When Windows was introduced, I told Dr. S.J. that it was the death of understanding.  Before Windows, a computer user needed to know DOS commands or he couldn’t make the box work.  By knowing DOS commands, typed in carefully at the C prompt because an errant letter meant the computer either wouldn’t have a clue what you wanted or would do something entirely undesired, like launch thermonuclear war, you had a basic understanding of how computers functioned.

But when a double click on an icon was all that was required, anybody could use a computer. Click on the pretty picture and, boom, you too were a computer user.  It changed everything.  On the bright side, it created a world where computers became central to our existence. On the dark side, any idiot could use one, despite having no comprehension of how it happened.

A conference just ended in Silicon Valley called Reinvent Law.  A bunch of people who share a remarkably uncritical view of the power and influence of technology took the stage in order, with the hallelujah chorus singing behind them. Not really singing, but a digital version created without a single human voice. They are believers talking to other believers, and like the people who applauded the introduction of Windows and the demise of DOS, they propose a panacea where no one need know anything ever again.

They will vehemently deny this because they believe that what they are doing is good and true, and that they are motivated by the best of intentions.  There was a talk of Google cars, the ones that drive themselves without any need for a person to steer or break.  Once perfected, I have no doubt it will drive better, safer, than any person possibly could. And it will spell the death of human driving, a risk society will no longer accept.  Yet another human activity that will not only become unnecessary, but unacceptable.

The Reinvent Law conference offered the insight that 58% of judges have an iPad.  The final presentation was about the paperless office, the one we started talking about in 1993. They still think they’ve discovered the death of billable hours, and believe that law can be reduced to algorithms. Point and click law.

There are big issues and small issues. The advent of computers was big. Big beyond our wildest imagination.  The introduction of Google cars will be big too. Huge. 

Most of the rest is rather puny, more tweaking around the edges than game-changing. 

But what isn’t puny, yet isn’t recognized, is how any of this makes the law work the way the platitudes say it works.  There are ideas that will deliver mediocre legal services to those unable to afford it now.  Windows for the under-represented.  And when they go to court to vindicate their rights, they will still see judges sitting on benches. The judges will have iPads, but they won’t be any less biased. They won’t be any smarter. They won’t rule by algorithm. And the under-represented will still lose.

The fear is that much of what is being promoted as the future of law will actually come to pass. We will have those paperless offices where we sell virtual legal services unbundled like the widgets they can be.  And the prisons will still be filled with people whose computer programs told them they should be free.

It’s not that the people involved in all of this aren’t smart. Indeed, these are some very smart, very dedicated people, but they don’t see the law.  Dreams of technological change may be very exciting, but to what end?

Marketing guru Seth Godin fortuitously posted this today :

When I was starting out in the software business in 1983 (gasp), our home computer of choice was the Commodore 64. I vividly remember one day in the playtesting lab when the overworked floppy disk drive burst into flames. The surprising thing was that none of us were surprised. The entire infrastructure of the time just barely worked.

Twelve years later, on a sales call at Levi’s ad agency in San Francisco, in the middle of a presentation, my PC laptop started spewing smoke. I didn’t miss a beat. I shrugged, closed the cover and dropped it into a trash can.

Today, nothing is starting on fire. Today, a well-designed app looks fabulous, polished and stable, even though it was built by one person, in a garage. Today, email gets through. Today, we have a platform that (almost always) does what it says it will. We’re all on the same OS (the internet). We can expect that any person we’d like to do business with, anywhere in the world, has a device we can use to reliably communicate with them…

If you’ve been waiting for the next big thing before you dive in, it’s here.

For all our miraculous advancement, we end up with such a puny outcome as this, twitted by baby lawprof Josh Blackman:

At #ReinventLaw speakers read notes from smartphones, not index cards. #MineWasImpromptu

— Josh Blackman (@JoshMBlackman) March 9, 2013

As video ubiquity increases, and  us lurkers get to watch as young men who are prepared to take a risk in the name of liberty refuse to acquiesce to law enforcement demands by saying “no,” it is important to remember that not every bold refusal makes the Best of the Web lulz reel.  Sometimes, the young man is named Alex Landau.

As Joel Warner reported in detail for his 2011 feature article “Black and Blue,” Landau was a nineteen-year-old Community College of Denver student when he was pulled over by police on January 15, 2009, allegedly for making an illegal left turn.

Marijuana was subsequently found on Landau’s passenger, a fellow student named Addison Hunold, prompting the officers — identified in the lawsuit as Ricky Nixon, Randy Murr and Tiffany Middleton — to ask if they could search his trunk. Landau is said to have responded by stepping toward the officers and quizzing them about whether or not they had a warrant — at which point they began punching him in the face. The attack caused Landau to fall, but the beating continued for several minutes, with one officer yelling, “He’s going for the gun.” (Landau was unarmed.) Once they finally stopped the assault, one officer reportedly put the following question to him: “Where’s that warrant now, you fucking nigger?”

If you think Landau’s jacket looks bad, take a hard look at his face. Think about this face being on your son, your friend, you.



This is what the insolence and impertinence of exercising one’s constitutional rights looks like.  Three Denver cops, identified as Ricky Nixon, Randy Murr and Tiffany Middleton, delivered the message. It wasn’t videotaped, but if it had been, it would not have made viewers laugh with glee at the foolish tin soldiers, with their shield-induced bravado. 

There are no shortage of people in the internet who feel a political entitlement to opine about the assertion of rights, what should be done, how it should be done and, in the off chance things don’t work out nearly as well as it does for those in the beloved  Flex Your Rights videos, how those bad cops will get a taste of their own medicine when the law catches up to them.  Most of these folks have no connection to the criminal justice system, and have never stood beside an accused whose face bears the outline of handgun after being pistol whipped, or whose eyeball socket is three times its normal size and a horrible shade of purple.

But what about the big money that every victim of police excess must surely receive?  Alex Landau is one of the fortunate ones in that regard, having received $795,000 in settlement for his injuries. Big money in a vacuum, but hardly close to compensation.

The final blow was delivered to Alex Landau by that last bastion of American purity, the United States Attorney’s office, when he was  informed that they would not pursue civil rights charges against the three officers who delivered the message to this college student who asked the offending question that triggered the response:

‘Where’s that warrant now you fucking nigger.’

The message came at a time when few would learn of it, a trick of media manipulation that tends to let it dissipate before anyone ever gets a chance to learn about it.  By the artful timing of its release, it never makes it onto the radar of those who might be concerned.

Organizations hoping to bury unpleasant or potentially controversial news traditionally release information late Friday, in the hope that many folks already in weekend mode miss the development. A classic example: Justice Department reps chose Friday at 6:30 p.m. to inform Alex Landau that they would not be charging the three Denver police officers who brutally beat him with federal civil rights violations.

There just wasn’t any evidence, they explained.

It’s unlikely that the commentariot would have seen that coming, because they believe that the law somehow ultimately vindicates the rights of the people.  And sometimes it does. And sometimes it doesn’t. And sometimes, a college kid whose world was destroyed with a beating is left to make sense of it.

From Alex Landau’s statement issued via the Colorado Progressive Coalition, after learning that no civil rights charges would be pursued.

“In 2009, when I was a 19-year-old college student, I was pulled over by Denver Police. When I calmly asked to see a warrant after officers had already patted me down, I was grabbed, punched repeatedly, brought to the ground, hit in the face with a radio, hit in the face with a flashlight, had a service revolver pressed to my head, my life threatened, and thrown into the gutter. I lost consciousness and I awoke to officers laughing at me. I was asked, ‘Where’s that warrant now you fucking nigger.’ I was dragged across the grass and left on a police jacket to bleed. I wouldn’t allow any medical treatment until I got photos and, because of that, went into shock on the way to the hospital. My witness was coerced into writing a false statement. I was falsely charged with felony criminal intent to disarm a police officer. Officers falsified testimony, evidence, and documents to try to cover up their actions. When I went to file a complaint with Internal Affairs, I was told to own up to my actions as a man and that it’s not always a good idea to play the race card. My case has been mishandled from the beginning.”

“I attended the first day of college with 45 stitches, a broken nose, a concussion, and a brain injury. But none of this is considered sufficient evidence by the Department of Justice or the FBI to bring civil rights violations against these officers who beat me almost to death and then laughed about it.

The time to address those lovely rights we regularly extol is before you find yourself in the position of being on the business end of a beating. It’s when you vote for legislators, executives and judges. It’s when you sit on juries. It’s when you try to decipher the secret meaning of stories about police being constrained to use force. As hard as you may laugh at the antics of some cop caught on video acting like a liberty-loathing buffoon, don’t forget that there are also Alex Landau’s out there who will bear the scars of their assertion of rights for the rest of their lives, long after the pittance of compensation runs out.

For those who think they are entitled to offer advice to others about how to behave when it’s their turn to respond to a cop’s demand, remember the image of Alex Landau.  Rather than tell someone else what to do, ask yourself what you did to stop a beating like this from happening.  But mostly, the judges and prosecutors who hide their heads in the sand because things like this never happen, how proud are you in being bastions of justice as you mutter to yourselves that you’re different?

The government may have released this news late on a Friday so no one would ever learn that they dropped the case.  But it seemed to me that you would want to know.

When I first learned of AttorneyFee dot com, the idea didn’t strike me  nearly as bad as the reverse fee auctions that might attract potential clients who wanted cheap, desperate, fungible lawyers, which now counts Avvo , once a candidate for legitimacy, as its victim.  Boy, was I wrong.

It’s not that there has been any sudden interest by the public in this scheme, but that a search for an old post here revealed something disturbing.  I have no involvement with this mutt of a website, and yet there I was, as if I had signed up to participate and was one of them.

How does my name happen to appear as if I was one of the lawyers trying to walk down the boulevard in hotpants?  I can’t say, but I can say that it’s there without my permission. Don’t bother trying to find out of you can afford me. And oddly enough, Avvo gets brought into the mix, though it says I have no rating.

Was it just me, I wondered?  So I checked for my buddy and top New York criminal defense lawyer, Nathan Burney.  There he was.



So I asked Nathan whether he signed up for this, and he responded ” Hell, no. Never heard of it.”  Yet, there he was.  And not only was he there, but somebody decided that his hourly rate was $550, which was pretty good given that some lawyers without anywhere near Nathan’s experience and expertise were charging the same or more.

It’s a lie, folks.  The cottage industry of businesses trying to skim off the burgeoning phony business of internet marketing is replete with shams.  And all of those who argue that this is good for clients, bringing transparency to the “opaque” legal profession have their eyes shut so tight that they refuse to see reality.  There is no transparency when it’s a lie.

Some lawyers, mostly because they really are clueless about how the internet works and fear that they are missing the money train by not hopping aboard, may sign up for all the phony marketing websites, submit their name and information, and sit back waiting for that silent phone to ring.  They’ll learn, and maybe their reputation for integrity won’t suffer too badly in the process.

But when I find my name on one of these websites, or the name of some other attorney I know and respect, who has never done anything to become embroiled with their marketing scheme, that’s when it’s time to spread the word again.  Maybe, just maybe, it will get through someone’s thick skull.

How long before the legal futurists and techno-lovers who pray at the alter of the internet marketing gods will come to understand that they’re promoting scams that deceive the public and make all of us, even lawyers who have nothing to do with this crap, look like slime? 

Even Avvo, which began its life as a beacon of lawyer transparency and has since morphed into another marketing scheme , lists lawyers that want nothing to do with it.  And if you claimed your profile once, you can never unclaim it.  And if you  don’t play the game the way Avvo wants you to, you will pay for it as your rating deteriorates. It may be nonsense, but any potential client searching for information about a lawyer won’t know it.

It’s bad, and it gets worse with every new scheme, every new website trying to make a quick buck off lawyer and client desperation.  When will it stop?  When will the sycophants stop promoting the next new thing and start demanding integrity and calling out the scams for what they are?

You want transparency?  How about we start with honesty. Stop the lies.

It’s not just for the fabulous wealth, prestige and public adoration that criminal defense lawyers put their butts on the line to speak out against the wrongs of the legal system and its power players. And sometimes, maybe more often than anyone realizes, the targets of criticism decide to pay the lawyer back. Fresno criminal defense lawyer and blawger at Probable Cause, Rick Horowitz, found this out yesterday.

I have thought, for some time now, that I knew just how bad things were getting in the United States, in terms of us becoming a police state.

Today, I was shown just how wrong I am. 

In fact, I didn’t know the half of how bad things have really gotten.

To be clear, as bad as the stories and videos that appear on CDL blawgs may be, there is a reasonable anticipation that we, lawyers, officers of the court as some like to remind us as if that means something, aren’t in the direct line of fire. They may hate us, but they won’t touch us. So we believe.

This morning, when I arrived at the Juvenile Justice Court for a case, I found four or five deputies at the front. A deputy district attorney was walking ahead of me. She went through the metal detector without stopping, and (I assume, based on the direction she was heading) on to her office. I put my bag on the x-ray machine belt, as always, and pulled out my identification to show, as always. But I was stopped.

“You have to empty your pockets.”

“What?,” I asked.

“You have to empty your pockets.”

“Why?”

Then came the story, the one they make up to justify what they’re doing. It may sound remotely credible, but it’s a lie. An excuse. Making up excuses for doing whatever they’re going to do anyway is a core talent of law enforcement. Of course, we’re not supposed to say this because it detracts from the dignity of the system. But make no mistake, it’s a set up.

And then one of them told me it was because of my blog post yesterday. He even specifically referenced the sentence that they found so offensive. “So now you’re a security risk,” I was told.

Because of something I wrote. Something which — I will admit — was offensive.

So Rick offended them.  And so he would pay for his offense. What was so offensive isn’t clear, as Rick has removed it from his blawg after he decided that it was more offensive than he intended, but notably fueling the anger by writing about their payback.

At any rate, the overreaction of the department today shows just how dangerous they can be. And, in fact, I suspect that’s just the start. It will not surprise me if something happens to me for what I’ve written. At least a few attorneys — including me — think that there was a plan in place this morning to set up a situation where I could be given a beatdown, which almost certainly would have been followed by criminal charges against me for “resisting arrest,” or “assaulting an officer,” or something similar to that.

Because that happens to more people than you could possibly imagine, more often than you would believe. And, as I said, there is reason to believe they were trying to set it up — reason enough that another attorney decided to stick around “just in case.” (Which is probably why it didn’t happen.)

There would have been damn good reason for Rick to have challenged his treatment, The idea that his criticism, offensive or otherwise, was cause for a lawyer to be subjected to an intrusive search that no other lawyer goes through because he spoke ill of law enforcement is an outrage and an affront to every blawger.  And his musing, that had he gotten angry and challenged their rifling through his briefcase, where his client files are held in sanctity, the next step would have been a loud protest followed by the sound of flesh being pounded. 

Instead of a post about how Rick Horowitz was treated as payback for saying something mean about the Fresno sheriff, this would be a story about how he was beaten and charged with resisting arrest.  There would be a press conference about how a lawyer went nuts as they were just doing their job, protecting the public against imminent threat, and the lawyer turned belligerent and violent. They had to protect themselves from this maniac. They just had to.

But Rick was neither a maniac nor a fool.  He kept his cool. He refused to play into their hands. He gave them absolutely no cause for a beating, and was fortunate that another criminal defense lawyer stayed with him so that there would be a witness to any lies that might be offered to justify what might come next.

How offensive was Rick’s criticism? It doesn’t matter.  Payback for being critical of law enforcement in a blawg is intolerable.  Rick has had much to say about his perception of the police state and the dwindling options available to us to stop the decline.  His voice has no doubt angered those who depend on the love and ignorance of the public for compliance to their authority.  He has pissed people off.

But Rick Horowitz will not suffer the indignity and payback in silence.  And every blawger, and reader, and judge, and person, should be aware that this is how the Fresno sheriff tried to teach Rick Horowitz a lesson.

Update: After this ball started rolling, some others felt it appropriate to not merely add their voice in Rick’s defense, but to disclose what Rick had written and subsequently deleted.  Most exercised the discretion to honor Rick’s decision to delete the offending language, even though it was readily available by cache if someone felt the need for the titallating details. It was not my place to reveal what Rick chose to delete.

I would not have written what Rick wrote. If I had written it, I wouldn’t have deleted it. But Rick did, and that was his choice.  I can understand why he made that choice, even if it was not the same choice I would have made.  That said, it was not my place to “out” him by including the deleted language, nor was it relevant to the post. While it was a curious aside, it was only an aside.

The point of the post is what the Frenso Sheriff did to Rick for having written something on his blawg that was critical of them and they found offensive. It doesn’t matter, to me at least, what he wrote. Apparently, it mattered enough to others that they chose to “out” the language Rick deleted. I strongly disagree with that choice, and I regret my role in starting this ball rolling that ended with people who felt it was their place to “out” Rick Horowitz rather than honor his decision to delete it.

This could never happen, so there really isn’t any need to discuss it. Except it did. Via NBC :

Stephen Slevin, 57, was arrested in August 2005 in New Mexico’s Dona Ana County, charged with aggravated driving while under the influence and possession of a stolen vehicle, although Slevin maintains the car was lent to him by a friend.

Slevin had one medical examination after being arrested and was labeled suicidal, his lawyer said. He was jailed in lieu of posting a $40,000 bond.

Slevin was put into a padded cell, then solitary confinement, where a prisoner is supposed to get an hour of exercise and sunlight a day, except when nobody bothers to take him out of the cell. Slevin was regularly forgotten. He remained in solitary for almost two years.

By the time Slevin got out of jail, his hair was shaggy and overgrown, his beard long, and his face pale and sunken, a drastic contrast from the clean-shaven booking photo taken of him when he was arrested two years prior.

During his confinement, he fell into deep depression. Solitary confinement is a form of sensory deprivation, which is tantamount to torture. But hey, he was accused of drunk driving, which is tantamount to being a bad guy.  He was denied medical care, and pulled out his own tooth.

And he was neither tried nor convicted of any crime.

There are a million questions about how something like this could possibly happen. Where was the court? Where was the lawyer. He had family, but across the country and unaware of what to do about this. Thankfully, Slevin wrote his sister so she knew where he was. Had he been so severely mentally ill that he failed to do so, he would have simply disappeared from the world without anyone knowing what became of him.  Bear in mind, he was driving cross-country, so there was nothing to suggest that he would be in solitary confinement in New Mexico.

Dona Ana County, New Mexico, settled a federal civil rights suit with Slevin for $15,5 million. The County has dedicated more funds to its jails, because it must have been a shortage of money that forced Slevin to pull his own tooth. Problem solved?

Dona Ana County officials were tight-lipped about the case, refusing to answer questions about whether any jail employees were reprimanded or fired over Slevin’s treatment.

“We do not discuss personnel issues,” Jess Williams, Dona Ana County’s public information director, told msnbc.com on Wednesday.

What happened isn’t merely outrageous or deplorable, but impossible.  Every pretense of the legal system says this can’t happen. We love our platitudes of justice and liberty, and cling to them with devotion knowing that they make us so much better than everyone else.

Slevin’s lawyer, Matt Coyte, offered some insight.

Coyte, Slevin’s attorney, said greed on the county’s part was partially to blame.

“Talk to the [Dona Ana] County Commissioners who were around in 2000 to 2004 who knew this stuff was going on, and didn’t care,” he said. “Another side to this case is this jail was built to make money housing federal detainees. This is a border town. There are a lot of federal detainees from immigration issues, and the jail charges the federal government a particular amount of money for each detainee.”

But for Coyte, Slevin’s attorney, there’s still one more change that needs to be made: Dona Ana County Jail’s warden.

“If you were in the trial and heard what the person who ran the facility said, you would be appalled,” Coyte said. “I get lots of people [inmates] calling from that jail asking for help. Am I pleased that they’ve spent more money in the jail? Absolutely. I’m pleased that Mr. Slevin’s case has made a difference in the jail. But the same people are running it, and it’s an attitude of how you run something.”

While this may suffice for one jail, for one detained defendant, there are a great many other people, from corrections officers to the judge, who get to play public servants so that something like this can’t possibly happen.  And yet it did. Stercus accidit? No. Absolutely not.

There neither is, nor can be, an excuse for this every happening in the United States of America, and every person along the line, even close to the line, is personally responsible for what happened to Stephen Slevin.  Because in the United States of America, this cannot happen.

H/T Turley

This is another “dirty little secret” post about the inner workings of a criminal jury trial.  Under the Fifth Amendment, the defendant has an absolute right not to testify at trial, just as he has a right to give evidence on his own behalf if he chooses to. No big issue here.

But it’s only human to expect a person to explain things or deny guilt. And jurors, if anything, are only human.  In some respects, it’s reminiscent of trying to argue to a jury that a confession was false and coerced, both in the sense that jurors refuse to believe that anyone would falsely admit to a crime they didn’t commit (who would ever do such thing?) and that if a person didn’t commit a crime, he would want to say so. In the mind of most people, the idea that they wouldn’t seize the opportunity to deny guilt is inconceivable.

When a defendant decides not to testify in a New York court, he can request an instruction to the jury :

Defendant Not Testifying

The fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn.

Kinda tugs at the heartstrings, right? That’s it. That is the sum total of the instruction. Try that out on someone and see if it changes the entire course of human nature.

There are reasons for a defendant not to testify, ranging from the introduction of prior bad acts or criminal convictions, which may have no bearing on the commission of the crime for which he’s on trial, but clearly serve to suggest that he’s of a criminal ilk and has a propensity to commit crimes, to the defendant not being particularly bright or well-spoken.

Testifying in a criminal case is extremely difficult, which is why police are trained in the academy how to do so and appear credible and deflect when caught in a lie.  While defendants can be prepared for trial testimony, it doesn’t serve to overcome either their history or innate lack of ability, or any of the many other deficits or problems they may bring to the stand.

Even defendants with clean backgrounds, a decent education and of reasonable intelligence tend to testify poorly. Giving testimony is entirely different than engaging in normal conversation, and under the immense pressure of the witness stand, even the best, most innocent defendant can fall apart, get angry or misspeak. When that happens the consequences are disastrous. And most defendants don’t fit the bill anyway.

Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest.

Interest/Lack of Interest

You may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest.

[Note: Add if appropriate:

A defendant who testifies is a person who has an interest in the outcome of the case.]

In other words, it’s up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness.  The defendant, alone, has a motive to lie.  The jury s told that defendant, alone, is the only witness whose testimony is inherently biased.

Does a defendant have a motive to lie? Not if he’s innocent. Does the defendant have an interest in the outcome? You bet.  But that doesn’t mean it’s a bad thing, though anyone trying to argue the point will get a smackdown by the court that will resonate through the jury room until the verdict comes in. The defendant’s interest is to be acquitted. If he’s innocent, as he’s theoretically presumed to be, this isn’t an affront to the trial.  And yet, that’s exactly what the instruction says. The defendant wants to be found not guilty, so unlike every other witness at trial, the jury must infer that self-interest infects his testimony. He can’t be believed.

Non-lawyers are shocked to learn that there is nothing to be done to explain legitimate reasons why a defendant who, in the minds of ordinary folk, should testify and either explain what happened or deny his guilt.  The lawyer isn’t permitted to do so, and the judge won’t allow it. Even to try is to invite commentary by the court that will impugn the defense and the defendant. 

Not only will the jurors persist in their expectation that any innocent defendant would take the stand, but their expectation will be reinforced by the judge’s admonition about trying to circumvent the lack of testimony.  In the worst case scenario, the judge will say the defense “opened the door” to the issue of the defendant not testifying, and allow the prosecution to offer its view on why this lying, scum criminal wouldn’t subject himself to the search for truth.

Much as inroads are being made with regard to such issues as false confession, the unreliability of eyewitness identification, there has been little concern about the impact of the non-testifying defendant and the instructions given the jury, or the ability to argue to the jury.  While the former happens with relative rarity, the impact of the non-testifying defendant is pervasive, happening in most cases and suffering from the same infirmity.

This is a monumental gap in the fairness of a trial.  Like it or not, every juror thinks the defendant ought to testify. Like it or not, the jury instruction is worthless to change a juror’s expectation. Like it or not, the impact to the defendant is devastating. And it happens all the time.

Via Kevin Underhill at Lowering the Bar, the Attorney General of the United States of America, Eric Holder, explains his understanding of the United States Constitution in a letter to Senator Rand Paul :


What Holder does not say is that the Constitution prohibits the president from killing American citizens on American soil without trial, conviction and all the constitutional niceties that exist to protect us from the government. Holder does explain, however:

Well, the word “no” does appear in that letter, but only as part of the phrases “no intention of doing so,” “we hope no President will,” and “no choice,” none of which are really what I was looking for there. In fact, they are the opposite of “no.”

Just to review, the Attorney General just said yes, the President does have “the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial.”

Carney said Attorney General Eric Holder sent a letter to Paul Thursday [March7, 2013] clarifying the administration’s stance on the issue, which generated considerable controversy on Twitter Wednesday as Paul’s filibuster unfolded.

“Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil? …. The answer to that question is no,” Carney said, quoting Holder’s letter. (POLITICO has posted a copy of the very brief letter here.)

This video has gone viral, so it’s likely you’ve seen it already.  But just in case you haven’t, it’s worth a few minutes of your time.



No doubt there will be plenty of commentary by people far more knowledgeable than I about the accuracy of the data and economics, and then there will those with political agendas to further who will explain why it’s all their enemies’ fault, and if only they were in charge, you would be rolling in dough.

One critical feature of this video, however, is that we live in a world of delusion, where we neither appreciate where we stand relative to everyone else, nor where all the money actually resides.  If it’s not in our pockets, and it’s not in our neighbors, or friends, or family’s, pockets, where is it?

We continue to harp on the American dream. We believe in our hearts in American exceptionalism.  We hear that every person should go to college and end up in a corner office with a home, two cars and a chicken TV dinner in every oven.  We believe in the promise our nation has made to our parents, us, and our children.

Maybe somebody isn’t telling us the truth? Maybe they’re just stringing us along because we want to believe that if we do it right, play by the rules, put our noses to the grindstone, we will have that fabulous life on Primrose Lane?  Maybe people of every political persuasion are voting with their hearts and not their minds?

There may be someone in the top 1% who stops by here occasionally and feels some sense of duty to others to treat them kindly, but more likely not. They’re too busy putting caviar on their dog’s chow and pondering why the people who aren’t in the money haven’t figured it out yet.  Not really.

A question by my pal, Fritz, was raised by this story out of Chicago :

Court records show that the Army veteran was set to start a new job with the state, with solid pay and benefits, until Chicago police hauled him out of his house in his boxer shorts.

No judge had signed a warrant for [Frank] Craig’s arrest. Instead, police themselves had issued an “investigative alert” ordering Craig’s arrest for a robbery that occurred four months earlier.

The alert was based on detective work later judged so shoddy that it led to taxpayers reimbursing the innocent man half a million dollars for a false arrest that caused him to lose his job and the family home to foreclosure.

How, he wondered, could it be that police simply failed to obtain an arrest warrant and did as they pleased?

Critics say the internal police alerts, absent a bona fide warrant, sidestep constitutional protections. Officers act like judges, critics argue, in a process so open to abuse that the police-issued alerts are rarely allowed into the FBI’s fugitive database used by police across the country.

An Illinois appellate judge who was once a police officer recently called for alerts to be banned.

“It’s so easy for (police) to get a warrant. They should just do it right,” said that judge, Marcus Salone.

They should, but they won’t. They won’t in Chicago. They won’t in New York. They won’t where you live. The reason is quite simple: they won’t because there is no incentive to do otherwise. No matter how nice the authority conferred by an arrest warrant, there is no remedy for failure to arrest without one. 

Obviously, an arrest for a crime that occurs in front of the cops has an exigency component that explains why they don’t stop, call a judge and await a warrant as the suspect gets away.  Similarly, following a suspect in hot pursuit presents another situation where a warrant might get in the way.

But in the case of Frank Craig, arrested months after the alleged crime occurred, there is no impediment whatsoever to obtaining an arrest warrant.  There is also no penalty for not obtaining one. An arrest without a warrant is still an arrest. Complain as one might, it doesn’t mean that the person is unarrested, or falsely arrested. The arrest isn’t nullified and the defendant goes free. The defendant doesn’t get a walk. The penalty for police ignoring the opportunity to obtain a warrant of arrest is a big, fat, nothing.

If the police arrest a person in his home without a warrant, any evidence they find may be suppressed, and the statements may be suppressed, but if the cops aren’t looking for evidence or don’t care about a blurted confession, then that doesn’t matter. They got the body, and that’s what they came for.

The problem is an old one, a right without a remedy.  The Fourth Amendment may require a warrant for unreasonable searches and seizures, but the only remedy is suppression.  This isn’t going to help the defendant who is arrested without a warrant in the defense of his criminal case.

The courts say the Constitution doesn’t necessarily require a warrant to arrest someone. That’s particularly true of cases of hot pursuit when police witness a crime. But the leeway gets murkier the more time elapses between the crime and the arrest, especially when police want to arrest the suspect in his or her home.

Murkier? Well, yes and no. Is it wrong? Is it unjustifiable?  Is Judge Salone right that it’s just so easy to get a warrant these days that it’s inexcusable for police to arrest without one?  Of course, but until the law provides a remedy for a warrantless arrest, it’s all talk. Cheap talk at that.

What people fail to appreciate is that we have a plethora of rights and responsibilities that the Constitution and the law impose on government.  We just have no penalty for ignoring them. And so they are ignored. That’s how incentives work, with the police taking the route that is easiest for them when there is no down side to doing so.

But then, if there was a remedy, what would it be? Should murderers walk free because they were arrested without a warrant?  Should anyone arrested without a warrant get payment from the government for the violation of their rights?  What is the prejudice? Where is the harm?  How do we distinguish between the person who deserves to be busted no matter what and the person for whom a warrant should have been first obtained?

These are hard questions, and would give any judge a headache. It’s so much easier to just say “meh” and let the police arrest at will and deal with the consequences later.  After all, Frank Craig’s bad arrest netted him a half million dollars. Isn’t that good enough?

If I, in a car, struck a guy in front of me on a motorcycle, I would certainly be contrite if not a bit in fear of his being more than a little miffed at what happened.  But then, I’m not a cop.

What is fascinating is how the cop doesn’t miss a beat arguing that the fellow in front of him was not only in the wrong, but that what he did was illegal. There is no possibility that the motorcyclist was at fault, just as there is no doubt whatsoever that the cop who rear-ended him was. And yet, it’s hard to argue the point with a guy with a gun and a shield.

The officer, being particularly gracious that evening, agreed to let it go without ticketing the motorcyclist. What a great guy! It must have been the motorcyclist’s lucky day, especially since he had his video going.

While the motorcyclist likely had some damage to his bike as a result of being hit, at least the scenario ended better for the biker than this encounter. which cost Ottawa Hills Police Officer Thomas White ten years of prison.  One can’t help but wonder what the cop in the video above would have done if the motorcyclist had been less respectful and appreciative of the officer’s largesse.

Edit:  Police Officer Thomas White’s conviction  was reversed (in a 108 page opinion!) on the basis of improper instructions on the use of deadly force and mistaken belief.  Mike McCloskey’s paralysis from the waist down due to his being shot by White was not reversed.