Monthly Archives: January 2013

The Hyperbole of Victimhood Doesn’t Help

Among the press releases received in the old SJ mailbag yesterday was one from Human Rights Watch announcing a 196-page report, “Capitol Offense: Police Mishandling of Sexual Assault Cases in the District of Columbia,”  This is no trivial matter, though I lacked sufficient interest to read a report of that length.

But because of my concern for the victims of sexual assault, I read the email, itself a rather lengthy bit of writing.  This paragraph stuck out.


“Sexual assault is the most underreported violent crime in the US, largely because many victims fear that their cases will not be taken seriously and that police will not believe them,” said Sara Darehshori, senior counsel in the US Program at Human Rights Watch and the author of the report. “Unfortunately, for some victims in DC who bravely came forward and reported their assaults, those fears were realized.”

It compelled me stop and wonder, if a crime is underreported, then how would you know its frequency? By definition, underreported means you don’t know.  And “most” underreported?  Most underreported “violent” crime?  From what I understand about sexual assault, its definition has grown a bit fuzzy these days.  Is it fair to describe sexual assault as a violent crime when violence is imputed by definition of lack of consent, whether before or after the act, rather than conduct?

The explanation for this underreporting, that “victims fear that their cases will not be taken seriously and that police will not believe them,” seems fair as far as it goes, but it strikes me as a bit facile and underinclusive. Aren’t there other reasons, like embarrassment? But if that happens, then it doesn’t quite comport with characterizing victims who come forward as “brave.” Why is it necessary to call a crime victim “brave”? Crime victims should come forward, both for their own sake as well as the sake of others, regardless of whether they’re brave or cowards.

My suspicion is that the imputation of bravery has to do with the claim that their allegations of sexual assault are questioned by the police.  Shouldn’t they be? How else to distinguish allegations that are false from those that are true? Didn’t we just go through an incredibly embarrassing infographic about this? 

The email goes on to state:


Some sexual assault survivors described to Human Rights Watch callous treatment by police officers, who, they said, openly questioned their credibility and minimized the severity of their experiences.

The phrase “cancer survivors” is commonly used to describe people who overcame cancer. The reason for calling them “survivors” is that cancer kills people. Those not killed are fairly said to have survived. The same cannot be said for people who suffered sexual assaults. They may well be victims, but they are not survivors. This relates direction to the complaint of “callous treatment” by police who “openly questions their credibility and minimized the severity of their experiences.”

Police should openly question the credibility of every person who seeks to initiate a criminal investigation and prosecution. That’s how wrongful arrests and prosecutions are prevented. That’s how innocent people are not imprisoned.  Does Human Rights Watch contend that innocent people should be prosecuted and imprisoned? It seems rather contrary to their cause.

As for the severity of their experiences, the use of the word “survivor” belies that complaint. No doubt there are horrible sexual assaults, but similarly there is no doubt that there are perceived sexual assaults that aren’t as severe as others. This may fly in the face of orthodoxy, but just as there is grand theft and petty theft, some are worse than others. They are not all the same, and it hardly behooves the victims to diminish a violent rape from seemingly consensual sex with a person whose capacity to consent is diminished by drunkenness.  While the latter may well argue that I am wrong to trivialize his experience, the former, lying in a hospital bed, may well be unimpressed.

By no means do I lack either empathy or concern with anyone who has suffered a sexual assault. Quite the contrary, as I am outraged and disgusted by sex crimes.  But my visceral reaction doesn’t mean that I turn suddenly blind to the problems of false accusations or dubious definitions or exaggerations.  Concern for one side doesn’t require someone to ignore the other.

Human Rights Watch does many good things, and is worthy of our interest and respect. But it doesn’t help to garner respect when it employs blind hype that suggests it has lost all reason, balance and concern for other issues worthy of its concern.  By all means, if the District of Columbia police are unduly callous toward sexual assault victims, it should be reported and challenged.

But let’s not forget that there are other interests involved as well, and when the descriptive language goes over the top as here, credibility is sacrificed.  There are many human rights at stake here. When fighting for one, it doesn’t have to come at the expense of others.

Dr. Who?

When someone follows me on twitter, I tend to take a look to see who it is.  What someone says about themselves is often revealing, not so much in the merit of their description but as an insight into their character.  As Judge Kane wrote, it’s all about character.


Without the formation of character, the rest is futile.
Sometimes, twitter bios are brief and purely descriptive, like “law student” or “criminal defense lawyer.  With pathetic regularity these days, they’re an attempt at recreating a roadside billboard, like

Hollins Law: Orange County’s best Trial Attorneys. Praised by judges, juries, peers and adversaries for aggressive yet ethical presentation and fearless trial advocacy.

Maybe somebody on twitter will be incredibly impressed by this bio. Me? Not so much. Jeff Haden explained the problem with an example:


Picture this. You meet someone new. “What do you do?” she asks.


“I’m an architect,” you say.


“Oh, really?” she answers. “Have you designed any buildings I’ve seen?”


“Possibly,” you reply. “We did the new student center at the university…”


“Oh wow,” she says. “That’s a beautiful building…”


Without trying — without blowing your own horn — you’ve made a great impression.


Now picture this. You meet someone new. “What do you do?” he asks.


“I’m a passionate, innovative, dynamic provider of architectural services with a collaborative approach to creating and delivering outstanding world-class client and user experiences.”


All righty then.

Marketers say that if you don’t toot your own horn, who will? The correct answer is everyone who is impressed by your accomplishments, rather than your hype. And if no one is tooting your horn, then maybe it’s because you have no accomplishments. It gives you something to work on.

One thing that could be done to bolster is to get another degree. Of course, that’s time consuming, but then, there are now some online schools, like Capella University, where you can attend without ever attending. And there, you can do what Florida Assistant State Attorney Peter F. Barone did.

This is an announcement regarding ASA Peter A. Barone. On January 7, 2013 Peter A. Barone finished his final defense for his Ph.D. and was officially announced as Dr. Peter A. Barone.


Dr. Barone spent 5+ years obtaining his degree and would like to request that during formal court proceedings that you please refer to him by his proper and legal title, that being Dr. Barone. This request is similar to the manner in which the sitting judge is called Judge or Your Honor, or as his fellow attorneys are addressed as counselor or Mr. or Ms., and not by their first name during formal proceedings. 


Dr. Barone would like to thank his fellow colleagues for their cooperation in this matter in advance and realizes that at times it is difficult to remember a title change and is willing to assist by advising and correcting his colleagues during official proceedings of his new and permanent title if they inadvertently forget.     


Victor Garcia-Herreros
Legal Assistant for Dr. Peter Barone
State Attorney’s Office of Highlands County
411 S. Eucalyptus Street
Sebring, FL 33870

It doesn’t get more thoughtful than to be “willing to assit by advising and correcting his colleagues during official proceedings of his new and permanent title.”  How embarrassed his “fellow” colleagues would feel if they only used his former title. Professor Peter Barone, Esq., (followed by Ph.D.(c), LL.M, JD, MSM, CPP), who, according to the bio he’s written about himself, suggests he’s lived a curious life:


He began his law enforcement career in 1975 in the State of New Jersey and he is a currently working as a Felony Major Crimes Trail Prosecutor in the State of Florida and is cross-sworn as a part time deputy sheriff, part of the Crisis Negotiation Team, and a certified police instructor. As a felony prosecutor in this Florida he is also actively involved in the investigative aspects of felony cases. In his first sex months he assisted the in solving a 20 years old murder case while interrogating the primary suspect. In his first year as a prosecutor he prosecuted and won a capital sexual battery and an attempted murder case. Immediately prior becoming a prosecutor he was a Major Crimes/Homicide Detective, Hostage Negotiator, Aircraft Observer, and Police Instructor for a Sheriff’s Office in central Florida. Prior to this he worked in a Police Department as a road officer and Legal Advisor, and previously as a homicide detective, gang detective, field training officer, and police instructor for the Miami-Dade Police Department.

Apparently, the only thing he’s never done in his impressive career is work as a spelling teacher or an editor. Now in fairness, it’s very nice that Pete got his Ph.D., not that it adds much to his lawyering, but still. However, will he “correct” out of kindness the judge?


Judge:  Do you have anything to add, Mr. Barone?

Professor Peter Barone, Esq.: That’s Doctor Barone, your honor.

Judge: My deepest apologies for offending you, Dr. Barone. Suppression granted and case dismissed, Dr. Barone.

In the long-gone past, about five years ago, anyone saying something even slightly self-aggrandizing on the internet would preface it with an apology for their “shameless self-promotion.” They would then present whatever it was, like winning the Nobel Prize, with as brief a factual description as possible, because there were few things less tolerable than a lack of humility.  

It used to be that if you had to impress people by telling them how great you are, then you aren’t.  That’s still the way it is. It just hasn’t seemed to stop people from making asses of themselves on the internet these days.

  

They Shoot Video, Don’t They?

The virtue of having a video of police encounters has been proven over and over, whether because it belies the allegations of a crime or proves them. But then, sometimes the guy with his finger on the dashcam’s “on” button may not want evidence of what is about to happen.  Via NJ.com :


Allen Bass, 50, sued Trooper Gerald Dellagicoma and others in 2009, claiming they punched and kicked him multiple times, causing him to urinate on himself, after he complied with their commands to get off his bicycle at Ellis Avenue and Clinton Avenue in Irvington a year earlier.


Bass was charged with various drug offenses that were later dismissed.


It would appear that the drug charges were dismissed when the troopers failed to appear for trial.


The jury in the Bass case found no merit to the allegations that Dellagicoma arrested him without probable cause and subjected him to a malicious prosecution. The jury also found no wrongdoing by the other troopers involved, Christopher Mills and Miguel Holguin.

And what was Bass doing that gave rise to this encounter?



[Bass] was riding his bike July 10, 2008, in Irvington when Dellagicoma and other troopers who were on patrol in the area got out of their patrol cars and ordered him to stop. Bass claimed he laid on the ground chest-down and spread his arms and legs.


Troopers allegedly then punched and kicked him before arresting him. Bass was charged with drug possession, resisting arrest by flight and resisting arrest by force, court documents show.


What makes this special is that in New Jersey, there is a requirement that arose from the racial profiling scandal that rocked the Turnpike, that all encounters with State Troopers be videotaped.  The state was kind enough to put cameras in cruisers. Never again would a trooper be falsely accused of profiling a driver just because he was black. (This is known as the “black plus” theory of profiling.)

Except Trooper Dellagicoma didn’t turn on his camera. Oops.


Court documents show Dellagicoma, who joined the force in 2001, failed to activate his patrol car camera and was suspended without pay for 30 days, but only served 15 days of that suspension. Records show Dellagicoma was reprimanded several times prior to the incident for the same infraction.

The plan seemed foolproof. Give troopers cameras and require them to use them. If they don’t, there must be consequences. And consequences there are.


The videos are often critical to proving allegations of wrongdoing, as well as protecting troopers from false public complaints. But not activating a camera is considered by the State Police to be a minor infraction punishable by a written reprimand and a suspension of only a few days.

Of course, the consequences aren’t nearly as severe as the consequences suffered by Allen Bass. Or severe enough to make Trooper Dellagicoma actually turn his camera on. Several times.

The utility of video in revealing what really happens when cop encounters citizen can’t be understated, as it has fundamentally changed our understanding and appreciation of the ugliness on the street.  Before, we relied on the sanitized, fantastical descriptions given by police officers on the witness stand, where they never uttered a mean word and were invariably professional and courteous in every interaction.  It wasn’t their fault that the perp ended up with a gun-shaped bruise across his left cheek. He must have attacked the gun with his face. It can happen, you know.

But to ignore the hitch, that the cop may have the unfettered ability to record the encounter and, for whatever reasons (“Gee, I forgot,” testified Officer Smith), failed to do so, is an untenable problem.  The efficacy of video depends on its actually being used, in every instance and including the entire encounter.  Anything less reduces it to a game, where the police make the rules, and the rules will not be good for the other side.

The only way an incentive system works is to make the cost of noncompliance greater than the cost of compliance. Apparently, a written reprimand and a few days suspension doesn’t cut it. And when it happens repeatedly, it is clearly failing to serve as a deterrent.  That’s not good enough.

It’s not Allen Bass’ fault that the encounter with troopers wasn’t recorded.  People aren’t ready, as they ride their bike down the road, to record a chance encounter with police. Maybe they should be, but most of us go through our daily routines without need to be capable of videotaping a shocking encounter at any moment.

That the troopers failed to do so is inexcusable, and reflects a failure of both the concept and the execution. If there is a rule that every encounter must be captured on video, then there must be muscle behind the rule that makes the failure to do so count.  And when a cop refuses to follow rules repeatedly, he’s telling you that you made a bad decision as to who is sufficiently trustworthy to wear a shield and carry a gun.

Video is a great thing.  But only if it’s used. And when the person you entrust to use it happens also to be the sort of person inclined to beat people for fun, then having a video rule probably isn’t sufficient to address your problems.

H/T FMK

Digital Natives: As Bad At Tech As They Are At Law

An interesting argument broke out after Carolyn Elefant posted an open letter to New Lawyers at My Shingle :



At 48 years old, I am old enough to be your mother.  And you should be ashamed of yourself.  Here you are, coming to me for a legal job when you don’t know the first thing about RSS feeds, blogging (reading them, let alone writing them), Twitter, Pinterest or YouTube.  And what’s more, you have no comprehension of the importance of these tools to my practice and seemingly no interest in learning how to use them.


Just out of law school, your skills are of minimal use to me.  Nothing you research or write will be worthy of filing without significant oversight and feedback. And that’s okay. 

But what I can’t abide is having to teach you how to tweet about current events.  How to set up an RSS feed. How to track and stay on top of news from two or three industry blogs.  Supposedly, you grew up on this stuff.  So why do you need to take instructions from someone old enough to be your mother on how to use tools that should come as second nature?

Now Carolyn, who doesn’t look a day over 35, Sought to cajole new lawyers into an epiphany, that what they lack in value as lawyers they ought bring in value as digital natives.  She goes on to talk about various technological marketing pieces, which matter to her, but the core aspect of her rant is that young people ought to possess a skillset that old folks lack. So why don’t they? And if they have it, why aren’t they using it?

Over at The Puddle, n00bie lawyer Josh Camson responds in an open letter of his own to “Senior Lawyer,” I am not a tech expert.



As you point out, I have grown up around technology. I had my first cell phone in 2000. I joined Facebook when it was only open to other college students. I joined Twitter briefly when it first came out, and even had a Blogger account at the end of my college career. During this time I was also trying to pass exams and figure out my life. Then I spent three years learning the law. I’ve spent the last two figuring out starting to figure out how to be a lawyer.


In contrast, you’ve had the last twenty years to understand how law and technology fit together. You were already in law school when the Apple Macintosh was released. That means you’ve had the last thirty years to learn about new technologies as they develop. More importantly, you’ve been able to slowly incorporate those technologies into your practice. If you haven’t found a video solution that you like, or a system to stay up-to-date on industry developments, why should that be my problem? Why am I expected to have your solution?

Its unclear whether Josh’s argument is that he’s not really as tech savvy as old lawyers think, or that he’s here now as a lawyer and doesn’t want to be relegated to the role of “the computer guy,” If the former, it would be far more comprehensible. Just because a lot of kids spend time chatting up their friends on Facebook doesn’t make them knowledgeable or competent to handle tech. Old folks, who are utterly clueless, may think they are, but that’s just because they’re utterly clueless.

One of the memes that are sold to “senior lawyers” in law firms is that they can slough off any tech issues onto the kids. The assumption is they all know that “stuff,” and they can handle the firm’s twitter needs without blinking. Bad news, guys. It’s baloney. Any idiot can type words onto a screen, but that’s not what tech is about. You didn’t realize that? Bummer.

The kids realize that your expectations of their tech abilities are, ahem, overestimated. And to add insult to injury, when things don’t work out the way you expect, like your new baby lawyer in charge of twitter isn’t bringing in a million dollars of new business a week, who are you going to blame? They must be doing it wrong, since everybody knows that tech is the future, tech is the gravy train. All you need is some kid to twit for you and fabulous wealth is coming your way. Unless the kid screws up, of course.

But as much as new lawyers may not want to be pigeonholed as digital natives, you can’t ignore the flip side of Carolyn’s point. Your law chops aren’t what you think they are. The senior lawyer is not only expected to pay you, but aside from making a decent cup of coffee (thank you, Keurig), you not only can’t produce usable work yet, but suck time away to correct and teach you how to do things right. Until you can, you are a drain on the firm, on the senior lawyer.  But thanks for the coffee.

This isn’t a smack against new lawyers, per se. We were all new once, and before there was an internet to manage, there were brief cases to carry, pocket parts to insert, typewriter ribbons to change. We were new lawyers too, but we understood that an integral part of our job, a reason the senior lawyers was willing to give us money every week whether we performed good legal work or not, was because we did whatever we could to add value to their practice.

What we did not do was tell the nice person who paid us, “oh no, old man. I’m no coffee fetcher, no briefcase carrier, no pocketpart inserter. I’m a lawyer, and I damn well expect you to treat me with the respect I think I deserve.”  There were people who did this, and there was a name for those people: unemployed.

It’s quite possible that the reason you bring nothing to the table when it comes to technology is that you have nothing to bring.  If that’s the case, man up and admit it. And if your senior lawyers is more tech savvy than you are, spend your quiet time at home learning how not to be the tech runt of the office, because it’s frankly inexcusable today and will be an unacceptable impediment to your future as a lawyer.

And senior lawyers, no matter how youthful your appearance or what you thought of the Mac when it first came out, need to understand that tapping nonsense words into Facebook may be fun and kewl, but does not an IT expert make. Technological savvy is not a prerequisite for being young, and some don’t have the chops for either law or technology. Sorry to burst your senior lawyer bubble.




When the Ped is a Brother

Of all the crimes that raise fear, dread and disgust, none is worse than pedophilia, the sexual abuse of a child by an adult.  And this explains why police have taken such an incredibly aggressive stance in trying to root out this disgusting crime, particularly on the internet, which has proven to be a boon to pedophiles seeking to find unsuspecting teens in chatrooms, ripe for their wiles.

And so an undercover Worcester, Massachusetts officer hanging out, pretending to be a 14-year-old girl, just waiting for something juicy, happens upon this chat :


Latenightcop171 — So you want to learn things

Undercover — What can you teach me

Latenightcop171 — Lot of things

Latenightcop171 — We’d have sex

Undercover — Of course silly, but anything special or weird.

Latenightcop171 (does that mean there are 170 latenightcops before him?) turns out to be Worcester Police Officer Neil Shea. Oh crap. Crap, crap, crap.  One of us, the undercover gasps.


How can you explain the abrupt termination of the online conversation in which Mr. Shea appeared to have been deeply engrossed in a highly improper chat-room encounter with an undercover officer, whom he believed to be a 14-year-old girl?

Easy, according to Police Chief Gary Gemme.  Shea didn’t commit any crime, according to the Chief. It’s not like anything actually happened, right?  Maybe he was just conducting his own undercover investigation, ferreting out 14-year-old girls who were trying to get cops into trouble?

Well, no. It’s not like the Worcester police department was going to welcome Shea back with open arms. There is a limit to how much sickness even a police department is willing to tolerate.  And so Chief Gemme determined that Shea


committed several violations, including incompetence, neglect of duty and conduct unbecoming an officer.

Where exactly the line is for conduct unbecoming an officer may not be clear, but apparently, sex with 14-year-olds is beyond it.  And so they strapped Shea to a detention chair and tased him? Well, not quite.


Mr. Shea resigned before the investigation, in which all allegations were sustained, was completed. He is free to receive all retirement benefits.

After all, there is nothing a police officer can do, not even roaming the interwebz to find teenage girls in his community with whom to chat about sexual liaisons, that warrants stripping a cop of his pension.  For anyone who doesn’t appreciate the importance of the pension, this should make it abundantly clear, as not even his pedophile conduct was sufficient to push him over the line of denying him a pension.

While the mere inquiry, without further action toward making contact happen, may not have pushed this conduct from “unbecoming” to criminal, the termination of the sting before Shea took the next step of setting up a meeting with his new 14-year-old friend precluded his prosecution and, upon conviction, the end of his ability to entice little girls to have sex with him.

Anybody want to bet that all the parents of teenage girls in Worcester are cool with the fact that they are not only paying Shea’s pension, but that he’s still got unfettered internet access to chat up their babies?

Next time some tough on crime pundit blows hot about the horrors of pedophilia, ask whether their daughter has ever chatted up Latenightcop171.  Ask whether these sick, disgusting pedophiles can’t be tolerated, except when they wear blue during the day. Ask about Neil Shea. He’s still out there, collecting his pension.

H/T Fritzmuffknuckle

Response to @RadleyBalko: Why Loser Pays in Criminal Law is a Loser

Following  my dismissal of the same old ideas for fixing the criminal justice system,  Radley Balko twitted “Why is it a bad idea for the state to pay the legal costs of people who are acquitted?”  He went on to twit, “Even [if] there’s no larger effect, seems like a just policy.”

Unfortunately, this happened on twitter, so that readers weren’t aware of his questions, and there was no ability to explain with any degree of depth. As fun and easy as twitter may be, it’s not a good medium for thoughtful discussion. For this reason, I refuse to start something on twitter that’s either doomed to fail or merely incapable of doing any more than scratching the surface.

But if Radley questions why this proffered fix shouldn’t be given a try, I assume others do as well, and it’s worthy of a real response.  In Glenn Reynolds’ 6-page opus, he explains this fix:


Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-indigent defendants bear the cost – is an integral part of the criminal justice process. For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.

What a great idea, for guys who do what I do at least. The reluctance criminal defendants now have in putting their own money up for their defense, applying whatever cost-benefit analysis naturally happens in their heads, would certainly get a boost from the prospect of getting the money back on the other side. 

After all, there are two things that are almost invariably present at the beginning of a criminal defense: The defendant believes he’s innocent, regardless of how guilty he may be, or the defendant believes the prosecution can’t really prove his guilty.  The ubiquitous question, “do they have it on videotape? Huh? Huh?” said to convince us that there is no way the defendant can lose because there is no way the government can prove their guilt. Except the prisons are filled with people whose guilt couldn’t possibly be prove to the defendants way of thinking. How could that possibly be?

The problem is that defendant often begin their defense in a delusional state of absurd denial, grasping onto odd straws that they, their spouses, their great aunt in Selma, the guy on the corner, assert with absolute certainty will result in their freedom.  And this is before they find religion.

Introducing a financial incentive to secure a conviction to the already overwhelming incentives that drive cops to coerce confessions and nudge identifications, and prosecutors to bury the Brady and provide excessive coaching to their victims, is just fuel to the fire. If the defendant would recover his legal fees (and how much was recoverable according to a judge’s vision of reasonable fees is another issue, but one that will never need to be addressed), the money would have to come from somewhere, some budget. Whose?  Which bureaucracy would be willing to take the hit? Which piece of the prosecution side would be strong enough, honest enough, reliable enough, to ignore the potentially ruinous financial consequences and maintain fealty to the rules and Constitution?

And why, if the group’s devotion to justice is so strong, can’t they be trusted now, without the additional burden of a financial incentive?

Then we have the judiciary, which costs money to run as well. The judges don’t hold bake sales, but depend on the legislature to fund their operations. If the decisions of the judges end up busting budgets, even a little bit, the power of the purse will come to bear. It may be subtle. It may be blatant. But it most assuredly will be, as politicians are disinclined to suffer the anger of their constituents when they have to raise taxes to cover gaps that judges could close. While we may not have much judicial independence now, there will certainly be less when there is money involved.

And finally, we come to the beneficiaries of the concept, the defendants. Already, defendants are faced with unbearable choices, to plead or fight. The equation is now a difficult balancing act of risk of conviction and severity of sentence.  The discussion is brutal, as few defendants have any appreciation of the weight or nature of evidence, or why all their really good reasons why they shouldn’t be convicted won’t come out at trial.  They want to be heard, but they don’t want to testify. They want the truth to be known, but they can’t risk cross-examination. They didn’t do this crime, but there are the three same priors lingering in the air.

Add a financial incentive into this mix, where they may not only win acquittal but get their money back, and the influence will skew their unduly optimistic view off the charts. Should defendants choose to go to trial because they have a viable defense and a good chance of winning, or should they go to trial because they can get their money back? How many defendants will suffer the trial tax because money influenced one of the most difficult decisions of their life?

And these are the reasons why this idea, seemingly “just” on its surface, would prove problematic, if not disastrous, in real life.  And this is why the response wasn’t suitable for a twit.

As long as we’re at it, Radley also  questioned by twit why I wasn’t more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, “And it’s probably more productive to engage, persuade new allies than to shun and mock them.”  Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley’s query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn.  Anyone?

Fixing the System: The Usual Suspects

There’s nothing like a case that captures the interest of the internet to be a never-ending source of fodder for ideas that have been said before and opportunistically said again.  Sadly, Aaron Swartz’s suicide is being used as such an opportunity. 

Randy Barnett at Volokh Conspiracy, offers  a “terrific” short “scholarly” paper by  Instapundit Glenn Reynolds, oddly entitled  Ham Sandwich Nation: Due Process When Everything is a Crime (without giving credit to former New York Chief Judge Sol Wachtler for the “ham sandwich” reference), together with a concurrence in The Atlantic by Conor Friedersdorf called 8 Ways to Stop Overzealous Prosecutors From Destroying Lives, who also mentions “legal scholar”  Orin Kerr’s VC post that Swartz’s prosecution was “business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone much caring.” This was not exactly a new concept, but I digress.

Gideon at  A Public Defender has already made the obvious point, that the “legal scholars” have trotted out the usual assortment of bad fixes:



The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

The problem with the superficial schemes to fix the system, aside from their being absurdly unrealistic, is that they come bundled with massive unintended consequences that apparently fly over the heads of their promoters, even if they are obvious to anyone actually engaged in the practice of law in the trenches. 

But Gideon embraces the “good ones:”



Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.

I suspect that this confuses issues, as curbing immunity for prosecutors is a longstanding idea that serves many palliative purposes, not the least of which is creating an incentive to not cheat the system by withholding Brady material, for example. But this offers no comfort to a defendant from a prosecutor charging 16 offenses stemming from an single course of conduct as long as the laws exist. Even if there was only qualified immunity, overcriminalization would protect the prosecutor. The crimes are on the books, pal, and there would be no wrong in charging them.

As for the second idea, Gideon makes an unfortunate assumption that “[t]ypically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer.”  Maybe in Connecticut state court practice, but not in other state or in federal court. It’s important, when vetting ideas, to remember that different jurisdictions operate differently, and in federal court (where Swartz was being prosecuted) the same judge typically presides throughout.

More importantly, the incentive (if the jury was to be told of plea offers) would compel prosecutors to be more harsh in their plea offers so that any act of mercy or compassion wouldn’t bite them in the butt at trial if their kindness was rejected.  That doesn’t move the ball forward. Not at all.

Despite the efforts to ride the coattails of the Aaron Swartz case toward a facile “fix,” it seems that none of the legal scholars address the disease, preferring instead the bandaid approach.  The problem with overcriminalization is overcriminalization.  The problem is that we applaud our legislators for coming up with a knee-jerk legal fix for everything that ails us at any given moment.  Ironically, there is even an “Aaron’s Law” proposed by Rep. Zoe Lofgren, because no young person is allowed to die without a law being named after him.

So the first step in “fixing” overcriminalization is to stop the political aggrandizement that comes with demanding/applauding a new law to solve every ill that appears in the morning paper. We live under the crushing burden of redundant and ill-conceived laws and regulations, and yet the fact that prosecutors use them suddenly shocks us?

The second step, nowhere to be found in the scholarly fixes, is to expect  judges, who exist to play the role of neutral in the great war, to be, in fact, neutral in their exercise of discretionary authority. Why do we look only to prosecutors to exercise discretion, when they are adversaries in our system? Yes, I’m familiar with  Justice Robert H. Jackson’s 1940 speech about the exercise of discretion by prosecutors to curb their awesome power, but the goodwill of prosecutors is hardly a basis for a viable criminal justice system.

We have judges. Has everyone forgotten, or given up? They sit on high benches, well-equipped to toss duplicitous charges, to refuse to enhance sentences merely because a prosecutor smurfs an act into 37 offenses. They have the power of discretion and mercy, and yet no one mentions their duty to be parsimonious? 

There are fundamental failings in the criminal justice system, and these failings are pervasive.  The solution will never be found by nipping around the edges, or tricky fixes that create the next round of nightmares, or demanding the advocates in the system play nicer, at least when we want them to.  The tools of due process exist, if only they are used by the people who are charged with assuring due process. Still, they are left out of the discussion and let off the hook.  And disease continues to fester, even as another bandaid is applied.

Before closing, a suggestion: Much as I realize how much fun it is for pundits in the blawgosphere to hook their posts to whatever issue is trending, to ride the coattails of popularity to score as many eyeballs as possible that would otherwise never know they existed, hasn’t the name of Aaron Swartz been dragged through the internet enough? Let him rest in peace.  The discussion of these issues doesn’t demand the invocation of his name, and perhaps if the urge to hop on the train wasn’t so strong, the content offered would be far more thoughtful.  And lawprofs wouldn’t be constrained to do the unthinkable, a 6 page paper on SSRN, just to get it in under the wire.

The Future of Legal Advice (or how to assure conviction) (Insta-Update)

When  first I checked out the offerings of Justin Peters, whose bona fides to run a blog about crime were somewhat lacking, it was largely tongue-in-cheek.  On the up side, the content was salacious crime stories that were the legal equivalent of an in-depth TMZ story about Lindsay Lohan. On the downside, he was writing for Slate, one of the big kahunas of the interwebz.

That meant a lot of people would read it, far more than any blog written by a lawyer who was educated, experienced or knowledgeable about the law. But as long as it was just dopey fluff, so what? It’s not like people hadn’t been fed stories that illuminated nothing forever. So what if there was a new player in town?

But people, being the way they are, confused the fact that Justin Peters wrote a blog about law with his having anything remotely resembling knowledge of law, the I-play-a-doctor-on-TV syndrome, and did the unthinkable :



Since then, I’ve received a lot of emails from readers asking what, exactly, you should do if you find yourself in a supposedly consensual conversation with an officer of the law. Apparently a lot of innocent, non-suspicious-looking people have been or expect to be pressured into gratuitous interactions with the police. And, from the emails I’ve received, a lot of people have no interest in talking to the law in these situations. Which, to be sure, is their right.

This was a watershed introspective moment for Peters, who could have admitted that he’s just a writer, working a gig for which he is grossly unqualified, and made clear that he cannot offer legal advice.  But since he’s not a lawyer, and he’s not qualified, and he lacks the basic self-awareness that his reach far, far exceeds his grasp, he chose instead to do exactly what he should not, he cannot do:


You’re under no obligation to talk with a police officer in non-investigatory situations, and you shouldn’t be intimidated into feeling otherwise. (And to be clear, I’m not talking about those times when a cop stops you for speeding, or jaywalking, or stealing an old woman’s purse. In scenarios like these, when there’s reasonable suspicion that you’ve done something wrong, you’re obliged to cooperate, and refusal to comply may lead to your arrest.)

This is fundamentally wrong, but there’s no reason to believe that Peters would know this. And after this post, the question is how many readers of Slate will carry around the baggage of stupidity as well, believing that they are “obliged to cooperate” because some kid on the internet who works for Slate said so.

He goes on to qualify his statements somewhat with an article by a lawprof, clearly another excellent source of how street encounters with cops actually happen, which ironically never actually explains the basic assertion of rights that any lawyer with three minutes experience can explain. 

This isn’t to say that no person without a bar card can offer anything thoughtful about criminal law. Indeed, two individuals immediately come to mind, Radley Balko, head  Agitator until he went over to Huffington Post, who has long been a go-to source major issues and has provided incredibly thoughtful and important work in criminal justice.  The other is Scott Henson from Grits for Breakfast, whose work on Texas criminal justice issues is some of the best. 

But both of these guys share a common understanding: as knowledgeable as they may be in the arena of criminal law, they do not cross the line of pretending to be lawyers themselves and offering legal advice.  It’s not that they couldn’t have answered the question posed to Justin Peters as well as any criminal lawyer. They’ve heard the question (as have we all) more than enough to know exactly what to say. But they similarly appreciate that they are not lawyers. To the extent they occasionally tread close to the line, they at least base their references in sound advice rather than come up with nonsense on their own.

What happened at Slate demonstrates that the futurists, like Richard Susskind, who contend that the need for lawyers is past as anyone can play a lawyer on the internet, where every bit of human information, legal or otherwise, is readily available and anyone can find the answer to anything with the push of a button.

How many people will find Justin Peters’ “answer” at Slate and believe that they’re “obliged to cooperate”?

This isn’t a game to be played by the clueless who are given a soapbox, and in this case a very large, very loud bullhorn to go with it, to spread fundamentally wrong information far and wide.  Yet, if we leave it in the hands of writers like Justin Peters, whose attempt at a  humorous self-description turns out to be far more accurate than anyone would have guessed :


In short, I’m just the sort of preening, narcisisstic [sic] sociopath you’d want writing a blog like this.

Meet your new source for criminal law legal advice on the web. What could possibly go wrong?

H/T Ken @Popehat, who  was shocked to learn that Slate had a  crime blog offering legal advice.


Update:  Patrick @Popehat (maybe it was Patrick rather than Ken who was shocked?)  debates the merits with almost-Joe Arpaio, during which he notes something I was totally unaware of.  This is what was actually posted at Instapundit :



January 21, 2013



NEWS YOU CAN USE: Here Are Some Tips on How to Avoid “Consensual” Police Encounters.


Posted by Glenn Reynolds at 2:31 pm


Reynolds does not play a law professor on TV, but actually is one. You can’t make this stuff up.
 





When The Prosecutor Stumbled Onto Graft

Not that it’s the only place where corruption happens, but it almost seems to be part of the culture.  After all, when Assistant District Attorney Greg Williams stumbled onto a corrupt scheme to pocket big money from drunk drivers to dismiss their case, he had two choices: Blow the whistle or get his cut.

Via TheNewspaper.com :


Lafayette’s district attorney had set up a program of “immediate 894 pleas” for those accused of DUI who had completed 32 hours of community service, substance abuse programs and driver safety classes. Participants in this generous program received a special session in a judge’s chamber, outside the normal court process, where charges are dismissed as long as no other violation is committed during a probationary period. In 2008, the district attorney’s secretary, Barna Haynes, realized she could set up these hearings and began arranging them for the co-conspirator, who represented clients even though he was not actually a lawyer. The unnamed man charged up to $5000 for each acquittal, out of which he paid Haynes $500 per case for her assistance. Haynes collected more than $70,000 in cash until she was caught. Clients had paid hundreds of thousands for the special treatment allowing them to keep their driver’s licenses and retain a clean record.

Beginning in January 2010, Williams realized what was going on and decided to cut himself into the deals. He used his own secretary to set up “immediate 894 sessions” with a judge and the co-conspirator. Curry collected eight cash payments of $200 for her participation. The co-conspirator rewarded Williams with autographed New Orleans Saints items, bicycles for Williams and his family, business suits, shoes and $500 in cash.

Sure, autographed Saints items are enticing.  And who wouldn’t sacrifice his integrity and face prison for a bicycle? And everybody needs shoes, right?

The system seems so utterly ripe for abuse in retrospect. Secret hearings, prosecutorial discretion unfettered by prying eyes.  In fact, this is a dream for many, feeding two beliefs that the legal system has never been able to shake.  The first is that there is a two-tier system, one for the wealthy, those who can afford to pay their way out of trouble and another for those who can’t make minimal bail.

The second is that there is, in fact, an opportunity to bribe one’s way out.  That there are cops who take bribes, prosecutors, judges who are on the take.  Over the past 30 years, I can’t tell you how many defendants gave me that twinkle-eyed look and shyly asked what it would take to make their case go away.  There have been times when my response, that it just doesn’t happen, left them with the suspicion that they just found the wrong lawyer.  If they found the right one, he would know who to pay off.

To their credit, the FBI learned of this graft and took it down .


As the U.S. Attorney’s Office continues to press its bribery case against former employees of the Lafayette Parish District Attorney’s Office, the number of confessed co-conspirators has increased to three. And that small circle will likely continue to widen as the results of a two-year federal investigation are revealed.

The District Attorney, Mike Harson, isn’t a target, according to the United States Attorney.  Kinda makes you wonder if he was too out of the loop to realize the he could have gotten new shoes out of the deal.  But this happened in his office, on his watch.  Even if he didn’t get a piece, this doesn’t reflect well on him at any level.



In all, close to $1 million may have been squeezed over four years from drunken driving defendants anxious to get out of trouble, and at least $75,000 or more in bribes is believed to have been paid to courthouse insiders willing to help them do it, according to a  Daily Advertiser review of drunken-driving cases and court records.

That’s a long time for a scheme like this go on without anybody getting wind of it. It’s not just that the insiders making the magic happen can’t keep their mouths shut, but that the only way to get defendants to put up money is to make sure that the marks know about the opportunity to buy their way out. 

That’s where the scheme grows large, and usually out of control.  Lawyers need to know, since it’s their clients who sincerely wish to walk and have the funds to make it happen who paid the big bucks. Clients need to know, and we all know they can’t keep their traps shut.  Their spouses need to know, since somebody is bound to complain about the missing pile of $100 bills. And even the cops who wonder what happened to their busts can’t be kept out of the loop entirely, since they won’t get medals if their busts don’t stick.

And then there were the people in whom trust is reposed.  The judge and the prosecutors who swear the oath. While there is no indication that any judge was getting paid off, or that every ADA in the office was wearing shiny new shoes, But at the same time, it seems almost impossible to believe that no wind of this deal made its way through the halls.  Whenever things don’t happen the way they are normally supposed to happen, it becomes pretty clear pretty quickly.

Maybe my response to those clients who wondered whether there was a magic way to make their cases go away knew something I didn’t.  Maybe it’s happening in New York, or somewhere else I’ve been, because if this could go on for four years in Lafayette Parish and every single person in the courthouse and district attorney’s office didn’t have some clue that people were buying their way out of drunk driving convictions, then there is no place it couldn’t happen.

H/T Fritzmuffknuckle

Carlos Miller and Disruptive Technology

As I was sipping coffee and reading a story in the Times about New York’s latest iteration of its gun laws, a  twit by Brian Tannebaum alerted me to yet another confrontation between Carlos Miller and guys in uniform who are of the view that they get to make up rules and then enforce them with force. I shift gears.

For anyone unaware of who Carlos Miller is, he’s a Miami photographer who has challenged the locals by asserting his right to take photos and videos of anything in public he pleases.  He has a blog called Photography is not a crime, PINAC.  Carlos has been  twice prosecuted for disobeying people in uniform who ordered him not to take pictures.  He was been twice acquitted. 

Given the amount of discussion online about the right to video things in public, you might think that the message has been sufficiently spread that police, or in this case, security guards who only get to eat unglazed donuts, would be aware of the fact that people have the right to video anything that happens in public.  The flip side is that there is no law prohibiting videotaping, and they have no authority to tell anybody not to do so. 

You would also think that the name Carlos Miller would be fairly well known in the neighborhood, having twice beaten back efforts to shut him down, and having a pending lawsuit for the violation of his civil rights.  If you did, you would be wrong on all counts. 

Carlos’ name appears here with some regularity. We’re not old friends, and I’ve never had a cup of coffee with Carlos.  But what he does, and what he has suffered for, is what marketers love to call “disruptive technology.”  The pervasive use of video, which gave rise to my “But For Video” series of posts, caused a fundamental change in our understanding of what really happens on the street, without the prying eyes of judges, lawyers and jurors.

It wasn’t that we learned that cops were always lying or that defendants were always innocent. It was that we learned that sometimes cops lied and sometimes defendant did nothing wrong. It was that we learned that most of the time, the sanitized testimony of police officers of their conduct and words toward the public was false, even if not false enough to negate an arrest or conviction. What we learned from the video taken by the public was that we had been living a lie. 

Today, no judge can look at the testimony of a cop, or the claims of a defendant that the beating he received, the words put into his mouth, the conduct attributed to him, without realizing that there was a fairly good chance that nothing happened quite the way he’s being told.  At least no judge who is being honest with himself, and hasn’t chosen to hide beneath the bench and pretend that Sheriff Andy is still in charge.

This is happening because of the disruptive technology of video.  But it’s also happening because guys like Carlos Miller are out there, willing to take the hit time after time to preserve the right to videotape guys in uniform, even when they demand he stop and use force to make him.  Let’s face facts, while most of us are happy to stand atop the pedestal of civil rights when we’re surrounded by the applauding throngs, few of us want to be the guy on the train platform surrounded by uniforms who want to put their hands around our necks.  That’s where Carlos comes in.

Last night, Carlos Miller was again accosted, this time on the Miami-Dade Metrorail by men in the employ of 50States security, hired to work the train stations.



Carlos describes what happened:



As you will see in the above video, they tried to push me down the escalator and I shoved back in order to defend myself, which prompted at least three security guards to pounce on me, including one security guard named R. Myers who violently choked me to the point where I thought I was going to die.

Eventually, he was released with a $100 citation for making loud noise.  I suspect that Carlos may not send in a check to settle the score.

While this may not be huge in the scheme of civil rights abuses, beatings, harm, as he lived to tell about it which is more than others can say, Carlos’ persistence at the forefront of this disruptive technology, this means by which everything we’ve ever been told, ever believed, about the interaction of police and the public is, for the most part, a lie, cannot be underestimated. 

But for video, the system would shrug off every claim of a beating, a lie, a set up, a murder, that didn’t have the Pope and few cardinals as witnesses.  But for Carlos, and his willingness to be strangled for the benefit of the rest of us, there might be no But For Video.