Since the news broke that Jerry Sandusky likes to shower with children, his lawyer, Joe Amendola, has been a non-stop source of important examples of things lawyers shouldn’t do and amusement.  The only thing preventing commentary about why Joe’s a bonehead is that Joe did something new, something else, that drew attention away from his prior gaffe.

Former District Attorney Amendola, disproving yet again that prosecutorial experience is inherently transferable to criminal defense. made a curious decision to waive the preliminary hearing to which his client was due.  As  Jeff Gamso describes it:

A prelim would provide discovery.  It would trap in transcript today’s version of the stories told by the witnesses.  It would provide material for cross-examination.  That’s no small thing.

On the other hand, those salivating reporters would splash every detail of those stories over the tabloids, over tabloid television, and even over the mostly-staid media like the Times.  And of course there would be the twitterers and the texters and the e-mailers and (yes) the bloggers. All of which taint the judgment of those 6 potential jurors who haven’t already concluded that Sandusky is at best an incredible sleazeball.  So avoiding that hearing might be wise.

What interests me is what his lawyer, Joseph Amendola, said.  Not the part about how a prelim would serve no real purpose because he wouldn’t be allowed to challenge the credibility of the witnesses or about how this is a fight to the death.  I’m interested in this statement Amendola made to the press.

Today’s decision was a tactical measure.

Well, sure.  I mean, we all know that.  But, and here’s the thing, it was inexcusable to say it.

If the impregnation of a teen client wasn’t enough to make Jerry Sandusky think twice about his choice of lawyer, this might: After Sandusky waived his right to a pretrial hearing yesterday, Joe Amendola told reporters that anybody who believes Mike McQueary witnessed his client raping a boy and university administrators failed to act “should call 1-800-REALITY.” That number is actually a gay sex line that offers “bulging, bursting pleasure with horny gay, bi, and bi-curious studs,” Deadspin finds.

Amendola later said that “1-800-REALITY” is something he says “when people have said things that make no sense,” the AP reports. “It’s analogous to ‘get a life,'” he said. “I had no idea that was a real number, let alone what it actually is. I will not be using that line in the future!”

Stanley Fish from Yale may be perpetually late to the party, but that doesn’t mean he’s not going to have his say.  In his  New York Times opinionator column, Fish weighs in on the never-ending argument against  David Segal’s article calling out legal academia and the  Times’ editorial calling it a crisis. To save space, Fish lumps it all together.

The question asked by an article and an editorial published recently in this newspaper is whether what my students have learned will be of any help to them when they enter practice. At first glance the answer seems to be “no,” if only because Berlin, Locke, Rawls, Hobbes, Kant, Unger and Rorty (writers whose work took up half the semester) are not currency in legal arguments; citing them in front of a court or in a memorandum is likely to be regarded at best as window dressing and at worst as showing off. (Not to mention the fact that few practicing attorneys are likely to be engaging with religion-clause issues anyway.)

It’s always nice to start a discussion with a strawman, given that the issues raised were a bit broader and more fundamental than mere utility, such as the reality that students leave law school incapable of performing any function of a practicing lawyer, rather than merely questioning the efficacy of a particularly obscure area of study.  But that aside, Fish proceeds.

One can, however, make the case that the practice of law is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause. The marshaling takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries. What obligations do citizens owe one another? How far can the state go in enforcing those obligations? What restrictions on what the state can do to (and for) its citizens should be in place? How do legal cultures differ with respect to these issues?

An interesting formulation, given the incongruent mix of questions.  After all, the obligations citizens owe one another is clearly important to understand everything from torts to criminal law. How other legal cultures differ from ours? Not so much. An interesting discussion for a day, perhaps, but a diversion from hard work, like a human interest sidebar in a newspaper story. We enjoy it, but unless we’re chatting with some Swedes at a cocktail party, it never comes up again.

Fish, using an analogy that proves he’s not a New York Giants fan, contends that understanding the law, as opposed to merely “doing it,” requires a deeper grasp.

So it is with law. The expert practitioner is expert in part because when he listens to a client or walks into a courtroom the field of action is already configured for him by an internalized understanding of what could possibly be at stake in proceedings like these.

This must be an extraordinarily deep idea, as I lack any clue what it means.  But Fish finally comes to the gist of his argument:

In his response to Segal’s essay, Brian Leiter, a professor of law at the University of Chicago, rejects the question of whether what one learns in law school is of any help: “The criterion of scholarly inquiry is whether it makes a contribution to knowledge and understanding, not whether it ‘helps.’” Leiter adds that what he calls “genuine” knowledge often does help with “a host of concrete and practical problems.” But he refuses (rightly, I think) to justify the academic study of law on that basis, for, he explains, “it is the central premise of a research institution that the measure of its achievement is the quality of the scholarship, i.e. its contribution to knowledge — whether of law or biology or literature — not its practical payoff in the short-term.”

The emphasis on practical short-term payoffs has already laid waste to the traditional project of the liberal arts, which may not survive. Is the law next? The law is surely a practice but it is also a subject, and if it ceases to be a subject — ceases to be an object of analysis in classrooms and in law reviews — its practice will be diminished.

This is where Fish lays it on the line, and the line is drawn as brightly as Leiter possibly can.  Perhaps there ought to be a course of study in the academic art of the law, maybe leading to a very impressive Ph.D. and useful in developing the next generation of scholars to teach their intellectual descendants.  But this ain’t law school.

The glaring failures of Fish’s argument (and Leiter’s, upon whom he relies), is that few, if any, of the students paying for space in their classroom are doing so with the intention of pursuing the “academic study of law,” as if it was an extension of their liberal arts education, a wonderful way to prepare for grad school or a position in the food service industry.  Theses students comes through the door for the purpose of learning how to be lawyers, to practice law.

Is a decent understanding of the theory behind the law important to the practitioner? Sure. It’s interesting, fun and helpful when pulling up that “internalized understanding” of what’s at stake. But it’s neither and either/or proposition, and its most assuredly not a Ph.D. program in deep legal theory, while practicing lawyers learn their craft somewhere else.

What makes Fish’s attempt to defend against Segal’s view unavailing is that he dreams of a school that teaches something wholly different than his students are there to learn.  So if Yale wants to create a grad program in legal theory, leading to a glorious Eli Ph.D., who’s stopping it? 

I suspect the classroom, with Fish at the lectern, will be empty, as it’s a degree only an academic could love. But hey, maybe there’s a budding scholar or two who will happily attend.  It just won’t be law school students, as they plan to be lawyers, not legal philosophers, in the perhaps vain hope they can some day find work and change the world. 

Notably, even Fish’s source of inspiration, Brian Leiter, felt compelled to  add in a caveat to distance himself from this lovely Ivory Towered vision:

12/13 UPDATE:  I appreciate Professor Fish’s link to this piece, but I should emphasize that my point is that immediate practical utility is not the benchmark for serious scholarship; law schools should, of course, also teach lots of things of practical utility, and they all do.

Whether “they all do,” and whether they all do so to the extent that’s needed to produce budding lawyers capable of doing lawyer-type stuff as well as thinking deep lawyerly thoughts, is indeed the question. From the perspective of the legal scholar, whose connection to the practice of law may be distant, or even non-existent, law schools may seem pretty darned tradeschool-like already.  From the practitioner’s chair, there is a long way to go before you would trust a graduate to find the courthouse.

But Fish’s argument, too extreme even for Leiter (and that’s extreme, baby), provides an excellent opportunity to see just how far apart the academy is from the trench.  The breeding of baby scholars is fine, provided that’s what they signed up to learn and they’re happy completing their education fully-equipped to recite Kant but incapable of drafting the simplest of motions. Maybe there is a need for universities to create a new program designed to study the academics of law.  Maybe there is a demand for such a course of study, comprised of the liberal arts of law.

Just don’t call it law school.

When the story first made the rounds, the focus was on Carrier IQ, the “evil” company whose rootkit program in your smartphone tracked your keystrokes. It was scandalous. It was outrageous. It was either harmless or insidious, according to who was doing the talking.

In short, Carrier IQ is only providing network and end-point analysis tools, and what happens to your data they collect afterwards isn’t their concern. We know however that, far from simply collecting anonymous data, according to Carrier IQ’s own description of their Mobile Service Intelligence : “What’s more, the combination of the MSIP and IQ Insight lets you move seamlessly from broad trend data across many users, through comparative groups down to diagnostic data from individual devices. Now, not only can you identify trends, you have the power to drill down to specific instances, giving you the insight your specialists need to make a difference. That is the power of Mobile Service Intelligence.”

It all sounds so harmless… until you see among other things Carrier IQ’s tools are capturing your text messages.

What wasn’t mentioned at the time was who was not doing any talking.  That would be your friendly, neighborhood FBI.  And they still aren’t, which is pretty much the only answer needed.  Via Andy Greenberg at Forbes :

Want to know if Carrier IQ, the dialer- and location-sniffing software installed in millions of phones, is being used by the FBI for law enforcement investigations? The FBI won’t reveal much about the controversial application. And why not? Because, the Bureau says, doing so might interfere with ongoing or prospective law enforcement investigations.

Whether they were on the case from the outset, or figured out as the scandal broke that Carrier IQ had something that was really useful, isn’t clear.  What’s clear now is that if they didn’t know about it from the beginning, they surely do now.

That’s the strange and potentially revealing logic the FBI used earlier this month to deny a Freedom of Information request filed by Michael Morisy, a blogger for the website Muckrock.com. After a video surfaced that seemed to show the software logging keystrokes and monitoring data traffic on the more than 140 million phones on which it’s installed by default, Morisy had asked the Bureau for any “manuals, documents or other written guidance used to access or analyze data gathered by programs developed or deployed by Carrier IQ.”

The FBI responded that the material couldn’t be provided, and cited an exemption to the Freedom of Information law for situations in which handing over documents “could reasonably be expected to interfere with law enforcement proceedings.”

As Greenberg notes, this doesn’t mean they already have their hands on your text messages, or even that there’s any cooperation on the part of Carrier IQ.  Indeed, there may be a passel of issues surrounding any effort to gain access to every keystroke you ever tapped on your smartphone, though it would appear that since it’s in the hands of a third party, no Fourth Amendment right attaches.  On the other hand, since no one knew this was happening, and it came as a huge, and scandalous surprise to the public, a court should be hard pressed to conclude that it passes scrutiny under Katz’s reasonable expectation of privacy test.

But now you do know. And so does the FBI. And as long as you continue to tap, tap, tap on that cute little qwerty keyboard, you can’t deny you took the risk of exposure to the government by Carrier IQ.

We’re inundated with the magic of technology, making our world easier, faster and perpetually more fabulous.  Those who adore technology gush over every shiny new toy.  And to a large extent, the toys are great fun and occasionally useful.  But nobody wants to be serious about the perils.  And there is no shortage of perils.

My deep understanding of all things technical precludes me from discussing the potential of evils that could stem from this rootkit.  I don’t even know what a rootkit is.  But I know too well that the government will have no qualms about using it to their advantage if they can get their hands on it.  I know too well that innocuous text message, commonly shorthand missives designed to provide a quick detail or word to a recipient who already knows the gist of the communication, can be easily spun into some nefarious conspiratorial act. 

They are vague by nature, and vague opens a person up to interpretation at convenience.  Anyone who has ever read draft transcripts of wiretaps knows only too well how “see you at 3 with the package” turns into “plan to meet at 3 to conclude multi-kilo narcotics transaction,” even if it happens to refer to a holiday fruit cake.  Who wants to take the stand to testify to a fruit cake?  Who has the video to prove it?

By the time a court rules that some technology I’ve never heard of is so common and pervasive that no reasonable person could expect privacy, the cutting edge is already a thousand light years ahead of it.  I learn about it via some of the more technologically astute (and, naturally, younger) lawyers, like Keith Lee, but so does the government.  If there’s data to be mined, they’ve got their pith helmets at the ready.

So enjoy those new, shiny toys.  Tap to your heart’s content.  Hang in the clouds.  Eventually, we’ll find out whether you had some unexpected company with you, and by the time it reaches a circuit court and a decision is made about how unreasonable you were to expect that your private, personal communications and messages would remain private, it will be too late to worry about it.  By then, you will be informed that everyone knows that there’s no privacy in the technological, digital, shiny toy world.  But by then, it will be too late to worry about it.

Yesterday, a swarm descended on  an old post here about a mutt of a concept, Shpoonkle.  The reason for the sudden “interest” on a post from last March was a story in the Chronicle of Higher Education, a bit puffy and somewhat inaccurate, but including some of my thoughts about this mutt.

Although I spent a good deal of time explaining to the author, Katie Mangan why this was a terribly bad idea for lawyers and clients, and the substantial ethical problems associated with essentially every aspect of it, she stuck with the sound bites rather than the substance.  No matter, as any attorney worth his salt knows the problems already, and few “legal consumers” read the Chronicle, and would have to come to realize why this is could be ruinous to them on their own.

As a result, however, something happened here that is far more serious and disturbing than its mere existence.  It revealed, again as it did when my post first appeared, that it’s battle against sound judgment and ethical constraints appears to be waged by a war of deception, by a gaggle of commenters whose job it is to defend the business and deceive.  While Shpoonkle is an ethical morass in concept, its execution in reputation management appears to be nothing short of a deliberate scheme to deceive. 

Reading through the comments received, only one in favor of this scheme appears to be legit. This is consistent with the comments from when the post was first published. They all carry the same earmarks, anonymous “gmail”-type email addresses, no links to websites, people who have never commented here before and suddenly appear for this post, and comments that are carefully designed to defend the business, though simplistic, as if the ideas of, oh, law students or marketers who lack sufficient depth to understand what lawyers already know, or what is meaningful to lawyers.  In other words, shills.

The problem isn’t really about Shpoonkle, which has proven to be a non-starter for lawyers. They managed to capture a total of 2100 lawyers, by their own claims, since starting the business,  If true, which is doubtful, this number is so small and inconsequential as to reflect a wholesale rejection by lawyers despite many being in desperate straits.  So the business is dead, as well it should be.

What it does reflect, however, is a business model that is being defended by lying on the internet, shills pretending to be supporters and defenders, lawyer haters and bashers. The first time Shpoonkle’s shills tried to spam me, I got tired of it and stopped allowing the comments after a while. Yesterday, I decided to let them go through, so they would serve as an example of how low things can go.* And while amusing in their absurdity, they were pretty darn low. 

Meet the future of deception. Consider a business designed to market legal services based on the lowest price, and its marketing scheme is based on using shills to lie about it.  Talk about adding insult to injury.

Curiously, SJ wasn’t the only blawg to be the target of the swarm.  The Chronicle article was also mentioned by Paul Caron at Tax Law Prof. While Paul’s blawg is certainly well known and regard among academics and lawyers, it’s now exactly a place for non-lawyers to hang out.  There was no mention of Paul’s blawg in the Chronicle article, yet there they were, the swarm of lay commenters offering the same sort of nonsense and attacks as here.  I asked Paul whether these comments/commenters reflected his norm and, of course, he told me they didn’t. 

To the extent it’s even remotely conceivable that there are bunch of people who so desperately adore a business that they spend their day trolling the blawgosphere in defense of it (and in infantile attacks on me), this would be the blawg they attack.  But there is no explanation for the comments at Tax Law Prof other than shills. 

One of our ethical obligations is to alert and educate others to potential violations, to educate both the public and the profession to things that could do grave harm to clients.  It’s of no consequence that the harm comes from a 22-year-old entrepreneurial law student named Robert Niznik, who thinks he’s come up with a way to beat the system.  As Katie Mangan asked when we spoke, wasn’t I being harsh given that Niznik was only a baby and could hardly be expected to understand the implications of his concept with maturity and depth.

Asked whether he had any qualms about unleashing his tirade, which also mocked the name of the new site, against a then-21-year-old student who was about to enter a brutal job market, Mr. Greenfield said, well, no. “You don’t get a pass for youth. This isn’t a lemonade stand.”

While Niznik may be a kid, and think like a kid, the people who are affected by schemes like his aren’t children. They’re real people with real interests at risk. The harm isn’t mitigated by Niznik’s youthful limitations or job prospects. If he wants to play with real people’s legal interests, he has to do so within the ethical framework that applies to big boy lawyers, not just foolish children.

That Niznik either doesn’t grasp the ethical implications, the conceptual failings, of his scheme is of little consequence.  Most law students don’t seem to have much of a grasp on ethics and the enormous potential for harm they could cause, especially when its offset by the potential of their making a few bucks.  Nothing, it seems, trumps their entitlement to do anything that might make them some money.

On Niznik’s part, he see’s his detractor’s as “bullies,” the new fad word for every child who isn’t coddled.

As for his critics, “The good news is that bullies always lose in the end.”

And shills are the path to success?  There have been no shortage of new schemes to suck in the desperate, both lawyer and client, on the internet.  Like Shpoonkle, many have a superficial appeal to those who lack the capacity to grasp where they could go horribly wrong, or are desperate enough to ignore the monumental problems in the race to the bottom.  And if, like Shpoonkle, they are fraught with ethical dilemmas and enormous potential to do harm, there is an obligation to protect others from the carnage.

And us “bullies” who take note of them will be the target of their marketing tactic of shills.  So be it.  This is the ethical burden we bear as lawyers, to not avoid the responsibility of challenging these schemes no matter how many shills call us names.

* While I allowed the shill comments yesterday to the original Shpoonkle post, the same won’t be allowed here.  I gave them their chance to make a few dollars by posting their nonsense, but that’s as far as my tolerance goes.  Maybe they can start a blog about Greenfield the Bully where they can write all about how mean and evil I am. 

Update:  I’ve been asked by a reader (who has also asked that I not identify him) to spell out the reasons behind my “harsh” view of schemes like this.  While I trust that much of this is obvious to lawyers, I see no harm, aside from wasting a reader’s time in doing so.

This isn’t intended to be an exhaustive list, but it suffices to make the point.

1. Clients are engaging a lawyer about whom they know nothing except the lawyer’s self-assessment, a notoriously unreliable metric.  This is different than other bad sources, such as billboards or the Yellow Pages as the clients don’t engage the lawyers until after they meet them, giving the client at least a minimal opportunity to assess the lawyer’s merit.

No reasonable person expected Joshua Komisarjevsky to be sentenced to anything but death for the heinous murders of Jennifer Hawke-Petit and their daughters, Hayley Petit, 17 years old, and Michaela Petit, 11, in Cheshire, Connecticut.  And the jury obliged.

The only real question was fast or slow.  And fast, a sentence that he be put to death, is a misnomer.  Since 1937, only two people were put to death in Connecticut, the last in 2005, when Michael Ross was executed for serial murder committed between 1981 and 1984. 

The death penalty is a matter of religion, some certain of its necessity while others certain of its barbarity.  The sides argue the point regularly, but it only plays to those who already share the same religion.  Nobody is persuaded to convert because of the zeal and fervor of adherents to another religion. Komisarjevsky, with his co-defendant Stephen Hayes, also sentenced to death, certainly aren’t the poster boys for the anti-death penalty adherents. There was no doubt of their guilt, and the crime was just horrible.

Other states, more inclined toward putting people to death, make for a more serious debate over the death penalty, as guilt is at issue and the crimes are more pedestrian murders.  But not here. Not in Connecticut.  In the case of the Cheshire murders, it’s purely religion.

Except that those whose faith supports the execution of the killers are of the belief that the extra bit of retribution that comes of pushing the plunger, flipping the switch, lighting the pyre, matters. In this respect, the sentence of Komisarjevsky and Hayes makes for the perfect focal point of debate, unladen by the collateral issue of innocence.  Even race, a very real and, in other places, overarching failure of the capital punishment elsewhere, plays no role here. 

No matter what the jury decided, Komisarjevsky was going to be sentenced to death.  The only question was whether it was going to take as long as nature required, or it was going to come in a few decades when the plunger is pushed. 

At the moment, with Cheshire still fresh in the minds of those paying attention to the case, this seems to matter.  And it seems to matter a great deal.  Will it matter as much 20 years from now?  Will both Komisarjevsky and Hayes still be alive 20 years from now?  Will the visceral need to inflict pain and fear, to do harm in return for harm, still be there 20 years from now?

When the Supreme Court held that the death penalty was unconstitutionally arbitrary in Furman v. Georgia, and states could no longer put people to death, until the Supremes changed their mind in Gregg v. Georgia, the debate continued to rage.  The reaction could have been that we were satisfied with putting these heinous killers to death slowly, but that wasn’t good enough for the majority of Americans.  They demanded death.

The arguments against the death penalty, in a vacuum, hardly seem to be capable of satisfying the religion of its supporters.  They just don’t seem to turn enough heads, if any, to change things.  While the argument of innocence, applicable in other cases, carries significantly more suasion, there is a disconnect between those who are unquestioningly guilty, not realizing that they have no ability to draw the dividing line between those who are definitely guilty from those who, 20 years later, turn out not to be but surely seemed definitely guilty at the time.  It’s hard to break down religious beliefs with reason. There is no intersection between the two.

The only question is whether the sense of immediate retribution that comes from the imposition of the death penalty, as opposed to the longer term retribution that comes from the imposition of a sentence of life without parole, will do the trick.  If the name of the sentence, life without parole, were changed to “long death sentence,” would that be sufficient to satisfy the need to respond to brutality with brutality?

The discussion over the sentence of Komisarjevsky and Hayes has been raw and emotional.  It hasn’t been burdened much by thought or reason.  There just isn’t much by way of thought or reason that contributes to the discussion.  There are only two things that really merit much consideration.  First, that both of the defendants will ultimately die at the hand of the state.  Second, that death by lethal injection brings at most a brief sense of satisfaction to those who believe in the faith of capital punishment. 

For Dr. William Petit, his family is still gone.  For the followers of the religion, they will go back to their lives and jobs, as Komisarjevsky and Hayes will spend the next 20 years having the details of their punishment scrutinized.  It’s not like they get to enjoy a good execution on TV next week.

And even if this doesn’t apply to either of these killers, it’s not a bad thing if the execution takes a while, just in case science is improved or witnesses change their claims and it turns out that the definitely guilty person isn’t as guilty as they seemed.

Either way, if they are guilty, they get the death penalty, and people of all religions can come together and pray.  No matter which faith captures your heart, there is no choice but death.  And it’s not entirely clear that one is worse than the other.

Update: More on the issue, by someone who has an intimate familiarity with the death penalty that I do not, read Jeff Gamso’s Dog Bites Man.

For a long time, social media was trying to establish itself as the new kid in town.*  Take it seriously, its cheerleaders screamed.  Pay attention, it’s sycophants moaned.  Jump on the bandwagon or die, its adherents admonished. 

The late adapters who held back, who just didn’t care all that much or didn’t know the magic secrets, since everybody assumes there are magic secrets, came to realize that it was here to stay, in one form or another.  Whether it’s websites, blogs, Twitter, or Google Plus (is it even still alive?), it seemed like everybody was eventually working their way to the internet, and the internet wasn’t going away. 

For the handful who chose to be cautious, they stuck in a toe and tried to figure out what it all meant.  For those who had some extra cash in their marketing budget, they hired the nearest geeky looking kid to be their guru, since the assumption on the part of everyone who doesn’t own an iPad is that every teeny-bopper knows everything there is to know about the internet.  Slowly, Luddite were coming around, hearing about the new Gold Rush and thinking they were missing out on their nugget.

While we’ve come nowhere near the majority of lawyers playing the internet for all it’s worthy, there are certainly tons more than there used to be.  And what has this produced?  Noise.

Now that everyone is a marketer, many people are looking for a louder megaphone, a chance to talk about their work, their career, their product… and social media looks like the ideal soapbox, a free opportunity to shout to the masses.

But first, we’re told to make that number go up. Increase the number of fans, friends and followers, so your shouts will be heard. The problem of course is that more noise is not better noise.

The story of how Police Officer John Turner killed Roger Anthony is almost sufficiently underwhelming as to make the most curious part why anyone in North Carolina chose to name a town “Scotland Neck.” 

At 61, Anthony was no kid. There are no twists or turns in his conduct, aside from the sole allegation that he took “something out his pocket and put it into his mouth.”  Isn’t it amazing how somethings as utterly innocuous as that, coupled with a death at the hands of police, makes one’s mind begin to calculate the potential nefarious things it could be?

But it’s all imagination.  The story itself is brutally banal.

[O]fficers had responded to a 911 call Monday night about a man who had fallen off his bicycle in the parking lot of a bank. The caller told dispatchers that the man appeared drunk and may have hurt himself.

When Police Officer John Turner arrived, he saw Roger Anthony pedaling along 10th Street and followed in his patrol car. Turner put on his sirens and lights and yelled for him to stop, but Anthony continued to ride away, police said.

Scotland Neck Police Chief Joe Williams said Turner saw Anthony take something out his pocket and put it into his mouth. Turner got out of the car and yelled for Anthony to stop. When Anthony didn’t, the officer used a stun gun on him, causing him to fall off of his bike.

He was brain dead on the ground.  Anthony’s sister, Gladys, said that he suffered from seizures and was hard of hearing.  And now, a man whom police sought to stop, assuming he was the same man referred to in the 911 call, presumably to see if he was hurt, is dead.

While there are elements to this story that leave questions open, there is one that would seem to offer no question whatsoever. There was no reason whatsoever to tase Anthony.  Naturally, the first comment to this story questions this assertion:

How was the officer to know he was hard of hearing?
Besides what was he doing riding around on a bike it he can’t hear traffic, car horns and sirens. He already had fallen off of his bike and appeared to be under the influence of something. That also is considered a DUI.
These idiots just bring on their problems and then get the police involved and society.

He’s right, at least in one respect.  We idiots “just bring on [our] problems.”  We assume that the only reasonable course is immediate compliance.  Forget our right to be left alone, that Anthony did nothing to suggest any criminal conduct giving rise to the officer’s right to stop him.  Most people wouldn’t fault the officer for trying to inquire, in light of the 911 call. 

Forget that Anthony had hearing problems. Sure, it’s hardly unheard of that people who walk, or ride, down the street have disabilities of one type or another. They aren’t branded and can look just like “normal” people.  But the default assumption is regularity, normalcy.  Officer Turner wasn’t crazy to assume that Anthony, riding a bike on the street, could hear his command to stop.

But these aren’t the reasons why we are idiots.  The reason we are idiots is that we have allowed our government to put a Taser in the hands of police officers without either the policies, training or fear of misuse that is critical to trusting cops with their use.  The most idiotic thing we can do is provide police with a easy trick to make their job so easy that they feel entitled to use it at will.  The most dangerous thing we idiots to is give a weapon to an idiot.

The death of a person isn’t absolved by asking a stupid question.  What else could Turner have done? How about nothing.  Since he lacked probable cause to believe Anthony had committed a crime, and assuming that Turner heard the siren and the command and chose to keep pedaling, Turner could have shrugged his shoulder, assumed Anthony was not in need of assistance, and gone on his way.

And if Turner just couldn’t bear the thought of ending the encounter without somehow asserting his dominance, how about driving his cruiser in front of Anthony, sirens roaring, lights ablaze, so that Anthony couldn’t possible be unaware of his presence and purpose.  The story suggests that Turner was always out of Anthony’s line of sight, apparently behind his bicycle rather than in front of it.  Was Anthony that speedy a biker or was Turner’s cruiser especially slow?

Regardless of what Turner could have done, there was one thing that can’t be done, at least if someone has half a brain and no justifiable need to cause obvious collateral harm.  You don’t tase someone on a moving bicycle.  Or, for that matter on a moving motorcycle.  The cops’ credo notwithstanding, the “less than lethal force” of the Taser will assuredly lead to the less than kind force of the pavement.  Not even the order of a cop alters the laws of physics.

As the response to the commenter queried, if the cop didn’t have a Taser, would he have pulled out his handgun and shot him?  Of course not, as that would have reflected poorly on Turner during the brief subsequent inquiry that will naturally exonerate him.  Anthony, despite the innuendo of putting something in his mouth, had done nothing bullet-worthy.  We seem to be able to discern things that demand a bullet from things that don’t.  Still, we have such trouble with Tasers.

There’s a tendency to focus on the most outrageous, most venal, abuses by police that end up in a spectacular death.  Sometimes, death comes at the hand of an idiot.  And the person who dies, Roger Anthony this time, is just as dead.  And his death is just as needless. 

H/T Steve Magas

While the But For Video series of posts tends to be used to show that misconduct and abuse of the sort claimed for decades, and denied or ignored, does in fact happen, sometimes the person protected from outrageous claims is the cop.

As Eric Turkewitz writes,

In Matter of Dear, a guy gets a speeding ticket for going 85 in a 55 zone. Said guy happens to be a lawyer. And said lawyer, who is also an orthodox Jew, tries to blast his way out of the ticket with this humdinger of a letter:

“Ladies and Gentlemen:

This ticket shall be dismissed immediately since –

a. there was no speeding and the officer refused to show me evidence that there was: (i.e. – “not guilty”)

b. even if there was speeding (which there wasn’t) – I was in a 65-mph zone NOT a 55 mph zone; and

c. The officer called me a “jew kike” – and this prejudice obviously was the cause for the ticket.

I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).

Eliot Dear
[signed] Eliot Dear Esq.
[business card attached]“

Ouch. You know where this is going, right? The cop had a video camera on the car, unbeknownst to Dear. And the cop was wired for audio.

In case you aren’t entirely clear where this is going, Turk explains. 

There’s a tendency, particularly on the part of lawyers who are not engaged in the practice of criminal law, to think that they are above the law, capable of throwing their considerable weight around by mere virtue of being a lawyer, and immune from scrutiny.  You’re not.  You have no right to be a liar.  If you do wrong, no one cares that you (along with half of New York City) are a lawyer.  And no one will weep about your getting nailed.

Turk has the details on what happened to Dear, who must have thought himself incredibly brilliant to come up with the false “jew kike” defense to something as vitally important as a speeding ticket.  While it would be even more wonderful if everyone, like cops, who lie through their teeth were similarly held to account, clearly Dear earned what was coming to him. 

This time audio and video exonerated the cop, as it should have.  Never forget that it’s a two-way street.

Scott Millard needs to win an award, because he took a bullet.  Judge Kenneth Post, on the other hand, is a disgrace.  Via WoodTV, Millard was before Post in Hudsonville, Michigan, district court when the fine judge decided that he no longer liked the whole constitutional thing anymore.

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.

MILLARD: Your honor –

POST: You can have a seat.

MILLARD: Your honor, I’m –

POST: Sit down.

MILLARD: I’m Counsel, your honor.

POST: I’m encouraged. Both of you sit down.

MILLARD: I’m his attorney, your honor.

POST: I’m encouraged.

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.

MILLARD: And I –

POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment –

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.

POST: That’s right. And that’s not what he’s getting at the moment.

MILLARD: Your honor, I strongly disagree with that.

POST: I’m glad.

MILLARD: I’ve been nothing but respectful and I will always be respectful to the bench.

POST: Then would you please let him answer my questions?

MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I’m getting the sense that it threatens to tread on that 5th Amendment right.

The judge and the attorney went back and forth for a bit on the 5th Amendment, the court’s ability to order drug testing and the attorney’s suggestion to set a date for his client to take a drug test. Then —

POST:  I’m not interested in what you think. Haven’t you gotten that yet?

MILLARD: I have gotten that, and I… understand that, and your honor, the court fully, certainly has the right to not care what I say. How —

POST: Thank you. Then be quiet. … (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?

Millard interrupted and stopped his client from answering.

POST: One more word, and I’m going to hold you in contempt.

Soon after, as Millard continued to bring up the constitutional protections his client had, Post cited him in contempt and fined him $100. Millard continued to speak up on his client’s behalf.

Every once in a while, a story like this, of an attorney who was given a choice of whether to risk his own skin or sacrifice his client, comes along.  Few lawyers will show the guts to take the contempt, to refuse to allow their clients to be bullied.  They won’t sit down. They won’t shut up. They will take the bullet.

Awards are given out by criminal defense bar associations to lawyers who have the ability to fill a table with warm bodies.  They should be given to lawyers like Scott Millard for having the guts to risk his own wonderful life in order to protect his client from a judge like Post.  It may not be much, but Millard gets the Simple Justice Lawyer with Balls Award.

And Judge Kenneth Post, filled with self-importance and god-like power, wins nothing, and hopefully the powerful folks in Michigan will swiftly make certain that he is never in a position of power over anyone again.  May he choke on his robes.

H/T Tim Farhill (the Australian one)

Update:  As noted in  Jim Majkowski’s comment below, somebody got 30 days for what happened here, and it wasn’t Scott Millard. Sometimes, the right thing happens, though one could rightfully question whether Post has any business being on any bench anywhere.  Thanks to Jim for the update.

From the 9th Circuit decision in Gonzalez v. Wong, partial concurrence/dissent of William A. Fletcher, a public service announcement.

The underlying case was resulted in the death penalty based upon a jailhouse snitch, with massive Brady issues giving rise to a reversal and remand,  But Judge Fletcher believed the Circuit could resolve the Brady issue without remand, and offered this in explanation.

In October 1988, Los Angeles Sheriff’s Department deputies learned that a jailhouse informant, Leslie White, was writing an article in which he planned to explain how informants were acquiring knowledge about defendants they had never met in order to fabricate those defendants’ confessions. Report of the 1989- 90 Los Angeles County Grand Jury, June 26, 1990, at 69 [hereinafter “Grand Jury Report”]. White agreed to demonstrate the technique to the Sheriff’s Department. The report of what White did is worth repeating in full. The report does not identify White by name, but refers to him as “the informant.”

Just the lead-in. Here’s the beef.

The sergeant gave the informant the name of an inmate who was being held in the Hall of Justice Jail on murder charges. The informant, representing himself to be an employee of a bail bond company, called the jail’s Inmate Reception Center and was able to obtain the inmate’s booking number, date of birth, color of eyes and hair, height, weight, race (Caucasian), bail ($100,000), case number, date of arrest, arresting agency (Sheriff’s Special Enforcement Bureau), next court date, and where the inmate was housed in the jail.

The informant next called the records section of the District Attorney’s Office. He said he was a Deputy District Attorney and asked for information on the inmate’s case. He was given the name of the Deputy District Attorney prosecuting the case, the Deputy District Attorney’s telephone number, and the name of a witness.

A few calls later, the informant called Sheriff’s Homicide and said he was “Sergeant Stevens” at the Central Jail. He was able to obtain the name of the murder victim, and the victim’s age and race.

The informant then called the Deputy District Attorney who was handling the case, initially identifying himself as “Sergeant Williams” with the Los Angeles Police Department. The Deputy District Attorney responded to the informant’s questions by stating, “I’ll tell you anything you want to know about the case,” and proceeded to provide details about what the victim was wearing, where his body was found, the fact that the coroner’s report said that death resulted from suffocation and/or drugs, that the victim’s blood contained a fatally high amount of methamphetamine, that the defendant confessed to stuffing the victim in a trunk, and the prosecutor’s personal opinion of the likely defense in the case. Near the end of the conversation, the informant gave his name as “Sergeant Johnson.”

At this point, the informant said he had obtained enough details about the case to enable him to fabricate a jail house confession which would be accepted by detectives. He then proceeded to demonstrate how he could arrange for contact between himself and the inmate to support the fabricated confession. The informant called a department of the Superior Court in Van Nuys, identifying himself as Deputy District Attorney “Michaels” with the Organized Crime Unit downtown. In response to the informant’s request, the court bailiff ordered the informant and the inmate to be transported to Van Nuys the following day. Id. at 69-71.
________________

White indicated that a fabricated confession based on this information would be sufficient to get him a “hell of a deal” with prosecutors.

And indeed, it would be sufficient to get a “hell of a deal,” and prosecutors would suck it up. Cops would suck it up. Judges and juries would suck it up. And it’s on “hell of a” scam.  The problem is that while a guy in jail might have no qualms whatsoever about burning another person to save his own sorry butt, prosecutors would neither think like this nor have any reason under the sun to scrutinize it any more closely than served their purpose of using it to get the bad guy.

Before some “brilliant” reader feels compelled to opine how the particulars of this scheme couldn’t possibly work in his jurisdiction, let me explain that this completely misses the point. Those inmates inclined to be jailhouse snitches become incredibly innovative in their ability to find ways to manipulate the system and its players.

There’s nothing like prison to bring out the tenacious ability to find ways to do things that shouldn’t be possible.  Just as prisoners are willing to secrete things in their anus that would be too repulsive for most of us to even consider, they find ways to make it happen.  So too do prisoners who want out so badly that they’ll sell another person to the executioner for their own freedom.

And now everyone can see how one prisoner pulled it off.  If you think others aren’t similarly capable, you’re deluding yourself.

H/T Mike Neal, Oregon Law Center