Author Archives: SHG

7 Inches

There’s no shortage of incredible stories about wrongs done, whether unusual or sadly commonplace. What there is, however, is a serious shortage of reliable stories, stories that make sense. The reporting, too often, is just awful, leaving us with either a gross misimpression of what happened or, most of the time, just confused.

Radley Balko, who does a great job ferreting out stories of abuse and misconduct, twitted about a bizarre forfeiture Holly Springs, North Carolina.

When Gaybbrell Shereise Cofield pleaded guilty last year to selling crack cocaine, he agreed to let the government take his grandmother’s home as well as property that has been in the family for generations.

But Ernestine Ward Cofield says her grandson was in no position to forfeit her property to the government and is fighting the move in court. Cofield says that until three federal marshals turned up on her front porch in August, she had no idea that she was the target of a federal law that allows the government to seize the property and assets of drug dealers.

That makes no sense at all. A defendant can’t agree to forfeit something he doesn’t own. To the extent he did, it would be meaningless. Where’s the fight?

Later in the story, it takes a twist:

In March, Holly Springs police Det. Dan Gledhill delivered a letter to Ernestine Cofield’s home on Sand Dune Way saying that a police informant had made two undercover drug purchases on Jan. 7 and Feb. 3 “from the property that you own on the dirt path that runs between Blalock Street and Third Street,” the location of the address listed on Gaybbrell Cofield’s earlier arrest warrants.

In the letter, Gledhill told Ernestine Cofield that repeated drug activity on her property could result in forfeiture under federal law. She said she did not respond to the letter because the dirt path is two doors down from her homes on Blalock Street.

“I didn’t respond because I don’t own that property,” she said.

So now it’s not the defendant who has done the dirty deed, but a second, weird attempt that facially bears no connection to the grandmother who, the story claims, is the victim of this government overreaching. But then another twist.

In his federal court petition, her attorney, Spurgeon Fields III, claimed federal marshals told Cofield she could not challenge the government’s claim. Nor would they allow one of her daughters in her home at the time to listen to what they were telling her, Fields said in the petition.

Fields also claimed that the marshals told Ernestine Cofield that if she did not sign the forfeiture papers, she could be “taken downtown” and that it could cost her grandson 65 years in prison instead of 22. Cofield signed.

So what’s this story about? Is it about a defendant who, in exchange for a good deal, agreed to forfeit property he didn’t own? Is it about a government that claimed one property and then took another? Is it about a government that coerced and manipulated an old women into signing away her property because she was told she had no choice, or that it would cost her grandson a life in prison?

And where was the grandson’s lawyer in all this? Even assuming the oddly named young man had CJA counsel, was his name a secret so that grandma couldn’t call him and find out what the heck was going on?

It made no sense to me, so I let Radley know. His understanding of the story was that the feds took grandma’s house because of her failure to prevent Gaybbrell’s drug dealing on her property. That’s likely the underlying legal rationale for the seizure, but it’s hardly the story reported.

The point of this rather long-winded explanation is that commentary depends upon the accuracy and thoughtfulness of reporting. Forfeiture abuse, for example, is an issue that’s been of grave concern, as one of the most abused mechanisms by government to impoverish defendants, strip them of their ability to fight, destroy lives in a way that’s at best tangentially related to the claimed wrong and do so with essentially no opportunity to dispute it, given the absurdly low burden of proof, lack of meaningful due process (because it’s pigeonholed as civil rather than criminal, and in rem rather than in personam) and, usually, timing (in that it’s pursued contemporaneously with a criminal prosecution, and admissions in the civil forfeiture case could be devastating to the defense of the criminal case).

And maybe this story is about a monumentally horrific case of forfeiture abuse. I just can’t tell.

People are kind enough to send me links to stories all the time, usually from the hinterlands (see a New Yorker’s view of the world) and some rinky-dink newspaper. They stories, more often than not, are atrocious. They are long on rhetorical conclusion, and devoid of meaningful detail. I can’t tell if there’s a terrible wrong, a meaningful point, or just the impression of some kid who took a journalism class in night school who hasn’t got the slightest clue about the law, the cops or the courts. Sorry, but without the background information, I can’t just take a reporter’s conclusion for granted.

Having spent a decent amount of time talking with reporters of varying skill, and knowing a few of them pretty well, the complaint I hear back is that they only had so much room. They get 500 words, or maybe 6 ‘graphs, or sometimes 7 inches. They can only squeeze in so much.

Tough nuggies. Granted real estate in a newspaper is valuable, and if they fill it with substance, there won’t be any room for the money-makers, the advertisements, that pay their salaries. I get the economics. What I don’t get, and can’t accept, so easily is that reporters whose grasp of legal issues is usually tenuous at best, and facile at worst, can’t be bothered to report the facts and instead think their lay opinions are sufficient to constitute reportage of news.

Serious stuff happens, and needs to be told. No doubt every reporter thinks they know everything there is to no know about every subject about which they report. No doubt your opinions on matters far afield are fascinating. Stop complaining that 7 inches is too short. It’s not the length, but how you use it. If you can’t manage to get the facts into your 7 inches, then it’s just waste space. And 7 inches is terrible thing to waste.

Book Review: Targets of Opportunity

When I read Jeffrey Stephens’ first book, Targets of Deception, the birth of the Jordan Sanders series, I enjoyed it immensely. It was a great book, but there was another reason. Jeff did what many of us can only dream of doing, writing a novel that others want to read. We dream of being the next Turow, the next Grisham. Stephens was doing it.

That’s no longer the case. Jeff Stephens is no longer trying, but he has accomplished it with his latest book, Targets of Opportunity. The plot is thicker, the characters more real, the story more captivating.

Stephens’ hero, Jordan Sandor, is back in the CIA fold, pushed into the morass of terrorist intrigue where Jeff connects dots between the sovereigns we forget because of myopic focus on the enemy in front of us and their use and abuse by the enemies lurking in the background. The story goes from North Korea to the mideast to Venezuela, but most of the time is spent in the Caribbean, especially one of its most magnificent islands, St. Barths.

Jeff’s descriptions of St. Barthélemy, from the gut wrenching drop when flying in to the restaurants in the harbor of Gustavia, bring back a rush of memories. There’s no doubt that he had to do some heavy research to nail it down so perfectly, and any excuse to hang out in St. Barths works for me. Most amazingly, Jeff was able to convincingly create a French hero, Lt. Vauchon, who not only demonstrated intelligence and boldness, but didn’t surrender at the first opportunity. It’s not easy.

While the story can be read as a thrill a minute spy novel, as Jeff develops story lines in short chapters that shift from one side of the planet to another to provide the sense of a real time tale of intrigue happening by different players, only one of whom has the full vision of the scheme, there is still a lawyer’s view embedded in the book. Sandor, for all the attributes that makes a spy worthy of admiration, still shows his humanity by doing everything possible to avoid killing whenever possible.

When others on his team want to put the bad guys down, Sandor’s sense of humanity comes out, that no one need be harmed except to the extent necessary to protect someone or save the nation. There’s no joy in senseless killing, even of the enemy, those who would never have given the same “courtesy” to us.

At the same time, Jeff takes on the simplistic bureaucracy of government, the pencil pushers who try to dictate the rules by which others should play. Jeff is no fan of grocery clerks with lists and platitudes, who have never put their butts on the line to accomplish a necessary task.

One of the most remarkable aspects of this Sandor novel is that there was no need to resort to a gratuitous sex scene, as the story itself was more than enough to keep the reader turning page after page. While Sandor has his moments with women in the book, it’s a quick cut to the end and he’s back to work. If you want romance, go elsewhere. This book is all about the intrigue, and the absence of any sticky sheets is deeply appreciated.

Jeffrey Stephens went from Manhattan solo practitioner to Greenwich spy novelist, and from lawyer who aspired to being a writer to a great writer. I couldn’t be happier for him, and enjoyed this second Sandor novel immensely. For those of us who spend most of our time reading opinions that would ruin a snooze for a narcoleptic, not to mention barely make any sense at all, Jeff’s stories are a pleasure and just plain fun to read. I can’t wait for the next book in the series.

Newt’s Wrong, But Not As Wrong As He Seems

One branch of government has the guns. Another has the purse. And another has nothing but trust, which is why it’s the Least Dangerous Branch. That also makes it the easiest to bully, and Newt Gingrich’s career, since he held the job of minority whip in Congress, was built on being a bully. He’s good at it.

And that doesn’t make him wrong. From the WSJ Law Blog :

–Fox News anchor Megyn Kelly began with Newt Gingrich.

Kelly: You have proposed a plan to subpoena judges to testify before Congress about controversial decisions that they make. In certain cases, you advocate impeaching judges or abolishing courts altogether. Two conservative former attorneys general have criticized your plan, saying it alters the checks and balances of the three branches of government. And they used words like “dangerous,” “outrageous,” and “totally irresponsible.” Are they wrong?

Gingrich: Well, the first half is right. It alters the balance, because the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.

(APPLAUSE)

There’s an entire paper at newt.org — I’ve been working on this project since 2002, when the Ninth Circuit Court said that “one nation under God” is unconstitutional in the Pledge of Allegiance. And I decided, if you had judges who were so radically anti-American that they thought “one nation under God” was wrong, they shouldn’t be on the court. Now, we have…

(APPLAUSE)

I taught a short course in this at the University of Georgia Law School. I testified in front of sitting Supreme Court justices at Georgetown Law School. And I warned them: You keep attacking the core base of American exceptionalism, and you are going to find an uprising against you which will rebalance the judiciary.

We have a balance of three branches. We do not have a judicial dictatorship in this country. And that’s what the Federalist papers promised us. And I would — just like Jefferson, Jackson, Lincoln and FDR — I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing.

(APPLAUSE)

Kelly: These are conservative former attorneys generals who have criticized the plan, as I say, dangerous, ridiculous, outrageous, totally irresponsible.

Gingrich: Sure. I’d ask, first of all, have they studied Jefferson, who in 1802 abolished 18 out of 35 federal judges? Eighteen out of 35 were abolished.

Kelly: Something that was highly criticized.

Gingrich: Not by anybody in power in 1802.

(LAUGHTER)

(APPLAUSE)

Gingrich: Jefferson himself was asked, is the Supreme Court supreme? And he said, that is absurd. That would be an oligarchy. Lincoln repudiates the Dred Scott decision in his first inaugural address in 1861 and says, no nine people can make law in this country. That would be the end of our freedom. So I would suggest to you, actually as a historian, I may understand this better than lawyers. And as lawyers those two attorneys general are behaving exactly like law schools, which have overly empowered lawyers to think that they can dictate to the rest of us.

It sounds insane at first blush, but it’s not. It’s not quite right, but it’s not insane either. The “checks and balances” of the other branches of government over the judiciary include the nomination of judges by the President, the consent of the Senate to judicial appointment, and the funding of the court system by Congress. The first two suggest that the other branches pick wisely, but life tenure tends to change a person’s way of thinking.

Certainly impeachment for bad behavior is a limit on what judges might do, but bad behavior doesn’t usually cover decisions that others think are absolutely awful. On the other hand, the entire point of life tenure is to make sure that judges are free to make decisions based on law, without fear of ramifications for political or transitory concerns. They can’t be removed because they anger someone in another branch with their decision, freeing them to be honest rather than appeasing. Similarly, there’s no revote, after a while, to decide whether they’re still as excellent a choice as they appeared at first.

But is that it? Put aside the fact that Activist Judge is an epithet tossed about with wild political abandon, and consider that it’s certainly conceivable that the least dangerous branch could, in some way that pretty much everyone agrees, be activist. Let’s say a circuit decided that they just didn’t like the Seventh Amendment any more and decided to cross it off the Bill of Rights. What to do?

The phrase “activist judges” has become a conservative mantra, used to confuse the ignorant into believing that the judiciary’s job is to make popular decisions. Others realize that courts “make law” all the time, filling in the blanks that legislative bodies leave behind, often intentionally so that they won’t bear the weight of their ill-conceived laws, or to provide meaning to words that are sufficiently or inherently vague that they provide inadequate guidance.

Aside: For those who argue the “Constitution means what it says, no more, no less,” you’re neither going to grasp nor be persuaded here, so there’s no real point in my explaining this to your satisfaction. However, I leave you with the words written by Charles Lutwidge Dodgson:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

You aren’t likely to appreciate this quote either, but I like it, have the ability to include it, and so I do.

Had the founders intended the judicial branch to be wholly independent, they would have provided for the courts to fund themselves. They were well aware that control of the purse strings was a death grip, that could strangle a co-equal branch of government.

What preserves the integrity of the judicial branch is trust. The courts have no money of their own. No standing army, the few peashooters of the gendarmes is hardly a match for a decent tactical missile, which could destroy a politically-named courthouse in a flash. The words of judges matter only because we trust those words. We believe that somebody has to be honest, to rise above politics and disagreement and give us a final answer that we can trust.

If that trust is lost, or squandered, then the duty of the other branches is to use it’s power to rein in, perhaps even eliminate, the out of control branch. In this respect, Newt is absolutely correct, the judiciary is not above the other branches, immune from violations of its mandate.

Newt is wrong, however, to suggest that Americans are in favor of pulling the plug on the third branch of government every time a ruling rolls around that doesn’t get three cheers from Georgia. If a president tried to seriously manhandle the judiciary every time there was a decision he didn’t like, it would be the executive at risk rather than the courts. Americans may be dumb, but they’re not stupid.

They know they need a legal system, even if they think the current one sucks and fails to reflect their sensibilities. They may not have great trust in the judiciary’s judgment, but nobody is comfortable with the idea of the other two branches of government without a judiciary to smack them.

Yet the Judicial Branch of government should never be so comfortable in its existence and power to believe that it lies wholly outside the control of the People or is above the power of the other branches. Each branch should live in fear of the others. Each should be constantly vigilant that if it fails to retain the trust of the American people, it’s mandate ceases to exist. The Least Dangerous Branch is just as subject to checks and balances as its more dangerous brothers. And that’s how it should always be.

Forget the details of Newt’s plans. They’re nuts. But at its core, his point is hardly as ridiculous as one might think. And judges need to remember that the judiciary is just as strong, and fragile, as any other branch of government.

Nathan Burney: For The Children (and their parents)

Nathan(s) Burney has embarked on an ambitious project, but he’s clearly up to the task. He calls it The Criminal Lawyer’s Guide to Criminal Law.

It starts with The Crime, and works its way forward.

Read it all. Nathan(s) completed the first five sections thus far, with plenty more to go. This may well prove to be the most exceptional thing ever created in the blawgosphere, and the one thing that will outlast all of us.

It is truly an amazing piece of work. It’s well written, incredibly well-drawn, accurate, funny, and brutally accurate. If you read nothing else, read this.

So When Did It Occur To You?

Somebody sent me a twit about a horrible injustice, an innocent convicted of a heinous crime, and won’t I support the cause. So I looked at the website. Everybody has a website these days, and it set forth their claim without any of the unfortunate details that tend not to support it. That’s fine. It’s to be expected.

Having a few minutes, I read. Midway down, I saw that the defendant, believing in the honesty and integrity of the legal system, cooperated fully with police. He never once suspected that even their informing him that he was the primary suspect, his cooperation might be a problem. The argument was that since he was an innocent man, the truth would save him.

Then came the part where he complained about his incompetent conflicted assigned counsel. Again, no mention of the notion of getting a lawyer whom he trusted, but just bitterness about how awful his lawyers (two of them) turned out to.

And finally, there was the part where he needed legal help now. Not someone “who wants a fat pay check,” but someone who truly cares about him. And will work for free. I was unmoved.

Then I read Eric Mayer’s post at the Unwashed Advocate (formerly known as the Military Underdog before an unfortunate incident in a Baghdad rest room).

At 9AM on December 7, 2011, I read an email. It was a desperate plea for help and court-martial representation.

The email was sent after 5PM on December 6, 2011.

The court-martial was scheduled to begin at 7AM on December 7, 2011.

So close. When I read this, I was taken back to a sign I saw in the Manhattan civil supreme clerk’s office: “Your poor planning doesn’t make it my emergency.” No one behind the counter ever moved with a sense of urgency.

There are a lot of complaints, and properly so, about lawyers. Many are predicated on the fact that people need us and we aren’t there for them, whether financially, temporally, competently or emotionally. It’s true.

It’s also true that many defendants do themselves no favor.

This isn’t a one way street, where lawyers are supposed to compensate with their magical powers for every blitheringly stupid thing you do. At what moment does it occur to you that retaining counsel might be a good idea? At when moment does it occur to you to become sufficiently knowledgeable about the world, the legal system, your government, anything other than yourself, so that you are prepared to confront the problems you face?

Lawyers are not capable of defying the laws of nature, our superhero capes notwithstanding. We cannot do a week’s worth of work in an hour. We cannot appear in a state midway across the country for the appearance in 10 minutes. When we go to the supermarket to buy food, they charge us at the cash register just like you. I know, I can’t believe they do it either, yet they do.

As much as people on the interwebz, or the TV commercials, or your neighbor’s Aunt Melba tells you otherwise, there is no guarantee that we can pull a rabbit out of a hat and make the overwhelming evidence, from the video to the confession to the eyewitness identification by the last six popes, disappear. And it’s really not terribly likely that he got probation for a murder. And if he did, use the same lawyer. No really, he has magic powers that others don’t.

But even those defendants who do not hate us while attributing magical powers, the very least you can do is give us the time and opportunity to do the work necessary to give you a fighting chance. It must occur to you at some point prior to the opening statements that having counsel in whom you trust is a good idea. Perhaps it even occurs to you that a prepared lawyer is better than one who just shows up out of the blue.

As much as I would like to tell you that we really do have magical powers, superhero powers, the ability to fly and shoot rays from our eyes, we’re just people who defend other people. Some are better than others. Some are better at some aspects of the work than others. Some are awfully good. Some are just awful. But all are people, subject to the limits and constraints that apply to all people. Even the best of us have to function within the confines of reality.

We’re used to emergencies. We’re used to problems. That’s our world, Screw-ups-R-Us. We take our cases and clients as they come, because that’s just the nature of our work. But when you come to us the night before, don’t be angry the next morning that we haven’t had a chance to read through the 17,000 pages of discovery. It’s not that they aren’t fascinating, or that we wouldn’t want to. I promise. And yet you are deeply upset that we haven’t cured your disease by the break of dawn the next day. And you tell us of your displeasure. We have failed you.

Most of us don’t really care much about being called names. We know it’s a highly emotional experience, and your concern is for yourself, not for us. And that’s how it should be. But in your own self-interest, give us the opportunity to do our best for you. If you wait until you’re absolutely, positively, unequivocably certain that all hell has broken loose, chances are pretty good you’re too late.

The Empiricist’s Dilemma: When Numbers Lie

Officer Jones: Which box should I check off, inventory search, search incident or because we could?

Officer Smith: It’s Tuesday. Tuesdays are always inventory search, kid.

Officer Jones: Sorry, I forgot.

At Concurring Opinions, Santa Clara Lawprof Kyle Graham bemoans his plan to engage in empirical analysis of the impact of the 2009 Supreme Court decision in Arizona v. Gant.

A little while back, I was considering whether to undertake an empirical study into whether law enforcement officers were relying on the inventory-search exception to the warrant requirement more often after the United States Supreme Court’s 2009 decision in Arizona v. Gant, which pared back the search-incident-to-arrest exception to the warrant requirement insofar as it applies to vehicle searches.

Some have suggested that, given the number of exceptions to the warrant requirement that exist, the diminution of one exception will simply lead to the expansion of another. I thought that the post-Gant scenario would provide as good a setting as any to test this hypothesis, especially since it’s been said that officers are relying on the inventory-search exception to the warrant requirement more often in the wake of the Gant decision.

Graham offers no hint who has been spreading these vicious rumors, but surely it would be useful to know whether the Supreme Court’s decision is having an impact on the manner in which cops conduct vehicle searches and seizures. Unfortunately, this study was not to be.

I decided not to perform the study, however, after a casual conversation with a local police officer. After I described the proposed inquiry to him, he said, in essence, “Don’t bother.” When I asked why, he told me that the numbers would almost certainly be skewed by the fact that the post-Gant era has coincided with substantial layoffs at local law enforcement agencies, due to the recession.

As a scholar, it would seem that Graham would immediately respond that he can address this problem in about 30 seconds with some quick statistical fix to adjust for the reduced number of cops due to layoffs. Well, maybe more precisely he can get a frosh taking Statistics 101 to handle it for him, without missing a single fraternity party. But there was more bad news.

These layoffs would affect my results, the officer added, not only because they resulted in fewer officers, but also because (given last-hired, first-fired seniority rules) more recently hired officers were disproportionately affected by these cuts, and more recent additions to the force tend to be more eager than senior officers are to impound vehicles and perform inventory searches on them. And so, if the data reflected fewer inventory searches, or about the same number of searches, these totals might represent the recession-affected demographics of local police departments, as much as anything else.

This argument, unlike the raw numbers of cops being paid, is far more persuasive. Rookies are enthusiastic. Rookies get bored sitting around waiting for the donuts to come out of the oven. Rookies want some action. “Senior officers,” not so much. They’ve been there, done that. The thrill of catching some punk with a few marijuana seeds in the ash tray is gone. Old guys watch the calendar to see when they can put in their papers and go full time on their bird house building business.

What raises this to a matter of interest, as opposed to an example of desperately seeking something to write about, is that the underlying question is whether Gant changed anything. Gant? Seriously?

If you recall, Arizona v. Gant was an outlier of the worst order, where police were so utterly cavalier as to concede that they ignored every conceivable justification for a search incident, an inventory search, any of the vast multitude of automobile search exception rationales. It was the automobile search taken to the extreme, with a boldness that smacked of cops being so utterly disdainful that they could actually admit to a sequence of events that rarely happens, and is never openly spoken.

And this is what is worthy of empirical analysis? Because it’s likely to happen, maybe, twice?

More to the point, had Graham persisted in his study, adjusted for the fact that cops have been laid off, and older cops are too lazy to do the job for which they’re due a pension, the outcome would have provided a basis to show what?

The tacit requirement for such a study is that cops honestly and accurately report the basis for their conduct. There are forms (there are always forms) with boxes to check off, or fill in, or something, to “explain” how it came about that they conducted a search. And the boxes offer the well-recognized, well-worn exceptions. There is no box that says, “we searched because we wanted to, and it’s not like anybody can stop us.”

Does the lawprof suspect that the police are going to write a note saying that they engage in routine violations of the 4th Amendment? Or perhaps that they will sit their in angst-ridden struggle with their consciences to make certain that they are brutally honest in specifying the reason why they tossed a car?

The stories in the trenches of why the cops searched a particular defendant, or his car, or his bag, or whatever they had to search to find whatever they had to find, tend to be long on routine and short on detail. Whether it’s a furtive gesture, or the plain view observation of a gun sticking out from under a car seat, or undue nervousness when subject to routine questioning during a car stop (because so many of us aren’t nervous at all when stopped by the cops), the stories all blend.

This isn’t an accident. Regardless of whether you think cops and brilliant or stupid, they are certainly smart enough to remember the handful of explanations that make a search pass muster. But there was never a box to check that said “because we felt like it” that had to be removed after the Supremes decided Gant. Did anybody think otherwise?

Kyle Graham was dissuaded from his empirical study because of a concern that the numbers wouldn’t honestly and accurately reflect police reaction to Gant. Empiricism isn’t all it’s cracked up to be. Of course, this isn’t exactly an “unexpected impediment,” but rather an impediment that might not be noticed or appreciated by the naive in search of an empirical study.

Breaking News: Crazy Joe is, Well, Crazy

It took the federal government three years to figure out what Maricopa County Sheriff Joe Arpaio had been telling everyone all along. He doesn’t care for immigrants. He likes pink underwear. He’s not inclined to concern himself much with civil rights. As if he was called “Crazy Joe” because it was a really cool name.

Via the Associated Press :

The federal government issued a scathing report Thursday that outlines how Maricopa County Sheriff Joe Arpaio‘s office has committed a wide range of civil rights violations against Latinos, including a pattern of racial profiling and discrimination and carrying out heavy-handed immigration patrols based on racially charged citizen complaints.
The report, obtained by The Associated Press ahead of its release, is a result of the U.S. Justice Department‘s three-year investigation of Arpaio’s office amid complaints of racial profiling and a culture of bias at the agency’s top level.

Shocking stuff. A scathing report. Scathing.

The Justice Department‘s conclusions in the civil probe mark the federal government’s harshest rebuke of a national political fixture who has risen to prominence for his immigration crackdowns and became coveted endorsement among candidates in the GOP presidential field.

What the AP calls the “harshest rebuke” is what Crazy Joe calls his next re-election commercial. If Joe is really lucky, President Obama will make the announcement himself, somewhere between signing off on indefinite detention of American citizens and empowering the entertainment industry to control the internet.

But surely the feds didn’t waste a three year investigation into the obvious without a purpose, an end goal that would conclude Crazy Joe’s jihad against people with accents and vowels at the end of their names.

If the sheriff’s office doesn’t turn around its policies and practices, the federal government could pull millions of dollars of federal funding.

However will he buy a second tank? There is enough wiggle room in that demand to drive two tanks through.

While this may be the first time Crazy Joe has been lambasted by an authority he can’t grab by the neck and toss into a desert tent, the impotence of the government is the only thing shocking about this report. No one needed a report to announce the Joe was a rampant civil rights violator. That’s his claim to fame as America’s Toughest Sheriff. He sent his posse into Latino neighborhoods to lasso up whoever they could find and sort ’em out later. And this is why they elected him Sheriff.

What is breaking news here is that the United States of America, facing down a crazy old man whose bizarre ideas and methods have flouted the Constitution, leaving behind a wake of human beings (most of whom, remarkably, look to be of Mexican descent) who have suffered the indignities that are never supposed to happen in this great nation. And the best the great nation, the most powerful on the face of the earth, can do is “harshly rebuke” him and threaten to withhold cash?

In a country with 3,500 criminal laws and 300,000 criminal regulations, Crazy Joe remains in office, a job that gives him shields, guns and a tank, after having snatched groups of people off the street without any pretense at lawful basis and imposed his personal brand of punishment for the misfortune of not being “his kind” of people? Don’t try this at home, folks, because the feds will crucify you. You are not Joe Arpaio.

If Crazy Joe could have paid for a report from the current administration that would establish, for all the time, his imperial hegemony, this would have been it. Merry Christmas, Joe. Love, Barack.

The life and times of Joe Arpaio, the insanity produced by his every move, his every utterance, his every violation of basic precepts of this nation, have been the subject of much discussion and ridicule. The good people of Maricopa County told us in the very beginning that we didn’t get it, we didn’t appreciate the power this man holds over his desert fiefdom, and the appreciation of the lighter-skinned locals for keeping the darker-skinned one’s down. They explained that his minions could do whatever they pleased, and no one, no judge, no elected official, no legislative body, could stop him.

We scorned their cowardice in failing to stand up to this man.

And now he has made the federal government, the full might of the United States of America, bow to him. The absolute worst they could do is point the fickle finger of shame and tell him to stop being mean or maybe, just maybe, they won’t send him gift cards in the mail.

We were wrong. I was wrong. Crazy Joe Arpaio wins, and the federal government, its testicles shrinking and being sucked up into its tummy, has proven itself incapable of standing up to an old man who favors pink underwear.

Congress: Comfortably Numb

Sure Harvey Silverglate said it. I said it. You probably said it too. And now former Attorney General under the iconic actor, Ronald Reagan, Ed Meese, has said it too.

There are about 4,500 criminal statutes, said Edwin Meese, attorney general under President Ronald Reagan and now with the conservative Heritage Foundation. “This is in addition to over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison,” he said. “So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.” The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

Most lawyers have never had the pleasure of a client charged with violating the regs. There is a regulation for everything. I mean everything. And it seems as if every one carries a sentence, as the only way for the government to clobber anyone who doesn’t comply. It’s malum prohibitum on steroids. It’s mens rea out the window. It’s nuts.

How nice of Ed Meese to be so bold as to challenge the insanity now that he’s no longer AG. Everybody gets smarter and tougher when they have no political capital on the line. I don’t doubt his sincerity. I doubt his timing. Didn’t he notice any of this when he held the reins? At least he said something in time for Bill of Rights Day.

Nathan Burney persuasively rips the heart out of the 300,000 (and this is a guess, as nobody actually knows how many crimes actually exist) regulatory crimes.

Problem.

Crime is defined by society, not by bureaucrats. Crime is something that is so bad that society deems it worthy of punishment — of the government forcibly taking away your liberty, your property, your reputation. Crime is serious, and should only be created by the legislature. People who have no business defining new crimes are now doing it all over the place. That’s problem one.

Problem two is that these people have no clue what they’re doing. They don’t know what crime is, why it’s punished, or how it is defined by our jurisprudence. What they do know is strict liability — simply breaking the rules, regardless of knowledge or intent, is enough for sanctions.

Nathan argues that only Congress should have the authority to convert regulatory control into a crime, and this seems so overwhelmingly obvious as to defy the need to explain. That leaves 300,000 regulatory crimes with some ‘splainin’ to do.

But what of the 3500 (again, just an estimate) crimes that Congress, in its collective wisdom and need for re-election fodder, has created?

“We ought to get rid of the old myth that you’re presumed to know the law,” said Rep. John Conyers (D., Mich.), a member of the subcommittee.

Certainly the fact that our elected representative, the guys who vote for these laws, don’t have the slightest clue what they’re criminalizing would suggest such a thing. If they don’t know what conduct is criminal, how the heck are the rest of us to know?

But that still doesn’t confront the core issue. There is no American, short of an infant or a quadriplegic centenarian in an iron lung, who can be confident that they won’t commit a crime today. While not every bad act is criminal, statutes criminalizing mundane, unintentional, unharmful conduct abound. The Big Three, conspiracy, wire/mail fraud and lying to a government agent probably captures most of our population, if anyone was inclined to check.

The story appeared in the Wall Street Journal, which makes it far more real than just Tim Lynch at the Cato Institute sounding the alarm. When the words come out of Ed Meese’s mouth rather than mine (or Tim’s), they mean a whole lot more. Whether it’s enough to get it into the hearts and minds of Americans, and elected officials who want to be re-elected, is another matter. The only time we can sure it becomes clear is when they or a loved one is indicted. That’s when the epiphany happens.

As Ma and Pa Kettle “tsk” about some bad behavior that appears in the paper, and tell each other there ought to be a law, they need to come to grips with the fact that the farm is subject to a few thousand regulations about which they know nothing, and the violation of which will put Pa into pinstripes. Chances are pretty good that nobody down at the United States Attorney’s office is thinking about what Pa did wrong today, and he’ll finish milking the cows and plowing the back 40, whatever it is that Pa Kettle does, without incident.

And that’s how America will go on, comfortably numb. Until the day somebody gets a bee in his bonnet and decides that you need to learn a lesson.

Comments, Anonymity and Credibility

For those of us who appreciate the discussion, whether we call it “peer review” or just interaction, there is one problem that never seems to end, and compels mention even though it’s been discussed to death before. You. The commenter. That’s right. You.

Brian Tannebaum had a fight on twitter with some law student who argued about the right to be anonymous online, which she argued allowed commenters to be honest rather than the self-censor because someone might identify them and hold their comments against them.

@LawStudentDiary hiding isn’t the answer.

Brian Tannebaum – But you’re anonymous.

Then after the typical nasty shit that happens when someone like me tries to talk to someone like her, @lawstudentdiary says a couple interesting things:

You either allow people to be anonymous and thus be honest, or you have real people, who have to self-censor.

and

If no one was allowed to be anonymous, you wouldn’t have hardly any commentators.

This lapsed into the old Publius argument.

Comments fall into a number of different categories. Some are the presentment of ideas that stand or fall on their own, and the speaker’s identity neither adds nor detracts from the value of the idea. These constitute a relatively small segment of the comments, as few true concepts are presented that are not dependent on a value judgment (or normative, as the lawprofs love to say) which is meaningless without knowing who is doing the talking. Is the commenter a lawyer? What type of law does she practice? How much experience does she have? What axes does the commenter have to grind? The list goes on.

Some argue that these things shouldn’t matter, and they are correct when the comment is limited to a stand-alone idea, but absolutely wrong then the comment is value laden. The value of a commenter’s opinion can only be judged in context. A comment along the lines of “Justice Scalia is an idiot” means nothing in itself. No one, especially me, gives a hoot what some unknown commenter thinks about Scalia. It’s a totally worthless comment and a waste of my bandwidth. You have no right to waste my bandwidth.

One type of comment that is particularly irksome is the bald assertion of fact by some anonymous (or pseudonymous) commenter that is just factually wrong. While some writers spend a great deal of time researching, reading, discussing a particular issue, someone will come along and assert the opposite, neither basis nor explanation given. It’s trolling, but it can really screw up a discussion, hanging there without response. There’s no good reaction to this, and it just screws up an otherwise decent discussion.

Then there are the comments that violate every known logical fallacy, not necessarily at the same time. These often come from people all juiced up over a particular issue, and they argue vehemently a point that, in their mind, is just totally, irrefutably, brilliant. And what they expect, no demand, in return is acknowledgement of their genius and a concession that all differing views are now proven to fail. Except their argument is illogical, and they lack the capacity to understand why.

The problem isn’t just that these sorts of comments are illogical, but that the commenters, already heated up, think them worthy of a full blown, deeply detailed, response that addresses their point. A prime example happened the other day.

John J. Olson wrote:

Mr. Greenfield, one of the odious features of the legal profession today is the padded bill. It comes in many forms, from the $1/page copying fee to charging an associate’s time at a partner’s rate, to billing two clients for time spent working on one case, to sending two lawyers for a task one could do. This is consumer fraud but the organized bar tolerates it. The clients’ only defense against bill padding is to force lawyers to compete on price, which Shpoonkle is doing.

SHG wrote:

Padding bills is odious, but there’s no logic to say the “only defense…is to force lawyer to compete on price.” The two have no rational connection, and completely ignores the massive problems the pervade schemes like this. There’s no disagreement that affordability of legal services is a significant problem that needs to be addressed. That doesn’t mean every scheme that appeals to simple minds is a solution.

Try as I might to explain, albeit briefly, this person (and whether he’s John J. Olson, or who John J. Olson might be is a mystery) was sufficiently outraged by my response to leave this comment at Paul Caron’s blog:

Bobby B. is perfectly right about Scott Greenfield. I commented on “Simple Justice” that bill padding is one of the dishonest practices that has given lawyers their reputation for dishonesty, but lawyers who compete on price can scarcely afford that since they will be undersold. Greenfield’s reply said I am irrational, simple-minded and illogical. Offer him an argument and he’ll give you a rant.

Posted by: John Olson | Dec 12, 2011 5:20:41 PM

One of the first things you realize when you have a blawg is that there is no IQ test required to buy a keyboard. I’m reluctant to toss comments that are critical, as I suspect the catharsis of letting stupid or crazy people post comments prevents mass murders at post offices, but it gets tiresome trying to explain basic logic to people disinclined or incapable of understanding.

There are a lot of people out there, and most of you have keyboards and internet access. This doesn’t mean you have something to offer. Other than bloggers in the Happysphere, who close comments so never is heard a discouraging word, most blawgers actively seek a discussion of the subjects that interest us enough to write about them. Comments that try to hijack the discussion down some other path are annoying; if we wanted to talk about that, then we would have written about it. Often, the other path was the subject of another post, another discussion, and the fact that the commenter doesn’t know about it doesn’t change the fact that it’s not the subject of this discussion.

In dealing with @LawStudentDiary, Brian was, shall we say, a bit terse. She didn’t understand why Brian didn’t accept her arguments as brilliant, her reasoning as irrefutable. She has a pseudonymous blog where she’s dispensing advice to other law students, because this 2L thinks she has advice to offer. Not having read it, I can’t say, but I doubt it given her inability to grasp Brian’s point and her lapse into claiming that only anonymous commenters can be honest.

But I can say that commenters can be one of the most, but more often, least enjoyable parts of blawging. Dealing with the egos, attitudes and ignorance of people you neither know nor, frankly, care about is a royal pain, made far worse when you’re busy and they demand your time and attention when they contribute nothing.

If you’re so brilliant, write a blog and let the world know. If the world agrees, they’ll flock to you and make you the king. But some of us have heard your spiel a hundred times and it sucked every single one of them. It’s no better coming from you. You don’t know that your thought, your argument wasn’t magnificently original? You didn’t know that credibility makes assertions matter, or not? You didn’t know that such a thing as logical fallacies exist? You don’t have the guts to own your thoughts? You don’t want to take the heat for your opinions? You didn’t know that you’re not Publius?

Then don’t waste my bandwidth. Don’t waste anyone else’s bandwidth. And while I expect you, a visitor to my home to be civil and respectful, you don’t have the right to demand the same of me. This is my home. I make the rules, and if you don’t like them, leave.

I love comments. And I hate them. Every single day. I probably say to myself twice a day that they aren’t worth it. And then somebody comes along and writes a comment that is just totally great, and makes my day.

But There Was A Warrant For Lamont Pride

I learned that Lamont Pride was charged with the murder of New York City Police Officer Peter J. Figoski when a call came in from a reporter. She first explained that she got my name from a friend, a reporter for whom I provided background in the past, and would explain the aspects of the legal system that enabled her to not appear completely ignorant when writing a story.

Would I be willing to do the same for her? The implication wasn’t clear at first, but became clear very quickly. She gave me a quick and dirty run down of the facts, that a judge in Brooklyn cut the shooter loose even though he had a open warrant from North Carolina for aggravated assault. “Isn’t this wrong,” she asked? “What’s the procedure?”

I explained, as best I could given the limited information, that it was up to the prosecution to ascertain what exactly that meant, aggravated assault, and whether North Carolina authorities wanted him badly enough to come get him. The reporter was completely dissatisfied with my response.

“It was aggravated assault,” she insisted. “AAAAAGGGRAAVVVAAAATED.” I conceded that it certainly sounded very scary, but crimes generally do. What it actually mean, however, was another story. If it was murder, we would all get it. Murder is clear. Aggravated assault, not so much. “It could have been a fight while wearing a glove, for example,” I explained. I told her that I wasn’t a North Carolina lawyer and hadn’t researched the statute, so I couldn’t begin to tell her what aggravated assault meant. Just because it sounded scary didn’t mean if was consequential.

“On the other hand,” I added, “it could be very serious. I just don’t know. You really need to speak with a North Carolina lawyer.” But her assumption, that there was some heinous wrong hiding within the aggravated assault, was undermined by the fact that Pride had been free in North Carolina following the charge, so if North Carolina let him out, why should New York take the charge more seriously than they did down south?

She wasn’t done with me, however. Her new line of inquiry questioned my statement that it was up to the prosecution to determine whether the nice folks from North Carolina wanted to execute the warrant. “Don’t they have to,” she insisted? Why no, they don’t. Warrants can happen for tons of stuff, some very important and some trivial. It’s a matter of allocation of scarce resources. Is this warrant, this defendant, important enough to send a couple of cops to New York, fly them up, pick up the defendant, and bring him back to North Carolina to face the music? It’s their call whether to hop on a plane or say “never mind.”

“Isn’t it better to be safe than sorry,” she asked? I tried to put it in perspective for her, that maybe a thousand people (a number I pulled out of thin air) go through the New York City court system with out of state warrants. Over a ten year period, maybe one of them, after release, will do something terrible and make everyone cry foul over the release. Do you keep 10,000 presumptively innocent people in jail for fear that one will commit a crime?

She wasn’t pleased with me at all. She wanted me to tell her that someone screwed up, completely blew it and the result was a dead cop. That makes for a headline, someone to blame. Here, it was hard to find someone in the system to carry the load. Sure, the defendant, Lamont Pride, the alleged shooter of a cop, was to blame, but that’s run of the mill. She wanted a better villain, the cops or the court, and I couldn’t oblige.

The New York Times says that the Brooklyn judge who freed the defendant on a minor drug charge on his own recognizance (to out of towners, this means without bail), was told that the North Carolina warrant was for a shooting. It seems they’ve chosen Brooklyn Criminal Court Judge Evelyn Laporte as the fall guy for having released Pride ROR. They’ve chosen poorly.

After the fact, information comes out, but everybody forgets that judges can’t make decisions based on after-acquired info. The media is particularly unhelpful in this regard, fudging the details of who knew what when, and even publishing articles that contradict their earlier articles. The Times knew better than to blame Judge Laporte.

The Greensboro police have told varying stories this week about their efforts to hunt for Mr. Pride. None of them showed much urgency. Perhaps the response would have been different if Mr. Maberson had been shot somewhere more vital than his foot.

And the rats scurry to cover their tracks.

The day after his arrest in New York, the police in North Carolina issued a warrant for his arrest. It went into a national database maintained by the F.B.I., with a warning that he was armed with his handgun, and included the following notation:

“Extradite in North Carolina only.”

But the New York cops had been down this road with Lamont Pride and North Carolina cops before.

In early November, when the police raided an apartment in Brooklyn, Mr. Pride was among three people arrested on drug charges. He was not the target of the raid, and when the police prepared his arrest record for the court, a stamp appeared prominently on the cover: “No hit.”

That is, there was no hit on a warrant that could be acted on — the authorities in North Carolina had already stated that they did not want to bring him back to face charges for the shooting of Mr. Maberson unless he was arrested in their state.

The warrant was North Carolina’s business, and they didn’t want him. What was New York, anyone in New York, supposed to do? Neither the cops, nor the prosecutor, nor especially the judge, can make North Carolina come get him, and without their interest, the warrant is just a piece of paper.

Looking just a bit past the warrant problem, the prosecutor still made a pitch for bail at arraignment.

During the arraignment of Mr. Pride and the others in the drug case, the Criminal Court judge, Evelyn Laporte, was told about the warrant for his arrest in North Carolina. The Brooklyn prosecutors asked for $2,500 bail, which is a high amount for the kinds of charges that he faced in the drug raid. The transcript of the hearing shows that the judge, concerned primarily with the welfare of two children living in the apartment, released him without bail.

Here’s the irony: Had Judge Laporte set bail at $2,500, the world would have screeched that she was a horrible judge for having set such low bail. Shouldn’t bail for shooters be in the millions, maybe billions of dollars? Shouldn’t potential cop killers get no bail at all?

Mayor Michael Bloomberg, who is one of the fortunate folks who could still make bail if it was set in the billions, had harsh words about guns in the hands of criminals. In the midst of his harangue, he snuck in the line that Judge Laporte could have made one phone call, just one, and found out that Lamont Pride was a shooter.

Except that’s not how the system works. And even if it was, it wouldn’t have mattered. North Caroline didn’t consider a guy who may have shot another guy in the foot a big deal, enough of a reason to hop on a plane and come get him. There’s no one in New York to blame, except Lamont Pride, for the death of Police Officer Peter J. Figoski. That’s just how it is.