That case you so desperately want, the one that will launch you into the stratosphere and add your name to the pantheon of great and important lawyers.  The one that will destroy you. The  high profile case.

Walter C. Bansley III took on a case that seized the State of Connecticut, defending Joshua Komisarjevsky, accused with Stephen Hayes of the 2007  Cheshire home-invasion :

July 2007, Komisarjevsky and Steven Hayes invaded a home in Cheshire; beat and tied up Dr. William Petit; raped and strangled his wife, Jennifer Hawke-Petit; molested one of their daughters; and set the family’s house on fire before attempting to flee.

The two daughters — 17-year-old Hayley Petit and 11-year-old Michaela Petit, both of whom had been tied to their beds — died of smoke inhalation. Petit escaped to a neighbor’s home.

 Certainly in Connecticut, and likely everywhere else in the country, this case was huge news.  This is why Bansley’s name is a household word in America, right?  What? You’ve never heard of him? 

Lesson number one: The story is about the case, not the lawyer.  Sure, sometimes the lawyer becomes well known outside of legal circles, but in the vast majority of cases, the lawyer is background noise in the story and even if they garner a little public recognition, it’s soon forgotten when the next big case comes along.

What does last, however, is the impact of a case like this.  From the Hartford Courant :

“I have had clients leave me after they learned I was involved in this case,” Bansley said. “They recognized that I would be working 50 to 60 hours a week on this and would not have the time for them. When this case is over, I will really have no practice left.”

Since taking the Komisarjevsky case, Bansley has lost friends, he said. When bricks were thrown through the windows of his New Haven law office, he moved to a location he now keeps secret.

Unless you’ve had the pleasure of dealing with a case of this magnitude, combined with the incessant intrusion of the media looking to engage you in lengthy discussion on a near constant basis because you become the source of their material and exist so they have something to write about day after day, you can’t begin to appreciate the time suck a high profile case can be.

Rather than be a draw for new clients, it scares them away.  First, the hard factor is time, as you simply have no time to handle anything else, and existing clients who loved you dearly before hand become less enamored when you can’t be found or reached for days.

The soft factor is perception, that a lawyer so “important” is too important for their cases, and they become afraid to call, thinking their murder isn’t worthy of your very important time.  While some potential clients, often with psychological issues of their own, think an important lawyer is suddenly worthy of their shoplifting case, these generally aren’t the sort of clients you want.  You wonder why old clients and good cases are going elsewhere as you are tied up with the big case.  This is why.

But at least there’s the money, right?  Big cases bring big bucks?

On top of all of that, Bansley battles the growing public perception that defending Komisarjevsky is making the three-member defense team rich.

Defense attorneys say it’s quite the contrary.

From 2007 through Sept. 1 of this year, the state spent $506,509.79 on Komisarjevsky’s defense, according to Deborah Del Prete Sullivan, legal counsel and executive assistant public defender of the Office of the Chief Public Defender.

Of that amount, Bansley was paid $200,648.43. Jeremiah Donovan received $192,380.30, and Todd A. Bussert was paid $97,317.61, according to Del Prete Sullivan.

On the surface, $200k doesn’t seem too terrible, but if you do some basic math, you see it’s only about $50,000 a year.  Not quite food stamp territory, but he’s definitely studying the dollar menu when he dines out.  For a good lawyer, or one with a couple of kids who like to eat every day, this isn’t going to provide for a lavish lifestyle.

There are remarkably few big cases that pay well, mostly because few defendants in these cases have any assets to speak of, such that the lawyers are living off the largesse of the state.  And in those rarest of the rare, the high profile case involving a wealthy defendant, even they aren’t always inclined to compensate for the amount of time involved.  Aside from the time spent daily working on the case itself, the amount of time eaten up by the media is absolutely mindboggling.  Think of calls at home at 11 p.m. because of a deadline the next day and the compulsion not to piss off a reporter whose information and friendship (or at least absence of animosity) you may need.

Granted, a few lawyers have transformed their transitory notoriety into public personas that have garnered television gigs, like Star Jones, Nancy Grace, Greta Van Susteren.  A few others have tried and, while seeming to have traction for a brief period, ended up falling by the wayside.   Judge Judy Sheindlin pulled down $28 million last year, but not everybody can make a career of being snippy,

There are a bunch of lawyers, young and old, dying to get their hands on a high profile case, to make their name and launch their careers.  Or kill their careers as they case may be.  And I haven’t even mentioned the worst thing that can happen, that you get the big case and the world finds out that you’re not the next Clarence Darrow, but that you’re crappy lawyer.  That can happen too.

H/T Ed at  BlawgReview 

So the politically correct professor warns his students in advance that he finds certain opinions “unacceptable” and “dangerous”. (The fact that he used a particularly egregious example doesn’t make up for the fact that he shouldn’t be intimidating his students by encouraging self-censorship the first day of class. [Not to mention that in a free society everyone is, in fact, entitled to his opinion, though not to express it in all circumstances.]) Politically correct student decides that the professor wasn’t being sensitive enough, and that the example he used was “unacceptable” and “dangerous.”

David Bernstein at Volokh Conspiracy

Pity poor Professor Cameron Johnson at York University. He was just trying to make this fundamentally Canadian concept clear to the students in the class he was teaching by giving examples of unacceptable opinions.

Ken at Popehat

He didn’t notice Sarah Grunfeld storm out. Grunfeld, a 22-year-old in her final year at York, understood Johnston’s example to be his personal opinion.

“I think it’s a very good thing that people are sensitive to this kind of remark, and I think it’s a very good thing that someone would respond immediately and deal with it if they thought that they heard an anti-Semitic comment,” Johnston said. “But in this case, it’s a misreading.”

The Toronto Star

Bernstein calls it irony.  Ken calls it stupidity.  The Star calls it cautionary.

Professor at his first lecture of the semester to Canadian university students: “Despite what you may have heard elsewhere, everyone is not entitled to their opinion. ‘All Jews should be sterilized’ would be an example of an unacceptable and dangerous opinion.”

Student misunderstands, and launches attack on professor for being anti-Semitic. When the context was explained to her, she refused to relent: “The words, ‘Jews should be sterilized’ still came out of his mouth, so regardless of the context I still think that’s pretty serious.”

Bernstein

Grunfeld also expressed skepticism that Johnston was in fact Jewish.

Asked directly by a reporter whether she believes Johnston is lying, she was unclear.

“Whether he is or is not, no one will know,” she said. “. . . Maybe he thought because he is Jewish he can talk smack about other Jews.”

Ken

It has been a very painful experience for me to see how the university has closed ranks and reneged on its assurances to me. I understand that there may have been a miscommunication, but any miscommunication was on the part of the professor, not me. The media has been complicit in allowing a false interpretation of my actions to be circulated widely, which can only have a chilling effect on the ability of students to have any kind of a voice on campus.

Sarah Grunfeld via The Toronto Star

Meanwhile, if Sarah Grunfeld feels that Canada is a cold and barren place that refuses to celebrate her differences, she should consider coming here to America. Sure, we don’t have Human Rights Councils like Canada. But there are signs that our universities and their administrators are coming around to Sarah’s way of “thinking,” and doing what they can to protect the moron community.

Ken

Professor: I’m very troubled because “I’m very proud of the fact that in the history of my teaching career I’ve stood for the best values of what constitutes a meaningful human community.”

Bernstein

No one was bullied in the writing of this story and no transgender Jews were harmed.  This is only going to get worse.

In what may be one of the most difficult calls ever in the game of football, should Quincy, Michigan high school senior Mitchell Landis play? 

…Mitchell Landis, is charged with rape and many parents are outraged that he’s still in school and that he’s still being allowed to play football.

Landis has been charged with two counts of criminal sexual conduct in the third degree, each count is a 15 year felony, but Landis has made bail, he’s back at school, he’s even playing football and that has some parents extremely upset.

On the one hand, Landis has been charged but not convicted of anything.  Legally, he’s presumed innocent. 

On the other hand, the allegations are significant enough for the judge to have imposed $100,000 bond for his release, a not-inconsequential amount for a high school kid who’s not running away to his chateau in France.

On the other hand, he’s a senior in high school, a football player, a kid, and if he’s denied the opportunity to play ball, it’s not like he can make it up some other time.  Landis has one chance to play football (or do anything else) in his senior year, and to deprive him of that while he’s presumed innocent is to cause irrevocable harm should he not be subsequently convicted.

On the other hand, if he is guilty of rape, having him in high school at all puts other people at risk.  It would be unconscionable to risk the safety of another high school girl. 

On the other hand, the allegations against Landis area kinda screwy, such as:

On Tuesday Newschannel 3 spoke to the mother of the alleged victim, who asked not to be identified for fear of causing further stress for her daughter. She says this all started on August 28th when her daughter was at a friends house for a small party. She says Landis was there.

“She had went to bed and the alleged person had went into the room while she was sleeping and woke her up by taking her shorts off,” said the mother.

She says her daughter screamed, but no one came to help.

High school kids in Quincy have co-ed sleepover parties?  She screamed and no one came to help?  It’s not to say that Landis didn’t commit the crime, but this, and more, gives some pause.

There is nothing at all unusual about release bonds including requirements that a limit the conduct of an accused, or come with an order of protection.  Pre-trial defendants are regularly subject to limitations from loss of a drivers license to drug testing to staying 100 yards away from the object of their affection.  Given the grave seriousness of a charge of rape of a high school girl, would it be inappropriate to protect others from Landis, and remove him from the high school environment altogether?

But once that’s done, and done to a high school boy, there’s no going back and giving him another senior year, another year of high school football and whatever comes long with it.

This is one of those litmus test scenarios, where you simply favor the presumption of innocence or the safety of others. 

In Quincy, the presumption of innocence seems to have prevailed.  And parents are not at all happy about it.

H/T  Turley
 

One of my  earliest posts at SJ was about the horrific case of Martin Heidgen, who plowed his pickup into wedding party limo and killed two people, including the 7-year-old flower girl, Katie Flynn.  Heidgen, then 25, was totally drunk.  

Heidgen was the first in a series of cases prosecuting drunk driving deaths as murder.

But the law does not vary by the horrific nature of the outcome, as much as we sometimes wish it would.  The law must be dispassionate, as we know that the next case will not have such terrible consequences, but now that the dam has been broken, can be prosecuted as a murder.  And murder, any way you turn it, is a different crime from manslaughter or vehicular homicide.  It has an intent element, whether under the  intentional murder subdivision, or the depraved indifference subdivision, as was used here.  And drunk drivers, no matter how bad the result, do not have the intent necessary to commit murder.  No matter how bad the result.

By decision issued September 13, the Appellate Division, Second Department,  affirmed the conviction for two counts of murder.  This decision,  remarkably long in coming because of inexplicable delay in the submission of appellant’s brief, come after other decisions that reflected this court’s rejection of the underlying theory:

Much has happened since Heidgen’s conviction.  The case of Alberto Valencia was decided by the Appellate Division, Second Department, the same court that will hear Heidgen’s appeal.  There, the court rejected the “depraved indifference” theory of assault upon which the conviction rested, the same theory (though applied to second degree murder) that was used against Heidgen.  Valencia was sentenced on February 23, 2007, five days before Heidgen. 

Yet the affirmance here seems to be a carve out, where the majority relied upon highly specific facts to reach its result:

The majority concludes that when viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude that the defendant was aware that he was driving “the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night,” and that given “the defendant’s statement to the police that he was in a self-destructive’ mode, it was reasonable for the jury to find that he possessed the requisite mens rea at the time that the impact with the limousine occurred.”

Specific to this case, the majority relied on the fact that three cars passed Heidgen, who was traveling he wrong way down the Meadowbrook Parkway, and honked to alert him.  He kept going.  His statement to police, that he was in a “self-destructive mode,” was used to suggest that he was conscious of what he was doing, but that he was suicidal. 

To the majority’s credit, they have made great efforts to make their affirmance so fact-specific as to avoid screwing up a body of law in order to make sure Heidgen remains convicted of murder.  As the lone dissenter, Jeffrey Cohen, asserts, however, it’s not, and shouldn’t be, the law.

I disagree, and conclude that no rational or reasonable juror could infer that the defendant was suicidal, and acted with depraved indifference to an appreciated grave risk, merely because he stated that he was in a “self-destructive” mode. Thus, the evidence was legally insufficient to support the essential elements of murder in the second degree or assault in the first degree. It was not established beyond a reasonable doubt that the defendant was aware of the danger of his conduct, aware of the grave and high probability of injury and death his conduct portended, and wholly indifferent to any such probability.

Justice Cohen picks apart the facts upon which the majority relies, turning them from rationale to rationalization.  This is a fascinating dissection, as it’s the sort of detailed parsing of facts that one rarely sees in an appellate decision, where reality is whatever the opinion says it is, regardless of what actual evidence was presented and how that evidence connects (or not) with the rest of the dots. 

To the extent this decision is outcome oriented, bad facts compelling a bad outcome, it doesn’t appear to do anywhere near as much harm to the law as it could have, and for that we should be grateful.  But as the dissent makes clear, it’s still about outcome. Martin Heidgen was convicted of murder for the drunk driving deaths a was going to stay that way.

I had a nice chat the other day with a young lawyer who has a very popular legal website.  His site is a business, intended for profit and designed to maximize the number of eyeballs it draws.  He was disgusted, well, concerned (actually, I was disgusted, so I’m projecting my own feelings about his website onto him. He didn’t hate his website anywhere near as much as I did), that in the zeal to create the website and draw the eyeballs, he might have lost a critical ingredient.  Purpose.

It gave rise to the concerns raised by Alissa Walker at Good Technology :

One of the reasons I wanted to become a writer is that I was fascinated by a journalist’s ability to shape public opinion. Yet, the more information I have about who actually reads my words, the further removed I feel from the field of journalism. Sometimes my writerly self takes a back seat to my other personality, the one that’s obsessed with getting strangers to like me for something I wrote. As a slave to data, my success as a writer now hinges on how often I get Stumbled Upon, Voted Up, Promoted, Ffffound, Dugg, RTed, and Liked.

One might argue that I’m more machine than journalist. I actually enjoy the rush of attracting traffic. But does it make me any less of a creative person?

She writes about her learning the lessons of the internet, and how she became consumed by what they had to offer.

I remember the first time I was confronted with this new reality. I had written a blog post with the most perfect, pun-filled headline. But when I saw it, edited and published, I did not recognize it as my own. My headline had been swapped with a gimmick that anyone who writes for the web (and anyone who reads it) will instantly recognize: The dreaded formula of “The Top 5 Things That Will Prove Something Important.” My post had been turned into a list. My editor—a hardened blogging authority at the age of 26—shrugged. It had been proven somewhere (where?) that people love lists.

At first I was skeptical, borderline insulted. But when I saw how a slight tweak to my text would make my page views skyrocket, I became a convert. Now, instead of organizing my thoughts into pithy paragraphs for readers, I engineer my words so they’re algorithmically attractive. I rewrite my headlines to make them more enticing to Google. I tag them with dozens of relevant phrases to boost my authority on specific topics. I add search terms to my text to further optimize my SEO ranking. I admit that I don’t totally understand what that last sentence even means.

What’s left unmentioned is her concern with providing substantive information, well-written prose and thought-provoking commentary.  Apparently, no one told her that a  simple picture of a cute kitten was enough to draw the love of millions, cheap though it may be.

People love lists.  Social media gurus regurgitate the same list of Top 10 things constantly, to the wild applause of the crowds.  The comments that follow, extolling their utter fascination with the writer’s sheer brilliance, will warm even the coldest heart.

A while back, the emptiness of much offered by the blawgosphere began to gnaw at me.  I knew people cared about things, but you couldn’t tell by the insipid crap they wrote.  I wrote a post imploring people to take a stand, write something meaningful, put their ass on the line. 

If you ask most people who blog, they tell you they want to be relevant and meaningful.  They just don’t want to risk losing the love of readers.  After all, what good is being meaningful if no one reads what you write, and so they put their efforts into trying to collect eyeballs, as if a day will come when they will have enough, sufficiently own them that they can then, finally, offer a real contribution to thought.  They’re still waiting for that day to come, but it never does.

So the young lawyer with whom I chatted asked me what I thought he could do to improve the quality of the content on his website.  His actual words were, “what can I do to not suck?”  I offered him a few suggestions, including that he make certain that the articles/posts that appeared not make anyone stupider for having read them.  This was a major problem for him.

But more importantly, he had things to say, things he had learned between his third year of practice, when he knew everything there was to know about the law, and his eighth year, when he recognized how much he still had to learn.  He was aching to get these things out, to tell others what he had learned.  But he was afraid that he would offend his readers by telling them they were ugly and dressed funny, and they would run away from him and never come back.  He would lose their eyeballs.

Walker too had to come to grips with life on the interwebz, where any ploy that gets more eyeballs trumps quality and substance, even to the point of titling a post “what time is the Super Bowl” because that’s the predominant inquiry on Google at the moment.

Take it as the exception, but in fact this is not too different from how many sites with a veneer of journalistic integrity are generating stories right now. The sorts of stories you’ve no doubt clicked on. Instead of stumbling across a story idea while walking down the street, or meeting a stranger, or pondering an issue in the shower, a writer—maybe even me—skims Twitter’s trending topics or the most-searched phrases on Google Trends and then writes a piece. In most cases, a piece of crap.

So write a piece of crap and gather as many eyeballs as possible. Then what?  It won’t matter.

Today’s required reading is an op-ed in the Wall Street Journal by Orin Kerr :

Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet. So you could be jailed for lying about your age or weight on an Internet dating site. Or you could be sent to federal prison if your boss told you to work but you used the company’s computer to check sports scores online. Imagine that Eric Holder’s Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise. Fanciful, right?

Think again. Congress is now poised to grant the Obama administration’s wishes in the name of “cybersecurity.”

The thrust of the changes is to make the misdeamor of exceeding authorized access a felony, punishable by three years imprisonment. 

The problem is that a lot of routine computer use can exceed “authorized access.” Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include “terms of use” violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer?

It’s unlikely that the DOJ will be trolling online dating sites to prosecute guys who add a couple of inches to height or gals who subtract a few pounds of weight, but it certainly opens the door to having a means to prosecute essentially everyone who has ever used the internet.  In the op-ed, Orin gives past examples of abusive use of the CFAA, but by expanding its seriousness while criminalizing routine computer conduct, particularly when the basis for exceeding authorized access is privately conceived terms of service which can be pretty much anything the website owner chooses (by the way, use of SJ is prohibited unless you are wearing blue jeans and standing on your left leg; you’ve been warned).

And it’s not just the government, but provides a private cause of action as well:

The law even goes beyond criminal law. It allows civil suits filed by private parties. As a result, federal courts have been flooded with silly disputes. In one recent case, an employer sued a former employee for excessive Internet usage from work. The alleged offense: visiting Facebook and sending personal emails. In another case, a company posted “terms of use” on its website declaring that no competitors could visit—and then promptly sued a competitor that did.

And since the government has yet to gain much by way of computer savvy, President Obama’s smartphone notwithstanding, unauthorized use isn’t limited to your 4G connection.

Remarkably, the law doesn’t even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you’re visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.

Harvey Silverglate’s  Three Felonies a Day seems downright benign in light of the expansion of the CFAA .  And if you’re reading this, chances are pretty good that your government could, if it so chooses, prosecute you for a felony. 

This is an important op-ed, and not only worth reading, but worth spreading so that everyone is aware of what the government has in mind, and how it will create felons of all of us.

Update:  Via Kash Hill at Forbes, it appears that Senators Al Franken and Chuck Grassley have proposed  an amendment that will remove certain of the worst elements of the changes from the CFAA.

…that felony-level unauthorized access not “include access in violation of a contractual obligation or agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or non-government employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized.” The bill will now move forward to be considered by the Senate.

At least the most common sorts of internet activity won’t be sufficient to get your a room at Club Fed, though it leaves much untouched and qualifies what it does touch as being the “sole basis,” a highly dubious distinction. 

Still, it’s notable that one strongly worded editorial by Orin (and  perhaps some of his plagiarists?) affected the course of this law.

Just between us, doesn’t everybody know that it’s just common sense that blacks and Hispanics are more likely to commit crimes than white?  It’s just common sense.*

You’re in good company, you know. Psychologist Walter Quijano agrees with you.

Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white. Quijano shouldn’t have done that. 

What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites.    What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Then Texas Attorney General John Cornyn (he’s now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.

One of the prosecutors who tried Buck’s case and put him on death row, Linda Geffin, wrote a letter asking the Parole Board to grant him relief.  The surviving victim of the attacks that put him on the row, Phyllis Taylor, wants him to get clemency.

The way it works in Texas, the Governor can grant clemency only if his hand picked parole board recommends it.

This afternoon, the Parole Board said no. 

Senator of the good people of Connecticut, Joe Lieberman,  explains the root of the problem:

“It’s an annoyance to people,” Lieberman said of the security measures.

Children 12 years old and younger soon will no longer be required to remove their shoes at airport security checkpoints, Homeland Security Secretary Janet Napolitano told Congress on Tuesday. The policy also includes other ways to screen young children without resorting to a pat-down that involves touching private areas on the body.

Napolitano said there may be some exceptions to keep airport security unpredictable. Terrorists have plotted to use children as suicide bombers, and some children still may be required to remove their shoes to keep security random.

Does this take the air out of your bubble of annoyance?  Some will argue that this is a step in the right direction, and reflects our government sensitivity to the will of the American flying public.  But what of their fear that of the tens of thousands of planes that fly safely and without incident, their will be the first in ten years to be flown into a building?  Are they not giving the terrorists a free shot by letting the occasional infant wear shoes?

Fear not, scared masses.  Your government would not forget you.  What’s not being said is that the TSA is moving toward a risk-based approach, according to administrator John Pistole.  Sounds great.  Cries for “common sense” demand that we leave our beautiful babies alone, stop molesting them, stop making them cry in fear and loathing.  They aren’t terrorists. It’s nuts.

So who are terrorists?  They have a list at the TSA the includes all the people they think might be terrorists, or otherwise just don’t like.  But if they limited themselves to the list, none of these shenanigans would be needed, and you and I would be allowed to wear shoes in airports as well.

They could profile terrorists, but that’s just code for picking out people with swarthy mediterranean good looks and subjecting them to the searches that blonds would avoid.  And it would leave us exposed to “home-grown” terrorists, who look like just like us.  How in the world could we ever stop them if we can’t tell from their darkened complexion that they are dangerous?

Certainly, it’s in the TSA’s interest to back off the children.  Few acts of government have generated as much outrage as young children having their “private parts” touched by agents.  Or as Joe Lieberman says, annoyed. 

The trick for the TSA is to modify procedures in such a way as to be embraced again by the American public as their protector and friend, to whom people will willingly submit without fear, question or annoyance.  They know that these children, whose videos enrage normal people, aren’t going to blow up a plane.  They just can’t figure out how to make up a viable story to justify their continued performance of security theater if they start admitting that much of it, if not all of it, is worthless.

Janet Napolitano is a sharp cookie, however, and knows how to toss in that little zinger that seems to make perfect sense.

[T]there may be some exceptions to keep airport security unpredictable.

Exceptions?  You won’t know if it’s the exception or the rule, because you only see a teeny-tiny bit of what happens on the security line.  Does this mean one in ten will be groped? One in a hundred?  Or one whenever somebody feels like it?  She can’t say since that would undermine the whole point of unpredictability.  Smart.

Does this do it for you?  Are you now satisfied that the TSA has found the tipping point where you will be happily obedient for your own protection, if not the protection of others, knowing that children can wear shoes except when they can’t? 

Or will that happy place come when you see the agents scoping and groping only the swarthy, letting real American’s walk through unmolested and whisked away to their waiting plane?  After all, it’s just common sense. 

While there is no shortage of discussion about the pleasures of being a supporting actor in the TSA’s airport security theatre, it pales in comparison to the lawlessness of airplanes, as Shoshona Hebshi found out.  Via Ken at Popehat :

. . . a perfectly innocent woman being hauled off a flight, handcuffed, jailed, strip-searched, and grilled for hours — because some fucking ninny on the plane thought she and the two dark-skinned people sitting next to her were “suspicious”, and because “better safe than sorry” has become a higher value to law enforcement than probable cause or reasonable suspicion or due process or common freaking sense, and because we’re too cowed as a people to say anything about it.

My last tweet:

Majorly armed cops coming aboard

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread  our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”

They asked if I knew the two men sitting next to me, and if I noticed them getting up during the flight or doing anything I would consider suspicious.

I told them no, and couldn’t remember how many times the men had gotten up, though I was sure they had both gone to the bathroom in succession at some point during the flight.

Again, I asked what was going on, and the man said judging from their line of questioning that I could probably guess, but that someone on the plane had reported that the three of us in row 12 were conducting suspicious activity.

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough?

FBI Detroit spokeswoman Sandra Berchtold said ultimately authorities determined there was no real threat.

“Due to the anniversary of Sept. 11, all precautions were taken, and any slight inconsistency was taken seriously,” Berchtold said. “The public would rather us err on the side of caution than not.”

Maybe.  Or maybe the public would rather you not seize, strip and interrogate people because they went to the bathroom in a fashion that troubled someone from Des Moines.  Or maybe they expect the forces of law enforcement to demonstrate some modicum of intelligence, and not leap at every nutjob’s suspicions.

Or maybe it’s just because the three passengers in row 12 had darker skin than others.

And so Shoshona Hebshi, a believer in law and order and public safety, was sacrificed on the altar of better safe than sorry because someone on a plane thought it odd. 

The instructions were clear: blink three times for “yes,” two times for “no.”  Six times for “maybe.”  Nine times for “I’ve got something in my eye.”  Once for “am I gonna die?”  Or maybe not. 

When the only means of communication is a blink, however, that’s the best you can do.  From Cincinnati.com :

Ricardo Woods could spend the rest of his life behind bars because of a blink.

In a bizarre case, Woods is charged with fatally shooting David Chandler, with authorities relying on a priest and blinking to try to solve the killing.

Woods was charged with murder after a wounded Chandler identified Woods as the shooter – by blinking his eyes to answer yes-and-no questions from police who also brought in a priest to administer last rites, Woods’ attorney alleges, to skirt the law.

The police had two problems to overcome.  There was David Chandler, paralyzed as the result of a shooting and incapable of speaking.  It was their belief that Woods was the shooter, but they needed an identification and Chandler was in no position to give up a name.

The other problem was that Chandler was alive, even though paralyzed, but there was no assurance that he would survive long enough to testify.  In the hospital, it was questionable whether he believed himself to have one foot in the grave, in extremis, such that his communication would fall under the hearsay exception of a dying declaration. 

To create the proper atmosphere, the cops brought in a priest to give Chandler last rites.  After all, who cares about saving his life and comforting the victim when there’s evidence to be gathered and no way to do so without making sure he knew he was about to meet his maker.  And once he was sufficiently fearful of the grim reaper, get their ID.

As Chandler was in the hospital, police tried to get him to tell them who shot him. But because he was paralyzed in the shooting, he could only communicate by blinking.

Police videotaped the in-hospital questioning and then charged Woods. But Woods’ attorney questions police tactics and the identification by Chandler of Woods.

“Mr. Chandler was hooked up to a ventilating machine,” Kory Jackson, Woods’ attorney, said. “Because of the way he is responding, he did not properly identify” his killer.

Curiously, while the cops recorded the identification, where they had Chandler observe a single photo and asked him to assert, by the blink method, whether that was his shooter, they neglected to show the image on the photo to the camera, so that it’s impossible to tell from the recording that the photo was that of Woods.

Even so, it appears that Chandler’s responses were a bit inconsistent.

Police, Jackson said, told Chandler to blink three times for yes, twice for no. “In lots of responses, he isn’t answering correctly. He either doesn’t blink or blinks too many times,” Jackson said.

Guys who were just shot in the head will do that.

But the blinks still could be used in court.

The circumstances of the identification lend themselves to a myriad of problems, questioning whether the blinds were arbitrary, or related to the questions at all.  There is no way to determine whether Chandler, who had been shot in the head and neck, had the capacity to think, to understand, to respond.  Perhaps so, but it’s also quite possible that he wasn’t in the right frame of mind to identify much of anybody after the shooting.  And yet, this was all the police had to work with, and work it they did.

Now for the obligatory lawprof commentary part of the report:

If prosecutors can establish that Chandler properly answered questions, that can be used at trial, said University of Cincinnati law professor Mark Godsey.

If there were “clear and unambiguous answers being given by the witness and everyone was on the same page about what they meant, then it can be considered valid,” Godsey said.

“To comply with the … law, it has to be a series of photos shown one at a time,” Godsey noted.

Well, no, not if the two men were knew each other beforehand, making the identification confirmatory.  But what would the story be if it didn’t include a lawprof stating something so deep and astute.

This strange scenario ultimately comes down to whether the judge is going water down every concept of reliability so that the prosecution isn’t left without an identification, and hence without a case.  Whether blinks can ever suffice as “clear and unambiguous” answers is a decent question.  It’s likely that under normal circumstances, one can properly test the blinks through a series of questions to remove the potential of randomness from the blinks and confirm that a “yes” or “no” means what it purports to mean.

But if the video shows what Jackson says, that Chandler was blinking all over the place, then it would seem impossible to be assured that his “yes” blink meant yes, even assuming the photo was that of Woods and that the judge will bite on the priest gambit.  Missing from the discussion seems to be any assessment of whether Chandler had the mental capacity following the bullet entering his head to think much about anything, which strikes me as a pretty decent question.

The strongest argument on behalf of the prosecution, and the one that will never be spoken aloud, is that someone will get away with murder if the court doesn’t allow them to introduce evidence of identification.  And as long as a judge isn’t going to be a slave to reliability or the law, this argument may well be a winner.  After all, nobody likes to see a murder without a conviction.

Update:  And the court says :

Hamilton County Common Pleas Judge Beth Myers said that Chandler’s “pronounced, exaggerated” eye movements were reliabe evidence.

“I find from the totality on the circumstances based on Ohio law and the facts as I found them that the identification is reliable and there is not a substantial likelihood of misidentification,” the judge ruled.

Imagine what the cross-examination of this testimony will produce.  Oh wait, the victim is dead so there won’t be any cross.  Well then, at least it’s reliable, because otherwise an innocent person could be convicted.