a city lawyer, would it be appropriate to infer that a police encounter was racially motivated if an officer stopped a black man with no apparent basis? “If the court were to conclude there was no fair basis for the stop, but the stop was made, there has to be a reason,” Judge Scheindlin said, suggesting it might be a fair inference to find that it was a race-based stop.

No, no, no, the City responded. Never, because that would be wrong.

Much of the statistical testimony revolved around a single, stark fact: black and Hispanic people represent an overwhelming majority of people stopped, more than 85 percent most years. The city has long argued that this reflects crime patterns. City lawyers claim that the percentage of stops involving black individuals either mirrors, or is lower than, the percentage of violent crimes committed by black suspects.

After all, is it the fault of New York Police Officers that blacks are more "criminally"? Except, of course, for the fact that 90% of the time the black and Hispanic young men stopped aren't "criminally" at all. Most people would think that's a problem, but not New York City:

Heidi Grossman, the city’s lead lawyer, cautioned Judge Scheindlin, “You’re speculating what the reason is.” She noted that an improper stop could have been a mistake or based on an officer’s misunderstanding of the law, rather than a racial motivation.

Though it apparently wasn't said, the foundation for the argument is Hanlon's Razor, never attribute to malice what can be adequately explained by stupidity. In other words, New York's Finest are too clueless and incompetent to be expected to recognize when reasonable suspicion doesn't exist or that the law precludes their unconstitutional conduct, and they should therefore be forgiven their millions of trespasses.

While it's called "Hanlon's Razor," the concept is also attributed to Robert A. Heinlein, whose 1941 short story "Logic of Empire" includes the quote, "You have attributed conditions to villainy that simply result from stupidity." This, of course, leads inexorably to another of Heinlein's quotes from his 1966 opus, The Moon is a Harsh Mistress: TANSTAAFL.

It's time for the New York City Police Department to pay the lunch bill. Check please.

"Taser Joe" Martinez Meets The Line

2013-05-21T10:17:00Z

When the caption of a 5th Circuit opinion by Judge Emilio Garza includes a police officer's nickname, and that nickname happens to be "Taser Joe," you have to find out why. After all, plenty of deputies use Tasers, so it's not easy to stand out.

In Ramirez v. "Taser Joe" Martinez, Jim Wells County Deputy Taser Joe went to Reynaldo Ramirez's landscaping business to arrest Ramirez's sister-in-law on a warrant. It being Ramirez's business and sister-in-law, he questioned what Taser Joe was up to. Taser Joe was not pleased.

Ramirez claims the officers had their guns drawn and were pointing the guns at his employees, who were kneeling down. Ramirez approached Deputy Michael Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain what was happening. Teodecki said Martinez was in charge of the operation and did not disclose any other information.

Ramirez located Deputy Martinez and asked Martinez what was happening and why the officers were there. The two exchanged profanities. Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn around and put your hands behind your back!” Ramirez did not comply. Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez pulled his arm away. Martinez immediately tased Ramirez in the chest.

Notably, Ramirez's "crime" was not shutting his mouth upon command, notwithstanding the fact that the deputies were at his business, pointing guns at his employees, who were kneeling down. There's no mention of whether the deputies forced the employees who had nothing to do with the arrest to kneel in their presence, but it seems reasonable to assume that wasn't their preferred position.

Aside from asserting that the deputies had intruded on his business and demanding to know what they were doing, Ramirez did nothing to give rise to suggest a crime. Significant detail? Not even close.

Judge Garza held that Ramirez's act of "pulling his arm away" when Martinez sought to grab it was all the probable cause he needed, relying on Texas Penal Code §38.03 which provides:

The offense of Resisting Arrest is defined in relevant part as follows:

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

While caselaw holds that pulling away is resisting, the kicker is in subsection (b), that it is no defense to resisting that there was no basis for the arrest in the first place. This flies in the face of the commonly understood belief that if a person has committed no crime, the police have no authority to arrest or use force to effectuate that arrest. Silly people, thinking that there has to be lawful justification at the outset or what follows can't be lawful.

What continually stymies people's understanding of how criminal statutes work is their expectation that it will somehow comport with a logical progression. As most any judge will tell you, the law demands you submit first and complain later. Was Ramirez's annoying Taser Joe with his insipid questions about why deputies were at his business pointing guns at his kneeling employees a crime? Well, no. Not a crime at all, but the fact that he pissed off the deputy was more than sufficient to set in motion the chain of events that placed the burden on Ramirez to submit to arrest. And his failure to do so, by pulling his arm away from Taser Joe, was a crime in itself, even though no crime occurred upon which the arrest could be justified.

There are no shortage of folks, myself included, who think this view of the relative authority of police to arrest for contempt of cop is not merely wrong, but more than sufficient cause for a citizen to defend his constitutional right to be left alone. But neither the legislators who enacted this law, providing police with authority that bears no connection to reason and subjugates citizens to the craziest whims of police, nor the courts agree. The notion is that protecting cops is the first priority. Protecting citizens from cops, not so much.

As if that isn't bad enough, after Ramirez pulled his arm away, Taser Joe did what he does, he tased him. Based upon the law that pulling away from a police officer attempting to effectuate an arrest, even if there was no basis for the arrest in the first place, is a crime, Taser Joe contended that he was entitled to one free tase. Taser Joe, meet the line.

Therefore, accepting Ramirez’s version of the facts as true, the first Graham [v. Conner, 490 U.S. 386, 396 (1989)] factor weighs slightly against Martinez. Second, a reasonable officer could not have concluded Ramirez posed an immediate threat to the safety of the officers by questioning their presence at his place of business or laying on the ground in handcuffs. Pulling his arm out of Martinez’s grasp, without more, is insufficient to find an immediate threat to the safety of the officers. Third, as in the first Graham factor, according to Ramirez the only resistance he offered was pulling his arm out of Martinez’s grasp; he alleges several officers then forced him to the ground without resistance on his part. Viewing the facts of this record in the light most favorable to Ramirez, any reasonable officer in Martinez’s place would have recognized Martinez’s conduct was objectively unreasonable under the Graham factors.

While pulling an arm away may be sufficient to give rise to a crime, it isn't sufficient to pose an "immediate threat to the safety of the officers" such that they can use force against him. This is a curiosity, given that the act of Ramirez pulling his arm away is deemed sufficient "resistance" for arrest, a not-inconsequential intrusion into a person's life and liberty, but insufficient to justify the use of a Taser. Sweet.

And it thus goes without saying that the second tasing of Ramirez, when he was on the ground, handcuffed and not resisting anything, was unreasonable and a flagrant violation of established law. But then, why do you think they call him Taser Joe?

H/T FritzMuffKnuckle and Courthouse News

Will Money End Recidivism?

2013-05-20T11:11:00Z

"John Arnold" isn't a household name, even though he's made a ton of money as "a wunderkind natural-gas trader at Enron who later founded his own hedge fund." Enron? Well, even Enron made some real money in its day, and Arnold was their killer trader. With more than he could ever spend, John and Laura Arnold have moved on to doing something worthwhile with their money.

From the Wall Street Journal:

Most billionaires tend to write checks to good causes they're part of, hospitals where they were treated or universities they attended. These are the so-called "grateful-recipient" donors. Or there are donors who make sizable gifts to meet an obvious need in a community, such as hunger or education. But at a time when charitable giving in the U.S. is still down from its peak in 2007, the Arnolds want to try something new and somewhat grander. John says the goal is to make "transformational" changes to society.
The Arnolds want to see if they can use their money to solve some of the country's biggest problems through data analysis and science, with an unsentimental focus on results and an aversion to feel-good projects—the success of which can't be quantified.

What the idea lacks in immediate gratification it makes up for in scope and breadth. Intransigent systemic problems tend to be ignored because the cost/benefit ratio sucks. Even if a fortune is dedicated to fixing such a problem, there is no assurance that any benefit will ever be derived. Sometimes, intransigent problems are just, well, intransigent. But then, if you never try, you never know.

This is where the Arnold's effort gets curious.

Along with obesity, the Arnolds plan to dig into criminal justice and pension reform, among others. Anne Milgram, the former New Jersey attorney general hired to tackle the criminal-justice issue, has a name for all this: She calls it the "Moneyball" approach to giving, a reference to the book and movie about how the Oakland A's used smart statistical analysis to upend some of baseball's conventional wisdom. And the Arnolds are in no hurry for answers. Indeed, they believe patience is a key resource behind their giving.

If the goal is to "tackle the criminal-justice issue," what message comes from the choice of former New Jersey attorney general Anne Milgram to lead the effort? Her relatively brief career in the law has ranged from New York prosecutor to New Jersey prosecutor.

Then again, this only matters relative to the gist of the criminal justice reform. If the question is how can we convict more people and send them to prison longer, it's one issue. If the question is how can we prevent the conviction of the innocent it's another. The issue under scrutiny here is a bit different:

The Arnolds hired Milgram to analyze criminal justice, with the mandate to "take resources off the table for a while"—in other words, don't worry about what the research will cost. She zeroed in on how, despite New York City's success with the CompStat crime-reduction system, the influence of empirical data has barely trickled down to the local level. "It's hard to think of an area that is less data-driven and analytical than local government," Milgram says.

Huh?

 In particular, she and Laura became fixated on how the country spends $9 billion to keep nonviolent, pretrial defendants behind bars, even though there is little data on the risks those accused pose to society. As Milgram points out, most baseball teams know more about their backup shortstops than judges know about pretrial defendants before locking them up at great cost to society and the accused.  

Oooh. Didn't see that coming. As for the "Moneyball" analogy to shortstops, well, it's pretty darned poor. There are a whole lot more criminal defendants than major league quality shortstops, and not every defendant has a relevant statistical record to rely on. "So what team did you commit burglaries for in college, Joe?"

"It struck us as a uniquely bad mechanism to decide who should stay in jail," says Laura, who also sits on the board of The Innocence Project, which uses DNA testing to clear prisoners on death row.  Using data from more than 1.5 million cases, Milgram and her team created a risk-assessment tool for judges that will be tested in three jurisdictions later this year. The Manhattan district attorney's office is planning to try a similar tool designed for prosecutors.

[Edit: This was omitted from the original post this morning. Sorry.] Risk assessment in pretrial bail/detention is relatively easy at the low ends and relatively pointless at the upper ends of the crime spectrum. At the low end, where poor defendants can't make $500 bail, they sit until they plead to avoid spending the year awaiting trial. At the upper end, solid citizens who have no reason in the world to flee but for the seriousness of the charge, are held without bail lest the judge be impugned for letting some accused murderer out on the streets. It really doesn't require a billion dollar study to empirically demonstrate that non-violent defendants pose no risk of violence if released on or without bail.

But if this risk assessment makes any sense, it would seem to have far greater application to sentencing, a far larger systemic problem, than pretrial detention. After all, at arraignment, everyone is presumed guilty, even though bail determinations don't necessarily reflect it. After conviction, everyone is guilty. What then is the risk? What then is the sentence? That's where some empiricism could do us a world of good.

Sentencing, as discussed here numerous times, remains a black hole of empiricism, the last bastion of religion in the law. It can only be explained in broad, meaningless strokes, without any hint of justification for the length of time a defendant is taken from his family, or society is made to pay for his warehousing. It's voodoo.

And yet, one can't help but wonder what bases predicated the 1.5 million cases of data? On the one hand, Laura Arnold sits on the board of The Innocence Project, which suggests a concern for the wrongful conviction of the innocent, and in turn the use of weapons in the fight for convictions that lend themselves to the securing convictions at all costs.

On other hand, former New York County prosecutor Milgram has been chosen to take the lead. So Manhattan District Attorney Cy Vance is planning to try using a similar empirical tool? Is that offered to suggest that if it's good with prosecutors, it should be good with the rest of us? Are prosecutors the bellwether for a healthy criminal justice system?

The outcome of this project may well prove to be beneficial to everyone, providing an empirical basis and maybe sentencing that will end the imposition of meaningless numbers that leave people who pose no risk of recidivism or harm to society behind bars for years, for decades. But every effort at reform begins with a bias, and there is nothing in this article to suggest otherwise here.

If anything, it's particularly scary as it has the potential to offer what appears to be an empirical basis for what's not done with eyes closed which may prove to be impossible to argue against in the future (unless you have a few billion to do a study of your own), and yet infected with the same assumptions about the bad guys that have given rise to such brilliant solutions as mandatory minimums, three-strikes laws, zero tolerance and life without parole for children caught with their shirt tails out.

So will money end recidivism? I dunno, but I do know that whatever it comes up with, there's no one around willing to engage in a counter effort to dispute the results.

H/T Stephanie West Allen

The Death of Andrea Rebello: Excuses 2.0

2013-05-20T09:57:00Z

When news first broke of the killing of Hofstra student Andrea Rebello, the first reports had two distinct features: the reports were fundamentally wrong and they began with a lie, that she was shot by the masked gunman, Dalton Smith. A bad smell permeated the news.

When the truth came out, that Rebello was shot in the head by a Nassau County police officer, the explanation was that the first two officers on the scene decided to enter the home, where the gunman, with Rebello in a headlock, pointed his gun at an officer. The unnamed officer fired eight shots, one of which struck Rebello in the head.

The next line of questions related to why a patrol officer would enter a house with a gunman and hostages. The proper course of action would have been to secure the scene and await supervisors and hostage negotiators. The one thing you don't do is play cowboy, enter the home and create an untenable situation. There was little chance it would end well.

Enter Excuses 2.0, via the New York Times:

Officers who arrived first on the scene believed that they were confronting an armed robber but knew nothing about the hostages, the police said. That gap in knowledge was critical, experts said, possibly leading to missteps that inflamed an already dangerous situation and ultimately led to tragedy.
Most critical, experts said, was the decision by the officer who ultimately opened fire to enter the home in the first place.

This raises three possible faults. Did the young woman who called in the 911 neglect to mention there were people in the house? Did the 911 dispatcher neglect to mention there were people in the house? Did the officers who entered the house either fail to pay attention to the radio run or decide on their own to enter the house anyway.

Only minutes elapsed from the time the police were summoned to the home on California Avenue about 2:30 a.m. Friday until the shots were fired. Hostage negotiators were summoned, but they did not reach the scene in time, said Deputy Inspector Kenneth Lack, of the Nassau County Police.
“The first time they knew there were hostages was when the officers were already in the house,” Inspector Lack said, citing details from a preliminary investigation.

Once inside the house, the officers had few options.

The officers did not have "few" options. They had none. Someone was going to be shot and the only question was who. But when crafting explanations for why it wasn't the cops' fault, or at least creating sufficient doubt that people will have moved on to the next tragedy before the answers become apparent, relying on something like the radio run, reflecting the pivot point of communications between 911 caller and police on the scene is a risky proposition.

Whether the Nassau County Police released the dispatcher's call to the media or it was picked up on a police scanner isn't clear, but in this early report, before anyone knew that Rebello died from an officer's bullet, enough of the radio run is included to provide an answer. (Note that I would include the video in the post for your convenience, except WPIX begins with an offensive autorun 30 second commercial. The portion of the report containing the radio run starts at 1:44.)

There are also news reports where the police note that there were hostages and calling for supervisors moments before the "shots fired" call came over the police radio.

They knew. They entered the house anyway. By doing so, they created the "worst case scenario."

A former firearms trainer for the New York Police Department, who asked for anonymity because he maintained close ties with active-duty officers, said a situation like this one — an armed gunman pointing a weapon in proximity to a victim — was “the worst-case nightmare for cops.”
He said such situations required a balance between protecting the victim and the officers themselves.

“I would hate to be in that situation myself,” the former trainer said, “but the bottom line is if a police officer believes that his death or the death of a civilian is imminent, he is absolutely justified in utilizing deadly force.”

Where exactly the balance between protecting the victim and the officers protecting themselves came into play here remains unclear. The answer seems to be in not creating the nightmare scenario rather than having to pick who dies today.

Make no mistake, the gunman, Dalton Smith, bears primary responsibility for the course he set in motion when he decided to rob the home at gunpoint. But it's the job of the police to come into a criminal situation and make things better, not worse. And having taken a bad situation and turned it into the "worst-case nightmare," the lies and excuses to deflect the mistake, the failure to take actions that would have given Andrea Rebello a chance at survival, can't be ignored.

The officer who fired the shot that killed Andrea Rebello hasn't been named. Indeed, it's likely that he will be scarred by what he did to this young woman for the rest of his life. His career with the police may be over, not because he will be fired for having acted improvidently, but because he can't shake off the guilt of being directly responsible for the death. The police will likely speak to the heartbreak of the police officer, the psychological trauma he will suffer for the rest of his life, to remind us that he too is a sympathetic player in this tragedy.

While this may be true, the suffering of the officer who killed Andrea Rebello won't be nearly as deserving of sympathy as the suffering of her twin sister or her parents. The difference is that the officer had a choice of whether to enter the house. He gave Andrea Rebello no choice. And the excuses to deflect blame from the police just make the suffering of the Rebello family worse. It's bad enough a cop killed Andrea Rebello. Don't make it worse by making up excuses.

My "Styles" Audition for the New York Times

2013-05-19T13:17:00Z

Having already taken charge of the op-ed page of the Times, I needed a new challenge. What better for a cutting edge guy like me than the Style Section? Do I not know that the Louis Vuitton store is on 57th Street? Come on.

And so, I tackle the hard questions posed to Philip Galanes in today's paper, since he obviously isn't really cut out for this style stuff.

My husband and I are preparing our wills. We have two adult children: a daughter who is more successful than we are, and a son, who has been down on his luck for years. He also has three young children to educate. Everyone, including our lawyer and close friends, tells us that we should leave our money to them in equal shares to avoid hurt feelings. But that doesn’t seem right. Our son needs the money. Still, we don’t want to hurt our daughter. What would you do?

Anonymous, Chicago
Stop listening to everyone. It’s your money, and they’re your children. Who better to walk this perilous tightrope than you, especially if we set up cushiony nets beneath you (unlike Burt Lancaster in “Trapeze”)?

Burt Lancaster in "Trapeze"? Seriously. When I was a kid, that movie was so old it was on the 4 O'Clock Movie five days a week. Come on, Philip, strap on those sock garters and spats and get out once in a while. But I digress.

So is your irony detector going crazy like mine? The anon questioner, who hasn't bothered to make a will until her children were old and half-losers, has already raised their issue with the people who know them, know their financial sitch, maybe even knows their kids, and so they've decided to ignore people with knowledge in favor of a guy who writes for a newspaper and doesn't know them from Adam. Minus 1.

And what does the newspaper guy say? Stop listening to everyone. Oh, the irony alarm is deafening. Don't listen to them. Listen to me? Anybody home?

Naturally, what caught my eye about this question was that it stands at the crossroads of law and feelings. So the old folks who never thought to make a will before are now struggling with how to take care of their loser son. Does it dawn on them, or Philip, that leaving him more than a half share might not be a helpful way to deal with it at all. How about a good smack in the face, a la Moonstruck? Remember the old give a man a fish allegory?

So they feel guilty about having failed their baby boy. With good reason, apparently, and so their parting message to their daughter, who worked hard and accomplished something with her life, is we don't love you as much as your brother.

Bequests to children aren't rational, even if the daughter says she gets the reason. It's a matter of legacy. If you hate one of your kids and want to get in the final smack, screw him in the will. Just remember that there is no going back afterward, so you better really, really hate the kid because the kid is for sure going to hate you.

The point of advice isn't to confirm what the person asking wants to hear anyway. It's to help them despite whatever really dumb thing they want to do. When it comes to something like a will, there are a wealth of concerns that would never occur to a Style guy because he's never sat in a room with the children of dead parents, trying to figure out why they did what they did. Experience suggests that things nobody wants to believe will happen will happen. They get greedy and needy. They get angry. They get spiteful and hateful. They shouldn't, and the testator didn't think they would. But they do.

How do we know such things? Because this isn't the first person who ever made a will. Now the big question: Is she leaving behind any Louis Vuitton bags?

So when should I move my stuff into Philip's old desk?

Every Day is a Networking Event

2013-05-19T10:43:00Z

For reasons that can best be described as a generosity of spirit combined with some internal pride, Fishtown Lawyer Jordan Rushie posted about the things he did in his extralegal week. He had a busy week.

Monday: Confer with FNA Board to discuss PTSSD grant, which involves a significant amount of money coming into the neighborhood for civic projects
Tuesday: 6:30pm – 9:00pm – Hosted an FNA Zoning community meeting to take a vote by the neighbors on a large scale residential development proposal.
Wednesday: 12:00pm – 5:30pm – Testified before the Zoning Board of Adjustment on behalf of FNA about proposed development along the Delaware Avenue Waterfront (the largest development ever proposed in Philadelphia), and its impact on the Fishtown neighborhood.
6:30pm – 9:00pm: Hosted a Fishtown Area Business Association meeting, which was attended by over 60 local business owners to discuss happenings in the neighborhood (and drink a few beers).
Thursday: Attend FNA General Membership Meeting to discuss happenings in the neighborhood with the community, including all of the things that happened earlier in the week.
Friday: Quizzo in my local watering hole, Luke’s Bar.
Saturday: 1:00pm – 3:00pm – Station table at the Trenton Ave Arts Festival for FNA.

Sure, it smells a bit like "look at how awesome I am," of the sort usually found on law professor blogs, but he knew that his contemporaries would react by slamming him for being self-promotional. Yet he posted it anyway, including at JD Underground, where his offering was met with anticipated hate from the Slackoisie.

Coincidentally, the other Fishtown Lawyer, Leo Mulvihill, posted at the Puddle about creating a "book of business," beginning with saying hi to people

Think about how many people you walk by on any given day without even looking up from your smartphone because you’re updating your Facebook status. Every one of those people is a potential future client, and you’re busy with cat pictures.

The handsome young couple down the corner, One-Eyed-Nick, Crazy Cat Lady, or even just your Friendly Neighborhood Postman — just say “Hello!” You’ll catch people off guard. You might even strike up a brief conversation. But more than that, these folks will begin to recognize you. While you might start off as “that weird guy who says ‘Hi’” every day”, over time you become “that criminal defense lawyer whose office is around the corner.”

This is in prelude to a post at a lame scamblog, Outside the Law School Scam, where a writer using the pseudonym "the adjunct law professor" schools the babies on "networking events."

A few years ago, I was encouraged to go to local business meetings, breakfasts, lunch groups, etc. And they all - yes, all! - had the following composition:

- Attorneys
- Real estate agents
- Insurance salespeople
- Mortgage brokers
- Random chick selling gift baskets

Nothing else. They were pathetic gatherings where people whose businesses relied upon sales handed out business cards to each other. Look at who your fellow bottom feeders are.

He (she?) is certainly right about what one finds at a "networking event," since the only people who have any reason to attend are people who need business. No one shows up at one of these nasty meetings because they have too much work or are looking for someone to give money.

But at the same time, this self-described adjunct law professor reaches the completely wrong conclusion.

If you're not a salesperson, you will not be a successful lawyer. If you're uncomfortable shaking hands and schmoozing and networking and spending half your life working the room in sleazy gatherings, you will not be a good lawyer. Law is not about law. Nothing that makes you a successful lawyer is learned in law school. You would be better off spending three years slutting around on a used car lot, because that's how you learn how to snare people into deals they don't need for prices they can't afford.

His math is all wrong. The desire to work the room in hotpants at a networking event has nothing to do with the practice of law, and everything to do with looking for the second easiest (and third worst) route to success. The events are sleazy? You bet. Worthless? Sure. This makes lawyers sluts? No.

Trying to put this into language the Slackoisie will understand, life is a "networking event." We meet people constantly. We chat with them, make friends (or enemies), hang out and share jokes and dirty looks. There is a world out there teeming with life.

You want a networking event? It's been going on since before you were born and will continue after you die, non-stop. It's up to you whether you want to be part of it, and while there will be the occasional "random chick selling gift baskets," there will also be the occasional person who will one day need your help.

See how that works? You aren't going to meet these people staring at the screen of your iPhone or Ultrabook, but participating in something I like to call "life."

Sure, there are some people who are more gregarious and outgoing, always able to make friends wherever they go and, somehow, get people to want to speak to them about their problems without coming off like a salesman. So you're not one of them? That's okay. That's where Jordan's and Leo's posts come into play.

Get Involved. Not only is it scary easy, but there is a committee or group for pretty much every activity man ever invented, and there are never enough warm bodies to fill the seats. Groups are constantly trying to get new blood in the door, and anyone who offers to help is usually embraced.

And so you know, if you aren't given a big welcome, it's nature's way of telling you that you are the problem, not the world. You may want to adjust your attitude appropriately or go back to your Gameboy and beat that next level.

The networking event is going on now, as I type. But it is not happening in your parents' basement. That's why you weren't aware of it until now. And you can thank the young lawyers who are out there engaged in it for letting you know instead of cursing them for making you feel inadequate.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

How Do You Say "Reasonable Accommodation"?

2013-05-19T10:05:00Z

An interesting post from Jonathan Turley:

There is an interesting lawsuit against an academic institution in Colorado. Spanish-speaking custodial workers at the Auraria Higher Education Center in Colorado are suing over the failure of the Center to give them instructions in Spanish — alleging that they have faced unsafe conditions over the use of English rather than Spanish. The case suggests that the use of Spanish can not only be legally required but that the use of English can constitute a type of unsafe workplace.

While it certainly seems more effective to communicate with employees in a language they understand, does the failure to do so give rise to an actionable claim for an unsafe workplace?

Blaine Nickeson, an AHEC vice president, said that the AHEC does offer some translations, but that it cannot be required to use native languages for all of its employees.

Note that the case is brought by Spanish speaking workers, ignoring for the moment that they happen to be custodial workers. We can't assume that all their workers who speak a language other than English are also Spanish speaking, so is the duty to communicate with every worker in their native language? Turley doesn't think so.

I cannot see how using English as the primary form of communication in the United States can be the basis for discrimination or an unsafe work environment. If schools are legally required to speak the language of custodians and other employees, can they refuse to hire non-English speaking employees or would that be a form of discrimination based on national origin?

In some of the comments to his post, the reaction was "if they want to hire Spanish speaking custodians, then they have to give them instructions in Spanish." Implicit in this rationale is that they could refuse to hire Spanish speaking custodians because they are Spanish speaking. Is that really the best outcome?

Similarly, many argue that this is America and they ought to speak English. Then there is always the "foreigners stole our jerbs" view, because so many Americans are clamoring for those custodian positions so they're not relegated to pushing lawn mowers.

It seems that there is no question but that hiring non-English speaking employees would compel an employer to make a reasonable effort to create effective means of communication for the benefit of everyone. It doesn't do the employer or employee any good to have an inherent breakdown in communication, and it certainly isn't in anyone's interest to have anyone get hurt.

“Too many things have happened to me there that I don’t even know how to explain it,” said Auraria custodian Bertha Ribota.
Ribota said she was injured at work because she couldn’t read a warning sign that was in English.

“If I could speak English I wouldn’t have the problems that exist,” said Ribota.

The same, of course, could be said of people who come to the United States to work, that it would be in their interest to learn English. Of course, that's easier said than done, and even if they do, they have to eat until they've achieved a sufficient level of mastery that they can read the sign that says "don't stick your head inside machine while blades are turning."

While Title VII of the Civil Rights Act of 1964 requires employers to provide "reasonable accommodations" in the cases of religion and disability, it does not require an employer to communicate with every employee in his or her native language. The question isn't whether it's a good idea to do so, but whether the law requires an employer to do so.

Like Turley, I don't see how it could work or be enforceable. If an employer has a staff that speaks 5 languages other than English (or make that 20, or 50), would the employer be required to have supervisors who speak those languages as well, signs for every language, perhaps translators working full time?

The alternative is that the law would have to allow employers to discriminate based on language, which implicates national origin, so that he could have staff speaking only one or two foreign languages, and then it would be relatively manageable to have supervisors or translators to manage the Babel.

But these are inherently burdensome on an employer and pretty ineffective means of dealing with the problem. What if your one Mandarin speaking custodian quit and was replaced by a Ukrainian? The problems are endless.

The obvious "solution" is for foreign language speaking employees to learn English (or for everyone to agree to speak Spanish) so that there is only one language in the workplace, but that's a fantasy solution, impractical as well. And yet who can blame employees for not wanting to get hurt?

The .05% Solution

2013-05-18T10:21:00Z

It started at .10%. Then it was .08%. Now, the National Transportation Safety Board wants to reduce it to .05% blood alcohol content to create a per se crime of drunk driving. And it comes with a plethora of ideas, including steering wheels that can tell from perspiration whether the driver has been drinking, or interlock devices that won't allow a car to start until the driver has done some heavy breathing,

The New York Times says it's a good thing.

It is surprising how few drinks can impair a driver’s judgment. A report from the National Transportation Safety Board estimates that alcohol-impaired driving contributes to thousands of deaths and tens of thousands of serious injuries each year. It is right to urge states to reduce that toll by lowering the allowable blood-alcohol concentration for drivers from 0.08 percent to 0.05 percent.

The first sign of a problem is the wiggly word used to make the connection between alcohol and thousands of deaths. See how they snuck it in there, "contribute"? Not "cause," because there is no evidence that alcohol was the cause, and indeed there is a ton of evidence to the contrary. The statistics are played by including in the numbers any death where anyone anywhere near a car had any alcohol in them, including the victim, without regard to whether alcohol had anything to do with it.

The second sign is that Mothers Against Drunk Driving, the force behind the reduction from .10% to .08% and the public service announcements, the school groups like SADD, and pretty much every initiative relating to drunk driving, doesn't support this change.

This is shocking. No, worse than shocking. But MADD isn't just the mothers who have endured a tragedy anymore, but a sophisticated machine. In their zeal to wipe drunk driving from the face of the earth, they realize that this move goes too far. They have thrived on the support of middle America, using the "do it for the children" argument better than anyone else. But this move goes beyond the tipping point of acceptability, and that would spell the death of their power and their effort.

The use of a percentage of blood alcohol content as the definition of a crime is a strict liability offense. You don't have to drive dangerously. In fact, you can driver perfectly, but you're still a criminal. You may not put your own interests ahead of society, but just be a pretty normal, law-abiding, happy person, and still you're a criminal. You may support the death penalty, make cookies for the DAR bake sale, own an AK, but still you're a criminal.

If the BAC is reduced to .05%, it's going to change a lot of lives, and the people whose lives it changes aren't bad people and aren't going to like it.

The point has been made that if we want to eradicate drunk driving, then it can be done quite easily by making the legal BAC .00%. No drinking, period. Easy. But people aren't going to like that at all. The argument offered to make the .05% BAC more palatable is that it allows some drinking:

The new standard would not bar all alcohol, but would mean giving up a drink or two. A 180-pound man who might be able to drink four beers or glasses of wine in 90 minutes without reaching the 0.08 limit might have to cut back to three to meet the lower standard. A 130-pound woman who could have three drinks in 90 minutes and stay below the current standard might have two drinks instead.

The advocates want to make this change seem as innocuous as possible, rather than controlling the behaviors of others. Not being much of a drinker, it would likely have no impact on me. But for those who enjoy a bottle of wine with dinner, or live out in no-man's-land and whose only entertainment is a dozen beers at the highway honky-tonk, they will become criminals.

And that's the issue. This isn't about advocating for the right to drive drunk, but about the criminalization of things that are done today by the law-abiding. This isn't about people making a decision to engage in criminal conduct, but about people not knowing whether they're going to be a criminal or not.

There are many consequences of this change, together with the other ideas to prevent people from driving drunk, that aren't being discussed. What happens when the technology of the magic steering wheel fails and cars won't start? What about the person who shares a car with a convicted drunk driver but is constrained to use the interlock device? What about the person with an emergency who needs to get to the hospital but can't get the car to start? The list goes on for a long time. Use your imagination.

The Bubble Boy agenda, the Utopia where no one is ever harmed, won't happen because of this change. There will still be crashes, because people can't drive worth a damn, and there will still be children who die in crashes. There will be diseases that take the lives of people who don't deserve to die, even though the television informs us that they've cured restless leg syndrome. There will never be that perfect world where no mother has to bury her child.

Still, anyone who has had too much to drink should not get behind the wheel. You are selfish and foolish, and you have no right to put me or my children at risk because you wanted to have a good time. But you can do this because you're a human being, not because it's the new crime du jour. And police can, and should, arrest you if you drive recklessly, whether it's because you're drunk or you just drive like crap.

It's hard to argue against something that has become so socially unacceptable as drunk driving. Only a pariah, or a criminal defense lawyer, would be ~~crazy~~ bold enough to speak out against something that saves the lives of children. But when half of America finds itself branded as a convicted criminal, crying in a lawyer's office that they meant no harm, and caused no harm, it will make more sense.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

The First Reaction: It Wasn't Our Fault (Sad Update)

2013-05-18T10:10:00Z

The story isn't a particularly complicated one, when an armed intruder broke into an apartment of Hofstra University co-eds in search of money and, not finding enough to satisfy him, sent one to an ATM to get more. Even for someone stupid enough to invade a home, this was idiotic. If you want money, you don't pick an apartment of college women.

Instead of going to the ATM, Jessica Rebello called the Nassau County Police. Her twin sister, Andrea Rebello, remained inside with the intruder. The story turns particularly banal at this point. Cops swarm, gunfight ensues and two dead bodies are found. Two?

According the Huffington Post:

Andrea Rebello, 21, of New York, was shot dead by a masked gunman while her twin sister was in the house, cops told the New York Post. The gunman was also killed in a firefight with police.

The intruder broke into the home at about 2:20 a.m., where the sisters, one of their boyfriends and another woman were staying. The suspect held them hostage for a short time, but let the unidentified woman go to get cash from an ATM. She called police, NBC News reports.

Rebello and the gunman were killed during a firefight that erupted when police arrived. Police told the Post that the suspect killed Rebello, and cops killed him.

This didn't seem right. Not that it was impossible that the gunman shot and killed this lovely young Hofstra student, but why, in the midst of a gunfight with police would he kill her? To what end? The Daily News told a different story.

Police brass acknowledged that officers opened fire in the house, but couldn’t confirm who fired the bullets that killed the popular college student and the unidentified attacker.

There's the rub. Bullets have no mind, no conscience. They don't know who they strike, and they don't care. At this time, it's unclear whether the masked intruder ever fired his weapon.

Asked if the suspect fired his weapon, [Chief of Detectives Rick] Capece said authorities wouldn’t comment “until we get more info.”

Why is it always after the bodies are dead that the concern about getting more info strikes?

It may be that the police arrived and were fired upon by the robber, returning fire in turn. It may be that the robber, inexplicably, turned his gun on Andrea Rebello in the midst of a gun fight with police and killed her. There is no requirement that stupid or crazy people act in a rational way or do things that make sense under any line of reason.

But it may also be that the Nassau County Police, a force that doesn't get many shootouts, failed to exercise tactical judgment, knowing that there was a young woman in the house with an armed gunman. Was there a need for dozens of police cruisers to descend on the house in shock and awe fashion? Did anyone think it through, make an active decision that this was the best thing to do under the circumstances?

It's not a matter of sympathy for the masked gunman, but cold, hard analysis, that the primary goal at the outset was that Andrea Rebello, as well as the others inside the house, make it out alive. There would be time later to deal with the robber, and capturing or killing him didn't need to come first. First, make sure the innocents inside stayed alive.

That didn't happen. That is what makes this a disaster.

The smell of this scenario is all too usual, massive police presence descends on house. The sound of a gun shot and every cop there opens fire. Maybe it was the robber. Maybe it was a cop. Maybe it was an accident. Maybe it never happened, and one cop thought he heard something and it was his first shot that made the rest discharge their weapons.

But did anybody stop to think there were people in this house? Did anybody stop to think that firing into this house meant that bullets would strike whoever was in their path, without regard to whether it's a masked gunman or a young woman?

I hope it turns out that the gunman shot at police first. I hope the gunman shot this 21-year-old college student. Not because it makes this pointless, terrible death any better, but because it's better than the alternative that the police mindlessly fired into this home and killed her. As a father, that would be more than I could take.

But the smell of this tragedy is bad, and regardless of who killed whom, the goal of the police should have been to assure that the people inside emerged alive. That didn't happen, and there is nothing about the way in which the police dealt with this situation that gave it much of a chance. Their knee-jerk reaction prevailed when they responded to the call.

And when questioned about how Andrea Rebello died, the knee-jerk reaction was to blame the gunman, even though it may well prove to be the cops. Regardless of whose bullet struck her, this was not a good day for the Nassau County Police. This was a horrible day for the Rebello family. This was a bad day for everyone.

Update: The good news is that an answer as to who shot Andrea Rebello now exists, and Nassau Police Commissioner Thomas Dale released it as soon as possible. The bad news is that it's as suspected.

Andrea Rebello was shot once in the head Friday morning by an officer who opened fire after the masked intruder pointed a gun at the officer while holding the 21-year-old Hofstra University student in a headlock, Nassau County homicide squad Lt. John Azzata said.

In a tense confrontation with the officer, gunman Dalton Smith "menaces our police officer, points his gun at the police officer," Azzata said. The officer opened fire, killing Smith and his hostage.

They then lapse into the usual rationalizations:

Azzata said the Nassau County police officer fired eight shots at Smith, who police described as having an "extensive" criminal background. Smith was hit seven times and died. Rebello was shot once in the head.

"He kept saying, 'I'm going to kill her,' and then he pointed the gun at the police officer," Azzata said.

It appears that the story has changed markedly, now with two officers appearing in response to the call, and immediately entering the house, prompting the gunman to hold Andrea Rebello in a head lock. It appears that the gunman never fired a shot.

Condolences to the Rebello family.

Top 10 Ways To Waste An Hour Of Your Life

2013-05-18T10:01:00Z

Because everybody loves a listicle:

10. Reading a law review article.
9. Twitting.
8. Waiting for your client to be brought down to the visiting room at a correctional center.
7. Asking your mother-in-law "how are you."
6. Driving on the Long Island Expressway.
5. Waiting for your case to be called for a quick adjournment.
4. Trying to find a new, worthwhile blawg.
3. Asking a parent "how are your children."
2. Discussing the law of contracts with a fellow named Rajesh in Bangalore.
1. On hold waiting for someone at Dell Customer Care to anwer the phone.

© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.