Like most people who have  a passing concern with the cyber infrastructure upon which modern society depends, the warning from no less a personage as  F.B.I. Director Robert Mueller that cyberterrorism is “real and rapidly expanding” seemed like a pretty good cause for concern. 

Terrorists have shown “a clear interest” in pursuing hacking skills, he told thousands of security professionals at the RSA Conference in San Francisco. “They will either train their own recruits or hire outsiders, with an eye toward combining physical attacks with cyberattacks,” he said.

Mueller sought a joint effort by the government and hi-tech companies to fight terrorism online. Sure, it would be expensive and intrusive — very expensive, and very intrusive — but what else could we do to stop them from destroying our way of digital life?  I certainly didn’t want Al Qaeda in control of twitter.

Accordingly Brooklyn Law professor Derek Bambauer, the threat of cyberterrorism is, well, overstated.  At PrawfsBlawg, he calls it a “myth.”

UPI’s article on cyberterrorism helpfully states the obvious: there’s no such thing. This is in sharp contrast to the rhetoric in cybersecurity discussions, which highlights purported threats from terrorists to the power grid, the transportation system, and even the ability to play Space Invaders using the lights of skyscrapers. It’s all quite entertaining, except for 2 problems: 1) perception frequently drives policy, and 2) all of these risks are chimerical. Yes, non-state actors are capable of defacing Web sites and even launching denial of service attacks, but that’s a far cry from train bombings or shootings in hotels. (Emphasis added.)

Mueller lied to me? Seriously?

The response from some quarters is that, while terrorists do not currently have the capability to execute devastating cyberattacks, they will at some point, and so we should act now. I find this unsatisfying. Law rarely imposes large current costs, such as changing how the Internet’s core protocols run, to address remote risks of uncertain (but low) incidence and uncertain magnitude. In 2009, nearly 31,000 people died in highway car crashes, but we don’t require people to drive tanks. (And, few people choose to do so, except for Hummer employees.)

Yes, I left the gratuitous attack on Hummers in. The H1 may have been cool if enormously wasteful, but there is no excuse for the H3. None.

So this is a manufactured threat, created in anticipation of capabilities since none currently exist, and of low risk regardless, which makes it remarkably similar to the physical attacks on our soil.  Let’s not forget that about 3000 died in the World Trade Center attack. While a significant number, it remains about 10% of what we annually give away for free to drive fun cars.  Lost lives and lost lives, whether we accept the cause of death as an element of normality, or fear it as our gravest threat.

Bambauer offers a four prong explanation for government’s crying “the sky is falling”:

First, terror is the policy issue of the moment: connecting to it both focuses people’s attention and draws funding.

Second, we’re in an age of rapid and constant technological change, which always produces some level of associated fear. Few of us understand how BGP works, or why its lack of built-in authentication creates risk, and we are afraid of the unknown.

Third, terror attacks are like shark attacks. We are afraid of dying in highly gory or horrific fashion, rather than basing our worries on actual incidence of harm (compare our fear of terrorists versus our fear of bad drivers, and then look at the underlying number of fatalities in each category).

Lastly, cybersecurity is a battleground not merely for machines but for money. Federal agencies, defense contractors, and software companies all hold a stake in concentrating attention on cyber-risks and offering their wares as a means of remediating them.

When you put it that way, it sounds pretty much like every fear-mongering initiative that offers fabulous potential to scare the living crap out of the public and thus gain its approval to sink vast amount of money into its prevention and, if played right, willingness to give up an entirely new level of personal privacy in our online endeavors.  You know, to protect us from the terrorists, all programs and servers need backdoors for the F.B.I. and C.I.A. to gain access at will.  For our own sake. No, really.

In a comment to the post, Orin Kerr, who also spends a good deal of time thinking binary, offers an astute observation:

When the evidence of a threat is largely classified, public discussions of security threats tend to be frustrating because values often masquerade as empirical evidence. One side always says there is a huge threat; another side always responds that there is no real threat. In my experience, these sorts of empirical claims are often created by normative values: The more one favors a particular response, the more one assess the threat to match that response. But perhaps I’m too cynical.

Does this mean our government is crying “wolf” or outsiders just can’t appreciate the accuracy of the threat because we lack access to the secret information it possesses?  That each side harbors its own bias comes as no surprise.

The problem is that the two sides are as far apart as possible, one screaming about the end of the digital world and the other saying it’s just bunk.  Both Kerr and Bambauer note that their respective proponents are sincere in their beliefs, which, of course, gets us absolutely nowhere.

To the extent that those in government use the threat of cyberattack as a justification for sinking a ton of money into its defense, and relinquishment of ever more privacy rights in the name of safety, my bias is that they’ve failed over the past decade to demonstrate that they can be trusted.  Consider the efficacy of the TSA’s approach to airplane safety, and wonder what they might come up with to protect us from cyberattack. 

Sure, the two are unrelated, but they have a hammer and they will beat us to death with it if given the chance.  In the meantime, I’m more concerned with your lousy driving and the reasonable possibility that you’re going to cash your Hummer into me, leaving just as dead.

As the Supreme Court has agreed to consider the constitutionality of the Stolen Valor Act, 18 U.S.C. § 704(b), having granted cert in   United States v. Alvarez which held the law unconstitutional as an infringement of free speech.  This hasn’t sat well with many.

The law prohibits people from lying about their having been awarded a military decoration, as Xavier Alvarez claimed when he, as an important water district director, told people he had been awarded the Congressional Medal of Honor when he was a marine.  Go big or go home is the water district motto. Sadly, Alvarez was a lying liar. He was no marine, and he certainly won no medal of honor. 

And so he was prosecuted.  The Ninth Circuit raised a hoary issue:

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.

Alvarez’s “semper fraud” led to a conviction, which was later thrown out by the Ninth Circuit in San Francisco. The court rightly found that the Stolen Valor Act was an unconstitutional restriction of free speech. Now, ominously, the U.S. Supreme Court has agreed to review that decision.

We have always had fraud laws making it illegal to claim military service or honors to receive financial benefits. Congress, however, wanted to be able to jail people for just telling a lie. While the Stolen Valor Act concerns lying about a military medal, the Alvarez case could establish a legal principle allowing Congress to criminalize virtually any lie – allowing a sweeping new form of regulation of speech in the United States. Politicians have long denounced journalists, political opponents, and whistleblowers as liars, but they could now enact laws that would define some statements as criminal lies subject to arrest.

The problem, as Turley argues, is that it’s not particularly likely that cert was granted for the majority of the court to sing hosannas in support of the circuit’s opinion, with Jay Bybee, “a man accused of falsely bending the law to justify torture,” dissenting.

It seems unlikely that the justices voting to accept the case did so simply to amplify the views of the Ninth Circuit – the most often reversed circuit in the country. Justices Roberts, Scalia, Thomas, and Alito are all viewed as proponents of police power and opponents of some free speech values. Even some justices on the left may not be reliable votes, including Obama’s nominee Sonya Sotomayor, who was opposed by some civil libertarians for her past rulings against free speech rights.

When Louisiana  passed a law prohibiting junk dealers from engaging in cash transaction, it sounded like another absurd effort by some backwater that would swiftly be laughed away by calmer heads.  And indeed that may still happen, but the assumption that this law was unconstitutional (and certainly unAmerican, Bobby Jindal) may be mistaken, according to Eugene Volokh.

A reader asks whether this is consistent with the federal legal tender statute, 31 U.S.C. § 5103, “United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues.” I’m not an expert on this area of law, but I do know that a district court recently upheld a similar law, in Genesee Scrap & Tin Baling Co. v. City of Rochester (W.D.N.Y. 2008). An excerpt from the court’s reasoning:

What Congress has sought to do, then, is establish and maintain a uniform national currency, an aim which is incompatible with a system in which individual states can issue their own currency, or declare things other than federally-issued money to constitute legal tender. The Ordinance at issue here does no such thing, however. It merely provides that payment for junk must be in the form of a check, which in turn is payable in United States currency. Accordingly, it is neither unconstitutional nor inconsistent with § 5103.

What immediately stands out is how Judge David Larimer, with the use of the word “merely” in lieu of anything remotely resembling a rationale, ignores the legal implications of his ruling.  Of course, that doesn’t mean the ordinance there, or Louisiana law here, is unconstitutional, but rather than this decision provides no persuasive basis to suggest otherwise.

There was once a time in America when legal tender, currency and coin, was considered a pretty normal way of transacting business.  If someone wanted something, we reached into our pocket and took out some metal or paper and paid for it.  The person on the other side was secure in knowing that the transaction was completed, and everyone shook hands and walked away happy.

War on currency was a collateral component of the war on drugs, where the underground economy involved huge amounts of currency that were taken in by drug dealers and, to have any useful purpose, had to be spent or invested somewhere.  Having a room stuffed with currency did no one any good; it’s utility was buying expensive things, from cars to buildings to diamond tiaras, if that was your thing.

The government shut that down with its emphasis on outing and prosecuting money laundering, requiring transactions in amounts of currency of $10,000 to be reported, and criminalizing efforts to avoid the reporting requirement, known in the trade as smurfing.  Cash became a problem.  People who possessed large amounts of cash were presumably criminals, and seizures of currency far below the $10,000 limit became the norm, with the person from whom the cash was seized expected to explain its possession to the satisfaction of the government.

Credit cards, debit cards, with all their fancy swiping tricks and metallic colors, because the common substitute.  For many, walking about with more than $20 in their pockets became an oddity. Why carry cash with all the wonderful means of transacting business available.  So what if the banks charged extra for the pleasure, first to merchants and now to consumers.

There were some for whom this didn’t work well, but they weren’t favored people.  Immigrants, whether documented or not, tended not to trust banks or lived hand to mouth, and held their cash close.  People in certain retail businesses, where small bills commonly exchanged hands, tended to carry around wads.  Business with small margins, who couldn’t afford to lose the 4 points the credit card companies demanded, or take the risk that a check would bounce, preferred currency.

But these presented problems to a government that wanted the ability to track the flow of money, to and from, that was admirably documented for them by banks and kept available should they need the information later.  Bank records told a story, where you went, what you earned, what you bought and what you weren’t telling them.  All laid out neatly in monthly statements. 

While I’m certainly no expert on the constitutionality of legal tender any more than Eugene is, it strikes me that an attribute of legal tender, as established §5103, and in light of Article 1, Section 10 of the Constitution, is the ability to use it at will, in payment or satisfaction of a transaction.  Without this element, it has no viability as legal tender, and the notion of legal tender fails.  It would seem that this is the aspect that nags everyone upon hearing of laws limited the use of cash.  But it’s cash?  What’s the point of cash if we can’t use it?

The point is that the government wants you to spend, even spend more than you have, but just do so in a way that provides clear and available record so that it can get its hands on it if needed.  While this Louisiana flavor may be some swamp people thing to deal with finding copper in the belly of ‘gators, don’t suppose some variation won’t be coming to an antique store near you in near future.  And don’t be surprised when your claims of innocence are challenged by an inexplicable debit of $2793 on your bank statement.

Notice the guy in front of you at the deli put his $2 cup of coffee on his debit card with a mere swipe?  Did you really think this technology was developed for his convenience?

Inspired by  Mark Bennett’s post about the guest post requests he receives, it seemed appropriate to offer a glimpse into the kind of crap that comes my way.  While I might include the never-ending slew of requests from a website hyping criminal justice degrees (names change with every email), or the generic piece of crap from Patty Kleen, trying to promote phlebotomy programs (you can’t make this up), instead I’ve chosen one I find particularly annoying.  The scoundrels who are trying to promote one of the various DUI lawyer websites.

Hi,

This is Andrew Hudson from myDUIattorney. I’d like to offer you a
no-cost, custom-written, 600+ word unique article (guest post) for your site?

In exchange, would you be open to putting a max of 2 text links inside
an author bio box that link back to my site?

I’ll ensure you get a well-written, interesting and RELEVANT article that is in line
with what your readers commonly see on your website.

Most importantly, it will be 100% unique (never copied from another site
on the internet, and never given to anyone but you.)

A well-written article will provide you with additional quality content
for your readers and give you a boost in Google rankings.

Note: The reason I ask for 2 text links within the author bio box
is to help promote my site in Google,  NOT to draw visitors away from your site – inconspicuous links only.

I’ve attached a sample article with this email, so you can get a feel
for how I write, and the level of quality I can provide.

If you have any questions please contact me anytime by email or by telephone.

Thanks for your time and attention,

Andrew Hudson
73-03 Bell Blvd #10
Oakland Gardens, NY 11364
Phone: (866) 621-5584

Paid Attorney Advertisement – This Web site . . . is a group advertisement for attorneys nationwide. It is not a lawyer referral service, nor is it a pre-paid legal services plan. Neither myDUIattorney or its parent company, Speakeasy Marketing, Inc are law firms.

The sole reason/basis for the inclusion of the participating lawyers and/or their law firms is the payment of a monthly fee for exclusive geographical advertising rights by counties served. We do not endorse nor recommend any lawyer or law firm who participates in our network.

This website does not make any representation and has not made any judgment as to the qualifications, expertise or credentials of any participating lawyer. The information contained herein is not legal advice. All information found on this site is informational in nature, and due to the fact that laws can and do change frequently, should be verified with a qualified source and is not to be relied upon for any legal defense.

One of the rallying cries of #OccupyWallStreet is “We are the 99%,” distinguishing themselves from the one percent who not only enjoys a certain camaraderie with government officials, with whom they wouldn’t dine if they didn’t hold office, but who tend to enjoy a certain freedom from the costs of maintaining society.  They don’t have to pay a lot in taxes.

That means the 99% are the ones paying the freight for the things our government does, and yet few of us have any meaningful appreciation of how our money is spent.  Sure, we all know that government is wasting our money because they take a ton of it and don’t seem to provide the services that benefit us, but this is just a vague, muddled view.  Details matter.

Via Seth Godin, there’s a chart, a poster available on Amazon, by Jess Bachman, that provides a visual presentation of where the money goes.  Godin asserts that the story, as reflected in Bachman’s poster, makes it real to us.

Jess Bachman wants to help you turn the data about the US budget (the largest measured expenditure in the history of mankind, I’m betting) into information that actually changes the way you think.

Hence Death and Taxes, which we’re publishing today. The new version belongs on the wall of every classroom, every public official’s office, and perhaps in the home of every person who pays taxes.

Proving yet again that the law is too blunt an instrument to protects us from ourselves, the Ninth Circuit en banc decision in the consolidated cases of   Brooks v. Seattle and Mattos v. Agarano, via Orin Kerr at Volokh Conspiracy, rules that the use of tasers in two cases constituted “excessive force.” 

Hooray?  Not quite.  The 6-4 divided court also held that despite its use being excessive, the cops enjoyed qualified immunity. So even though the use of Tasers, at least under the circumstances of the cases under consideration, violated the 4th Amendment, it was plenty of harm, no foul.  A right without a remedy is worthless.

Orin describes the facts of the underlying cases.

Excessive force cases are always fact-specific, but here are the basic facts of the two cases. In the first case, Brooks, the plaintiff was arrested for refusing to sign her speeding ticket. She then refused to get out of the car upon her arrest. The officer told her he would have to tase her if she didn’t get out of the car, but she still refused, and he tased her on a low setting. She still refused to get out of the car, and the officer then tased her on a higher setting.

In the second case, Mattos, the police responded to a 911 call about a domestic dispute between a husband and wife. After a brief investigation, the police announced that they were placing the husband under arrest. The wife was physically between the arresting officer and her husband at that time, and she did not move; as the officer approached, she put up her hands to block the officer and apparently said something about the need for them to defuse the situation. The officer responded by tasing the wife.

The irony in the Mattos case is awfully sweet, as tasing the victim in order to arrest her husband, likely due to a mandatory domestic violence arrest policy, is the height of absurdity.  And yet, the message from the majority is clear:  The cops were absolutely wrong to do so; now go get a donut. 

The dissent, led by Chief Judge Alex Kozinski, takes the majority opinion very seriously,

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.

Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

Dire consequences?  A stern look from their superior officer while waiting for the next batch of donuts doesn’t strike me as a particularly strong incentive to give up tasing victims.

Judge Kozinski’s point is that the use of a taser, “an effective alternative to more dangerous police techniques,” will “be paid for in blood and lives of police and members of the public.”  Why he includes the lives of police in there is unclear.  It’s always members of the public who pay in blood for excessive force.  And use of a Glock instead of a taser certainly escalates the force to a higher level.

But the dissent, while it’s concern seems well-intentioned, wholly misses the mark when it comes to the police use of tasers.  The choice isn’t between a gun and taser.  Fortunately, the shooting of victims is still frowned upon.  Most of the time, anyway.

Rather, the distinction missed by the court is that tasers have become a substitute for a few minutes of patience, the occasional use of reason and perhaps having to bend just a bit, both physically and metaphysically, to resolve a situation without resort to force at all.  In other words, the taser has become the default to bring any situation that requires thoughtfulness to a swift close. 

These are the situations where a taser tends to constitute excessive force, because there was no need for force at all.  This goes to the marketing of the little zapper, the non-lethal way to shut up annoying people that makes a cop’s job fun and easy.  So what if it is brutally painful?  It wears off, and as long as no one dies, no harm done.

Yet people do die, and the potential for the needless killing of people for whom the justification for tasing is that they didn’t jump high enough or fast enough can’t be ignored.  It may not happen with great frequency, but for each dead body left behind by a taser used for no good reason, it matters.  It matters a lot.

Perhaps the majority’s point on excessive force, in light of the dissent’s argument, is that if you don’t have sufficient reason to shoot someone between the eyes with your handgun, then you shouldn’t be using force on them at all.  Or maybe they’re just saying that it’s bad form to tase the victim, particularly when she’s the wife in the domestic dispute.

Either way, there’s nothing in this decision that will cause sufficient delay in getting to the donut shop as the next batch makes its way to the counter.  While there may be “resulting uncertainty” as to when it’s appropriate to tase someone, there’s no uncertainty when it comes to the realization that there’s no exposure regardless.  Tase on, bro.

No, not showing up to adjourn a case when the real attorney can’t make it, but line-up fillers. They have to come from someplace, you know.  The  New York Times profiles Robert Weston, who has been the go-to guy for fillers in the Bronx for 15 years.

But for all the attention that lineups attract in legal circles, Mr. Weston’s role in finding lineup fillers is largely unknown. Few defense lawyers and prosecutors, though they spar over the admissibility of lineups in court, have heard of him.

Mr. Weston says he is always on call; his Bluetooth earpiece comes off in public only when he goes to the barber for his weekly $16 trim. His cellphone, he says, holds the numbers of some 100 potential lineup fillers, mostly friends and acquaintances from the Mill Brook Houses, the public housing project in the South Bronx where he has lived most of his life.

He often complains about how people hound him for the chance to make a few dollars through lineup work.

This is the first I’ve ever heard of him, though it makes perfect sense that there’s a cottage industry in being a line-up filler, along with blood and sperm donor.  Weston gets paid $10 per line-up, and each filler he produces gets $10.  Weston puts himself in the mix whenever possible, which allows him to buy an extra nip afterward.

Did you think this was rocket science?  Of course, fillers need not be perfect matches, and can vary by a few shades of color or a few hundred pounds.  It’s not like anybody picks out the perp based on his actual appearance anyway, as long as you can get past the Wade hearing.

While Weston is used because he’ll always answer the phone, his ability to produce passable fillers isn’t always reliable.

But detectives are not always satisfied.

“Every time I call him and I tell him I need light-skin Hispanic of that description, he always brings dark-skin,” a Bronx homicide detective, Luke Waters, testified earlier this year, according to a court transcript. “He wants to make money as quick as he can, and when he brings them in I don’t like them.”

Detectives said that colleagues sometimes had to remind Mr. Weston that as a middle-aged black man, he could not sit in a lineup for a light-skinned Hispanic man or a much younger suspect.

But for Weston, this isn’t about making sure a defendant has as fair a line-up as possible, or that the cops can sneak it through the court.  It’s about the $10. Really, what is our legal system if not an opportunity for the entrepreneurial?

While the Times’ article is interesting as background in how sausage is made, there’s a part that strikes a bit too close to home:

And lineup participants in the Bronx typically wear a knit cap or a Yankees cap so that hairstyles are hidden. But here, the detectives say, they have to be careful: the suspect may pull the cap down over the brow, a gesture that could suggest that this person has something to hide.

“If we didn’t help them, the perp is the guy with the skully over his eyes, every time,” the detective said.

In other words, IDs aren’t based on anything real, like a victim or witness who can actually recall the details of a person’s face sufficiently to pick them out of a legitimate line-up.  Come on, that’s kids stuff, the sort of story we tell juries to make them all emotional and confident that they’ve convicted the right guy. 

But you will never hear the detective say those words on the witness stand, that the tilt of a “skully” over the eyes is enough to cause a witness to ID the wrong guy every time.  That would never do, as it leaves the entire concept of eyewitness identification in doubt. Without it, no one would ever be convicted, and what would happen to all those prison guard jobs?

Old school line-ups are such an inherent part of criminal law culture that new studies demonstrating how worthless they are, and how much better double-blind sequential identifications are, meet enormous resistance.  Even so, there is no testimony more powerful than an alleged victim of a crime looking over the rail of the witness box, straight at the defendant, and exclaim in a loud, clear voice, “I will never forget that face. He did it.”

It’s a shame that the testimony is so often wrong.  But at least a bunch of guys from the projects for paid to make sure the witness had ample opportunity to study the face of the bad guy after the crime, when all she could remember was his skin color and that he worse a green sweatshirt, so that she could believe as she sat before the jury that her testimony was true.

And the fillers walk out with $10 in their hands, hoping Weston will get another call and they can go get another dime bag to make it through the night.  It’s a sweet deal if you can get it.

H/T Ed at Blawg Review

Some people repose great faith in the jury verdict as a reflection of the will of the people.  Not me, but it’s not important what I think.  The system says a jury decides the facts, and gets to decide guilt or not, and that’s the way the game is played.  The jurors try their best and, for the most part, take their job seriously.  Beyond that, it’s a shot in the dark.

The McLennan County, Texas, District Attorney, however, has found a far deeper respect for the jury.  Via Grits for Breakfast, Abel Reyna argues that a court should refuse to allow post-conviction DNA testing “such testing because it overrides what a jury decided.”

Waco attorney Walter M. Reaves filed a motion asking for the testing Wednesday. It is part of an effort to exonerate Anthony Melendez, the only living defendant in the 1982 slayings of three teenagers.

Why now?

In the motion, Reaves argues the testing is warranted because DNA analysis was not available when Melendez was convicted. He pleaded guilty but has since recanted, claiming he falsely confessed because his lawyers told him he would almost certainly get the death penalty if he went to trial.

There’s the rub.  While Reyna wants to insulate the sanctity of the jury verdict from challenge, there was no jury verdict here. It was a plea, and likely good advice at the time since there was no affirmative evidence that would contradict the prosecution’s case.  A plea of convenience to keep Melendez from frying, hardly a novel idea and one that kept the defendant alive long enough for science to catch up to law.

But Reyna’s argument is disingenuous on two levels.  First, the putative duty of a prosecutor is to do justice, not to protect convictions at all costs. Sure, we can get a chuckle out of that, but when he puts his position in writing, he still has to pay lip service (pen service?) to his mandate.

Second, the inability to test DNA at the time makes this new evidence, and there’s no disrespect to the jury (even if there had been one) or the system’s interest in finality when new evidence comes to light. 

What makes  Walter Reaves’ job particularly hard is that the defendant pleaded guilty.  He stood there, faced the judge, and swore that he did it.  He later recanted, but plenty of people later recant.  No harm there.  

Melendez explains why he pleaded guilty, and pleas of convenience happen all the time, suggesting that the system is inherently goofy when it comes to testing guilt in the first place, as pleas are more a reflection of risk tolerance and an assessment of the chances of winning against the trial tax, the extra punishment imposed for fighting and losing.  In Melendez’s case, that punishment involved his death.  That’s some tax.

But it’s easy to claim, after the deal is cut, that one is innocent and copped to avoid death. We’ve learned as a result of DNA testing that it’s sometimes true.  We’ve also learned it isn’t always true, and there is no reason in the world why a guy, post conviction, wouldn’t want to give DNA testing a shot for whatever it’s worth.  Maybe, just maybe, something will go awry and the guilty guy walks out.  Maybe.

This argument has a point, as revisiting convictions can be an expense and burden on the system.  But so what?  It should be a burden to put, or keep, a person in prison (or off the executioner’s gurney) if he’s possibly innocent.

The argument is readily answered by the philosophical choice of preferring to let  “n” guilty men go free rather than convict an innocent.  Sure, it’s one of those platitudes that people respect more when carved in granite than played out in a courtroom, but it provides an answer to the question before the judge in Reaves’ motion.

On the other hand, Reyna’s argument, that post-conviction DNA testing “overrides” a jury verdict is just ridiculous.  Respect for the verdict of a jury, another platitude appreciated better when the verdict happens to go your way, has nothing to do with the existence of evidence now that was unavailable before. 

What this argument fails to show is respect for the intelligence of the judge and voters in McLennan County, Texas.  Respect the verdict, even though there was no verdict here, but respect reason more.

At his Conspiracy,  Eugene Volokh links to a pair of decisions from the beautiful United States Virgin Islands that tests conscience, law and guts.  Now retired Judge Leon Kendall, who by some accounts was never the sort to sit quietly as impropriety happened around him, decided he had enough.  So did the V.I. Supreme Court, who decided that Kendall was going down for being so obstreperous that he wouldn’t do its bidding. 

Rarely do we, the outside insiders of the legal system, get to see a judge willing to hold so firm that he becomes the defendant against charges of indirect criminal contempt. 

The  underlying case was your garden variety first degree murder of a cop, two defendants with a strong claim of self-defense.  The prosecutor was a guy named Jesse Bethel, who claimed before Judge Kendall that he didn’t offer the defendants a plea to involuntary manslaughter.  This prompted the attorney for one of the defendants, Steven Hogroian, to pull out a recorder with Bethel’s telephone voice message conclusively proving Bethel wrong. Judge Kendall held a deal made, and set the matter for the plea.

Bethel refused to show in court for the plea, and was held in contempt, found and seized.  Bail was set for $10,000, but the jailer just let him go home. Professional courtesy. Bethel did some dancing, and eventually obtained a writ of mandamus from the Supreme Court, holding that he had withdrawn his plea offer and it was off the table, sending the case back to Kendall to do their bidding.

Judge Kendall, calling out the Supremes and Bethel both, recused himself, telling the dirty story in a  lengthy decision that concluded with his refusal to be party to the shame.  The Supreme Court did not find Judge Kendall’s refusal to obey their mandate at all humorous, and charged him with indirect criminal contempt.  A special master was appointed to try him on the charges, even though he had, by this time, retired from the bench.  The result was a recommendation by the special master that he was not guilty of contempt.

“Oh no, you don’t,” the Supreme Court responded, being both accuser and jury.  Writing with their sternest faces on, the Supreme Court rejected the special master’s recommendation and concluded that Judge Kendall was guilty, guilty, guilty.  The court found:

Almost two months after the issuance of that opinion and almost one month after this Court issued its June 10, 2009 mandate, on July 7, 2009, Kendall issued a thirty-one page opinion, designated as “for publication,” in which he, among other things, made numerous inflammatory remarks about this Court, stated that this Court‟s issuance of a writ of mandamus “was clearly improper,” found that the writ had been “issued to facilitate the Prosecution‟s blatant misconduct and perpetrate a fraud on the [Superior] Court,” and recused himself from the case.

And this decision, his refusal to abide the ruling of the superior court and his recusal with good reason, brought disrepute on the court and obstructed the administration of justice.

What about the two guys charged with murdering a cop?  One died of “lead poisoning, calibre unknown” (I stole this from a comment at VC) in Market Square.  The other was tried and acquitted of all charges.  Only Judge Kendall was still in the dock.  No word about Jess Bethel, though I suspect a Medal of Freedom may be in his future.

While this case may be among the most bizarre scenarios to develop out of a criminal prosecution and a judge unwilling to be party to an unconscionable wrong, it lays out a difficult question: Judge Kendall, in an honorable act of conscience, refused to abide a superior court’s mandate to ignore a lie.  Granted, he exacerbated the problem by calling the court out in a decision for publication, but then, transparency in government is usually considered a good thing, particularly compared with  decisions too secret for anyone to see.

Some might say that Judge Kendall was intemperate, failing to show the respect to the superior court that is necessary to make the system work.  That’s the whole point of a superior court, to tell the court below what to do.  When the inferior court is allowed to tell the appeals court that it doesn’t agree, its decision is wrong and it’s not going to happen, the system falls apart.

In this instance, some might say that’s a good thing.  But then, if Judge Kendall can do it here, what’s to stop another judge, ordered to dismiss an indictment against some notorious bad guy, from refusing to do so because the judge is certain that the defendant is guilty?

Notably, Judge Kendall’s reaction, aside from providing his thoughts about the Supreme Court’s mandate that directed him to ignore Bethel’s misrepresentations and its own facile manipulation of the plea offer to make a contract a non-contract because, well, it said so, was to simply refuse to be the judge who did the dirty deed.  By recusing himself, it would be left to another judge to deal with the case, and the mandate of the Supreme Court would be done.  Just not by him.

The irony here is that the only person in a position to spend a night in jail — even though it’s not likely to happen, but it’s possible — is Judge Leon Kendall.  Bethel, who might have enjoyed a night as a guest of the territory, was allowed to serve his punishment in his own bed.  The surviving defendant was acquitted, and the other, well, it sometimes happens that guys accused of killing cops end up dead in Market Square from a bullet with no shooter every found.

And Judge Leon Kendall no longer sits on the bench to call out liars, cowards and sycophants of the prosecution.  The system is back to working the way is was meant to work.

In a moment of weakness, I decided to check out what was happening at  Kevin O’Keefe’s LinkeIn Legal blogging Group.  What I found was  Brian Tannebaum’s marketing purgatory.  Aside from Kevin, and few marketers whose names were familiar, there wasn’t a person there who I had ever heard of or read about, but they were all pretending to be “thought leaders.”

I ran out of the room screaming.

But Kevin has a post at  Real Lawyers Have Blogs about a question posed by Mike Danko of the Aviation Law Monitor about how to deal with negative comments.

My policy has been to publish all relevant and reasonably civil comments, however negative, for the sake of allowing a real dialogue to develop. Lately, however, I’ve been getting so many negative comments that I wonder whether publishing them is counter productive.

Publish, or don’t? And if you publish, what’s the best way to handle them? Respond to them all? Or let them just hang out there?

This is a tough situation that I am sure many bloggers encounter.   Sometimes the Internet feels like the town forum and op ed pieces of old where we plaintiff’s lawyers were labeled the cause of so many wrongs – suing without merit, asking defendants and juries to pay unjust awards, and eliminating products and medical services from the market place. 

Taking pot shots in comments on the net is not easy. Nothing worthwhile is. I say take them, respond in kindness. If not for you, do it for for those injured and killed through the negligence and lack of care of others.

When you put your opinion in writing and hold it out publicly as something worth considering, you subject yourself to scrutiny. 

Spokane Attorney Stephen Graham responded along the same lines.

That is a lot of negativity out there, but I would definitely approve comments like those. they are a little nasty and personal but they are still on topic. I think a lot of lawyers would really appreciate that level of reader engagement. Search engines love all that content.

Graham was doing so well until that last line about search engines.  This is a reminder why talking amongst yourselves is a dangerous thing, even if it has the benefit of keeping issues within the loving embrace of a little LinkedIn community of like minded lawyers and marketers.  Aside from the smarm, Graham’s right, and more importantly, gone down a different path than Kevin, despite the “along the same lines” reference.

Negative comments, even a bit nasty and personal, are precisely what real engagement is about.  It tells a blawger that he’s said something that matters, he’s taken a stand.  This distinguishes him from most on the internet, who are scared to death to say something lest someone not adore him.  Search engines love that too, cheerleaders writing happy stuff about each other. 

Danko’s concern about negativity is misguided.  It’s just part of the joys of blawging, the wonders of having an opinion on a subject of interest to others that generates sufficient thought that readers are moved to write something.  This isn’t a flaw, but a feature.  He’s made others think, and there’s nothing a blawger can do that’s more important than that.

If Danko wants something to worry about, try this.  Write something about a subject that matters and have no one care.  If that happens, then he’s got something to worry about.

In the meantime, the fact that readers are sufficiently concerned to go to the trouble of writing anything, whether negative or positive, tells you that your opinion is worthy of scrutiny, worthy of their time to tell you how ugly and stupid you are.  If that’s too much negativity for you, then the blawgosphere isn’t for you.

And did I mention that Mike Danko writes some good stuff?  So toughen up and tell your negative commenters to blow it out their ears.  That’s the blawgosphere at its finest.