The newest scandal about to erupt across New York is ticket fixing.  Seriously, ticket fixing.  The allegations are that a couple dozen officers have been fixing tickets for friends and family.  As if this comes as a surprise, particularly given that tickets are discretionary in the first place. 

From the New York Times.

While the law enforcement official and several lawyers involved in the matter called the wrongdoing relatively minor, the case could have serious implications for the department because of the large number of officers thought to have participated, either by asking for a ticket to be fixed or by doing the actual fixing.

And the accusations will most likely anger countless New Yorkers, some of whom see the specter of quotas behind summonses they receive and whose response to a ticket is generally more straightforward — pay the fine and have points added to their driver’s license.

It’s not that any corruption, even little league stuff like this, is acceptable.  We have every right to expect New York’s bluest to behave themselves, even if they have the ability to make tickets disappear to Aunt Matilda won’t get points on her license.  And getting a free cup of joe and a donut is wrong too.  It really is.

But as scandals go, this one shocks only for it’s triviality in the face of ongoing, systemic problems.  If you’re unfamiliar with these, read Radley Balko, who keeps a running log.  Even the times can’t get too worked up over this.

It is a practice that by all accounts has been around almost as long as the traffic laws: fixing a traffic ticket.

In the annals of small-bore corruption, there are few things more commonplace than a police officer’s making a ticket disappear for a friend or relative. Yet now this curb-level cronyism is threatening to erupt into a New York Police Department scandal.

The cynic might call this a diversionary tactic, something to take our mind and eyes off more serious issues while getting the sense that the police and Bronx DA Rob Johnson are working very hard to clean up their own backyard.  And indeed, it may well be, given how the talk is about grand jury testimony, union officials being integrally involved in this widespread conspiracy.  If somebody is fixing tickets, let the cops pinch them and prosecution them.  It can’t be all that hard to tell when a ticket is written and disappears in the age of computers, not to mention numbered tickets.

Then, of course, there’s professional courtesy, where cops don’t ticket other cops. No mention of any grand jury testimony about drunk cops running down pedestrians getting a free pass.  That must be beyond the scope of the investigation.  They wouldnt want to dilute a decent scandal by tossing in something really serious.

Tom Puccio, defending one of the PBA cops, offered this defense;

“The practice has been in existence probably since the first ticket was issued by the Police Department,” he said. “It cannot be condoned, but on the other hand, it should not be prosecuted.”

How trivial can something be when the argument against it that cops have always been corrupt.  So what? 

Puccio is, of course, absolutely wrong.  Police corruption, at any level, is both wrong and a threat to the integrity of their job.  Given the power and authority placed in their hands, the idea that they can screw with the rules, any rules, emboldens their violation of rules and the harm that follows.  Corruption is a big deal, even if the cops have always been corrupt. 

The problem that goes unspoken here is that there are massive problems, from the stop and frisk program that violates the constitutional rights of hundreds of thousands of New Yorkers every year, to the the abuse of power, physical harm and lies used to justify it and cover it up.  That these big, no huge, problems go unnoticed while the scandal over ticket fixing hits the fan, is what makes this scandal laughable.

There’s much to fix.  Tickets included, but let’s try to fix some of the big stuff before we worry too much about the little stuff.

Ain’t tech grand?

Writing stuff on the internet can bring some interesting reactions.  Some informative, occasionally brilliant, reactions.  Some nasty, ignorant reactions.  Lots of people out there.  Lots of reactions.  My pal, Mirriam Seddiq, has decided that if someone wants to write something nasty, they have to own it.

It was nice back when I didn’t know any better and I just let you have your say, not moderating your comments which were, on occasion, not so kind and frequently, not so clever.  But, I’m sorry, it’s you, not me.  Or maybe it’s me.  But we’re through.  I need a name.  I need to know who you are and someday soon I’ll move to a platform where you will have to put in a valid email address so I will know who you are.

Your advice means nothing to me if I don’t know whether I should take it – are you a high school kind on the debate team, a lawyer who just graduated last year and feels that they should be able to advise the rest of us on how this system and this profession works, or a real live lawyer who has fought in the trenches and has something of substance to say?

Death?  Life without parole?  How about a promise to never do it again and a fine.  From the Texas Tribune :

As part of a settlement, the Texas State Board of Examiners of Psychologists issued a reprimand against Dr. George Denkowski, whose testing methods have been sharply criticized by other psychologists and defense attorneys as unscientific. Denkowksi agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him.

Denkowski was the prosecution version of Dr. Death, testifying against 14 defendants who faced execution, two of whom have since been put to death, by concluding that they were intellectually competent to be killed.  What made Denkowski such a favored witness?

“What Denkowski has been doing is a pretty radical departure,” said Marc J. Tassé, director of the Ohio State University Nisonger Center and an expert in developmental disabilities. “There’s absolutely no scientific basis to his procedure.”

In other words, he just made up his own rules for determining that a defendant was intellectually suited for death, since the Supreme Court’s  Atkins v. Virginia decision held that executing the mentally retarded violated the 8th Amendment’s prohibition of cruel and unusual punishment. 

It’s bad enough that convictions have been, are still being and are likely to continue to be obtained based on widely accepted, and completely unproven, pseudo-science.  But that prosecutors and judges allowed a psychologist to testify such that mentally retarded defendants could be sentenced to death is unfathomable.  Fortunately, not every judge before whom Denkowski appeared was brain dead.

In 2007, state District Judge Mark Ellis concluded in the case of death row inmate Daniel Plata that Denkowski’s methods did not align with accepted psychological practices and ethical guidelines. Ellis threw out the 2005 evaluation Denkowksi conducted, writing that it “must be disregarded due to fatal errors in … administration and scoring.” Plata’s sentence was commuted to life in 2008, and he is now at the Hodge Unit with other developmentally disabled prisoners.

Granted, it may be a stretch to call Denkowski a murderer, despite the fact that his contribution was critical in the deaths of two intellectually incompetent human beings.  After all, Denkowski just did as the prosecution asked of him, another laboring oar on the government’s boat of death.  Why single him out?

The problem raised by Denkowski’s testimony is that it demonstrated a monumental gap in not one, but three, levels of scrutiny.  As a psychologist, his groundless testimony should have caused his own professional policing agency, the Texas State Board of Examiners of Psychologists, to pull his license.  As a witness, the prosecuting attorneys who proffered this charlatan for the purpose of circumventing the Atkins prohibition should have been disbarred.  And as an expert witness, the judges who accepted his qualifications to opine on behalf of the prosecution should have been thrown off the bench.

One might suspect, these being capital cases, that the intense scrutiny to assure that defendants were not wrongfully sentenced to death would prevent this from happening.  Instead, Denkowski testified as a license psychologist on behalf of the prosecution as an expert witness, and two human beings are dead as a result.

If you think Denkowski got away with it too easy, consider what happened to the prosecutors and judges who were similarly complicit in the death sentences of 14, and executions of 2, relying on the testimony of George Denkowski.  And they are still fighting to keep defendants against whom Denkowski testified on death row.

State Sen. Rodney Ellis, D-Houston, chairman of the Innocence Project board and a member of the Criminal Justice Committee, said every case involving Denkowski should be reviewed by the courts. “We cannot simply shrug our shoulders and sit by and watch while the state uses legal technicalities to execute these intellectually disabled men,” he said, “especially on the word of someone who is no longer permitted to make these kinds of determinations.”

Is it possible that life is so cheap that review of defendants sentenced to death on the word of this charlatan’s can even be in question?  If only they had the opportunity to pay a $5500 fine, like Dr. Denkowski.

H/T Pogo Was Right

I am honored to announce that the foremost collection of fine art amongst American blawgs has just received a gift from the United Kingdom’s premier artist-blawger, CharonQC.

The Social Media Maven pronounces (2010)
Oil on Canvas
Charon

In the Collection of @ScottGreenfield

And it came to pass, when the Maven came down from the mount with the two tables of twitter rules  in Maven’s hand, when he came down from the mount, that Maven wist not that the skin of his face shone while he talked with him. And when @stephenfry and all the children of twitter saw the Maven, behold, the skin of his face shone; and they were afraid to come nigh him.

And the Maven said… I have been a stranger in a strange land…. and I say unto you…whatever you tweet…happens…

I am humbled by M’lud’s generosity.

Every once in a while, someone in the blogosphere makes a move that must inexplicably seem like a stroke of genius until someone else, usually either the young, old or infirm, tells them they’re nuts.  Just such a move was announced by the  Lawyerist,  Aaron Street’s attempt to pretend he has something to offer new lawyers who know less than he does.

This week, Lawyerist acquired Bitter Lawyer. We are excited to revive a great humor website, and we have big plans for its future.

In case this isn’t clear, the Lawyerist “acquired” a dead website.  You wouldn’t know it from the  Alexa blog rankings on Avvo, which put Bitter Lawyer in fourth place as I type (showing yet again why Alexa is goofy and a meaningless metric), but it’s been defunct since September, 2010 (as far as I can tell). 

If you never bothered with Bitter Lawyer before, it was a humor blog based on the world view of young unemployed lawyers who hate and blame the world for their personal misery.  From that point of view, it was very funny at first.  And then, like most attempts at humor, it grew strained and forced and unfunny.  The problem with one trick pony humor is that once the joke is told, it’s told.

In the past, I’ve described content on the Lawyerist as a mile wide and a millimeter deep.  I’m not just being kind when I say that.  No reader leaves the Lawyerist without being diminished as a sentient being.  Still, Aaron and his pal Sam Glover have tried to create something to pay for their Cheetos habit, and I give them credit for trying.

But the purchase of a dead website is a novel approach in the search for the nadir of the blawgosphere.  Bitter lawyer petered out because the joke got boring.  Other attempts at legal humor have similarly proven that it’s hard to be funny, and harder still to maintain it.  Not everybody can be Kevin Underhill, whose  Lowering the Bar has taken legal humor seriously for years, and is fresh and funny with every new post.  There hasn’t been another blawg capable of maintaining legal humor for more than a few posts.

The price for the acquisition was not disclosed, but confidential sources tell me it was nine dollars (US), six peanut M&Ms, three marbles (including one aggie) and a coupon for a half price latte at Starbucks.  If Aaron was a better negotiator, he could have kept four of the M&Ms for himself.

What will the Lawyerist gang do with Bitter Lawyer now that it owns the place?  Being funny isn’t something one buys.  Even if you can’t help but laugh at the Lawyerist content now, the humor is in the fact that it’s offered as serious advice for the rookie lawyer, with such gems as “never walk into court with your fly open or shirt tucked into your underpants, as it makes you look unprofessional.”  And it’s adoring fans find this advice critical in their mission to become filthy rich, successful lawyers.  Okay, maybe I exaggerate.  A bit.  But I didn’t make this up, Sam Glover’s how to start a law firm for under $3000, because new lawyers don’t need to waste money on legal research.

So why should anyone care that some vapid blog has purchased a defunct blog?  Because  Kevin O’Keefe posited that the blawgosphere is the new mentor for young lawyers.  Keith Lee at  An Associate’s Mind explains why this doesn’t work (and I plan to add his blog to my blogroll as soon as I can remember my new password).  And if you’ve read any of the small law columns at  Above the Law recently, where the  latest proposition is that lawyers don’t need business cards anymore, as they’ve been replaced by giving out twitter names, there will be no doubt that Keith is right.

And yet there are far more new lawyers who take comfort in the simplistic drivel at the Lawyerist than at the substantive blawgs about which Kevin speaks.  They also wrap themselves up in the dark humor of blaming everyone but themselves for their ill-conceived choice of becoming lawyers, the crux of Bitter Lawyer’s humor.

As absurd as this acquisition may seem on its surface, it reflects a far more sinister problem confronting the legal profession, that the next generation of lawyers prefers easy answers, someone to blame and nothing to interfere with happy hour.  Aaron Street is betting his M&Ms on it, and I’m betting that Aaron has a better feel for what new lawyers want than I do.

Many readers here take issues like the criminal justice system very seriously, appreciating that we hold people’s lives in our hands and have a duty to handle them with the utmost care and zeal.  The reason you should care about these collateral issues, the ones that don’t describe the latest outrage or show a video of another cop beating another person for breathing wrong, is that these are the next generation of hands into which lives are commended.  If you don’t connect the dots, we’re doomed to suffer young lawyers who think Bitter Lawyer is funny and everyone is to blame for their misery but themselves.

I would like to wish Aaron and Sam the best with their new acquisition.  I would like to, but I really hope it dies a quick and painful death, and that they put their efforts into a decent used car lot the next time they feel compelled to find a business venture. 

The  WSJ Law Blog posts about the impending cuts to public defense, because there was all that fat in the budget to pay for PDs sitting in their oak paneled offices eating bon bons in the spare time.  The combination of the populist ideology of sharing the pain and the perpetual issue with the public’s prioritization of indigent defense falling slightly below limos for lesser public officials makes this a gimme.

Public defenders maintain that they should be insulated from budget cuts for two reasons, the first being that they were sorely underfunded before the recession came along.  Secondly, they point to the fact that states have a duty, enshrined in Gideon v. Wainwright, to provide indigent criminal defendants with the right to counsel.

[Head of the Kentucky Department of Public Advocacy, Edward] Monahan told the WSJ that public defenders offices in the state already have average caseloads in excess of 450 per lawyer and that, with budget cuts, lawyers will have to represent more than 500 clients at any given time.

While heads were  spinning in outrage that an employee of the government of the United States of America was charged with the duty of rubbing her hands over the body of a six year old girl, we may have missed the point.  From the Washington Post :

Rep. Jason Chaffetz (R-Utah), a leading critic of the agency’s passenger screening policies, called the incident “another example of mistreatment of an innocent American at the hands of TSA.”

Last fall, agency officials began reviewing whether to move beyond TSA’s current “one-size fits all” passenger screening system, “while maintaining a high level of security,” he said in an e-mail.

Part of the review includes finding ways to “improve the screening experience for low-risk populations, such as younger passengers,” Kimball said. Significant changes could be announced this year, he said.

Pistole has said he is considering the concept of a “trusted traveler” program, which would speed passengers through airport security checkpoints who are willing to provide detailed personal information in advance.

It seems in my outrage that I forgot all about the “trusted traveler” program.  That’s the funny thing about being outraged, it clouds the mind and impairs the thought processes necessary to fully analyze a situation. 

It doesn’t mean that the theater of the absurd created by the touching of this child was deliberate, part of a carefully crafted scheme to generate sufficient outrage that people would become more willing, more pliable, to accept a choice that gives the government something it’s always wanted from the public, unfettered access to a private information with our blessing.

It seems that there will be three choices offered people who take issue with the TSA’s inappropriate touching of people, young or old.  The first is a choice they expect few to consider rational, to forego flying.  We’re not a nation inclined toward self-sacrifice these days, and getting somewhere by stagecoach fails to satisfy our need for immediate gratification. 

So given the sense of need for protection from the terrorists, carefully nurtured for a decade and part of our national psyche, the TSA has raised the threat level to its max.  When our mothers, our daughters, our infirm and ourselves, reach the point where the confluence of fear and disgust can no longer be tolerated, there will be a relief valve, and third choice, an option where no uniformed person will touch our genitalia, our children’s genitalia.  And still we will be safe.

Consider the thought that went into the name, trusted traveler.  Trust.  Isn’t trust a wonderful thing, the characteristic that we all strive to achieve in ourselves and seek out in others?  Trust is good, so much better than molesting a child.

And the TSA won’t be offering Sophie any other choices.

By now, I would expect anyone inclined to spend any time in the blawgosphere to be fully familiar with  the video of the TSA enhanced pat down of a six year old girl.  A few thoughts on what happened.

1.  No reasonable person can watch this without thinking it’s absurd.
2.  The touching of this six year old girl by any person not in uniform would have resulted in prosecution.
3.  The message to children that strangers and adults are not to touch their “private parts” is dead.
4.  The TSA is not only untroubled by this video, but asserts that this was a proper exercise of authority and standard operating procedure.
5.  In response to this video going viral, Blogger Bob at the TSA Blog posted about puppies.
6.  Had I been the parent of this child, chances are exceptionally good that I would be in custody.

Kevin Underhill, whose posts are about the humor to be found in the law, is no longer laughing. He writes:

In any other context, if you saw a stranger doing that to a six-year-old girl, wouldn’t you kick that person’s ass? Wouldn’t you at least try? Even at some risk to yourself? I bet you would. So why do we walk by when the government does it? Have we really become such cowards that we are willing to put up with six-year-old girls being groped because we think otherwise we can’t be 99.999% safe?

We are cowards to allow anyone to touch a six year old girl this way.  We are a nation of cowards.  Our government has authorized people to inappropriately touch little girls and we stand there and allow it.  It’s acceptable because our government tells us it’s “standard operating procedure.”  Our government has made molesting little girls its official policy, and we are docile and watch as it happens, afraid to scream “enough.”

We are the home of neither the free nor the brave.  We are cowards.

My guess is that someone made a clerical mistake.  They meant to call some renown biophysicist named Schechter and dialed the wrong number.  As it happens, they reached my old friend Marvin Schechter instead and invited him to be on the commission formed by the National Academy of Sciences that produced the report, “Strengthening Forensic Science in the United States: A Path Forward.” 

Remember the report?  It blew open the doors on most forensic disciplines used regularly, and for generations, to conclusively prove defendant’s guilty of a wide variety of crimes.  And after the party, was largely forgotten. 

No tweedy Ph.D.,  Marvin Schechter is a criminal defense lawyer, and peculiarly suited to the task of presented by Congress to the National Academy of Sciences, and similarly suited to being an evangelist for the past-due demise of bad evidence masquerading as forensic science.  He’s enough of a geek to stay awake and pay attention through the voluminous testimony presented to the NAS, and more than enough of a criminal defense lawyer to dedicate himself to making us remember that he suffered that testimony for our benefit. 

Speaking yesterday at the Nassau Criminal Bar Association, I had the opportunity to hear Marvin’s pitch.  Despite his geekiness, Marvin can be a very entertaining and enthusiastic speaker, but it belies the substance of his message: defendants are still being convicted on the basis of phony forensic science every day.



For anyone unfamiliar with the report, it attacks a wide swathe of what has long been taken for granted as true, that fingerprints, toolmarks, bitemarks, blood splatter, trace evidence, arson analysis, have developed as disciplines by law enforcement without any of the standards, protocols or methods demanded of any other scientific proof. These captive disciplines, run from top to bottom by law enforcement, with the manufacture of their own accreditation agencies, professional associations and journals to bolster their existence and validity, are little more than convenient guesses and wildly baseless assertions of accuracy.

The problem, as Marvin pointed out, is that this evidence has been held admissible forever.  The commission went back to the beginning and found that on the scanty, unproven claims, carefully packaged to sound authentic but shockingly vapid to real scientists, judges adopted forensics disciplines. 

The best explanation for how this fiasco was allowed to happen is that lawyers and judges are particularly clueless when it comes to science, which largely explains how they ended up in law school.  Putative experts talked scientific jargon, everyone got bored and the next thing you know, fingerprints were conclusive proof. 

The problem now, and the strongest argument available to those who defend the admissibility of forensic evidence, is that it’s become embedded in the public mythology of science and they dare any judge to be the posterboy for tossing out proof that’s put defendants in prison for 100 years. 

Nonetheless, Marvin contends that it’s happening.  Just slowly.  And with judges like Nancy Gertner (ripping the failure of defense counsel to challenge Billy, the magical arson dog, in United States v. Hebshie), who unfortunately won’t be around on the federal bench much longer as she’s going to Harvard come September.  The problem, of course, is that while there may be a case here and there where a judge is bold enough to call out the prosecution’s proof, conduct a Daubert/Kumho Tire hearing and proclaim a forensic discipline the nonsense it is, it’s hardly the tidal wave one would have expected following the NAS report.

This report should have sounded the death knoll for phony forensic evidence, and judges across the country should have been outraged at having been played for fools by law enforcement all these years.  It hasn’t happened.  Not even scandals of the magnitude of  North Carolina’s crime lab have woken up sleeping judges.  The prosecution was right, judges don’t want to be the one to toss out 100 years of facile evidence and great CSI television.

The criminal defense bar, on the other hand, has yet to do its part in bringing this sordid chapter in phony science to a close, failing to educate itself on the myriad failings, lack of scientific methods, application flaws, inherent bias and internal self-dealing of the experts.  While judges are charged with being the gatekeepers, and have let in any piece of garbage that tends to incriminate a defendant, the defense has been less than vigorous in its challenge to forensic evidence, presenting motions that provide strong, perhaps incontrovertible, reasons why this beloved, long-standing evidence is phony now and always has been.

It’s hard work.  It’s daunting.  It takes time to learn, prepare, and pursue arguments against the use of evidence that we can fairly presume judges to ignore as they continue to do as they’ve always done, turn a blind eye to the fact that defendants are being convicted based on the mythology that’s grown around such sacred cows as fingerprints.  But if we don’t do it, do it continually and pursue it even though it may well be futile in any particular case, then we are complicit in the conviction of defendants based upon phony evidence.  Let’s face it, judges have not, and will not, seize upon the inadequacy of time-honored evidence of guilt on their own.  We need to push, and persist in pushing, if there is any hope of change.

For those who haven’t read the NAS report, which is a great educational tool for any lawyer who must argue a motion to preclude or cross-examine some phony prosecution expert, it can be purchased from the NAS.  And should Marvin be speaking in your neck of the woods, take the time to go.  It would be a shame for the NAS’s mistake of putting a criminal defense lawyer on the commission to go to waste.