In summation, the prosecutor argued that the defendant must have provoked the police officer to fear for his life or he would never have fired.

It’s insane to believe that a police officer, a man with no personal animosity toward the defendant, no reason in the world to single the defendant out for attack, would simply fire at the defendant completely unprovoked.  Does that make any sense to you?  It’s ridiculous. It would never happen, and that’s why you must convict.

Kevin usually posts about the strange and humorous aspects of the law.  He found nothing funny about what happened here.

This video, taken by the shootee, makes it pretty clear that everybody is just calmly standing around until (at about :33 in the video), one of the officers suddenly raises his weapon and shoots the guy with a rubber bullet (or possibly a bean-bag round), for no apparent reason.

In a rational world, this couldn’t happen and yet it did.  Most people would ask why, but the “shootee” couldn’t possibly answer that question.  How would he know why a police officer decided to shoot him despite the absence of any apparent reason?  And so the argument that this couldn’t have happened this way prevails, because of our need to believe we live in a rational world.

Carlos Miller, unlike Kevin, doesn’t write about funny things. 

Scott Campbell, the man who was shot, uploaded the video to Youtube on Saturday, but the incident took place early Thursday morning after the general strike Wednesday.

The cop who fired the rubber bullet was one of many dressed in indistinguishable riot gear.

Chances are, black tape was covering his name tag.

Unfortunately, this type of behavior is not isolated.

Carlos’ final reference is to the argument of last resort when wholly inexplicable and violent police conduct happens, that it’s an “isolated incidents.”  This is a critical argument, that we need not fear such conduct because it never happened before and could never happen again.  But this video shows otherwise.

The shooting for no reason whatsoever is bad enough, but the reaction of the group of police officers, suited up in the paramilitary black, laughing and cheering the shooting, is what should strike fear in the heart of every judge, prosecutor and citizen.  Which one of the black-suited cops will be the next hero to emerge to the applause of his peers for shooting someone in the head for kicks?

You want a reason for this behavior?  Look no further than cop culture.  And yet no judge has ever sustained an objection to a prosecutor’s summation that argues a police officer would never behave in such a violent and irrational way.  Yet the videos prove otherwise.

Update:  Within minutes of posting, I read  Jonathan Turley’s post about his op-ed in  Los Angeles Times covering the right to photograph police. It should be read in its entirety for its discussion, like Kevin Underhill’s post, of the 1st Circuit’s holding in Glik that citizens have an fundamental right to photograph police in public, as well as his discussion of  Judge Richard Posner’s reaction to the same argument.

But other federal judges might not be so sure. Take Richard Posner, the intellectual leader of conservative judges and scholars who sits on the U.S. Court of Appeals in Chicago. Posner shocked many last month when he cut off an attorney for the American Civil Liberties Union , which had filed suit to challenge an Illinois law preventing audio recording of police without their consent.

The ACLU lawyer had uttered just 14 words when Posner barked: “I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Posner then added his concerns about meddling citizens: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers…. I’m always suspicious when the civil liberties people start telling the police how to do their business.”

We certainly can’t have “civil liberties people” telling the police how to do their business.  That could result in, well, civil liberties.  What sort of society would that produce?  One where this wouldn’t be  the daily recitation of wrongs perpetrated by those who we entrust to protect and serve.

If your interest is law, this post isn’t for you. Many readers here are relatively young, either with very young children or the potential to someday in the reasonably near future plant a seed.  This post is for you.

Regular readers know that my youngest child, my son, fences epee, and that for the past few years, we have traveled about the country in search of great barbecue and a medal in the North American Cup circuit.  As he’s now reached his senior year in high school, he’ll be leaving home soon to find his way in college. 

I’ve grappled with this for a while now, just as I did when my daughter went to college.  At least with her, I had a child at home to fall back on.  No more.

A problem arose this year because of logistics, a position that we wouldn’t travel to competitions in second class cities in the midwest unless they offered at least two competitions.  The cost just didn’t make sense otherwise.  But now that he’s aged out of the “Under 17” competitions, and there is only one NAC that offers both “Under 20” as well as Division 1 (where the big dogs fence), our options were limited.  This season, the only NAC that provided two competitions will be held in Portland, Oregon, where Dr. SJ has a dear friend.  Normally, only my son and I travel to NACs.  For Portland, Dr. SJ is coming with us.

There is a NAC in December in Kansas City, Missouri.  There will be a Div 1 competition, as well as some others which don’t apply to my son.  One competition.  The rule is we don’t go for less than two.  The cost is significant, and the travel is a burden. It interferes with life as we know it, school work, business, comfort.  It wasn’t on the docket.

Yesterday, it occurred to me that this NAC in Kansas City is likely to be the last time I will ever take a road trip with my son.  Sure, there will be plenty of fencing, but he won’t need me to be there with him.  He’ll go with friends, teammates and his coach. 

What was I thinking?  Who cares what it costs?  Who cares that it’s burdensome and fails to meet some arbitrary metric?  I may never have the opportunity to go on the road with my son again, just him and me, talking, joking, fighting and eating barbecue.

Aside: In Kansas City, we go to Jack Stack Barbecue .  The last time we ate there, the meal wasn’t great.  But they sent me a box of barbecue to make up for it, and for that, they have my devotion.  And the barbecue they sent me was terrific. 

What? You thought it would be this?

Like spring follows winter, the latest spate of New York Police Department scandals has brought a  New York Times editorial questioning whether the police can police themselves.

A series of scandals and crimes — very few of them uncovered by the New York Police Department — should leave no doubt that New York needs a strong, independent agency to investigate serious complaints about the city’s police.

There’s nothing more enjoyable than starting out with a logical fallacy, that the obviousness of a problem suggests the obviousness of a solution, in this case a “strong independent agency.”  But before dealing with the issue, even the Times’ editors know that they must first pay homage to the cops lest their reporters cars get papered with an inexplicable flurry of tickets.

Over all, New York’s 35,000 police officers have done a good job in recent years of protecting the city from crime and terrorism. But several corruption cases and a federal lawsuit alleging racial bias in the department’s stop-and-frisk policies have raised disturbing doubts about the management of the department and its ability to root out its own problems.

Sorry for the digression, but I would be remiss not to note that even the Grey Lady isn’t so arrogant as to piss off the police.

The problem isn’t that there’s a need, but that the solution comes around every generation.  Remember Serpico?  The Knapp Commission?  Does the Dirty 30 strike a bell?

Almost 20 years ago, a commission investigating corruption in the New York City police force recommended the creation of a “permanent independent oversight body” to oversee and investigate police and their Internal Affairs operations. Instead, Mayor Rudolph Giuliani created the Commission to Combat Police Corruption, which is supposed to oversee internal police investigations but has no power to demand documents or testimony.

Rudy and the cops didn’t get along very well, mostly because he and Bill Bratton were fighting for headlines in the New York Post.  But there’s one thing that everyone agreed on, that you can’t actually let outsiders have any influence over the police because they just don’t get it. Only cops understand cops.  Ask any cop. He’ll tell you.

Notably missing from the Times editorial is the CCRB, the Civilian Complaint Review Board.  From its own hype :

In 2006, the CCRB received 7,669 complaints from civilians, and closed 7,399 cases, of which 2,680 were full investigations (meaning that the civilian participated, the officer(s) were identified and an investigation was closed after doing a full and through investigation). Approximately 6% of the full investigations resulted in a Substantiated disposition. 262 cases were mediated, which is an option for certain complaints provided the officer does not have an extensive CCRB history, there was no arrest made and severe force or abuse of authority were not involved. In mediation, the officer and civilian both voluntarily bypass the investigative process and meet each other one-on-one with a third party mediator to discuss the incident and resolve it. This results in no disciplinary action being taken against the officer and often results in a more satisfied civilian as an outcome.

Wow, about 6% of complaints, out of those deemed worthy of a full investigation, are “substantiated.” resulting in a firm admonition not to be a bad boy again. Yup, that’s got ’em shaking in their boots. 

And so we have more “scandals,” because the old commissions worked so well.  Official people, which includes the editorial board of the New York Times, love committees, commissions, boards, groups of all flavors.  Between the diffusion of responsibility and the dynamic of groupthink, the love of consensus and compromise, the ability to appoint friends and supporters to positions that they can put on their resume and provide fascinating cocktail party chatter, there’s nothing better than a committee.

Ironically,  Seth Godin recently explained the nature of committee as it relates to a business trying to get something done.

If committees told the truth

“Hi, we’re here to take your project to places you didn’t imagine.

With us on board, your project will now take three times as long.

It will cost five times as much.

And we will compromise the art and the vision out of it, we will make it reasonable and safe and boring.”

That’s how committees work at their best.

Police Department spokesman Paul Browne has argued against the need for new oversight. He said that the Internal Affairs Bureau has been expanded in recent years and that it has often helped with investigations started elsewhere. That is not good enough. New Yorkers need to have confidence that any problems with the police are fully and fairly investigated. A truly independent agency, with real powers, is the only way to ensure that.

I know. Let’s create another commission!  I’m sure the next one will work.  Even though they won’t ask anyone with guts and a healthy skepticism of police and government to be on it, and it will be filled with all the blue ribbon types, with vested interests in government and an eye on their next important appointed position, perhaps with a NYPD parking permit.

But even if they did, it wouldn’t matter.  It’s a committee, and by definition, it won’t work.

The joke is that a jury is made up of twelve people too stupid to find a way to get out of jury duty.  It was put to the test by Judge Gregory Holder in Tampa, who  called in 246 potential jurors who failed to appear.

Hundreds of failed jurors sat in Judge Gregory Holder’s courtroom Friday morning, summoned back to listen to what the judge had to tell them.

They hadn’t shown up when they were called for duty Oct. 3, and Holder ordered them back to court. If they didn’t respond to explain themselves, Holder said last month, he might issue an order for their arrests.

Arrest?  Commit a crime and you have maybe a 50-50 chance of being arrested.  Of course, if you’re called for jury duty, they know where to find you, which is more than one can say about police investigations.

The judge first called Dovay Compton to the stand.

Holder told Compton that someone had called the courthouse asking for the Tampa resident to be excused from jury service because he was in the military. But Compton admitted Friday he wasn’t in the military.

Holder, visibly upset, said he had served in the military, as had his wife, son, mother and father.

The judge told Compton to sit.

Not satisfied with defying the call to jury duty, Dovay Compton figured it was a pretty decent lie that would get him out. After all, who was going to spend the time checking it out?  Judge Holder later admonished the group of American citizens, called upon to perform a vital civic duty, who chose not to do so.

People fight and die every day defending constitutional freedom, he said.

“We rely upon you men and women to come into court for a brief period of time,” he said. “We try to be efficient with respect to your time … This is your courthouse. You built it with your tax dollars.”

Though some trials can last for weeks, Holder said he recently tried two jury trials in one week.

“We’ve become a McDonald’s world,” he said. “We want it our way.

“But folks, this country asks very little of you. The state asks very little of you. Vote and serve on juries.”

Therein lies the fallacy of the demand.  Is that all the government asks of its potential jury pool, “vote and serve on juries?”  Granted, people aren’t particularly good at doing either, but then, there are a few things left off the list.  Pay taxes?  That’s a pretty big one, and hard to imagine the judge forgot about it just as some potential jurors claimed to forget about showing up.

And what about endure the plethora of forms, in triplicate, one has to complete in black pen so one’s child can have a lemonade stand? Oh, plus pay the fee and have the nectar tested by the health department.  Or get on one’s knees and be obsequious to a police officer who stops you for no particular reason?  Maybe it’s a meeting with a school administrator who didn’t like the shirt your child wore or the word she used on Facebook to describe her math test?

Jury duty has always been a critical, and distasteful, duty of citizenship.  I refuse to help friends and family escape the burden, explaining why the system fails when ordinary people won’t sit on juries.  They explain why it’s a burden to their jobs and families, but the true explanation is that in the scheme or priorities, it falls below pretty much everything else they have to do.

At  Court-o-rama (the least dangerous blog), Ann Skove’s view of Judge Holder’s admonition, the bane of everyone engaged in the effort of court administration, is reminiscent of New York’s former Chief Judge Judy Kaye.

We read stories like this pretty often. These judges provide a good reality check for people who think it’s OK to not show up.

What if we spent as much time on jury reform? Little things, like helping jurors find lunch and parking? Bigger things, like keeping those source lists up to date?

There’s no doubt that jurors were treated with disdain, to put it mildly, by the system. Herded like cattle and left to fester in dirty rooms with nothing to do but sit and wait.  Less then a thrilling experience to begin with, only to be treated like idiot children, while their businesses are left unattended, by uncaring officials. 

Many court systems have tried to make the duty less unpleasant, as well they should.  It should be less unpleasant for all participants, but jurors in particular.  They have eliminated exemptions to create the appearance of fairness, that the duty applies to all citizens, not just the most pathetic among us.

Yet this hasn’t made jury duty more palatable to anyone.  No one yells “yippee!” when the notice arrives in the mailbox, and the first thought in most people’s mind is how do I get out of this.  Still.  Except for the outliers, the small group with an ax to grind who want to be on a jury so they can apply their personal version of justice provided they can conceal their true purpose from lawyers and court in voir dire. 

Judge Holder’s pep talk, unintentionally, hits on something significant.  If our duty as citizens was limited to voting and serving on juries, maybe people wouldn’t resist with such vehemence.  If citizens believed that participatory democracy worked, they would be willing, if not happy, to make the sacrifice.  But that’s not all government asks of us, or does to us.

Between a loss of faith in government, and suffering the constant burdens of a government whose demands never seem to end, jury duty is one step over the line.  We pay our taxes.  We pretend to be respectful to cops.  We restrain ourselves from smacking the smarmy petty bureaucrat who informs us that we used the wrong color pen to fill out the form needed so can keep the dialysis machine in our dying child’s bedroom.

And yet that’s not enough to sate our government’s demands of us.  On top of everything else, it demands that we give up our lives to appear for jury duty, to participate in what we believe to be a failed system.  Comfortable chairs and available parking aren’t enough, and the other problems aren’t so easy to fix.  When 246 people refuse to show on one day for jury duty, the jury has spoken.

Despite my early protestations, I’m on twitter.  I’m followed by a lot of other twitterers. I don’t follow them back because I have no interest in buying what they’re selling.  I don’t follow them back because I don’t know who they are or have any reason to believe I want to engage in a discussion with them.  I don’t follow them back because they’re nuts, stupid, childish or just not funny.

I have a facebook account, a LinkedIn account and a Google Plus account. I never use them.

Still, I hear from a lot of people about social media.  They tell me they have to use it because this is the future.  They tell me that if they don’t, they’ll “miss the train” and all the other people who do use it will make oodles of money, take all the good cases, sell their wares, while they just sit there waiting for the phone to ring.

So I ask, “and are you making oodles of money off social media?”

No.  They’re not.  They’re spending hours of time at a stretch, chatting it up with people they don’t know who are busy trying to create bonds of trust with them so they will buy.  But nobody’s buying. Everybody’s selling.  They don’t really trust anyone, but engage in a mutual bond of desperation.  They play with disembodied characters on a screen, afraid to be so rude as to not reply for fear that this person will be the one who has the big case or will make the big purchase.  They pretend to care. Or maybe they really do care, for lack of anything real to care about. We’re reduced to caring about disembodied characters on a screen.

If only they knew that it was some kid who prays that someday they’ll have a pot to piss in, hoping that the old time lawyer will throw them a bone.  You won’t make any money off them, but you spend time away from your children for them.  This is your life?  Your future? 

While social media technically uses only a couple of our senses, the one that I use the most is my sense of smell.  I smell the stench of desperation.

Take a gander at my twitter followers.  One of the latest, a criminal defense lawyer no less, includes in his twitter bio that he has “easy payment plans.” 

Is there no dignity left?  Is there no one so shameless that you won’t do anything for a few pennies?

A few years ago, the question was how long it would take for social media to go mainstream, so bring in the majority of Americans who ignored their computers and sat on the sidelines of social media.  It was killing the early adopters, those who hoped to be social media rock stars and bask in the adoration of converted luddites.  They were so important within their inconsequential sphere, and wanted to be appreciated by the broader swathe of society that had yet to learn that they absolutely had to jump on the social media train or be left to die like the dinosaurs.

Someone else can crunch the numbers and let me know if the majority of Americans are now engaged in social media.  I don’t follow it because I don’t care.  I’m nothing more than an observer of this phenomenon.

What I observe is a nation so desperate, so shameless, so lacking in anything remotely resembling a spine or self-respect, that they have turned these tools into a black light district.

It’s not that I’m special. I’m not.  Just another guy with a twitter account, and one whose twits are remarkably unworthy of anyone else’s time.  But then, people aren’t following me because they think I will twit something pithy or witty.  They follow me because they wrongly hope I will buy whatever they’re selling.

I’m disgusted. Is that the reaction you’re trying to evoke?  Every day, this video becomes increasingly real. 

While the efficacy of video in revealing the lies and misconduct that we could only argue about in the past (while judges, prosecutors and police officers laughed at defendants and their lawyers for engaging in the lunacy of an unprovable pissing contest) is beyond question, the heroes may not receive the mention they deserve.

One such hero is Carlos Miller.  His blog, Photograph is Not a Crime, has catalogued police arresting people for videotaping and photographing police. He’s put himself at risk, twice having beaten charges against him, so that our right to observe and document what really happens on the streets of America is secure.

Carlos’ efforts are usually highlighted when he posts about some of the more horrendous or absurd abuses, but watching one of the  latest videos he’s posted from the Occupy Oakland protest struck me as one of the most telling in its banality.

No one is being beaten. No one is being arrested. No flashbang grenades go off.  The officer involved, whose name is Hargraves, doesn’t say a word, though the look on his face speaks volumes of contempt.

The short video is about the officer covering his name on his shirt with black tape so that it can’t be seen.  The reason is why is obvious, to prevent the officer from being identified by name.  The reason why the officer doesn’t want to be identified is similarly obvious, that whatever may happen that day, whatever he may do, he doesn’t want to be held accountable.

It’s unlikely that this will cause the outrage that comes from images of police officers using force against people without justification, but this image may be far more telling about the nature of the relationship between police and everyone else than any particular instance of harm. 

This image represents the schism between citizens and those given a gun and shield, and the authority to use them.  This image reflects how the ordinary “us against them” has become.  As if it’s two species at war, part of an ingrained ecosystem where one goes about his daily life prepared to kill or be killed by his natural enemy.

The look between Lt. Wong and P.O. Hargraves is painful.  The former’s eyes appeal to the latter, saying

“but you’re one of our kind, not theirs.  You’re supposed to support me, defend me, not them.  How can you betray our trust?”

I’ve watched this video numerous times, and I’m mesmerized by what it shows. The look of contempt changing to pleading.  There is no question about the wrong of a cop concealing his identity so no one can speak his name should something happen on that shift.  There’s no reason to believe he plans anything bad, intends to use force, to beat some young man or woman.  But just in case, he made sure no one could name him.

Everything bad that happens between cop and citizen starts with this attitude.  Look at the eyes.  That’s where the beatings, the lies, the harm comes from.  It’s the mindset that covers the name before there’s any reason to be concerned that produces the outcomes we find outrageous.  This is where it all starts.  Everything else flows from this attitude, and we will never change the conduct without changing this attitude of hatred and contempt.

And without guys like Carlos Miller, we would never see it.  More importantly, those who laugh at us would never see it.

H/T  Radley Balko   

The reason Tim Lee holds the title of “adjunct scholar” at the  Cato Institute is that there’s no position called “adjunct moron.”  Consider his attack on Claudio Ballard*, published in the National Review.

In 1994, Claudio Ballard was an unemployed computer programmer with a great idea: a system to scan paper financial documents and store them on a secure server. Ballard built a prototype, raised venture capital, and founded a company called DataTreasury to commercialize his system. At the peak of the dot-com boom, DataTreasury had an office on Long Island with over 100 employees.

At the time, banks were still clearing checks by shipping them around the country, and Ballard knew they would save a lot of money by scanning checks and exchanging the images instead. He thought his system would be perfect for the job. But the major banks weren’t interested, choosing to work with other vendors or implement digital checkclearing systems of their own.

Lee goes on to use Ballard as the poster boy for patent trolls.  What he neglects to mention is that seconds after Ballard left the building, every bank he approached immediately went to their own computer guys to replicate his system, because Ballard was absolutely right.  They would save a bloody fortune using Ballard’s system, and a fortune saved is a fortune earned.  The only difference is that they could cut Ballard out of the deal.

Lee neglects to mention that judge after judge after judge, jury after jury after jury, have found that the banks shamelessly stole DataTreasury’s patents, their methods, processes, ideas, which were ground-breaking at the time, and used them to save a ton of money.  And yet Lee would make the banks the poor victims of Ballard?

It’s hard to see how anyone could build a digital check-clearing system without infringing this patent. I suggested to a company spokesman that DataTreasury had effectively patented the concept of digital check clearing. He disputed that characterization, but he struggled to explain what specific techniques the patents covers. And he couldn’t think of any kinds of electronic check-clearing systems that didn’t infringe DataTreasury’s patents. In 2002, DataTreasury, by then just a shell of its former self, launched a patent-litigation campaign against the nation’s banks. Those legal battles continue to this day, and have netted DataTreasury hundreds of millions of dollars in licensing fees and damages.

Today, the ubiquity of digital check clearing makes this all seem incredibly obvious.  The same could be said of the wheel, but somebody had to invent it.  Before Ballard, the poor banks had to do with what they came up with on their own, and it stunk.  After Ballard, they were floating in excess dough off of his patents, his efforts, his sweat.  Not so sweaty? So what?  He came up with it and they didn’t. 

The banks turned to their friends on Capitol Hill for help. In 2009, Sen. Jon Kyl (R., Ariz.) proposed an amendment to that year’s patent-reform bill that limited financial institutions’ liability for infringing DataTreasury’s patents, which the amendment listed by number. The bill didn’t pass, and the banks got a lot of bad press for the stunt. So this year’s patent-reform bill, known as the America Invents Act, is a little more subtle. A provision inserted by Wall Street’s senator, Chuck Schumer (D., N.Y.), singles out data-processing patents related to financial services for extra scrutiny from the patent office. The banks’ response to DataTreasury is a microcosm of the broader patent debate. The banks describe DataTreasury as a “patent troll”: a company that has no products of its own but earns a living by filing patent-infringement lawsuits.

The shoe does seem to fit.

While I share many beliefs with the guys at Cato, and always enjoy hearing from Tim Lynch about overcriminalization, it’s intellectual dishonesty like Tim Lee’s that cause me to turn away.  This isn’t about free markets, as some would try to characterize it, but about a person’s ability to create something and reap the benefits.  Banks don’t get to steal from others any more than anyone else. Well, at least they shouldn’t.

Still unsure of Lee’s intellectual dishonesty?  Try this on for size:

And DataTreasury is just one of the hundreds of patent trolls now shaking down productive companies. And the explosive growth of patent trolling is just one of the many problems created by our dysfunctional patent system. The America Invents Act is full of such technocratic provisions that tilt the playing field toward big businesses without doing anything to address the system’s deeper flaws.

So DataTreasury is the Goliath beating up on the poor little Davids, like Citibank and JP Morgan Chase?  This is just embarrassingly stupid.  Banks are “productive companies” while Ballard’s DataTreasury is just a patent troll.  There is simply no intellectually honest basis to contend that Ballard’s efforts, his creation of patentable methods that allowed for banks to save billions (which, I note in passing, they didn’t give back to their customers, not even a little bit) are societally worthless while we owe a debt of love to big banks for all the good and productive things they do for us.

A fundamental precept of capitalism is that a person can create something of value and reap the rewards.  This is the incentive that keeps America vital, pushes people to come up with new ideas.  Some involve products, hard things made of plastic that won’t break until minutes after the warranty expires, and some involve ideas that facilitate progress.  Lee values shiny things. Lee doesn’t care much for ideas. 

It’s hard to imagine that my pals at Cato are really as antagonistic toward ideas as this blitheringly misguided article suggests.  Or as socialist. 

Maybe it’s time they create a new position at the Cato Institute, and Tim Lee can be the first to hold it. All that will be required is that he trade in his tux for a jester’s hat.

*Let’s not forget that  I have an interest in DataTreasury.

It was a simple bust, as Police Officer Steven Lupo explained.

It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver’s door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.

Text book all the way.  The request for a medal for excellence almost writes itself.  On cross-examination, Michael Diamondstein played the “are you sure” game, locking Lupo into his testimony.  Close your eyes and envision the smug cop on the stand, calmly testify with that half-smile on his face, believing that he, Police Officer Lupo, was king of the courtroom.

In court, Diamondstein asked Lupo to confirm that account, according to a transcript of the hearing.

“Before you got to Mr. Farsi, did you open the rear driver’s side passenger door and take that individual out and pat him down?”

“No,” Lupo said.

Then Diamondstein asked, “I just want to make sure that we are clear that you certainly didn’t just open the door prior to any conversation, take him out, and pat him down. That definitely didn’t happen?” Diamondstein said.

“Correct,” Lupo replied.

Change the names and this could be the transcript from a thousand other trials.  Except what came next doesn’t happen often.

Then defense attorney Michael Diamondstein produced the video.

Turned out reality was different.

The video taken from nearby surveillance cameras contradicted key facts in Lupo’s report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued.

Straight down the line, Lupo lied, secure in the mistaken belief that he could plop his donut encrusted butt on the witness chair and tell a completely fabricated story about how he’s just about the dandiest cop ever, just doing his job, applying the Constitution and keeping us safe from the bad guys.  Except he was a liar, and Diamondstein had the video to prove it.

Judge Lydia Y. Kirkland tossed the case after the video was played.  Had no video been played, she would have been sentencing the defendant instead.

“I can just tell you from my experience,” said veteran defense attorney Diamondstein, “in the majority of cases, while the clients may not deny having narcotics, in the vast majority of cases the circumstances surrounding the arrest did not happen as it was described in the paperwork or in court.”

Years ago, New York Daily News columnist Murray Kempton coined the phrase, “there they go again, framing the guilty.”  It’s one I repeat often, as its point reflects the most problematic part of law enforcement and law.  Despite the fact that Lupo turns out to be a liar, there will be a great many people who think to themselves, “so what?”  The guy was a drug dealer, and who cares that a cop stopped a drug dealer, seized the drugs and then said what he had to say to lock the scum away.

The ends justify the means, especially when there’s an undercurrent that if it wasn’t for criminal-coddling technicalities that make a cop’s job so difficult, he wouldn’t have any need to lie.  In fact, in a perfect world, there wouldn’t have been a trial at all, Lupo’s word being all any law-abiding citizen needed.

This story was sent to me by a young Philadelphia civil litigator who was shocked (shocked!) that police officers would so brazenly lie.  He was outraged that such a thing could happen.

If they don’t press charges against the police officer for perjury, then our system of justice is a joke.  I don’t practice criminal law, but it’s like the courts downright refuse to make the police and prosecutors follow any of the rules, unless it’s so egregious that it ends up on the news.  (like Duke Lacrosse).  One way of looking at this is the prosecutor proffered perjured testimony… (though I hope the cop just lied to the DA).

To anyone who has spent time in the criminal law trenches, this has to raise a chuckle.  Even the implicit epiphany misses most of the problem.  Lupo wasn’t a lone indian, but working with his partner, and later a supervisor, all of whom studiously violated as many constitutional rights as they could get their hands on. What of the partner? What of the supervisor?  They were all complicit, both in the violation of constitutional rights as well as the conspiracy to lie to the court.  No one came forward to out Lupo’s lies.

But the bigger picture, as Diamondstein notes (and Kempton reiterated decades ago), is that this isn’t the outlier, but the norm.  There’s a game played in courtrooms, where testimony is provided that conforms to what naive or compliant judges and juries expect of police officers.  But cops know how things go in the streets, and laugh at the law.  They do what they think they have to do, what the believe they can get away with, and tell the story to the court they know it wants to hear. 

When it’s only a bad guy involved, there’s no hard feelings.  It’s a game.  We fight over rules, and they lie about them to put the bad guy in prison.  Everyone goes home feeling pretty good about themselves.

Had Diamondstein not been able to get his hands on a video that proved Lupo a liar, the case would have gone down the usual path.  Lupo would have gotten another ribbon for his shield, and the defendant would be doing some time in the pokey.  The judge wouldn’t have broken a sweat buying the testimony and imposing sentence, and the prosecutor would have enjoyed a beer and the admiration of his friends for a job well done.

There was a video, this time. 

After the video was played, and Lupo’s lies were revealed to even the blindest person in the room, the brazenness wasn’t over.

After seeing the video, Kirkland took over questioning. In response to her questions, Lupo admitted that his testimony about never having searched the trunk was incorrect.

“I totally forgot about he asked me to open it at one point,” Lupo said, referring to the supervisor on the scene.

“Without a warrant?” Kirkland asked. “Did you have a warrant?”

“No,” Lupo said.

He forgot.  All is forgiven.  Try that with anyone other than a cop and see how well it works out.

When the United States Supreme Court takes a case and rules, it applies to all.  When the issue is important, we all stand to gain or lose.  When the decision goes south, we all pay.  We don’t, however, get a say in who brings the case.

Rarely do we look behind the brief.  In Florence v. Board of Chosen Freeholders, we watched as a  car wreck happened right in front of the bench.  The case involved the strip search of a guy jailed for a mistaken warrant for a civil contempt, and people of my ilk would have such a search held unconstitutional.  Based on the way oral argument went, it appears that we’re due for the opposite conclusion, that everyone entering a jail, whether for minor or even non-criminal reasons, will have to squat and cough.

The  WSJ Law Blog provides the backstory to this fiasco.

For decades, federal appeals courts held it unconstitutional to strip-search people arrested on minor charges without a specific reason to suspect weapons or drugs were hidden in their body cavities. A lot of jails disregarded the rulings, and some have paid a high price.

Lawyer Elmer Robert Keach III, of Amsterdam, N.Y., says he and his colleagues have racked up $36 million in class-action settlements with jails across the Northeast and as far away as Texas. Roughly 30% of that went to attorneys’ fees.

Keach likes things as they are. Which is why, our colleague Jess Bravin  reports, he has taken to hurling insults at lawyer Susan Chana Lask, whom he fears may have ruined it all by bringing a strip-search case before a conservative-led Supreme Court. (The same court that, last month, suggested that blanket strip-search policies might be constitutional.)

The problem is that Albert Florence retained Lask as his lawyer.  He made this choice on his own, but we will all live with what she did.  And Keath thinks Florence did not choose wisely.

“Susan Chana Lask is an incompetent dolt,” said Keach, who predicts a 6-3 Supreme Court vote blessing blanket strip searches.

While Keach made a living off suing jurisdictions that strip-searched people for no good reason, and thus had a huge horse in the race, his efforts also forced jails to stop the practice.  Lask, by pushing her case to the Supreme Court, may make the practice lawful everywhere, overriding all the great circuit and state court decisions with one, huge, massive failed case.  And every person whose buttucks are spread will have Lask to thank.

But the story didn’t end with the WSJ expose, as Susan Chana Lask sought to vindicate her honor in a comment:

Susan Lask wrote:
Unfortunately, this article is repeating false information. I never went to keach for help at anytime. My case was fine and I won it in the District Court myself. before winning though, Mr. Keach contacted me the day of my oral argument that I won later, and told me he was going to try an dtake my case away from me. this is a tactic some lawyers do that is not accpetable, and in fact was so unacacpetable the Court rules against Mr. keach and the public record shows he was ordered to stay away from my case and the court stated clearly “Ms. lask was found to be very competant and appointed class counsel.” I would appreciate it of the WSJ would kindly get their facts straight and review the record so it is reported correctly. Also, I never ever refered to Mr. Keach as Mr. leech. your colleague ade that up for sensationalism. i accidenatlly said it when he called me and I said that was a mistake. Of course, your colleague unfirtunately abused that mistake and its really a shame that the WSJ thinks its newsworthy to pit people against each other. IAlso, I didn’t “lose” in the 3rd Circuit-0if you would check your facts, the jails appealed to the 3rd Circuit which before that case two otehr Circuits, the 9th and 11th, also held as the 3rd circuit–so the 3rd Circuit followed suit. If you would read the 3rd Circuit’s opinion, they literally state there is an issue and imply they need the Supreme Court to resolve the Circuit Split. So why dont you just name all of the other lawyers who “lost” cases in the 9th and 11th Circuits too–or you should state the truth that these are court decisions, not egotistical wins and losses. Also, you are falsely stating I asked keach’s help–that never happened. I had a conversation with him like many lawyers i conversed with throughout the US as part of my investigation in the case. Mr. Florence as well knows the facts and there are documents disproving your story. It is again a terrible shame this reporting the WSJ enngages in, but that will be handled appropriately and the public ses through this poor report.

Does this writing make you comfortable with your unchosen counsel?  Lask’s comment largely confirms the old saw that one should never confirm in writing what people only suspect.

Not to be ignored, Bob Keach also commented, though his appears at Orin Kerr’s post on this subject at Volokh Conspiracy :

Bob Keach says:
Counselors,
While I am reluctant to enter the fray here, I have been the victim of an unfair hatchet job in the Wall Street Journal, which clearly wrote its story to make lawyers, namely me, look bad. If I had this to do over again, I would not have participated.
Regardless, while I cannot address everything detailed above about me, all of my settlements involved seeking injunctive relief, and usually sought injunctive relief before any discussions of money or the like. My colleagues and I stopped this practice in 13 jurisdictions in four states, and several other dedicated civil rights attorneys did the same elsewhere in the Country. These cases led to countless other municipalities, and the Pennsylvania State Legislature through legislation, to stop strip searching misdemeanor pre-trial detainees. I am upset that Ms. Lask took her case to the Supreme Court because of my concern that the case is a loser, and will make bad precedent that will affect people’s rights all over the country. If she fails (and she most likely will), people charged with minor crimes (and likely non-criminal conduct, such as violating municipal ordinances) will be strip searched when they enter a local jail; something that disproportionately affects the poor, who cannot post bail. Ms. Lask should have resolved her case, in the best interests of her clients, rather than risk an adverse ruling on appeal in a legal landscape that was changing. My colleagues and I settled eight of these cases in the Third Circuit before Ms. Lask decided to undo a series of great District Court decisions and try her luck at the Third Circuit. Discretion is the better part of valor, and sometimes you have to know, as a plaintiff’s lawyer, when to settle.
I have dedicated my life to this issue for over 12 years, and won a number of important decisions in this area. To see all of this hard work undone is certainly a bitter pill to take. It is certainly a lot worse than being unfairly portrayed in the Wall Street Journal.
Bob Keach

Rarely do we get this kind of inside-the-onion view of back-squabbling among those who deal hands-on with such issues.  As Keach see it, this was the wrong case brought before the wrong court by the wrong lawyer, and there isn’t an imprisoned butt that won’t suffer for it.  Lask is not without a point, however, as her concern was not the law for posterity (or posteriors), but the representation of one guy named Albert.

We often question how the law devolved to a state of incomprehensibility, to such a dark and awful place that things we consider horrendously wrong receive the stamp of approval by a gang of harsh, robed figured in Washington.  This is how.

There we forget, there are lawyers who either aren’t up to the job, or harbor bizarre ideas (think “internet mobbing”) that could do monumental damage for society.  Whether they suffer from the Dunning-Kruger Effect or some unknown pathology, they are just as capable of petitioning for certiorari as the best among us.  And they are particularly capable of wreaking havoc with society. And they desperately want the opportunity to do so, to be heroes in their own minds but at our expense.

That’s how it happens sometimes.  When next a client complains about suffering the indignity of having been sent to jail for some trivial, even utterly mistaken, reason, only to have some screw with myopia within sniffing distance, remember Susan Chana Lask.  She wanted only to help Albert Forence, and (assuming the predictions of a horribly bad outcome are accurate), blew it for everyone.

Hank Skinner will eventually get the DNA tests he wants.  The only question is whether he’ll be dead already.

“We are deeply disappointed that the trial court has denied Mr. Skinner’s request for DNA testing.  Unfortunately, the trial court’s order offers no explanation for its conclusion that DNA testing is not called for in this case. It will now be up to the Court of Criminal Appeals to give Mr. Skinner’s case the deliberate consideration that is necessary to ensure a correct result.  We are confident that upon such careful review, the Court will conclude that DNA testing is necessary in this case to ensure the reliability of the verdict.  But for now, the Court of Criminal Appeals must stop the scheduled November 9 execution rather than allow itself to be rushed to a hasty and ill-considered decision.  The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing.”

– Robert C. Owen, attorney for Hank Skinner
– November 3, 2011

For those of us who breath non-Texas air, this seems to go beyond the realm of stupid.  We strain to understand why.  Why, given that the Texas legislature has  enacted a law for the purpose of enabling an inmate to seek DNA testing even when his lawyer failed to do so before trial?

Last June, both houses overwhelmingly passed a revision to the DNA testing law to clarify that inmates should be able to request testing even if their counsel did not request any at trial. Lawmakers even cited Skinner’s case in passing the legislation. Hank Skinner, it seemed, would finally get his DNA tests.

Yet the issue lingers, awaiting a ruling, while the execution proceeds with a speed that makes no sense at all.

November 9 is fast approaching.  There’s nothing magical about the date, compelling a judge to fix it so firmly, to resist every attempt, and all reason, to move it down the road sufficiently to get a ruling on Skinner’s right to have the DNA tested.  Sure, assuming that the ruling is against him, there will be an appeal, and that it will mean more delay before he gets his chance.  And then there’s the delay awaiting the actual testing.

So many potential causes for delay.  So what?  What is the need to rush the execution of Hank Skinner?  What fear strikes at District Attorney Lynn Switzer’s heart that compels her to fight the testing?

Dallas County District Attorney Craig Watkins, in the meantime, has  reportedly decided that it’s his duty to free Dale Duke, imprisoned since 1997, because he’s innocent.

 “The original prosecutor’s failure to provide critical information to the defendant coupled with overwhelming evidence that the initial allegations were false, convinced me that Mr. Duke was wrongfully convicted. After a thorough review of the case, I approved a recommendation to ask the court to exonerate Mr. Duke.”

But as I’ve been told by my friends in Texas, Dallas really isn’t Texas. It’s just some northern city mistaken plopped down in the wrong place.

For terrific background on Hank Skinner, read Radley Balko’s piece at Huffington Post.  For a rational explanation of why Hank Skinner can’t get DNA evidence tested, there’s no place to go.  As for why Hank Skinner is scheduled to be killed on November 9, it’s a Texas thing.  

One would have thought that a rational adult in a position of sufficient power would have put a stop to this idiocy before we came so close to November 9th.  In light of the ruling that his killing will proceed on the appointed date, one would be wrong.

This is just nuts.  And to anyone who would complain that Hank Skinner is a horrible murderer who deserves to die, the issue would have been over a decade ago if they just conducted the DNA testing in the first place and put the issue to rest.  You don’t kill first and test later.  You don’t kill first and deny testing.  And yes, if it were up to me, you wouldn’t kill at all.