Note: What follows is not a suggestion that you go out today and provoke a cop by doing what John Swartz did to Richard Insogna, a St. Johnsville, New York, police officer. But you have the right to do so.

The Second Circuit, in an opinion by Judge Jon Newman in Swartz v. Insogna, includes a history lesson in footnote 1 to its first sentence:

An irate automobile passenger’s act of “giving the finger,” a gesture of insult known for centuries,¹ to a policeman has led to a seizure of two persons ordered to return to an automobile, an arrest for disorderly conduct, a civil rights suit, and now this appeal.

¹ See Bad Frog Brewery, Inc. v. New York State Liquor Authority,134 F.3d 87, 91 n.1 (2d Cir. 1998) (reporting the use of the gesture by Diogenes to insult Demosthenes). Even earlier, Strepsiades was portrayed by Aristophanes as extending the middle finger to insult Aristotle. See Aristophanes, The Clouds (W. Arrowsmith, trans., Running Press (1962)). Possibly the first recorded use of the gesture in the United States occurred in 1886 when a joint baseball team photograph of the Boston Beaneaters and the New York Giants showed a Boston pitcher giving the finger to the Giants. See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. Davis L. Rev. 1403, 1415 (2008).

In contrast to the perspective of an ordinary police officer, who conflates respect for the law with respect for him personally, the time honored insult of “giving the finger” is a right.  We have the right to express the view that we do not care for a cop, or what a cop does, and if we do so by use of Digitus Impudicus, that does not give rise to a justification for seizure or arrest.

John Swartz say P.O. Insogna working a radar trap and, for whatever reason, thought it worth his while to express his disdain for Insogna’s assignment.  This ultimately resulted in his arrest and prosecution, though the case was dismissed after three appeances and a year delay on speedy trial grounds.  Insogna’s attempt to justify the arrest is an excellent example of how, with a bit of twisty testimony, a cop can try to turn a right into a wrong.

In his deposition, Insogna said that after he saw John give him the finger, he decided to follow the car “to initiate a stop on it.” As reasons he stated: (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and (3) “I was concerned for the female driver, if there was a domestic dispute.”

You’ve got to give Insogna credit for a vivid imagination, as he dreamed up not just one, but three, utterly nonsensical excuses for his conduct, all benign if not benevolent.  After all, who could fault the officer for his deep, abiding concern for the welfare of the female driver, “if there was a domestic dispute”?

Lest one laugh off the cop’s claims to swiftly, note that this decision comes from the Circuit, which means that things didn’t go well at the district court.

The District Court, accepting Insogna’s third reason for the automobile stop, ruled that the stop was legal because Swartz’s “odd and aggressive behavior directed at a police officer created a reasonable suspicion that Swartz was either engaged in or about to be engaged in criminal activity, such as violence against the driver of the vehicle.”

It wasn’t the finger, per se, but what the finger represented, “odd and aggressive behavior,” that gave rise to reasonable suspicion.  After all, giving the finger is a gateway to crime.  Or not.  When it comes to giving the finger, the Second Circuit knows what’s up:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.

This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Before you get any ideas, bear in mind that Swartz may have beat the rap, but hardly beat the ride. And though he’s now overcome the defense motion to dismiss, it was on appeal.  He’s still got a long way to go before resolution, and whether the resolution will eventually satisfy the cost and burden has yet to be seen.

Those concerned with the right of free expession, even if it manifests itself in vulgar gestures, should also bear in mind that domestic abuse advocates might consider giving Officer Insogna a medal, embracing his excuse in the belief that violating free speech is perfectly acceptable “if it save just one woman from domestic abuse.”  For some, there is no right sufficient to overcome even the slightest hint of harm, no matter how unreasonable.

Yet, the Circuit’s recognition that giving a cop the finger is a time-honored insult, a right retained by the people, is worthy of our admiration.  And so, I offer this video as an homage to Judge Newman, who has clearly heard that the bird is the word:

Kevin O’Keefe was  kind enough to post about “early blogger” Dave Winer’s Blogger of the Year — 2012.  No, it wasn’t a lawyer. Not even a political pundit, regardless of flavor.  Instead, Winer chose Philip Greenspun.  Kevin offered this explanation:

He was a blogger before there were blogs, writing his own web CMS so he could tell the stories of his photography, flying, his beautiful dog, teaching at MIT, and his startup. It was when he wrote about the startup that he caught my attention. I remember reading the story of the people, his mistakes with investors, what he learned. Oh man, this guy is a blogger, for sure!

This is what I meant by the unedited voice of a person. That’s what a blog is. That’s all you have to do to be a blogger. But to be a great blogger, you must have something to say. That’s Greenspun, for sure.

I’m not sure how much time these three guys had ever spent with engineers. Chuck Vest, the president of MIT, in a private communication to some faculty, once described MIT as “a no-praise zone”. My first week as an electrical engineering and computer science graduate student I asked a professor for help with a problem. He talked to me for a bit and then said “You’re having trouble with this problem because you don’t know anything and you’re not working very hard.”

My friend, the late John Barry, lived well off the royalties of the James Bond theme, as well as the many other brilliant scores he wrote. They were an integral part of a fantasy loved by Americans about a British spy who bore the code numbers 007. The numbers meant he had a license to kill, yet no one refused to watch the movies or protested Cubby Broccoli’s productions or picketed Ian Fleming’s home.

In real life, the concept was so easily embraced. When it was learned that the government used drones to kill people suspected of terrorist ties, including American citizens, away from any battlefield, there was a demand to know what basis the government claimed to take such action.  How could our government justify killing people this way?

The New York Times and the ACLU sought answers via the Freedom of Information Act.  The government refused to provide them, and a suit followed.  The consolidated actions ended up in the hands of Southern District of New York Judge Colleen McMahon, who issued a remarkable decision. 

Plaintiffs in these consolidated actions have filed Freedom of Information Act (“FOIA”) requests with the federal Government in order to obtain disclosure of information relating to a particular tactic that is admittedly being employed in the so-called “War on Terror” – the targeted killing of persons deemed to have ties to terrorism, some of whom may be American citizens.

Broadly speaking, they seek disclosure of the precise legal justification for the Administration’s conclusion that it is lawful for employees or contractors of the United States Government to target for killing persons, including specifically United States citizens, who are suspected of ties to Al-Qaeda or other terrorist groups.

It wasn’t long ago when the American public learned how the government rationalized the torture of human beings, based upon the DOJ’s  John Yoo memo to then Attorney General Alberto Gonzalez advising that the use of torture by the CIA was perfectly lawful under an expansive view of presidential authority.  Few outside of government shared this expansive view or found Yoo’s explanation availing. But it served its purpose, despite its inability to withstand scrutiny.

Once the memo became public, however, nearly universal condemnation followed. Once burned, the government wasn’t about to let that happen again.

The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men. The Administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways, generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable “hot” field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated. It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.

Clearly, Judge McMahon appreciated the magnitude of the issue before her, the legality of the America government targeting and killing people, citizens included, because it decided to do so. Clearly, she appreciated that “intelligent discussion and assessment of a tactic” such as this demanded public understanding of the government’s claim of authority. Clearly, this conduct came at “great cost.”  Judge McMahon got it.

And yet, she held there was nothing she could do.

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. But under the law as I understand it to have developed, the Government’s motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied…

The opinion sends two messages, maybe more.  The first is that the government has chosen to conceal from the American people its rationale for this monumental grab of power to kill at will.  Project all you want. Complain all you want. Argue the legitimacy of a government of laws, not men. The invocation of executive privilege ends the discussion. The government of the United States of America has told it citizens that they cannot be trusted with the knowledge, and so it shall remain a secret.  It’s enough that the government says it’s “perfectly lawful.” Now get back to work and mind your own business.

The second message is that to the extent the government revealed information to a United States District Court Judge, who may or may not be sufficiently patriotic to be trusted with government confidences, Judge McMahon was not overwhelmed by the merit of the government’s justification.  The language she used to express the paradoxical situation in which she found herself, coupled with the clarity of her view of the importance of this issue, leaves little doubt that she was unimpressed.

Judge McMahon could have issued an opinion that, without spilling any beans, left us with the clear impression that firm grounds existed for the government’s assertion of power. She didn’t. She did just the opposite, leaving us with the clear impression that one of the most dubious claims of lawful justification ever employed by the government should have been made public but was instead concealed, thus precluding any intelligent debate over its propriety.

And that is where it will die.  But what the heck, there’s a new James Bond movie out and I hear it’s doing gangbusters at the box office. Go enjoy.

H/T Brian Tannebaum

The joys of computer assisted research and eDiscovery have a new member of the family: forfeiture.  Via David Axe at  War is Boring :

“FOR IMMEDIATE RELEASE”

Dec 20, 2012

Artist’s Advance for Graphic Novel Seized by Office of Foreign Assets Control — OFAC

Brooklyn, NY — Tim Hamilton, artist of the Eisner-nominated adaptation of Ray Bradbury’s Fahrenheit 451, had his advance payment for the upcoming graphic novel ARMY OF GOD, a non-fiction telling of Joseph Kony’s activities in the Congo, seized by the OFAC under suspicion that the money was being laundering for a terrorist organization.

***

The federal banking authority, which monitors every wire, foreign and domestic, apparently seized the funds due to the title of the book, ARMY OF GOD, which threw up a red flag.

Stercus Accidit. Hurricane Sandy swept through Red Hook, and contrary to the neocon pundits on twitter, it wasn’t Obama’s fault. Or Police Commissioner Ray Kelly’s. Or District Attorney Cy Vance’s. Sure, they might have chosen a more protected location than Red Hook, right on the water in Brooklyn, but it was a great choice but for Sandy.  The days of keeping evidence in a hermetically sealed mayonnaise jar are over.

And so the evidence is ruined or otherwise unavailable.

Perched on a narrow crook of land jutting into New York Harbor, the Erie Basin auto pound and evidence warehouse seems a logical place to store hundreds of seized cars, thousands of guns and 9,846 barrels of evidence containing sensitive DNA material.

As Hurricane Sandy lashed the city, the surge breached the warehouse’s roll-top doors and hurtled hundreds — perhaps thousands — of its barrels into the wet muck. The storm wreaked similar havoc at another Police Department warehouse by the water, along Kingsland Avenue in Greenpoint, Brooklyn.

In at least six criminal trials in recent weeks, a police official has had to testify that evidence was inaccessible, but still existed, said Paul J. Browne, the chief spokesman for the Police Department.

Evidence for a coming rape trial in Manhattan — the so-called rape kit — had been stored at the Greenpoint location, the defense lawyer in the case said. The lawyer, Edward V. Sapone, said prosecutors told him that the kit might have been damaged in the storm.

Mr. Sapone said he had been concerned because he believed the evidence stored inside would help prove his client’s innocence.

It turned out that one element in the kit — a pubic hair — had not been at the warehouse during the storm because it was being tested.

Mounds of waterlogged evidence bags continue to cause headaches in New Orleans more than seven years after Hurricane Katrina, pointing to the difficulty of preserving DNA evidence after flooding.

“If you don’t keep it properly stored, you’re affecting somebody’s life,” said Robbie Keen, who directs a federally financed DNA project in New Orleans that is still trying to recover evidence.

Ms. Keen said some of the damaged biological evidence from Hurricane Katrina had been successfully tested, but some had been lost.

This doesn’t appear to offer much by way of answers, though it raises some interesting questions: Are formerly waterlogged DNA samples really still viable, or are they making do with samples that would otherwise be deemed useless or tainted?  Worse still, as it’s seven years later, what of the defendants who are hanging out awaiting word of their evidence?  And this is where New York is getting its wisdom?

Steven Banks, attorney in charge of the Legal Aid Society called this a “recipe for wrongful convictions” and plans to appeal the admission of testimony about lost evidence in the Castro case.  But it’s just one of potentially thousands, and that’s an awful lot of room for bad things to happen.  Banks notes that pleas are being offered in cases where the evidence is gone.

In New York State, evidence in criminal cases is not presented until a trial begins. And if a plea bargain is offered and accepted beforehand, it is not presented at all.

“The government may well be fashioning plea deals based upon the lack of underlying evidence,” Mr. Banks, of Legal Aid, said. “We can ask if it’s there, but they don’t have to tell.”

It’s unclear why Banks says this, but it strikes me that Brady requires the prosecution to inform the defense that it cannot produce physical evidence at trial, and that failure to do so would render a plea involuntary, unintelligent and unknowledgeable.  But then, if courts are willing to admit testimony about evidence in lieu of the evidence itself, it’s hard to imagine any judge will get any more worked up about Brady violations than they did before.

Once again, the criminal law blawgosphere has proven itself singularly vital and alive in an internet filled with self-serving promotional, worthlessly self-aggrandizing, and the empty and pointless murder of words.  Not that we don’t have our share of scoundrels, but they don’t hold a candle to the excellence demonstrated by the nominees for this year’s Jdog Prize.  And I couldn’t be prouder than to be a small part of this group.

Each year, the blawgosphere becomes increasingly crowded, as newcomers are sold on the proposition that throwing crap against the screen will bring them wealth and prestige.  While they don’t tend to last long, and leave their dead flotsam in their wake, they suck much of the air out of the blawgosphere during their short time pretending to be a blawger.  Don’t think I don’t notice your twitter bios proclaiming you to be an important blawger and motivational speaker, even though you’ve written nothing of merit and your last post was 14 months ago.

But the nominees here produce.  They produce ideas, discussion, thought that illuminates others.  Their writing makes other see the joy and misery of the criminal justice system. They do so with poetry and humor, with feeling and thought.  They make every reader better for having spent a few minutes of their lives reading their words.

Having traversed the blawgosphere to see what other practice areas are producing, I can say without hesitation that there is no legal niche that produces as much quality writing as criminal defense lawyers.  We should be proud of ourselves for this.

The downside, for me, is trying to pick the one post of the many that stands out.  This year, the “old faithful” have once again provided exceptional work.  Two prior winners, Jeff Gamso and Gideon, in particular have written post after post worthy of recognition. 

A relative newcomer, Appellate Squawk, has demonstrated the ability to consistently use humor to skewer the foibles of the system and its robed gatekeepers.  The difficulty of doing this can’t be understated.  While humor has long been recognized as an effective means of providing biting commentary, it’s incredibly difficult to maintain.  Yet the Squawk has proven itself up to the task, and has gained a loyal and appreciative following as a result.

But this year’s winner is a young lawyer who has allowed us to share in his maturation as a criminal defense lawyer, beginning when he was a complete rookie and growing into a hardened and effective advocate.  His posts have let us be a part of his growth, as naive ideals gave way to the ugliness and unfairness of our duty, and yet how he (and we) persist despite it.

This year’s winner is particularly dear to me, as so much of what he’s experience reminds me of my early years as a criminal defense lawyer.  His posts bring me back to my own epiphanies, the successes and failures that mold a war veteran.  He’s done the same for many others, as well, and serves as an exceptional role model for the many new lawyers just beginning in this unpleasant enterprise.

And so, I am thrilled to award the  4th Annual Jdog Memorial Best Criminal Law Blawg Post to Matt Brown at  Tempe Law Blog for this post:

While I suspect Matt has moved well beyond any need for validation of his work, I nonetheless hope he will accept this badge as a token of his enormous contribution to the blawgosphere, the excellence of his writing and recognition of the best criminal law blawg post of 2012.

My deepest appreciate to the lovely and talented  Amy Derby for again creating the winner’s badge, and thus saving me from the humiliation of feebly attempting to put something together that would never be as good as what Amy does.

On the final day of 2012, Keith Lee at  An Associate’s Mind decided to fill the gap in UNC lawprof  Bernie Burk’s grasp of the definition of the “law school disaster.”  Burk, whose bio at the UNC law school’s website, graduated first in his class at Stanford Law School in 1983, should have been able to figure it out on his own. It’s been the subject of a great deal of discussion. But apparently, something stood in his way.

It seems that Kyle P. McEntee, Patrick J. Lynch, and Derek Michael Tokaz, the founders of Law School Transparency, released a paper entitled “The Crisis in Legal Education: Dabbling in Disaster Planning.”  Burk, posting at The Faculty Lounge, an insular blog where lawprofs can chat amongst themselves without the intrusion of either the Philistines or Luddites, ripped them a new one.

So I was intrigued to look into the latest contribution to the law-school reform discussion authored by LST’s co-founders and its research director … What a disappointment.  Commentators with the public stature of Law School Transparency should not “dabble.”

I do not mean to say that three twenty-somethings who have essentially never practiced or taught law have no place explaining how to assemble a curriculum or run a law school so that its graduates will be both prepared to practice and attractive to legal employers in the most difficult legal job market in American history.  I do mean to say that, if you don’t know how to do it and you don’t know how to teach it, you really ought to do your homework so that your prescriptions are meticulously grounded in empirical experience and coherent argument.  Sadly, you won’t find much of either here….

Some friends and colleagues who read my lengthy post on Law School Transparency’s recent article on law-school reform gently suggested that I should stop publicly haranguing myself on the bus before people began to worry about my stability (those who read the post will understand the reference).  Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization, for which I thank him. 

I remain uncomfortable with both the form and the substance of LST’s proposals, but I also recognize the merit of the friendly advice I’ve received that there are more constructive ways to contribute to this important discussion than the one I chose.  So I’ll work on it and try again in a few days.

Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization…

Q: Then why are you being so harsh with LST?  You’ve really been kind of a jerk, you know.

A: Well, I am being harsh.  Here’s why: LST has (in my opinion) distinguished itself since it came upon the scene by its mostly measured and thoughtful idiom, and its basic confidence in the power of information to influence rational behavior and level the playing field.  The article I just criticized is an abrupt and in my opinion unwelcome departure from a style of public discourse that I genuinely admire, not only because it is predominantly engaged and positive (though it is), but because it is—again, in my opinion—effective.   Tossing around the rhetoric of “disaster” and “crisis” without meaningful effort to define the threat, couched in empirically vacuous and occasionally self-contradictory pronouncements, reverts to the toxic style of discourse sadly prevalent in current affairs, and doesn’t advance anything other than perhaps LST’s public profile.  There are more wholesome and productive ways to achieve that end.  In my opinion, LST should hold itself to the same standards of data-driven rationality and full disclosure to which it rightly holds the institutions it criticizes.

Unlike McEntee, some punk kid who “never practiced or taught law,” I have done both, which leads me to wonder, who the hell does Burk think he is that he is entitled to sit high in his Ivory Tower and condescend to recognize the complaints of McEntee and the tens of thousand of former law students, now debtors, working the cash registers of big box stores? Keith provides your empirical definition:

First Job Outa Law School

Not proven to your satisfaction?  Not conveyed with the niceties that the kid who graduated first in his class at Stanford demands of the groundlings?  Too fucking bad.*

Your friends were kind enough to “gently” suggest that you take down your Faculty Lounge post that marked you as douche.  Need an empirical definition of douche too? 

What these kids are experiencing is real.  How blind can you be not to notice that those same law students who undertook huge, and unjustifiable, debt to hear your sweet, dulcet tones in the classroom, are now facing personal ruin?  Sure, they bear fault, as do I and every other practicing lawyer who left academics to their own devices until the shit hit the fan in 2007, when we first came to the realization that greed and self-serving blindness in the legal academy had brought the future of the legal profession to the edge of the precipice.  And you don’t care for the way it’s being discussed?  You are only willing to engage if the discourse meets your expectations of civility?  Because you are so brilliant and genteel?

Half the time, I get a headache trying to figure out the underlying sentiment of scholarly discourse, the vacuous language designed to be so very subtle as to damn with faint praise.**  So much could have been achieved if the delicate sensibilities didn’t get in the way of substance.  But even those lawprofs who told you that you were a jerk couldn’t bring themselves to speak out in clear, unambiguous terms.

So let me explain something, from the perspective of a guy who spent 30 years in the trenches where real people (we call them clients (and they are the only reason we, and even you, though by a circuitous route, get paid) cry very real tears. Some things are real. Misery is real. And you should get down on your knees and thank your lucky stars that you were able to enjoy a remarkably well-paid life for someone so dismissive of the misery he is partially responsible for causing and perpetuating.

You don’t care for the uncivil tone of the complaints?  Who cares. You’re lucky they didn’t storm your scholarly office and string you up by your tongue. Now that would have been uncivil, and well deserved.

* While I generally avoid the use of curses, it struck me as appropriate to use them in this post. Screw the effete tone that pleases the professoriate. It’s time to deal with the misery caused by law schools, regardless of how it’s expressed or whether it meets with the approval of academics like Bernie Burk.

** Subsequent to posting this, a clinical lawprof suggested that I note, for the sake of those unaware of the distinction, that they remain firmly planted in the real world of lawyering rather than the theoretical (and are frowned upon by the “real” lawprofs for it).  Unlike those lawprofs who refuse to engage except on their terms, the clinical profs aren’t afraid of less-than-civil discourse and are just as happy to confront the substance of real-life problems in academia as they are to address the real-life problems of their clients in the trenches.

Update:  North Carolina lawyer  Damon Chetson ponders whether this Bernie Burk could be the same Bernie Burk crowing in Carolina Law magazine about how UNC Law is so fabulous that every graduate gets a job?

But back to Burk, who does a little dabbling of his own in Carolina Law, a glossy magazine designed primarily for UNC alumni and donors to the law school:

“Many more prestigious schools, including Carolina, still see nearly all their graduates employed within nine months after graduation.”

Is Burk correct?

No. Law School Transparency reports that only 68 percent of UNC’s class of 2011 was employed in full-time, long term legal jobs. About 1 in 5 graduates did not have a full-time, long term job of any sort nine months after graduating from UNC.

Chestons concludes:

Apparently if you use stark language to describe the nature of what is a real, lived crisis for tens of thousands of law school grads, you’re not contributing to the public discourse in a manner that meets Bernie Burk’s high standards.

But if you overstate the employment results for recent grads of UNC Law School… you’re Bernie Burk.

It seems that shilling for one’s employer in law porn has its problems as well. If forced to chose between civil discourse and honesty, the latter would win for me.  If you picked the former, well…you’re Bernie Burk.