The defense almost invariably challenges the testimony of the prosecution’s witnesses at trial.  If not, why go to trial, except in those rare instances where the argument is that the evidence is legally insufficient to prove either the commission of a crime or that the defendant was the perpetrator. Otherwise, somebody has to be wrong.

In United States v. Ruiz, the 9th Circuit was faced with this fairly common situation during the felon in possession trial, but with a twist: In summation, the prosecution set the defendant up by arguing to the jury that in order to find him not guilty, the jury had to conclude that the cops were lying.  Had to. Not mistaken. Not wrong. Not erroneous, but lying.  And that meant, implicitly, that it was the defendant’s burden to prove to the jury that the cops were lying.

To highlight parts of his closing argument, the prosecutor utilized a PowerPoint slide presentation consisting of pictures of the alleged crime scene, photographs of the witnesses who testified at trial, summaries of the testimony presented, and visual representations of the jury instructions, and of the government’s key arguments. Following a slide depicting the first element of the offense—“the defendant knowingly possessed the firearm or ammunition”—were three slides depicting alternative “way[s] to find defendant guilty.” The slides stated that the jurors could find Ruiz not guilty “only” if they found that Officers Peck and Ludikhuize “lied to you” and that the Fuentes sisters were mistaken.

The defense objected. The judge responded “meh,” and the prosecutor continued unmolested. It’s not the first time that happened .

On appeal, the defense argued that the prosecution’s summation, with visual aids, created a false choice for the jury, contending that anything short of proof that the cops were lying meant that the jury must find the defendant guilty.  In an opinion by Judge Richard Paez, the court held:

To that end, “prosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. (citation and internal quotation marks omitted). “It is also true, however, that the prosecution must have reasonable latitude to fashion closing arguments. Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence. In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.”

So “don’t do it,” but if you do, no big deal. While it’s true, not to mention obvious, that the prosecution is entitled to some latitude to argue reasonable inferences, it refers to inferences “based on evidence.”  In other words, that the evidence provides a basis for the jury to draw an inference.  But that’s not what the prosecution argued in summation, nor what the defense argued on appeal.

The court played a game, much like the prosecution did at trial, shifting the focus of the argument away from evidence and factual findings, and instead deftly slipped in the legal burden in its place.  The prosecution didn’t argue that the jury should conclude that it’s witnesses, the cops, were credible and accurate, but rather what the jury should understand the defendant’s burden to be.  The argument was that unless the defense proves the cops were lying, the jury must return a guilty verdict.  That’s no inference “based on evidence.”

When the court holds that it’s fair game for a prosecutor to argue “that one of the two sides is lying,” that’s a gross mischaracterization of what happened in this case.  The prosecution didn’t argue the defendant lied, a fair approach on summation. The prosecution argued the defendant’s burden of proof was to prove the cops did.

In concurrence, Judge Harry Pregerson refuses to let the prosecution’s gambit get sanitized, opening his opinion with a beloved quote from Berger v. United States, 295 U.S. 78, 88 (1935) (Sutherland, J.), flowing into this:

There was no reason for the prosecutor to push the envelope and ignore Justice Sutherland’s warning that a prosecutor “may strike hard blows,” but not “foul ones.” Id. The prosecutor struck foul blows by repeatedly telling the jury that they could acquit Ruiz only if they found that both Officer Peck and Officer Ludikhuize were liars. The prosecutor emphasized his improper statements with PowerPoint slides that stated: “Only Way Not Guilty: Officer Peck lied to you” and “Only way not guilty: Officer Ludikhuize lied to you.”

Wait, you say. Concurrence? After a quote like that, a concurrence?  Yes, a concurrence.

The prosecutor’s argument relies upon specious reasoning. The jury could have concluded that the officers were telling the truth, but still have determined that the evidence put forth by the government was not sufficient to find the defendant guilty beyond a reasonable doubt. The prosecutor instead told the jury that to find the defendant not guilty, it first must find that the two officers lied. This distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: “harmless error review.”

Emphasis added.  Harmless error, which is better for the defense than “plain error” which would have been the standard had the defense not objected at trial, is another way of saying, “but we, the appellate judges, think the defendant was guilty anyway, so whatever.”

For all the fine quotes about hardball and lowball, striking hard and striking foul, the precious right to a fair trial by a jury of one’s peers, false choices and the best legal system ever created, this is what it ultimately comes down to before the United States Court of Appeals for the 9th Circuit: but he did it. 

H/T Spencer Neal

As civil lawyers continue to argue over the death of the “billable hour” and the merit of alternative fee agreements, criminal defense lawyers chuckle. The prophets think they’ve invented something new, except that criminal defense lawyers have been using flat fees forever of necessity.  But then, it’s not like civil lawyers pay attention to us.

Yet one shocking thing that criminal defense lawyers come to realize as we have occasion to stick our nose into the occasional civil case is that our practice eliminates the temptation to cheat our clients for profit.  Hard to imagine, I realize, but true. 

By charging a flat fee for services, there is no reason in the world to churn time. We don’t make an extra dime for wasting time, inflating hours, doing pointless research or writing memorandum no one will read.  If we choose to do so, it’s on our own dime, so who cares? 

I like to research, and often find myself going down unexpected paths for hours, reading interesting or peculiar decisions that ultimately lead to a dead end. While there’s an argument to be made that it inures to a client’s benefit, I never have to make that argument because no bill is generated. It’s all on my dime. Clients love when you do a ton of work for them that they don’t have to pay extra for. Who can blame them?

At the same time, the most common refrain I hear from targets of federal investigations or white collar prosecution is that they need a lawyer with “resources,” which is code for Biglaw with lots of lawyers who have lots of connections and lots of clout.  The belief is something of a delusion, where the client thinks that a big firm will have 50 lawyers working round the clock on their case doing very important work on their behalf. 

But then, the  New York Times reports that this may be somewhat accurate, though not likely in the way they want.

They were lawyers at the world’s largest law firm, trading casual e-mails about a client’s case. One made a sarcastic joke about how the bill was running way over budget. Another described a colleague’s approach to the assignment as “churn that bill, baby!”

“I hear we are already 200k over our estimate — that’s Team DLA Piper!” wrote Erich P. Eisenegger, a lawyer at the firm.

Another DLA Piper lawyer, Christopher Thomson, replied, noting that a third colleague, Vincent J. Roldan, had been enlisted to work on the matter.

“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

Internal DLA Piper e-mails from the Project Orange bankruptcy appear to corroborate that criticism. Lawyers on the case openly discussed the inefficient use of junior lawyers, who are known as associates. Mr. Thomson, a DLA Piper lawyer, wrote that although the firm had reduced the amount of a bill for Mr. Victor, he expected his fees to escalate.

“DLA seems to love to lowball the bills and with the number of bodies being thrown at this thing it’s going to stay stupidly high and with the absurd litigation P.O.A. has been in for years it does have lots of wrinkles,” Mr. Thomson wrote.

Later, Mr. Thomson complained that DLA Piper associates were taking too long to complete assignments. “It took all of them four days to write those motions while I did cash collateral and talked to the client and learned the facts,” Mr. Thomson wrote. “Perhaps if we paid more money we’d have skilled associates.”

The  60 Minutes story on the tragedy of Brian Banks’ wrongful conviction for rape and kidnapping provided another breathtaking example of the inability of the criminal justice system to discern the guilty from the innocent, and followed a high school football star’s life destroyed for nothing, while the “victim” got away with $1.5 million.  It was a moving and revealing piece, but with a mostly happy ending.

While the core of the wrongdoing falls on Waneda Gibson, who lied about being raped and kidnapped and was paid well for her lie, there is another person tacitly blamed in the story, Banks’ original lawyer who advised him to cop out to a plea bargain, even though he proclaimed his innocence.  He faced 41 years if he lost at trial, and was sentenced to six years, the max, under the plea, after which he was required to wear an ankle monitor and suffer the indignities expected of a convicted rapist in perpetuity.

Initially, Brian’s prospects appeared to be looking up: DNA samples from the L.A. County Sheriff’s Office came back negative – as he insisted they would. Unable to make a million dollar bail, Brian waited for a trial for a year behind bars.

As his day in court approached, Brian says that his lawyer feared that he wouldn’t get a fair trial, based on his age, size & race. So she, an African-American herself, convinced Brian to plead no contest to a crime he insisted he didn’t commit.

His plea meant he’d avoid a possible 41 years in jail, but he was agreeing to a deal that included a sentence of anywhere from 18 months to five years, and Brian received the maximum.

“He got bad legal advice to take the plea,” said Justin Brooks of the California Innocence Project. “The attorney should have taken it to trial. I can’t imagine not taking this case to trial. [Gibson] had so many inconsistent statements.”

“The system failed Brian,” Brooks said plainly.

Brian quickly figured out the same thing. “My mom sold her house, her car and borrowed money from family for the lawyer who represented me in this case,” Brian said, “and all that got us was a plea bargain … and that plea bargain destroyed my life.”

Not the founding father, but the Public Defender of Kootenai County, working out of beautiful Coeur d’Alene, Idaho.  Like his namesake, he was a legend, running the best damn public defender office in the state, one that had never lost a defendant to the executioner.  And it finally cost him.

The Kootenai County commissioners unanimously passed a resolution on Tuesday to end his term this fall.

“It’s absolutely a termination,” Adams said.

Adams said the termination notice comes three weeks after he made a formal complaint against Commissioner Jai Nelson, saying she had allegedly harassed him since she joined the board. The notice comes two weeks after Adams, 59, told Commission Chairman Todd Tondee that he has cancer and will be undergoing chemotherapy and will need a day off each week for the treatment. Facing the loss of his health insurance is scary, Adams said.

It will be personally devastating, given that he’s suffering cancer. It will be institutionally worse, given that he ran an exceptionally effective office.  Adams learned that “his services were no longer needed” in a one-line memo, which he called “shabby.”  That seems like a nice way to put it. Disgraceful seems more appropriate.

The official explanation for Adams’ unceremonious termination is, as government’s so love, a study.

Nelson said the commissioners are going to do a “comprehensive study” of the county’s public defense system. Setting an expiration date for Adams’ services is the first step in that process, she said.

“He may be reappointed,” Nelson said Friday. “Periodic evaluation is something that’s part of the commissioners’ duty.”

After all, when something is working well, doesn’t that demand a study?  Particularly when the person announcing the study is the same person against whom a harassment complaint had been lodged a few weeks before.  Of course, it could very well be accurate, that a study is needed to figure out why the public defender is doing so well. Government can’t run an efficient criminal justice machine when the public defender keeps getting in the way.

And as day follows night, the excuses follow the explanation.

Nelson said the county hopes to complete its study by this fall. At that time, it’s unlikely the commissioners will choose to reappoint Adams.

“They’re just going to put somebody in there who they think they can control,” Adams said.

“These terms aren’t meant to be indefinite,” Nelson said. “People don’t own these offices.”

It’s true that political appointees don’t “own” their offices, but people who do their job well, extremely well, are usually the ones that get to stay in them.  In a rational world, anyway.  But then, doing a job well is a matter of perspective.  The staff in his office rated John Adams’ job performance well, giving him 9 to 10 on a ten scale for his various administrative functions. Some just gave him 10 across the board. He was deeply admired by his people.

Nelson, the accused harasser, didn’t think as well of him.

In a Sept. 30 report of Adams’ job performance, Nelson wrote: “The relationship between you and the board has continued to deteriorate over the last year and there have been several instances where you have communicated with the board members in an angry, disrespectful and unprofessional manner.”

She said he needed improvement in budgeting, “respectful communication,” following “board directives,” attendance, and “timely response in communicating issues and concerns with a concerted effort at internal resolution of conflicts.”

She graded him a “6” in “job understanding” on a scale of one to 10. He got a “5” in job performance, “6” in productivity, “6” in dependability and efficiency, and “3” in cooperation. His overall score was “5,” putting him in the “marginal” range, meaning his performance requires improvement and he needs more than normal supervision.

There is certainly a problem when a public defender, an appointee of a local political body made up of very important people, is accused of the inability to communicate with those very important people except in an “angry, disrespectful and unprofessional manner.”  Then again, when the public defender has been communicating just fine for the past 17 years, and the problem suddenly arises, maybe the very important people have the problem backwards.

Or maybe the complaints are about the wrong problem. John Adams was universally respected by the bench and bar, and his only detractors happened to sit on the board that thought he worked for them.  As the public defender, he thought he worked for the men and women of Kootenai County he was appointed to serve.  He did so with distinction, with honor, with zeal.  He fought for their rights in court, and for the resources to serve them before the tightwads who couldn’t imagine why they should squander money on poor criminals.  Most of all, he didn’t ask “how high” when directed to jump.  That’s downright insubordination.

The article in the  Coeur d’Alene Press offers a lengthy list of people praising John Adams, as lawyer, as public defender, as an honorable man.  Coming on the heels of Gideon’s 50 birthday, when so many opined that the tide is turning, that people are coming to realize that innocent people get convicted and the public defense function may be the only thing that stands between them and a lifetime in prison for a crime they didn’t commit, this offers a very different, very ominous message. 

They ought to build a statue for John Adams in  Coeur d’Alene, Idaho.  Instead, he’s been hung out to dry, cancer and all, for doing his job too well. Believe in happy things all you want, but this is how fragile the defense of the accused can be, a one-line memo way from termination at the hands of a hater.

Soon, Simple Justice will be moving to a new blogging platform.  Either that or disappear.  I’ve heard from many of readers in the past week about problems with SJ, that it won’t load, it loads very slow, or the most frequent complaint, that the front page loads but the full posts won’t load at all.

My blogging platform is called Quick Blogcasts from GoDaddy. I dídn’t so much pick it as stumble upon it on February 13, 2007.  That was the day I had nothing to do, so Dr. SJ told me to start a blog to keep me from bugging her about things in the law that I like to think about. It was her way of telling me to leave her alone.

It seemed to be easy enough for a dinosaur like me to use, so I went for it.  More than 6 years later, I still do. But what was a mediocre platform back then has reached the end of its lifecycle.  Having spoken to a few people over the past week at GoDaddy about the problems, one thing has become abundantly clear: they don’t care.  I’ve been told to learn to live with it, as failure happens. In other words, if their product, which they happily charge me for, works, great. If it doesn’t, too bad. Are they going to do anything about it? Nope.

When pages wouldn’t load for me yesterday morning, I called again. I spoke with a nice fellow, who told me that he saw I had already called a few times on the issues and that a file had been opened with the escalation department (whoever that is).  “You should be getting an email about your problem,” he explained.

“An email? I don’t need an email. I need the problem fixed. I need the problem fixed now. I need the platform to work.” An email at some unknown time in the future wasn’t quite comforting. More importantly, it didn’t help. If someone was trying to read a post today, an email in a week didn’t provide any help.

That’s all we can do, he told me. That’s it? I asked. “That’s it,” he replied. And that was it.

I’m a strong believer in inertia.  If it’s not broken, I don’t fix it. But my blogging platform is broken. Worse yet, GoDaddy’s attitude is broken. You can argue with some things, but you can’t argue with the attitude that they just don’t care.  They don’t care if you’re happy. They don’t care if you pay. They don’t care if they keep you as a customer. Once they don’t care, all leverage is lost. And as I was unceremoniously informed by GoDaddy, they no longer care.

The idea of moving to a different platform scares me. I’m very good at using the one I’ve used nearly every morning for 6 years. I know it well, its front doors and back doors, its insides and out.  Learning a new platform doesn’t exactly scare me, but means I will have to start from scratch to learn its subtle ways, it’s tricks and shortcuts.  Most of you young guys will laugh at me for this, but I write, and it just happens to be on a computer.  You know computers intuitively?  I don’t. It took me an hour to figure out how to make my daughter’s iPod work, and that came only after she showed me. My intuitive and yours are probably pretty different.

This time, I plan to put a lot more thought into the new platform. I need to find one that will serve to migrate what I’ve cobbled together over the past 6 years without major problems.  I expect to update the appearance, which many of you enjoy ridiculing as “old school,” which never bothered me a bit since I’m here to write, not to have the coolest looking blog on the block. Heck, I would blog on papyrus if that was what I had available to me.  Changing hemlines for the sake of having something new never interested me.

But I know a lot more now than I did 6 years ago, and I know what to look for, what I want, what you want and what I need. The next time will be a whole lot more thoughtful, and I plan to find the best platform possible. I don’t know yet what that will be, and I’m not soliciting opinions so please don’t offer and force me to use the quote about opinions being like a part of the human anatomy. It’s unbecoming.

So please bear with me as I do my due diligence and figure out where I’m going. I know this platform sucks. I know it’s got problems. My inertia has come to an end and I will be changing. I’m working on it.

It died in 2008, as new lawyers watched in horror as their sellers’ market collapsed. No longer could they dictate the terms of employment. There was no employment. No longer could they explain in the job interview how they needed to be out of the office by 4:30 so they could go to junior’s soccer game or hit the bar for half-price chicken wings.  There were no interviews, and they were more inclined to offer junior as the free copy machine operator. 

And yet, it’s back.  Work/life balance. That fabulous concept that your work as a lawyer takes a backseat to your personal life.

In the  Law Practice Today section of the ABA’s law practice management magazine, a 2010 graduate of Boston College Law School, Victoria Santoro, who has a job, gives advice to the job-lorn:

Work/life balance can be a delicate topic for all young lawyers. Demands on your time come from more experienced and more powerful attorneys, and you will feel pressure to achieve and impress those above you to get ahead. It also has not escaped me that 55 percent of 2011 law graduates were unemployed nine months after graduation. I understand that with the pressure of the job search, and the pressure of a new job, work/life balance might not be the first consideration for many young lawyers. Still, despite wanting to either impress the partners or simply land a job (it will happen), it is important early on to create a lifestyle that you can maintain throughout your legal career. What is work/life balance? Why is it important for young attorneys? And how do you achieve work/life balance without inhibiting your success?

She’s absolutely right, a job will happen, provided you’re adept at using the expresso machine and know the difference between a caramel macchiato and a mocha frappuccino.  Aside from that, there are issues.

Before you begin advocating for yourself in attempts to achieve the ideal, but elusive, work/life balance, you need to know why this is something you want. Using some available statistics on employee engagement and productivity, it becomes very clear why balance is something you should be seeking out. No young lawyer wants to sound like they are searching out the ability to “slack,” so I suggest advocating for the three H’s: happy; healthy; and hopeful. These can serve as your guideposts as you search out flex time, telecommuting, and the other things necessary to achieving work/life balance.

No one disputes that work/life balance will make a young lawyer happier, especially if you don’t really like being a lawyer to begin with. But the argument that happy employees are more productive employees doesn’t translate well from the assembly line to the courtroom.  Embarking on a career as a lawyer begins with the recognition that you are taking on the responsibility of other people’s lives.  This isn’t about how many widgets you can put together in an hour, then wipe your hands and walk away.

But you have things you like to do, prefer to do, more than practice law?  That’s cool, but then you’ve chosen poorly. Law doesn’t happen at your convenience. Judges rarely ask whether the brief they demand tomorrow will interfere with a great band playing at a local club. It’s not wrong that you want to go, but that you enter into a responsibility thinking your good times trump duty.  The client, who sits awake at night believing that there is a professional working diligently to save him from ruin, has things he would rather be doing too.

Achieving work/life balance starts at the very beginning of your career.  Advocate for yourself when you begin at your job. You are in the most powerful position as a candidate after you have an offer, but have yet to accept.

So you are one of the lucky few to get an offer of employment as an actual working lawyer, and the first thing you do, before accepting the offer, is to engage in a sincere discussion with the hiring partner about your need for work/life balance? The next words you will hear are, “Sorry, but we’ve clearly made a  mistake. We will not require your services.”  Yes, this is the most powerful position you will be in as a candidate for employment. No, it’s not really powerful. Nor should you demand a corner office and a new BMW.

Santoro goes on to urge almost-hires to set boundaries, the extent to which you are willing to work given your need for work/life balance, communicate those boundaries so your erst-while employer is properly chastised as to your limits, and to organize.  One out of three ain’t bad.

The first two “suggestions” offered provide the shortest path to the front door.  Predicated on the mistaken belief that a lawyer with an offer on the table is suddenly empowered to make demands, it’s akin to telling your potential employer that you will work when and if it suits you.  After all, doesn’t every employer want to hear that its job comes second to the new-hires’ having a good time?

Santoro’s final suggestion, however, is a good one, and the only one that provides any real hope of actually landing the job while being able to go to Suzie’s dance recital.  Organize.

Organizing your work life and personal life will certainly take the most effort, but the rewards will be large if you take the time to plan.

She’s quite right when she says this will take the most effort, as it requires thinking, which can often cause the brain to hurt.  Plan ahead. Get on top of your work immediately, so that you get it done when time is there to do it properly rather than wait until it’s “due” and your situation is conflicted.  Always stay ahead of the work curve rather than use that free time to update your Facebook status and figure you’ll get to your work whenever. 

That last minute scramble to get the motion done, no matter how sloppy you think you can get away with, because you need to make it to the bar in time for happy hour, isn’t going to satisfy your firm, and more importantly, isn’t going to fulfill your responsibility to your client.  The worst part is that it might not have needed to happen if you hadn’t squandered your time screwing around so that you had no choice but to mail it in at the last minute.

Lest you think that being a lawyer means a life of misery, where your children don’t know your name and you’re forced to pay full price for chicken wings in perpetuity, it doesn’t have to be so at all. Sure, there will be times, many of them, when responsibility to your clients comes before things you would rather be doing. This can’t be helped, but won’t be nearly as much of a travesty if you have a desire to practice law and serve clients.  But with a whole lot of thinking, planning, organizing and hard work, there will still be plenty of opportunity to enjoy your life, watch most of junior’s soccer games and have a relaxing beer with your barrista friends from law school.  Practicing law isn’t the death of a fun life, but it is a responsibility, no matter what the ABA Law Practice Management section says.

While it’s not quite as far as I would go, and likely most of you, a relatively quiet but radical shift has taken place in the writings of George Washington lawprof Orin Kerr. Who cares, you say? I do, for one, but more importantly, you should because Orin is one of the few people who has been on top of computer crime from the outset and, even more importantly, courts have turned to for guidance.

In other words, Orin Kerr’s writing have influenced the approach courts have taken, particularly to the Computer Fraud and Abuse Act and search and seizure of computers, including pretty much everything that incorporates a computer chip and memory into its function. 

As much as it would be nice of the writings and thoughts of criminal defense lawyers had a significant influence on the judicial approach to search and seizure as applied to the new world of computers, the fact is that it hasn’t. At least, not nearly as much as have the writings of scholars like Orin. This is what makes his latest writing important and remarkable.

In a short essay, entitled Foreword: Accounting for Technological Change, Orin takes what can only be described as a radical shift in recognizing the cellphones, which during their brief life-span have become mini-computers brimming with personal content far exceeding anything that could have been dreamed of a few short years ago, should not be subject to the blind application of search and seizure rules that would apply under the “search incident to arrest” exception to the 4th Amendment.  From the summary:

This short essay considers how the Fourth Amendment should apply to the search of a cellular phone seized incident to arrest. It argues that the storage capacity and type of evidence stored on a cell phone justifies a departure from existing Fourth Amendment doctrine. Under United States v. Robinson, 414 U.S. 218 (1973), the Fourth Amendment always permits a “full” search of a person and property on his person at the time of arrest. This essay argues that the Supreme Court should reject that standard for searches of digital storage devices. Instead, Court should adopt the standard that the Court adopted in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.

In my view, sensible guidance for new rules governing the search of digital storage devices incident to arrest is provided by existing doctrine on searching automobiles in those circumstances. Like cell phones, cars are mobile. And like cell phones, cars can store a great deal of personal information. As the Court recognized in Arizona v. Gant allowing a complete search of a car as a routine matter whenever the driver has been arrested permits a search far beyond the rationales of the exception Under Gant, officers can search the car only in two circumstances: first, “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” and second, when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.

While this may still fall a fairly substantial distance from a distinct approach, the development of a new body of 4th Amendment jurisprudence relating to computers that recognizes digital storage as fundamentally different from the seizure of items in the physical realm, that Orin argues against the rote application of extent exceptions based on physical world circumstances that would otherwise dictate which exception applies is a radical shift.  

Orin revisits the rationales, and finds them lacking as applied to computers. This is a huge recognition that computers are unlike anything that existed in the physical world as exceptions to the warrant clause were developed to allow police a ready means of circumventing the 4th Amendment.

Granted, Orin still applies existing law by analogy, which leaves open a variety of argument, such as the content of a smartphone may be of evidentiary value in determining the phone number of a drug supplier, and has yet to go “all in” on the notion that digital storage devices are more akin to personal papers and effects than any other physical objects, the fact that his approach is rationale based rather than rubric based is a significant step forward.

Most importantly, what matters here is that scholarly writings about the relationship of the 4th Amendment to the digital world are evolving, offering hope that the law will eventually catch up with technology and the  public’s oft-mistaken belief that they can enjoy shiny toys and still maintain a tiny bit of personal privacy.

As the trial of “stop and frisk” played out in Judge Shira Sheindlin’s courtroom, a tape made by Police Officer Pedro Serrano last month of his commanding officer made the sounds that everyone knew would be heard, but no one ever really wanted to hear.  From the New York Times :

The commanding officer, Deputy Inspector Christopher McCormack, urged the officer to be more active, emphasizing the need to conduct more street stops. “We go out there and we summons people,” Inspector McCormack said. The way to suppress violent crime, he said, was for officers to stop, question and, if necessary, frisk “the right people at the right time, the right location.”

The officer who surreptitiously recorded the conversation last month, Pedro Serrano, began pressing Inspector McCormack about who he meant by the “right people.” The conversation grew heated.

You know what’s coming. You have to. Black, white or Hispanic, young or old, you already know. You always knew. But now it’s right there on tape.

“The problem was, what, male blacks,” Inspector McCormack said. “And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21.”

Meet the “right people” when you live in the wrong neighborhood.  This is, of course, no surprise whatsoever. After the first few million stop and frisks, there could be no doubt, but it’s different to have the words played out loud in a courtroom. 

Officer Serrano is the second Bronx police officer to take the witness stand in the trial and assert that police supervisors institute quotas that encourage officers to stop people unlawfully. He said he began taping interactions with supervisors in the station house because “they’re asking me to do something that’s illegal, I believe, and I was worried.”

Officer Serrano, who continues to work in the 40th Precinct, said that as a Hispanic man in the Bronx, he himself had been stopped many times. “It’s not a good feeling,” he testified.

Pedro Serrano got into this “discussion” with his C.O. because he wasn’t doing to others what he didn’t want done to himself.  Now he needs to worry about when his Serpico moment may come, having done the “right” thing in the wrong job. 

Bizarrely, Inspector McCormack’s explanation to Serrano wasn’t maliciously intended, a matter of hatred of blacks or Hispanics. It was exactly what most people who rely on what they like to call “common sense” would think, that phrase that takes beliefs we hold but can’t quite justify and gives us a facile excuse to maintain them without feeling badly about our self-deceit.

At first, Inspector McCormack can be heard lecturing Officer Serrano about how “99 percent of these people in this community are great, hardworking people” who deserve to go about their days in peace. But the citizens, he said, were troubled by crime, and he went on to describe how a woman in her 60s was shot coming out of an elevator at 10 a.m.

People are troubled by crime. Who wouldn’t be? Nobody wants to be the victim of crime, and they expect the police to prevent it and protect them. Doing so, however, is much harder than people think, as they want cops to be invisible except when they need them, and then they want them to be magically appear the instant they’re needed and to make correct judgment calls in the face of chaos and confusion.  No, it’s not an easy thing to do for the police.

Somebody got it into their heads that if they just target the “right people” in advance of crime, they could seize control of the streets and make their job better. And most of the other people in the police department nodded their head in agreement, that this was a good idea.  But who should they target?  The “right people.”

That the tactic failed to produce results should have been a clue that there really weren’t any “right people” the race, age, demographic, and in the process of stopping and frisking the “right people,” they were doomed to deprive millions of people of their right to walk down the streets of New York City without being stopped for no reason.  But this was the price they would pay for a targeting the “right people.”  The “right people” would forfeit their right to be left alone so that the rest of the people could feel safer.

My old train-buddy Mike used to argue the point with me, that somebody had to take one for the team. Of course, Mike would never be mistaken for the “right people,” so he was pretty clear that the person who had to take one wouldn’t be him.  That’s what makes stop and frisk to acceptable to so many, that they aren’t the “right people” and, truth be told, can’t get too bent out of shape by the wholesale violation of constitutional rights to a group of people that doesn’t include them.

It’s not that they liked the idea of he New York City Police Department targeting a group of young black and Hispanic males for the purpose of hassling them, stopping them, searching them, without any actual articulable suspicion of wrongdoing. They didn’t feel good about it. It was just the price that had to be paid for safety. and the fact that they didn’t have to pay the price made it all acceptable.

Now that the words have been played in a courtroom at 500 Pearl Street, does it make you feel better about it? Your worst fears are confirmed, but you really never had any doubt before. Forget the argument that the common sensical claim that the cops targeted the right people is wrong, as demonstrated by the abysmal rate of finding evidence of criminality. Forget that millions of stop and frisks have happened with negligible results, where only the most blind fool could hide behind the simplistic “it’s worth it if it takes one gun off the streets.” 

This isn’t just a condemnation of the NYPD, but of the “wrong people” who have tacitly tolerated what they knew to be terribly wrong all these years because they believed it made their lives safer and, well, they weren’t the “right people.”  The police did it for you, and you secretly liked it.  How do Inspector McCormack’s words sound to you?  How does it sound when you’re confronted with your own truth?  Are you proud not to be the “right people” of New York?

The video of foul-mouthed Detective Frank Rende showing St. Patrick’s Day reveler Mark Keyser who’s the boss is nasty and offensive, but Rende’s defense is that his taser, put to Keyser’s neck for no discernible legitimate reason, didn’t fire.



When the best thing you can say about an abusive cop, who demonstrates no reluctance to use violence for no better reason than to bully a kid into submission, it’s not quite an endorsement of his having the temperament and qualities one expects of a police officer.

To his enormous credit, Pittsburgh Mayor Luke Ravenstahl recognized this.  Via WTAE :

There is no question that Oakland police officers Omar Daza-Quiroz and Eriberto Perez-Angeles shot and killed 37-year-old barber Derrick Jones.  They claimed he dropped a digital scale as he was running away from them. They claimed they thought it was a weapon, so they shot and killed him.

Four witnesses to the killing saw nothing in Jones’ hands, but for the sake of argument, let’s assume the cops believe what they claim. So what?

Don’t try to make sense of it. It doesn’t make any sense. Dropping an object, even one mistakenly believed to be a weapon, does not give rise to a reason to kill under any twisted logic.  But then, Jones wasn’t the first person these cops killed. Nor was this the first time these cops were the targets of complaints for misconduct and excessive force. Most would see this as a problem for the cops, but as it turns out, it may prove to be their salvation.

From the East Bay Express :

In addition, records show that there have been 74 use-of-force complaints lodged against Daza-Quiroz alone. There’s also evidence that the Oakland Police Department, because of its failure to live up to court-mandated reforms, neglected to properly track the two officers. Nonetheless, a federal judge ruled last weekend that jurors in a civil trial involving the Jones shooting must not learn about the officers’ troubled histories or know of the department’s failure to correct their behavior.

In her ruling, US District Court Judge Yvonne Gonzales Rogers stated that showing the jurors the seven hundred pages of internal affairs complaints filed against Daza-Quiroz and Perez-Angeles would require a “tremendous expenditure of time.” The judge added that it “would essentially require mini-trials” for each complaint against the two cops, and could be “incomplete, confusing, and misleading.”

There’s just too much.  It would take forever, and who has the time to spend on a trial working over incident of excessive force after incident. Wrap it up guys, we’ve got people to convict, and we can’t waste a courtroom forever on cops.

The problem of a “trial within a trial” refers to allegations of misconduct which the officers deny, and would thus have to be proven, as if the cops were on trial for the collateral conduct within a trial for the primary cause of action for killing Jones.  It’s a problem in that it can tend to cause a jury to confuse the issues of liability for the action before them with liability for the acts of past violence. But it can also be kept under control with appropriate instructions.

Bear in mind, this is a civil action for damages for the death of Derrick Jones, not a criminal prosecution for his killing. The relative rights and constitutional concerns are very different, though a skeptic might think that the only real difference is that the defendants before Judge Rogers are police.  If this were a criminal prosecution, and the defendants weren’t cops, somehow the court would either find the time or figure out an alternative. Courts usually do.

The problem created by this ruling for the plaintiff is that they’ve pursued their case based not only on the killing of Jones, but the conduct of the two officers and the Oakland police department’s apparent refusal to either address the problem of excessive force within its ranks and comply with a decades-old consent degree to clean up the Oakland police.

Before Gonzales Rogers’ ruling this past weekend, Jenkins-Toney had based a substantial portion of her case on the theory that Jones’ death was “an unlawful shooting by two officers that have a high rate of using force during their contacts with the public during their relatively brief stint with the Oakland Police Department.” Perez-Angeles joined OPD in 2007, while Daza-Quiroz signed up a year earlier. The two officers were also involved in the fatal shooting of Leslie Allen during a car chase in 2008, and Perez-Angeles was part of the Tango Teams at the center of OPD’s crackdown on Occupy Oakland protesters in late 2011 and early 2012.

You’ve got to admit, that’s an awful lot of wrong for two cops who came onto the force within the last five or so years. Most cops go their entire career not drawing their weapon. These guys not only drew their weapons, but ended up wrongfully killing two people in their first few years on the job. It’s almost inconceivable that these officers could have racked up so many use of force complaints and killings so quickly, but it’s even more incredible that this ends up working to their advantage.

Of course, there is a fairly obvious alternative to address the concerns about the length of time it would take to present this evidence. The judge could have limited the plaintiffs to introducing, say, five or ten incidents rather than every incident. While that still would deny the jury the flavor of how violent, how out of control these officers were, and how their violence was tolerated, if not embraced, by the Oakland police, at least it would have allowed the plaintiff to make their case.  And it wouldn’t have given the cops a free pass on prior violence merely because there was too much of it.

But Gonzales Rogers ruled that jurors will hear nothing of OPD’s failure to revamp their procedures for dealing with problem officers, the Allen shooting, or the numerous internal affairs complaints against both officers. The judge also decided that documents from OPD’s federal oversight would be too confusing for a jury without expert testimony to explain their meaning, and under the terms of the consent decree, could not be used to prove liability in other lawsuits. “[T]he Court finds that admission of the Riders case documents would be more prejudicial than probative …. Admitting the documents alone, without any context or explanation of their meaning by any witness, has the strong potential to confuse and mislead the jury ….”

After all, nobody wants a jury to be confused or misled to think that the police aren’t doing a great job protecting and serving. And killing.  So rather than pare down the voluminous evidence of violence, the historic evidence of neglect, to a manageable level that serves to provide the jury with the background of the officers and the police department’s ignoring the “red flags” of their violence and potential for violence, let the jurors hear nothing.  That’s the solution when there’s just too much evidence against cops.