Transparency, To What End?

The New York Times editorial calls for an end to the secrecy laws that keep police misconduct, even crimes, hidden from view.

The deaths of unarmed civilians like Eric Garner in New York City and Michael Brown in Ferguson, Mo., led to demands for greater transparency in the workings of police forces all over the country. The need for more openness is especially pressing in New York, where a uniquely strict disclosure law has shielded from public view the records of individual officers, even those who have committed crimes.

In many states, including New York, it can be difficult for the public to even learn the names of officers involved in fatal shootings.

This is nothing new to criminal defense lawyers, who have been stymied in their efforts to obtain information about the police officers who take the stand to testify against their clients. Continue reading

New and Improved

The lesson began when I bought my first car, a used 1969 VW Beetle.  The guy I bought it from added what was then the hottest, coolest, most necessary thing a young man could want: an 8 track player.  No longer was I a slave to Allison Steele, the nightbird. I could play whatever I liked, whenever I wanted.

But 8 tracks sucked. Their fidelity was poor, and they broke up songs wherever they had to in order to make them fit the medium. It was some pretty weird stuff, but it was all there was.  Within hours, cassettes were putting 8 tracks to death, but there I was, a Beetle with an 8 track player and a box of 8 tracks to play.  Sure, I wanted to switch over to cassettes. Who wouldn’t? But that meant trashing what I had and buying new, starting over.  That took money, which was a scarce resource then allocated for eating dinner.

In the forty years since, I’ve seen a lot of newest, coolest things ever come and go. On the shelf in my den, there are tapes of movies collected during my children’s youth. They are on VHS, as I was way too smart to go with Sony’s Betamax.  Try as I might, they won’t fit into the DVD slot on my player. Continue reading

First Amendment Relativists (Update)

In his parting shot as ombudsman for National Public Radio, Edward Schumacher-Matos raised quite a few eyebrows.

When I joined NPR nearly four years ago, I discovered that many of my fellow ombudsmen refused to say “we” or “us” in referring to their news organization. This show of independence was commendable, but I wondered if it wasn’t also irrelevant, if not destructive—a small example of a fundamentalist mindset about news media ethics and related First Amendment freedoms.

See that word in there, “fundamentalist”? It’s used as a pejorative word, a smear, of those who refuse to recognize that “free speech is not absolute.”   That it is true that the First Amendment is not absolute is obvious and clear, but that’s not what they mean. Not be a long shot.

We must remember this: Ethics change. And they are different in different democracies. Ethics are professional standards, not deeper morals, which can change, too, but far more slowly. Morals come from a society’s soul, for lack of a better word. Ethics come from our more fickle brains, tied to the changing ways of, dare I say it, a business. And yet many in the news media are rushing to man the barricades for certain ethical interpretations of press freedom and independence as if they were absolutes—immutable principles worth dying for. Literally.

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Just Between Us Cops

It was likely hard for Flower Mound, Texas, police sergeant Misty Hughes when she realized that professional courtesy wasn’t to be found in Lewisville.

Misty Hughes was arrested just after midnight Sunday in the 200 block of Round Grove Road. According to the arrest affidavit, Hughes’ six-year-old son was in the front seat of the car at the time of her arrest.

A 911 call came in about a car driving 77 miles per hour, hitting a retaining wall, and swerving in and out of its lane.

In an effort to get ahead of a dangerous situation, officers cut their lunch short. While talking to his car, one officer saw the vehicle traveling southbound in the 2200 block of the I-35E service road, according to the affidavit.

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Forever Young

Greg Lukianoff’s group, FIRE, has fought for the free speech rights of students against those who would silence them, whether because the speech is too controversial, hurtful, uncomfortable or disagreeable.  When asked by Michael Yaki, member of the United States Civil Rights Commission, why college students should be entitled to free speech, Greg replied:

And if you’re saying that basically we should—that maybe below-graduate-level study should be ruled the same way high school students should be—I would disagree with you.

One of them is the moral and philosophical underpinnings of the 26th Amendment.  Essentially, we have decided in this country that 18-year-olds… that is considered the age for majority.

We also send our 18-year-olds to war.  Unless you’re actually also willing to make the argument that nobody below the age of, I don’t know, 22 should go to war, and we repealed the 26th Amendment, we’ve got a serious problem.

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The Reasonableness of Reasonableness

In a post at Slate, my buddy Cristian Farias writes about Chief Justice John Roberts’ cute quip during oral argument in Rodriquez v. United States, and its significance in deciding this case questioning how long a traffic stop can be extended to wait for the drug dog to show and do as he’s told:

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

When the CJ makes a funny, everyone does the obligatory chuckle. And in fairness, it was cute, so why not?  But Cristian’s point is that, while it was presented as a quip, it may have revealed the fact that Roberts’ experience with traffic stops may not be the same as others. Indeed, he may never have been stopped at all.  Cristian sought confirmation of this question but received no reply.

He asserted that Roberts’ lack of experience, his naïveté when it came to traffic stops, was a problem. Continue reading

Bad Apples or Scapegoats

The PBA induced drama around the Bronx Defenders, carefully crafted to deflect attention from the non-indictment of Officer Pantaleo for the killing of Eric Garner, and the subsequent work slowdown to teach Mayor Bill de Blasio and Police Commissioner Bill Bratton which part of the body politic is truly in charge, left two casualties behind.  Cardozo lawprof Jonathan Oberman explains:

When Patrick Lynch chastised Mayor de Blasio that “there was blood on the mayor’s hands” following the tragic killing of officers Rafael Ramon and Wenjian Liu, many reasonable people recognized the comment for what it was, an effort to verbally smear the mayor to secure Lynch’s political base, and deflect attention from the serious questions being raised post-Ferguson, Mo. and Staten Island. . . . As the target of an inflammatory attack, one would not have expected the mayor to engage in similarly inflammatory rhetoric.

Yet that is what he did.

Scapegoats were needed, and Bill de Blasio took the lead: Continue reading

Comey and the Boyz

What’s not to love about a FBI director who knows his Broadway tunes, a time-honored tradition since J. Edgar owned the place.  As the New York Times reports, Jim Comey pulled one out for his speech at Georgetown University.

Citing the song “Everyone’s a Little Bit Racist” from the Broadway show “Avenue Q,” he said police officers of all races viewed black and white men differently. In an address to students at Georgetown University, Mr. Comey said that some officers scrutinize African-Americans more closely using a mental shortcut that “becomes almost irresistible and maybe even rational by some lights” because black men are arrested at much higher rates than white men.

That everyone is a little bit racist, if not a lot racist, is hardly controversial.  Indeed, not realizing this obvious fault would be quite disturbing.  But Jim then goes to dark places where someone who uses Hoover’s old closet shouldn’t go: that racism “becomes almost irresistible.”

The numbers overwhelmingly show that black men are arrested at much higher rates than white men.  But if Jim could think like a freak, he might understand that his facile connection of statistics to the “almost irresistible” rationale for racism defies logic.  Correlation does not prove causation.  Continue reading

But For Video: He Didn’t Comply Edition

According to reports, Antonio Zambrano-Montes threw a “large” rock at a car. Why is unknown, but throwing a rock at a car is a very bad and dangerous thing to do.  This was before the police arrived.  What happened after was captured on video.

To the extent it’s unclear what’s happening, let’s take the worst-case interpretation of the video from PoliceOne.  It starts with a remarkable statement:

It’s unclear in the video if he was armed and police say they are unsure if a weapon was found at the scene.

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Doomed If We Do, Doomed If We Don’t

It’s been a while since any bar association-type has asked me to be on a future of law panel.  My guess is that it’s because I’m unpredictable, a bomb-thrower type of guy. Most association types prefer to pack panels with friends, or at least people who won’t say things that hurt their feelings.  After all, what point is there in being a very important bar association leader if someone hurts their feelings?

Yet, somebody blew it when they put Toby Brown of 3 Geeks and a Law Blog on a panel for the National Conference of Bar Leaders on the future of the profession.

For those of you unfamiliar with how bar associations make decisions, I offer the following story:

If someone asked for permission to go to the bathroom, a bar would form a task force (or commission) to fully examine whether going to the bathroom was a good idea and to highlight all of the pitfalls around bathrooms. After 18 months they would issue a report stating that going to the bathroom is generally a good thing and should be promoted to those who need to go, but only if all of the potential negative impacts have been understood, limited and communicated to those considering bathroom breaks. The report would not actually authorize the request to use the bathroom. It would be left to the Bar Board to actually enact a rule permitting said activity. The Board rarely follows up as they are busy forming the next task force and would not want to take any heat for authorizing such a dramatic change.

In the meantime, the guy who made the original request either went, or died.

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Chief Justice Cody Has Ruled

Ah, the power of a young person who believes that his cause is just.  Baylor University’s Student Judicial Board may only preside over the small pond of Baptist college in Waco, Texas, but it still affects lives.

Baylor University’s student judicial board issued a no-contact order to members of the student newspaper on Thursday — an attempt to limit coverage of a student disciplinary case.

Junior Cody Coll, who was confirmed as the Baylor University Student Court court’s chief justice last week, said the order is within his jurisdiction, though he was “unsure” if prior chief justices have issued similar orders to student publications in the past.

“It’s within the purview of the chief justice to instruct the justices to not communicate with the media,” he said. “It’s also within the jurisdiction of the court to issue an order such as the one that was issued yesterday.”

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P.O. Liang Indicted For Killing Akai Gurley

There is little doubt that the mistaken killing of a guy who had the tragic misfortune to be in a stairwell when a scared rookie cop discharged his weapon in a dark stairwell of the Louis Pink Houses in Brooklyn was wrong. It was no accident that the cops revealed the dead guy’s rap sheet, even though there was no question that he did nothing wrong here, but no one will be indicted for that.

Kings County DA Ken Thompson has obtained an indictment for Peter Liang’s killing of Akai Gurley:

A grand jury impaneled last week decided it was a crime. The jurors indicted Officer Liang on several charges, including second-degree manslaughter, said a law enforcement official, who spoke on the condition of anonymity because the indictment had yet to be unsealed. The other charges are criminally negligent homicide, reckless endangerment, second-degree assault and two counts of official misconduct, the official said.

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