Monthly Archives: October 2009

The Boom and Bust of Common Sense

Few phrases disturb me more than “common sense,” though I’ve often struggled to explain why it’s one of the most offensive and troubling phrases used with regularity in criminal trials. Thankfully, there’s Seth Godin to help me.

Why celebrate Halloween?
Because everyone else does.
Why believe that people once put razor blades into apples and you should only eat wrapped candies? Because everyone else believes it (it’s an urban legend).
Most of what we believe is not a result of direct experience (ever seen an electron?) but is rather part of our collection of truth because everyone (or at least the people we respect) around us seems to believe it as well.

Few people can turn Halloween into teaching opportunity, yet Godin does so in spades. For the marketer, his base reality is a chance to play the collective truth to his own advantage.

This groupthink is the soil that marketing grows in. It’s frustrating for someone who is hyper-fact-based or launching a new brand to come to the conclusion that people believe what they believe, not that people are fact-centered data processing organisms.

This is why the prosecution invariably appeals to the jurors to use their common sense, assume the things that they are naturally inclined to assume rather than hold the government to its proof. Why make them prove the existence of electrons when we all know they are there, even though we’ve never actually seen one. We believe, and that should be good enough to convict.

The problem for the defense is that government has a much bigger marketing budget than we do. They market to the public that police are the good guys, that they are there to protect and serve, that they have a sixth sense that allows them to know who’s guilty even in the absence of evidence, that they are owed our allegiance and support. We believe in the system. We believe that the system is there for us. We believe that we must support the system.

It’s not easy overcoming “common sense,” the groupthink that allows ordinary people to be confident in extraordinary decisions based on little more than widely held assumptions. There’s no way to navigate life without enjoying the quick fix of assumption, with far too many factors to consider and decisions to be made to demand proof of everything. It’s perfectly understandable. It’s also deeply problematic.

Most people believe that their common sense is pretty good. They have some serious doubts that other people’s common sense is any good (or else they would be just like them). But they feel confident that the conclusions to which they jump, based upon their life experiences, are the norm, and reflect sound and accurate thinking. Of course, they are utterly wrong. People make wrong decisions constantly. If they didn’t, they wouldn’t need courts and lawyers. Moreover, people make different decisions based upon the same data constantly. This is what makes them “special”, but also proves their fallibility. Reasonable people may differ, but they can’t all be right.

This gift to marketers is the bane of criminal defense lawyers. Where the marketer plays baseless assumption to his own advantage, the defense fights it at every turn. We argue that every iota of their being that tells them that something is more likely true than not must be ignored, rejected. We beg them to be counterintuitive. In no other area of their lives would a juror accept that the 1% probability trumps the 99. Yet they are instructed to decide a person’s guilt or innocence as they would any important decision in their own lives. This instruction is a killer. They make the most critical decisions of their lives based on nothing more than rank assumption. They do it all the time.

There’s no point in blaming the marketers for exposing the truth of human nature, as much as it makes our efforts appear untenable. People are what they are, and their brief period in the jury box isn’t going to change them. They want to be good jurors, for the most part, and deliver a fair and just verdict within the parameters of their experience. It’s just that their experience forces them to filter proof through their normal decision-making process, the one based largely on the acceptance of collective experiences. To change this is to try to stop the tide from coming in.

The more fruitful approach is to learn from the marketers. Formulate a defense theory that is as closely aligned with common experience as possible, or at least challenges it to the most limited extent possible. The more the defense appears to comport with the jurors’ accepted notions of reality, the fewer times you will need them to engage in counterintuitive reasoning. In addition, it leaves them with the belief that “common sense” is on your side, bolstering your ultimate argument for acquittal.

Of course, it’s not always possible to square the defense with common assumption. It certainly isn’t easy, given that the government gets to levy the accusations, giving them the advantage of couching their charges in a way that puts the defendant on the evil side from the outset. But to the extent we’re constrained to live with human nature, and the fact is that it’s a pretty large extent no matter how much we would prefer to deny it, we can learn from the marketers that appealing to groupthink assumptions is a whole lot easier than constantly fighting them.

And you thought marketers had nothing to offer lawyers.

A Servant To The Cause

Chandler, Arizona, criminal defense lawyer and blawger Matt Brown learned a basic truth: challenge one of your own and his buddies will try to make you pay for your disloyalty. As criminal defense lawyers, the brethren applaud when we castigate the cops or prosecutors for their misdeeds. Who doesn’t love a good video of a cop gone wrong?

Criticize a judge and you’ll never have to buy your own beer. The brethren absolutely love it when a blawger puts the weight on his shoulders to say what everyone else thinks, but lacks the fortitude to publicly expound. Scared little bunnies, whispering amongst themselves about how unfair, even idiotic, some ruling might be, wholly unwilling to take the heat of publicly explaining their position. They thrill to have someone like Matt do the heavy lifting.

But mention one of the gang, a fellow criminal defense lawyer, in a compromising position, other than to chant the party line, and you’re a pariah.

Matt wrote about a local lawyer, David DeCosta, who was accused of trying to smuggle drugs to an inmate. He didn’t make this up. It’s all in pixels on the Arizona Republic website, a story that he would be remiss to ignore.

According to court documents and eyewitness accounts, on Sept. 18, DeCosta attempted to pass the drugs, stapled inside a legal pad, to Jesse Alejandro, a client he was representing, during a court hearing.

Emilee Keen, 19, a woman believed to be Alejandro’s girlfriend, was charged with the same offenses. Court documents say DeCosta admitted that Keen performed sexual favors on him in the days before the event as incentive.

What made this story even more curious was its connection to Jesse Alejandro, accused of being with the Mexican drug cartel,whose prior lawyer, Jason Keller, pleaded guilty to trying to smuggle a cellphone to Alejandro.

Matt questioned what it was about this defendant, Alejandro, that would make lawyers go wrong, do something incredibly stupid and risk their careers for him. It’s a very good question. While the story about DeCosta hardly proves his commission of any of the allegations, an obviously open question, it’s impossible to ignore the coincidence.

Should it turn out that the accusation against DeCosta was a total fabrication, that would be fodder for yet another question, whether any lawyer representing Alejandro was putting himself at risk of persecution, the flip side of a lawyer defending someone that the prosecution wants to “get” so badly that it will go to such extremes as falsely accusing his lawyer of crimes. But DeCosta’s case hasn’t reached the stage of exoneration yet. Should that day come, no doubt there will be a very different discussion.

Matt’s post about DeCosta sat relatively quietly for 10 days, until all hell broke loose when the locals picked up on it. Matt became the poster boy for disloyalty. Local lawyers John Thomas Banta, Russ Richelsoph and Pamela Nicholson took him to task for not writing the words that they preferred to see, that DeCosta was an innocent persecuted criminal lawyer.

How dare he post about the article, the arrest, the bizarre coincidence of Alejandro’s involvement with both Keller and DeCosta. He’s a criminal defense lawyer, and he has a duty to back up his brother.

Maybe tomorrow the criminal defense bar will be abuzz about how you don’t even understand the most basic Constitutional right – presumed innocence. I’ve never met you and I know nothing about the quality of your work, but I must wonder how you can possibly be a zealous advocate for the rights of your clients if you’re writing this kind of stuff. Do you start with the premise that a person is guilty until proven innocent?

Of course, the author of this disingenuous tripe, Pamela Nicholson, offered no complaint when the discussion wasn’t about one of her own. While I can appreciate a lawyer defending a friend as much as the next fellow, and I’ve often done so here, the trio’s attack on Matt was fundamentally misguided. Matt neither suggested that he had any information to suggest DeCosta was guilty, and did nothing more than address the obvious question raised in the Republic article. Rather than comment in support of their friend’s innocence, the trio attacked Matt for his disloyalty. Dumb move. Wrong move.

In response, Matt wrote a second post, Missing the Point.

Like typical troll comments, they made ad hominem attacks. One writer accused me of presuming my clients guilty, another accused me of going off “half-cocked” without knowing my facts, and yet another seems to think I merely hold myself out as someone who practices criminal defense and accused me of throwing gossip into the potential jury pool. They asked condescending (and obvious) questions, like whether I’d read the DR (police report) and if I was joking by “speculating based on facts presented by the news media.”

The comments missed the point of the post entirely. They read it as commentary about David DeCosta’s guilt rather than commentary about a hypothetical situation I find fascinating.

The reaction was typical,

If there is someone who missed a point it was you.

No “stick you head in gravy?” And then the school marm chimed in:

Young man, you have a lot to learn. Please re-read what you wrote – Mr. DeCosta “decided to sacrifice his career and reputation doing something monumentally idiotic.” This is not a hypothetical.

It’s unfortunate that you seem to relish the attention that you got in response to your post measured by increased internet hits. All attention is not good attention.

So you think that only those who bought into the “hypothetical” in your previous post actually got your point and contributed something productive to the discussion – a bit arrogant, don’t you think?

Aside from the condescending “young man” opening, the original sentence excerpted was:

I was pretty surprised to hear that another local criminal defense attorney decided to sacrifice his career and reputation doing something monumentally idiotic, but I was stunned to find out the same client linked them together.

So much for that commenter’s cred. It’s invariably better not to attack with your knickers around your knees. Now I’m not quite a “young man” anymore, and I’ve racked up a few years in the trenches. While I might not have written the initial post about DeCosta in quite the same way as Matt, there was absolutely nothing about his post that suggested he believed DeCosta guilty of any wrongdoing or had inside information about the case.

Nor, as his commenters suggested, was Matt somehow obliged to scrutinize all of the evidence, maybe even wait for the verdict, before writing about the Arizona Republic article when the subject is a criminal defense lawyer. It’s not up to the locals to dictate the terms by which anyone else thinks or writes, as if Matt needs their permission or approval to post.

But these are just subterfuges. These locals don’t really give a damn about Matt’s posts, except to the extent it touched on one of their own. He can smear anyone he wants, provided their not a friend. When the name in the post is a criminal defense lawyer, however, he’s expected to get his wagon in the circle and join the knee-jerk defense team. How dare he be disloyal to the cause.

I don’t begrudge the commenters their support for a friend, especially if David DeCosta is innocent of the accusations. Indeed, he may very well have done absolutely nothing wrong, and be targeted for his defense of a hated defendant, one of the highest callings of the criminal defense bar. And if DeCosta’s been maligned by the charges, I hope he kicks the prosecution’s butt across Maricopa County. I’m sure Matt does as well.

But nothing Matt wrote questions this, absent the blinders worn by his attackers. They don’t get it, and they’ve now embarrassed themselves by their childish attempt to blame Matt Brown for DeCosta’s circumstance. Ironically, the issues raised by their self-serving myopia will likely cause far more people to learn of DeCosta’s arrest, and their own incredibly poor handling and judgment, then would ever have come from Matt’s original post. I would be very surprised if commentary on this attack doesn’t make its way across the criminal law blawgosphere by Monday. This trio may be memorialized forever across the internet for having “missed the point,” long after DeCosta has been forgotten.

It’s tough when one writes about the world around him, and there will inevitably be toes stepped on in the process. Some will be annoyed, and other outright angered by discussions they would rather not have. Matt Brown will likely pay a price for his disloyalty to the cause, no matter how wrong his attackers are (and they most assuredly are dead wrong), amongst those who don’t get it. Hopefully, not every criminal defense lawyer in the neighborhood is as disingenuous and blind as this trio, desperate to create the blue pinstripe wall of silence around accusations against criminal defense lawyer.

We won’t tolerate the cover-up of wrongs by cops, prosecutors or judges. We won’t change the rules when it’s one of our own. And we won’t shy away from discussing relevant issues because of a few ignorant, threatening commenters who don’t get it. Got it?

Small Thoughts On Hate Crimes

Marty Lederman, late of Balkinization and now at the Office of Legal Counsel, signed off on the constitutionality of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act. It’s a mechanical approach toward a vexing law, going only so far as to cover the barest necessities.

To the extent there are any quibbles with the OLC opinion, it’s the reflexive acceptance that it satisfies the commerce clause, providing that one is a true believer in Chaos Theory. Of course, a law against halitosis would survive this level of scrutiny.

Nowhere is there mention of the two fundamental problems with this new law, that it criminalizes thought and that it’s sole utility is to take a second shot at conviction when the primary shot either misses. By definition, every hate crime consists of two parts: A primary crime, already on the books and a clearly established wrong, plus a thought component. As reprehensible as those who engage in violence against others for such reasons as their race or sexual preference might be, and it is absolutely reprehensible, a murder of a gay man is still a murder. Murder is already a crime. This would make it a double crime.

Many will applaud this hate crimes bill for bringing an added dimension to the crime because of its particularly reprehensible nature. But for the double jeopardy implications, assuming one doesn’t get too caught up in the dual sovereignty loophole, I might consider signing on. Unfortunately, it’s not going to work that way. Commit a hate crime murder and your staring at two prosecutions rather than one.

What does Marty Lederman have to say about this?

Then there’s the aspect of thought, of hate, being the escalating element of the crime. Murder of a human being brings consequences. Murder of a human being because of his sexual orientation brings consequences plus. The act may be no different, but the thought changes everything.

People think horrible, terrible thoughts sometimes. It’s not a crime to hate, provided you don’t act on it. If you do, the actus reus bites you in the butt, as well it should. Criminalizing thought, however, crosses an extremely dangerous line, placing enormous power in the government to control our ability to like and dislike, to agree and disagree, even to think truly horrendous things.

What does Marty Lederman have to say about this?

The OLC memo doesn’t say. And yet, Marty Lederman says that the law is constitutional.

H/T Orin Kerr at VC

The Great Email Scare of ’09

On Wednesday, a post by Orin Kerr at the Volokh Conspiracy threw the blawgosphere into a tizzy. It’s title was District Judge Concludes E-mail Not Protected by Fourth Amendment, and the word spread like wildfire.

On Thursday, Orin corrected himself, noting that the decision doesn’t say that emails aren’t protected by the Fourth Amendment at all.

In the course of re-reading the opinion to post it, I recognized that I was misreading a key part of the opinion. As I read it now, Judge Mosman does not conclude that e-mails are not protected by the Fourth Amendment. Rather, he assumes for the sake of argument that the e-mails are protected (see bottom of page 12), but then concludes that the third party context negates an argument for Fourth Amendment notice to the subscribers.

First, don’t blame Orin. He’s allowed to make a mistake, and more importantly, he corrected himself as soon as he realized the error. But what of the rest of the blawgosphere? Just as Orin caught the error upon reading the decision more closely, why didn’t all the others who offer themselves as having opinions worthy of some modicum of respect figure out that Orin’s initial post was wrong?

Lest I appear to come off a bit too holy, I didn’t join the fray immediately following Orin’s post, even though I read his post and received a few emails from others about it, asking for my thoughts. Had I done so, it’s quite likely that I would not have read the decision carefully and would, instead, have relied on Orin’s post for its conclusion. In other words, the only thing that saved me from being swept along with the tide was that I just chose not to write about it yesterday. Had I written about it yesterday, chances are good that I would have fallen into the trap of blindly accepting Orin’s initial analysis.

All of this demonstrates two things: First, that Orin Kerr, Professor at George Washington Law School, commands such extraordinary credibility that the most of us will blindly accept his conclusions as accurate. There aren’t too many people who have earned that degree of credibility in the blawgosphere.

Second, that the rest of us, and I include myself in this group, must be responsible for our own heavy lifting. Decisions are there to be read, digested and, if warranted, discussed. Yes, they can be long and boring at times, and suck up time that could be saved by relying on someone we trust, like Orin Kerr. It’s far easier to read the out-take, the quote, the except, and slide comfortably into the conclusion for purposes of discussion. But if we do so, and it turns out that our face is smeared with egg, it’s no one’s fault but our own.

The decision of Judge Mosman, which I’ve since read from cover to cover, isn’t a monumental one, and suffers from the same flaws that I’ve written about numerous times, the failed approach of applying historic 4th Amendment precedent to the digital world by way of analogy. This comports with Orin’s “technology neutral” approach, with which I’m troubled. Notably, Judge Mosman cited Orin throughout his decision. I wasn’t cited at all. Go figure.

The confluence of these two things, Orin’s mistaken post and Judge Mosman’s decision, should serve as a warning to the blawgosphere. We’re in a state of flux, both the law as it relates to this ever-changing digital world and the digital world as it relates to the law. Only in retrospect will we know when both have matured to a point where it’s sufficiently reliable and accurate that we can trust it. Until then, both need to be taken with a grain of salt, and recognized as part of a struggle to find our way.

Orin Kerr has proven himself both a gentleman and a scholar, as noted in a comment to his clarification. In this regard, he has confirmed the trust that the blawgosphere has placed in him. I’m just glad I sat on the sidelines long enough not to make a fool of myself.

Sentenced To The Bench

Over at Reason, Radley Balko asks a very difficult question. Why don’t prosecutors who go bad get punished? After giving a laundry list of misdeeds, constrained largely by space, where affirmative prosecutorial misconduct was the cause of innocent people being convicted and imprisoned, Radley concludes:

Something is wrong here. It may well be true that the prosecutors noted above represent a tiny minority of those who serve or have served in the position. But whatever the number of “bad apples,” our criminal justice and political systems seem unconcerned about weeding them out. Instead, they’re often rewarded and promoted, despite long records of incompetence and misconduct. In fact, in the sense that misconduct can help win convictions, such prosecutors are often rewarded because of it.

As shown in his examples, the prosecutors not only skated on their misconduct, but went on to become judges or re-elected to office. He urges reform:

Be it through state bar association actions, judicial investigations and discipline, or legislation creating some other means of oversight, bad and incompetent prosecutors need to be held to account. When a prosecutor perpetrates misconduct or demonstrates incompetence that sends an innocent person to jail, it’s a regrettable but understandable product of the fact that any large system is going to have bad actors. But when that prosecutor remains free to go on prosecuting other cases, with no repercussions, the very legitimacy of the criminal justice system is called into question.

Of course, it’s not for lack of knowing that impropriety occurs, and the extent of it is largely unknown and unknowable, since it’s the rare case where the “legal fact” of conviction will ultimately be shown wrong, and the curtain subsequently pulled back on the impropriety in the backroom of the prosecutors’ office. But the point is that even when we do know, conclusively, that a flagrant violation of law and ethics occurred, beyond a doubt, the upshot is that there is no price to pay.

Radley looks at it from an incentive perspective, that when there is no penalty for getting caught red-handed, there is no reason for the prosecutor of dubious ethics to avoid engaging in shenanigans. If undetected, the defendant gets convicted, which is the prosecutor’s goal, whether to get another notch in his gun or because he believes that it’s the proper outcome, evidence notwithstanding. And if caught, the worst that will happen is the defendant walks free and the prosecutor goes on to enjoy a career as a respected judge. Where’s the downside?

Over the past few days, I’ve pondered Radley’s question in the hope of coming up with a meaningful answer. Realizing that there is no single answer that covers every instance, some being sui generis, others matters of friendship and personal protection, and still others the product of the weighing of the greater evil, there seems to be one overarching explanation for why prosecutors are largely immune from repercussions for their affirmative impropriety.

At the core of the legal system is a fiction. We all know it to be a fiction, but without it the system would be incapable of functioning, and so in the interest of maintaining a system to resolve disputes that doesn’t involve swords or pistols at twenty paces, we accept the fiction as necessary and turn a blind eye to its existence. The fiction is that the players in the system representing the power of the Sovereign are inherently trustworthy.

From the police officer on the street, to the prosecutor in the well, to the judge on the bench, we accept their word because to do otherwise would be to have no starting point for a credible system of justice. We presume good faith. We presume integrity. We presume that they execute the functions of their office with integrity.

Why is this a fiction? Because they are all human beings, clothed in their respective official positions. They carry the same baggage that all other human beings carry, prejudice, misperception, ego, antagonism. Like all human beings, they are flawed. But to admit that we’ve put the system in the hands of flawed human beings is to concede that it is impossible to craft a system that has inherently integrity. Instead, we would admit to a system that is no better than the players upon which is relies, and we would be left with the system that could never be trusted to produce justice.

It’s not that our system does not permit challenges to the presumption of the integrity of the Sovereign’s representatives, though the challenges fail the vast majority of the time. But even when they succeed, the outcome is painted in terms that are institutionally acceptable, good faith mistakes rather than deliberate, malicious impropriety. And when the impropriety is so clear, so egregious that it can’t be whitewashed, it’s invariably “one bad apple,” an isolated incident.

The institutional fear is that prosecutors, if constrained by the concern that they could be held personally accountable for their faults, would be paralyzed by fear and fail to do the Sovereign’s bidding. The institutional fear is that if the public, from whom acceptance of the fiction of justice is needed for the legal system to be accepted and an effective means of control, would reject the inherent integrity of the system if the Sovereign acknowledged that its representatives were unreliable, at times malevolent and abusive, and therefore unworthy if being given the presumption of good faith and integrity.

Of course, the alternative, when it becomes painfully clear that a prosecutor has engaged in affirmative, deliberate impropriety, that the public recognizes that they suffer no repercussions for their offense leads inexorably to the conclusion that the system lacks integrity and is untrustworthy. If we don’t punish wrongs, regardless of who commits them, then we encourage impropriety and breed mistrust. But given the strength of the public’s acceptance of the fiction, it has overcome this nagging problem and the public suspends reasons in order to maintain its belief in the integrity of the system. In other words, the fiction has served well to maintain public acceptance of the integrity of the legal system, despite these “isolated instances,” and will continue to deny that these individuals engaged in deliberate wrongs for as long as it can get away with it.

The fact is that, in the grand scheme of things, only a fraction of the populace sees a problem with prosecutorial misconduct. For most people, it never enters their consciousness, never challenges their presumptions. Given that it only involves a minute fraction of the vast numbers of people prosecuted for crimes, at least as far as documented cases are concerns, it’s quite easy to gloss over the problem as aberrational and never give it a second thought.

We have been well-played by the fiction, and embrace it whole-heartedly. We need to do so, for we have been programmed to believe that without it, we would be subject to the savagery of evil criminals who would lay siege to our world. Don’t look behind the curtain; just accept that the system may not be perfect, but it’s the best their is. And we can all sleep better at night knowing the Sovereign is there to protect us.

It’s unclear to me whether this provides an answer to Radley’s question, or whether it’s accurate at all. Like Radley, I too find this to be a problem that demands redress, and hence my argument as to why it is allowed to happen vapid. One of the precepts underlying the ethical code for lawyers is to enhance the public’s perception of the legal system. Is that better accomplished by denying its faults or by striving to understand and fix them?

That lawyers who played dirty as prosecutors end up as judges is just salt rubbed in the wound, the system’s ultimate proof of its own trustworthiness. A dirty joke meant only for insiders.

Swine Flu At $150 A Pop

A question was posed on CNN yesterday, one of those email-us-with-your-thoughts deals, about people who have the flu choosing to fly somewhere, and thus risk infecting everyone else on the airplane, rather than stay home until they’re better. The countervailing factor is the $150 charge imposed by airlines for changing a ticket.

As expected, most of the responses took the position that it was the height of irresponsibility for someone with the flu to get on a plane and infect everyone around them. And of course, they’re right.

What was surprising, however, was that few took the airlines to task for the primary stumbling block to rescheduling a flight, or changing out passengers should the ticketholder be ill. If a flier is irresponsible for getting on board when ill, what of the airline whose “policy” is to charge a $150 penalty for any change once a flight is booked?

And lest we not see the bigger picture, it’s not merely a matter of the penalty, but the ancillary cost of having to purchase another ticket at the going rate, which fluctuates so greatly that it could cost twice or more the price of the ticket in hand. While it is irresponsible to risk the health of others, the airlines do everything in their power to provide a financial incentive to take that risk. After all, the sick person, the one who will pay the out-of-pocket costs, is the only one on the plane who isn’t going to suffer for the decision to fly. He’s already sick. So it’s his cash or everyone else’s health. And the airlines wins either way.

By removing the taint of our current pandemic from the mix, perhaps a less emotional view of the airline policy can be seen. As an example, a few days before my flight to beautiful Des Moines, Iowa last month, I threw my back out as I tried to life a car off a young child over whom it accidentally rolled. Well, actually I sneezed too hard, but that doesn’t make me sound nearly as heroic. In any event, I was in a great deal of pain, and functionally useless for my trip. Given that the purpose of trip wouldn’t change because of my back issues, we still had to go. There was no option of putting it off to another day.

After coming to the conclusion that I wasn’t going to enjoy a medical miracle, it dawned on me that it might be better to have someone else go in my place. So I called Delta Airlines and put on my sweetest CSR voice, explaining my dilemma and asking for an act of kindness of putting someone else in my seat.

“Oh no, that’s against our policy.”

“But, but, but…I’ll pay the $150 penalty, if you could just change the name on the ticket.”

“Oh no, we couldn’t possibly do that. What you’ll have to do if cancel the ticket, and you’ll receive a credit for the fare paid, less the $150 penalty, to be used for another ticket within a year. For the new passenger, you will have to buy a new ticket at the current price, which is 17 times what you paid for your old ticket. It’s last minute, you know.”

“But, but, but…it’s just putting a person in the seat I already paid for. It doesn’t cost Delta a dime to make the change.”

“That’s against our policy.”

Far be it from me to challenge free enterprise, capitalism and the right of an airline to impose any restrictions it wants. I knew when I bought the ticket online that it was nonrefundable, nonexchangeable, non-anything-at-all-able. I could have paid full-fare, though I can’t say for sure that it would have meant that I could have changed names at the last minute. Plus, it was inordinately more expensive, and I’m too ~~cheap~~ frugal for that.

Not convinced that this is a problem? Consider my flight back from New Hampshire on a morning puddle jumper. There was a flight leaving at around 8 a.m. and another around 9. Both planes were only half full, and I was ticketed for the 9 a.m. flight, but managed to make it to the gate in time for the 8, along with the three other passengers.

In my most charming voice,

“Hi, can I jump on this flight even though my ticket is for the next one?”

“Sure. But it will cost you $150, plus a new ticket for $279. It’s last minute, you know.”

“But my ticket only cost me $59 in the first place, and your plane has 23 seats and only 3 passengers.”

“Sorry, but that’s our policy.”

“You would rather fly 3 people to New York and leave me here for the next flight?”

“That’s our policy.”

So while I fully support the right to contract, the authority of a business to make decisions that serve to benefit its financial interests and, to a lesser extent, the imposition of punitive rules by airlines enjoying the perks of routes sold them by our government to the exclusion of competition, let’s not be too harsh on irresponsible travelers who get on board an airplane to the potential detriment of others. At least not if we aren’t similarly harsh on airlines who will soak every penny out of its customers with policies imposed solely to take advantage of the illness, misfortune or simple rational benefit of its customers, even when it costs them nothing to make things a bit easier.

Just maybe, if we’re going to deem our neighbors irresponsible for flying with swine flu, we might want to question why the airlines are all too happy to make money off it. Their call, of course, but it doesn’t mean we need to applaud their avarice.