The  L.A. Times reports that the government sometimes loses things.  This time, it lost $6.6 billion dollars in shrink-wrapped $100 bills.  Then it lost more.

After the U.S.-led invasion of Iraq in March 2003, the George W. Bush administration flooded the conquered country with so much cash to pay for reconstruction and other projects in the first year that a new unit of measurement was born.

Pentagon officials determined that one giant C-130 Hercules cargo plane could carry $2.4 billion in shrink-wrapped bricks of $100 bills. They sent an initial full planeload of cash, followed by 20 other flights to Iraq by May 2004 in a $12-billion haul that U.S. officials believe to be the biggest international cash airlift of all time.

Auditors, right on top of things, has finally reached the conclusion that something might be wrong.

For the first time, federal auditors are suggesting that some or all of the cash may have been stolen, not just mislaid in an accounting error. Stuart Bowen, special inspector general for Iraq reconstruction, an office created by Congress, said the missing $6.6 billion may be “the largest theft of funds in national history.”

You may remember that there has been some talk lately about the deficit and national debt.  While factions fought over what to cut, nobody suggested that maybe the price of the vanity war in Iraq was a problem, or that the military was having some difficulty in keeping its eye on shrink-wrapped cargo.  Does it seem like somebody should have mentioned this?

Of course, we regularly hear employees of another branch of government  rail at the horrors of such insidious and outrageous crimes as insider trading, though lost in the hyperbole is the ability to identify a single victim or an actual dollar anyone lost in the process.  Still, there are terrible crimes that corrupt the American way of life.  I know because the government tells me so.

Yet I’m beginning to have this nagging sense that for all the righteousness expressed by very serious prosecutors doing everything they can to protect us from the evil men and women who might steal our money, the government itself isn’t doing a very good job of handling the public fisc.  When so many things we could use from government are on the chopping block, it’s disconcerting to learn that they are sending C-130 Hercules cargo planes filled with bundles of cash to Baghdad Airport, and even more disconcerting to learn that once at the airport, the cargo just disappears.

Not even my old school chum David Copperfield can pull off that magic trick.

If the government is going to send planes filled with cash to airports, and not get too bent out of shape if the shrink-wrapped bundles disappear, maybe they could send a few to Kennedy Airport?

H/T Turley

When Florida District Court Judge Mary Scriven held that the  state law eliminating mens rea from its narcotics delivery crime was unconstitutional, one looming question was what happens to all the other guys hanging around the jail under the same statute.  Via David Markus at Southern District of Florida Blog, we now have an answer:

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida’s drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

“[F]or there is nothing either good or bad, but thinking makes it so.”

–William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: “If I’d had more time, I could have written you a shorter letter.”

***

V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, “It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.” Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

…these movants are unworthy, utterly unworthy, of this windfall exoneration.

The ripple of people buying do-it-yourself Wills appears to be picking up steam, not that it has anything to do with criminal defense.  But smart money is behind it :

Google Ventures is part of the group that invested $18.5 million in Rocket Lawyer, one of a growing number of web-based services that can spew out documents like wills, leases and incorporation papers for a fraction of what many lawyers charge. In a separate deal, its competitor, LegalZoom, raised $66 million of venture capital last month from Kleiner Perkins and Institutional Venture Partners, among others.

Don’t sneer. When is the last time anyone offered you $18.5 million?  One of the fundamental tenets of criminal defense was that our job can’t be outsourced to India, or reduced to a fill-in-the-blanks form, making us immune from these threats.  Yet, there are other, more insidious, cute slogans attacking our flanks.  From Keith Lee at An Associate’s Mind :

“[In the future] The lawyers who succeed will combine Wal-Mart Efficiency With Neiman Marcus Feel.”

So says Thomas Morgan, a law professor from George Washington University, to the Florida Board of Governors and the Young Lawyers Division board at their recent joint Palm Beach meeting.  This in the wake of the current upheaval in the general economy and the law market specifically. Globalization barreling around the globe, law schools churning out too many graduates, and the rise of internet-based legal services such as LegalZoom, TotalAttorneys, and RocketLawyer. All of them are combine to put more pressure on lawyers to deliver high-quality, low-cost legal services than has ever existed.

Adding insult to injury, a couple of lawprofs have proposed a solution to law schools’ inability to turn a student into a lawyer for their $200,000 tuition, suggesting that  schools open their own “law firms” where students can “practice” until they get it right.  Mitch Rubensteiin at Adjunct Law Profs notes the irony of having lawprofs who never practiced (and many of whom aren’t even admitted to practice) teach students how to be “real” lawyers.

On the other flank, Stephanie Kimbro, who is writing a book on unbundling legal services, asked me how it applies to criminal defense.  I responded that it doesn’t, it can’t, and that there is no ethical way for a lawyer to handled “pieces” of a defense and absolve himself of responsibility otherwise.

Yet, I can see the tidal wave coming.  Just as young lawyers ignore the reasons for disciplinary rules that conflict with their chosen lifestyle, the lure of cheap is  powerful, and there aren’t nearly as many lawyers going to Neiman Marcus these days as Wal-Mart.

The public believes in the myth that law is easy, and lawyers just make it appear difficult to justify the outrageous fees they charge.  Lawyers have to charge these outrageous fees to pay off their law school loans, or otherwise justify the cost of tuition and lost opportunity, to do routine work that any monkey could do.  And if the guild was broken, we would all be freed from the slavish yoke of regulators who are charged with protecting the monopoly.

The argument in favor of this fantasy is that 80% of the public will do just fine with fill-in-the-blank forms and a brief consultation.  The percentage is pulled out of thin air, but it’s not important since no one can accurately predict a failure rate that has yet to happen.  Simultaneously, we’re seeing a sharp increase in pro se litigants, bolstered by the occasional story of the litigant who prevailed against all odds, when lawyers failed them. 

What of the 20% who buy a form or an unbundled service, only to later learn that they’ve blown it and wreaked havoc with their lives?  The proponents say people are willing to take that chance in order to save money.  It’s in their financial best interest to believe this is true, just as it’s in the public’s financial best interest to agree.  But it’s like wrongful convictions, where people aren’t too concerned provided they aren’t the ones to be wrongfully convicted.  Everybody assumes they will be on the favorable side of the odds, and they’re willing to take risks because they don’t believe they’ll be among the 20% whose lives are ruined.

And what does this have to do with criminal defense lawyers?  After all, we’re above this fray, our work being immune to market forces, outsourcing and unbundling.  Think again.

Once the public tastes cheap, our mystique will fade just like everyone else.  Surely it takes no genius to respond “not guilty” at arraignment.  And if they can haggle to buy a car, surely they can negotiate a plea.  The motion to suppress is just as susceptible to blank-filling as the last will and testament intended to secure a child’s future.  Is there anyone among us who hasn’t been told by a client how the police did something wrong (no Miranda, no telephone call, no video) that means the case must be dismissed?  Or the failings of the court (no “In God We Trust,” no American flag, the judge didn’t wear a robe) that denied him due process?

Crazy?  Can’t be done?  Ridiculous, doomed to fail?  Of course it is, but since when does reason stop a tidal wave?

The future of blank forms replacing lawyers is almost upon us, and the money behind these companies, the ones that see the potential to take a slice out of the middle of the legal fees paid to lawyers, knows something that lawyers refuse to see.  By giving away our dignity as a learned profession, we have fed into this mythical belief that what we do is easy and insignificant, that the practice of law is unworthy of respect.

This applies to criminal defense as well.  Misdemeanors for $500; Felonies starting at $1000?  Lawyers are fungible in the public’s eye, and if one lawyer can do it at Wal-Mart prices, so too can the rest.  Or maybe, just maybe, they really aren’t doing much of anything useful, particularly since so many innocent people are going to prison anyway, their high-priced lawyers having done “nothing” to help.  If a defendant has no chance of winning, then why throw good money after bad?

It’s not that any of this is necessarily true, though many lawyers appear hellbent on making it so. But to the extent that law is just another business, legal services just another commodity, criminal defense lawyers are just as exposed to these forces as anyone else.  And we have no greater power to stop this tidal wave.

It won’t be long before clients, if you still have any, tell you they only want to purchase an unbundled portion of your service because the fill-in-the-blank form sellers are running a special on motions to suppress.  But can you validate their parking just like they do at Neiman Marcus?

Instead of sour grapes, it’s rotten tomatoes, stemming from

a national antitrust case in Sacramento federal court that has been percolating for 2½ years. Salyer, scion of a legendary California agribusiness family, is the target of a 65-page indictment that could send him to prison for 20 years. It accuses him of operating his Monterey-based SK Foods LP as a racketeering enterprise.

The government investigated for nearly five years before charging the food magnate with a bribery and price-fixing scheme that officials say inflated the cost of canned tomatoes, salsa and ketchup nationwide.

Prosecutors have amassed more than 1 million documents and 100 hours of surreptitious recordings, and they fought to keep Salyer in jail rather than allow him out on bail.

Thrilling?  Not quite?  This is the sort of stuff that makes corporate criminal practice perpetually fascinating, where canned tomatores and salsa are worth a five year investigation, wiretaps and a million documents.  What? You thought our government was expending all its resources on protecting us from terrorists?

But after all this, the last thing the government wants is for the defendant, tomato king Frederick Scott Salyer, to beat them.  Enter John Keker.

John Keker, a 67-year-old San Francisco attorney whose 41 years of practice have included some of the most notable cases of the past few decades, secured a judge’s order last week to join Salyer’s legal team.

His involvement is a significant – and pricey – step for Salyer, 55, who has been under house arrest in his walled Pebble Beach estate since September, when his sister and friends put up $6 million in bail money and property to win his release from the Sacramento County jail.

Keker, who reportedly bills his clients at a $900-an-hour clip, told The Bee it would not be appropriate for him to talk publicly about the Salyer case.

While Salyer’s legal team, led by Malcolm Segal, was impressive before, it takes big guns to handle the absoutely huge volume of crap the government is piling on this prosecution.  Keker can handle it, and the government knows it, which is why the government fought its little governmental heart out to keep Keker off the case.

They fought just as ardently to keep Keker out of the case, charging that his law firm’s representation of an executive in Salyer’s now-defunct company creates a conflict of interest.

The executive, Mark S. Grewal, the former president of Salyer’s SK Foods, has not been charged, but prosecutors insist he is a potential government witness when the case goes to trial.

Anna Pletcher, an attorney in the San Francisco office of the U.S. Department of Justice’s antitrust division, argued the motion to disqualify Keker.

“The government would be honored to face the Keker firm in a trial in the Salyer case,” but Grewal’s situation presents an insurmountable conflict, she told U.S. District Judge Lawrence K. Karlton.

There is no right of a defendants which the government holds in higher esteem than the right of unconflicted counsel.  In fact, there’s no other right they care much about at all.  For this reason, the government’s heartfelt concerns over Keker’s potential conflict, because a former firm client is a potential witness is a deeply moving, highly significant, demonstration of the government’s concern for the defendant’s welfare.  So Keker responded:

“Are you kidding me?” Keker asked the judge rhetorically.

That just about covers it.  Judge Karlton ruled in kind:

Karlton rejected Pletcher’s argument last week, saying, “I believe that the government has got nothing but altruism motivating its motion, and its deep concern with fairness for Mr. Salyer. I believe that, but I also believe in the tooth fairy.

“It seems to me the government is looking to avoid granting Mr. Salyer the best possible defense that he can have. That he can afford Mr. Keker is impressive all by itself … ” the judge said, adding that Salyer is ending up with “either the best or close to the best white collar defense team in the world.”

As defense lawyers, we aspire to do right by our clients and well by posterity.  Validation of our efforts isn’t always easy to come by, as outcomes don’t necessarily correlate with our efforts or skills.  For this reason, there are few things that will make a lawyer feel better than to know that the government will bend over backwards, do or say almost anything, to get you off the case. 

There’s nothing better than knowing you scare them more than they scare you.

H/T Billy

The University of Michigan has completed its top ten survey of health problems for children.  While the top concern is childhood obesity, easily fixed by elimination of toys from Happy Meals (or maybe getting kids to go outside without their Gameboy), the others aren’t so easily fixed.

Seven out of ten of these are traditionally addressed through the criminal justice system.  The primary concern, obesity, has been a target of government attention via regulatory manipulation, which is backed up through the criminal justice system.  Teen pregnancy is a hot button issues because of its religious overtones.  The only concern that seems not to demand a law is stress, though that doesn’t mean some legislator won’t come up with a law and try to justify it as the cure.. 

This list is important in its reflection of the problems on the minds of parents.  Parents, by definition, have children, and there’s no more certain way to curry favor than to craft a law and sell it as the cure to protect their children.

The  list is further broken down by race, with the top 10 for blacks and Hispanics.  For blacks, gun violence and school safety moved way up the list, while teen pregnancy was a mover for Hispanics.  More notably, bullying didn’t even make the list for blacks, but sexually transmitted diseases did.

On the surface, this list is a roadmap for political success.  Whether the problems are real or perceived, whether a manufactured concern from the latest hot topic in the media causing parents to focus on a problem despite the reality of actual harm being farfetched, no politician worth your vote won’t recognize that any law that is cast as the magic solution to the problems of children is the surest route to election.

But consider the experience with drug abuse, the war that began more than two generations ago and has served to put more people in prison in America than in any other country on the planet, and yet there it is, clocking in at number 2.  There’s a message here, that the fixes of which the electorate is so enamored have proven disastrously ineffective in curing the ill, and similarly disastrous in their unintended consequences.

And yet, the rallying cry continues to be “do it for the children.”

Over the past year, the concern that’s garnered enormous attention is bullying, number 5 on the list.  As previously noted, no one has yet been able to come up with an acceptable definition.  While most can agree that it covers one kid using brute force to take another kid’s lunch, this has fallen woefully short of the scope intended by those who seek to protect children.  Instead, the focus has become the feelings of the “victim” of bullying, meaning that if a child’s feelings are hurt, then whoever hurt them is a bully.  Laws are being crafted to make this so, using such language as tormented, threatened, harassed, humiliated and embarrassed.

Such definitions, of course, cover not only conduct that most of us would agree constitute bullying, but also normal, ordinary conduct within its breathtakingly broad sweep.  By criminalizing such conduct, a new generation of potential inmates is born, based largely on the presumptive sense that no one should have to go through life having his feelings hurt.

As society is faced with monumentally difficult, if not intractable, problems, such as unemployment and public debt, it makes it increasingly likely that lawmakers will grab at the low-lying fruit, the ills that are perceived as the greatest to children, and “fix” them to prove how effective they are at lawmaking.  And it’s lists like these that provide them with their easiest and best hits, regardless of ineffectiveness or unintended consequences. 

The rationale is always the same: do it for the children.

It wasn’t on my docket to write about this, but an unanticipated flurry of emails yesterday pushed to the top of the list.  There seems to be a new company every day spamming lawyers with emails offering them “leads.”  By “leads,” I refer to prospective clients, as the word is used by marketing folks who see no human beings but only walking wallets from which to pluck a few bucks.

There used to be a handful of businesses engaged in this awful, disgusting scam.  The trick was to first suck potential clients in by offering free legal advice, which of course is worthless (if not completely wrong), and then push them along to lawyers who either paid for their referral turf or gave the business a kickback for the case.  They never used those words, because they would be wrong, but everyone knows the deal, and the rest of it is just circumventing the ethical violations.

Suddenly, it seems like we’re deluged with businesses that are so flush with clients that they desperately need lawyers “in your area” to take on these cases.  I’ve become inured to these pitches, getting a bunch every day and deleting them without flinching.  But an email came in yesterday in reaction to a bulk solicitation (we know it was bulk because it said so. No seriously, it said “bulk mail”) from a company called LeadRival.

I am glad to know that as a public defender I will not run short on “leads.”

The person listed below was recently arrested for a DUI and needs to retain a lawyer. If this referral is in your area and you’re available to assist, please reply to this email and I will forward the contact information. This referral is free and will be sent to the first lawyer to respond via email.

A while back, a pseudonymous mystery lawyer appeared who sought to lead the legal profession in an uprising against evil, corrupt judges.  It fizzled immediately, as well it should have. It was a silly idea from the outset, made even sillier by its instigator’s assumption of the name “Atticus.”

Apparently, he continued to write his Strike Lawyer blog, capturing the imagination of a few others who were naturally inclined to grasp onto outlier political views and hatred of the system.  Funny how the disaffected gravitate toward each other.  Strike lawyer, as he’s come to be known, has decided to come out of the closet.  It turns out that he’s John M. Regan, Jr., a New York lawyer why says he tried to resign from the bar but was turned down, and thereupon fled north.

John now explains the details of his efforts, that he represented a woman named S.D., and that the injustice and corruption he encountered led him to great extremes, ultimately losing his family, giving up the practice of law and moving to Canada, where he hopes to vindicate his position about the courts of the United States, in general, and New York, in particular, in a hearing on his application to take refuge in the north.  In the meantime, he plans to  tell his story and name the players.

Both  Mark Bennett and Jeff Gamso, upon learning of strike lawyer’s identity and story, gave him credit for his grand gesture.  I’m afraid that I can’t join them.  While I can’t claim to know John, he was a  regular commenter here under the name “John R.,” and to the extent one can get to know anybody on the internet, I came to know John.  Indeed, John was kind enough to tell me a bit about himself :

John R. wrote:

Sure. Attorney since 1989, mostly Rochester. Done a little bit of everything, but tried to concentrate in personal injury. Keep coming back to criminal defense here and there, though, because there’s so much of it. I shouldn’t do it, but I do.

Usually it’s because I need the faster fee and it looks like it won’t get too involved. But you can never count on that. You can take a case thinking it’s one thing and it can really surprise you. And if it does, well, criminal cases always take priority, whether they surprise you or not.

Before I went to law school I was a naval officer. Before that college. Majored in philosophy. That gave me really different standards when it comes to argument. That’s been a significant impediment in practicing law, because I expect other lawyers and judges to reason well. They rarely do. Or maybe it’s just a different kind of reasoning. Whichever, I don’t like it as much.

Juries seem to like my kind of reasoning more, though. Not that I like going to trial. I’m scared to death most of the time. I kill myself trying to win. I try not to get in that position if I can avoid it. Then again, if you have to do it, you do.

I don’t really know what else to say about my background. I’ve probably gone on too much as it is.

I am also grateful to a few members of the Rochester legal community.  I won’t name them all.  Lamentably, this is for their own protection.  But the involvement of a couple of them – Don Thompson and Catherine Cerulli – is already known.  Kate provided her very important expertise in dealing with sexual assault victims pro bono; Don Thompson took over from me in Livingston County Court in 2006, probably sparing me from being arrested, prosecuted or even killed.

Don represented S.D. when she took an Alford plea and mooted the war John planned to wage.  This raises some interesting questions, whether S.D.’s situation was impaired by John’s representation, and she would have been better served had she been represented by a lawyer with greater experience in criminal defense.  Maybe the grave injustice happened under John’s watch because it was under John’s watch? 

Then, if Don Thompson represented her through the Alford plea, given his experience, maybe there’s a reason why a plea was the proper outcome?  And of course, there is a huge question stemming from the melodramatic description that, had John continued to represent S.D., he might have been “arrested, prosecuted or even killed.” Killed?  Really?

Like Gamso, reading John’s story made me think of the buddhist monks who set themselves afire in protest of the Vietnam war.  It must be a “lawyers of a certain age” thing.  But such extreme and dramatic displays didn’t end the war, and won’t end the failures of our legal system.  They just produce a pile of ashes and one great photograph. 

Many people rage against the machine. Some are lawyers. Perhaps it makes them feel as if they’re making a difference, but it’s more a reflection of grandiosity than concern.  They want to achieve revolution, become known and admired as the father of some act of greatness that changed everything.  I’m not qualified to diagnose this mental state, the compulsion to sacrifice all for the grand gesture, but it’s neither something to admire nor something to emulate.  Nuthouses are full of people who believe they are saviors, if only they can nail themselves to a cross.

Rather, my preference is for the men and women who fight each day against the system, client by client, to eke out the victories whenever they can, and make the prosecution, police and judges miserable when they do wrong.  Then they go home and have dinner with their families, and come back to fight the next day.  You see, “injustices” (a word reflecting a facile perspective of events and outcome personal to the perceiver) happen all the time.  None is the gravest injustice ever, except perhaps the Holocaust.  There will be another injustice tomorrow to fight.

General George S. Patton famously said, “The object of war is not to die for your country but to make the other bastard die for his.”  This is what criminal defense lawyers try to do, day after day, with no expectation that anybody is going to build a statue of you.

I’m afraid I’m not impressed with any of this, and that this may be well-intended vanity and arrogance, but nothing more.  Rather than run to Canada to fight against the greatest injustice ever, John, you should have taken your cue from Don Thompson and stuck it out and fought.  But then, you were never a criminal defense lawyer.  Now, you’re just a self-proclaimed martyr to your own cause. Stay away from matches.

For a long time, cameras have been held up as the best means of capturing what actually happened, and thus the way to preserve both the good and bad of cops and criminals, to assure that we would have a verifiable means of knowing what happened rather than feel constrained to accept the cop’s version by default. Cameras.  That’s the answer.

But there was one glaring concern, and against the tide of defense support for cameras, I kept raising one issue that remained problematic: When the cops control the cameras, what happens when they are only used as a sword, and disappear (or are altered) when they’re a shield? The Texas Court of Appeals answers in  Martin v. Texas.  Nothing.

Travis County Sheriff’s Deputy Darren Jennings claimed that he pulled over Martin that evening because he failed to signal a left-hand turn. Within less than two weeks after the incident, Martin’s attorney formally requested that the department preserve video evidence from the stop. Subpoenas were issued to ensure “all videos and dispatch calls” would be saved. At trial, Jennings was asked why the camera evidence had not been kept.

“Since I didn’t put it in my report it wasn’t preserved because I didn’t believe it had any type of evidential value,” Jennings told the court.

The court was unmoved.

We agree with the state that the record supports a finding by the district court that the police did not act in bad faith,” Justice Bob Pemberton wrote. “The United States Supreme Court has held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'”

The court found no evidence of bad faith because the officer testified that he had “no clue” whether there even was a recording made.

“There is no indication in the record that Jennings or his supervisors handled the videotape in question any differently than they handled other videotapes,” Pemberton wrote. “Nor is there any indication in the record that the tape was not preserved because of any improper motive on the part of Jennings or other officers.”

Officer Jennings knew one thing, that there was nothing on his dash cam that he needed to prove his word.  Did he know whether the tape showed anything helpful to the defense?  We’ll never know, since the tape is gone (meaning, we have nothing for the word of the cop and defendant, and cops always win the swearing contest) and Jennings need only shrug and smile shyly.

At A Public Defender, Gideon calls this the Barney Fife Exception. Barney must have gotten a whole lot smarter, as this holding sanctions the controlled use of video for the benefit of police while approving its destruction when it has any potential to aid the defense.  If Barney knows what’s good for him, he makes a calculated decision: leave the video out of his reports and then it magically disappears. 

By leaving the decision of whether the dash cam video is of evidentiary value in the exclusive hands of police, it’s both an invitation, and a validation, of the destruction of exculpatory evidence.  But it’s not exculpatory?  Then preservation harms no one.  But the court has given one side complete control and a free pass for its decision. 

The only way around it is proving bad faith, the problem with which is that it can only come from the mouth of the officer or from the existence of external evidence, such as a second video tape showing the cop a liar and demonstrating why he sought to have his dash cam video destroyed.  Neither are likely to happen, but more importantly, neither set a legitimate boundary for the preservation of evidence.

What makes this decision appalling is that the Texas Court of Appeals had the opportunity to fashion rules to assure that critical evidence would be preserved so that a defendant, or prosecutor for that matter, would have access to some heavy weight evidence to show what occurred.  Memories are lousy and self-serving. Videotape may not be perfect, but it’s never suffers from Alzheimer.  That’s only true, however, if it’s retained.  The spoliation of evidence leaves everyone smelling a stink, except the Texas Court of Appeals.

Some might complain that it’s too much of a burden to maintain dash cam video in every instance of an arrest.  Why?  Tons of paper gets filled out. An arrest is a sufficiently significant event to take up space in a local jail, to waste the time of a bunch of educated folks, some in suits and one in a robe.  It generates a ton of papers.  What’s the big deal about taking the few minutes to download the video onto a DVD and sticking it in the file?  If the crime is worth the potential destruction of the defendant’s life, it’s worth the few minutes of the cop’s time to keep the video.

The court’s facile reliance on good faith on Arizona v. Youngblood, where a rape kit was preserved by refrigeration but some clothing was not, making it untestable for DNA, was not only an awful decision (as conclusively proven by  subsequent DNA testing as more advanced techniques allowed, fully exonerating the defendant), but misses the point of this case.  In Youngblood, the failure to refrigerate was a mistake, as the correct practice was to properly preserve the evidence.  Here, the decision validates the destruction of evidence because the cop, whether the smartest, dumbest, or most malevolent, claims he didn’t see any evidentiary value.

For quite some time, the notion that having a video of interactions between police and others would be a panacea, the means by which we could bring honesty to a system that perpetually preferred the word of a cop.  And now, we achieved pretty much the exact same result, except that the cop has video to back up his word and the defendant has nothing more than the police officers allows him.  This isn’t the way it was supposed to work.  This could have established some basic ground rules that would give video half a chance of serving a purpose in memorializing conduct, no matter who it favored.  But it doesn’t.

Even with video, the court deferred to the cops.  And even Barney Fife knows when it’s a video he would prefer no one ever see.

H/T Radley Balko

Tom Friedman’s column in the  New York Times explains a thing or two.  After going through a litany of the ills plaguing society and the world, he says:

What’s going on here?

There are multiple and different reasons for these explosions, but to the extent they might have a common denominator I think it can be found in one of the slogans of Israel’s middle-class uprising: “We are fighting for an accessible future.” Across the world, a lot of middle- and lower-middle-class people now feel that the “future” is out of their grasp, and they are letting their leaders know it.

While he puts it largely on the world stage, it’s equally applicable to lawyers.  We want the world to adjust to us.  We want what we want, and we’re not getting it, so rather than hunker down to the heavy lifting of doing better, we demand that someone change the our world so that we can continue doing what we find easiest and most convenient and still achieve our dreams.

Why now? It starts with the fact that globalization and the information technology revolution have gone to a whole new level. Thanks to cloud computing, robotics, 3G wireless connectivity, Skype, Facebook, Google, LinkedIn, Twitter, the iPad, and cheap Internet-enabled smartphones, the world has gone from connected to hyper-connected.

This is the single most important trend in the world today. And it is a critical reason why, to get into the middle class now, you have to study harder, work smarter and adapt quicker than ever before. All this technology and globalization are eliminating more and more “routine” work — the sort of work that once sustained a lot of middle-class lifestyles.

Some will see this explanation and think he’s talking about “innovation.”  If I just grab hold of innovation before anyone else, I can soar to the top while others are stumbling about, bumping into themselves.  Hop on the train, baby, and ride it to success.

But note that he talks about something different as well, that working harder and smarter is at the core of adapter to change.  He’s not saying that there’s some easy route, some magic bullet, that will solve problems, but that the upper end of the spectrum keep getting farther away and harder to reach.  Need proof?

Think of what The Times reported last February: At little Grinnell College in rural Iowa, with 1,600 students, “nearly one of every 10 applicants being considered for the class of 2015 is from China.” The article noted that dozens of other American colleges and universities are seeing a similar surge as well. And the article added this fact: Half the “applicants from China this year have perfect scores of 800 on the math portion of the SAT.”

Young people in China are deluged by competition.  There are an awful lot of them, and they are told that either they do better or they fade quickly away (or worse).  It’s hard to get a perfect score on the math portion of the SAT.  But less than that isn’t going to distinguish a Chinese student sufficient to be worth sending to Iowa.  Think how sad that must be.  Yet they don’t whine about the unfairness of their circumstances. They work harder.

In the meantime, this same tool that allows for some to rise above the rest also provides an opportunity for the rest to create a critical mass of mediocrity.

This globalization/I.T. revolution is also “super-empowering” individuals, enabling them to challenge hierarchies and traditional authority figures — from business to science to government. It is also enabling the creation of powerful minorities and making governing harder and minority rule easier than ever. See dictionary for: “Tea Party.”

Those who don’t want to put in the effort to achieve now have a place to join with others who believe that life is unfair to them, the government has failed them, by not accommodating their needs and making them wildly successful as they sit alone and spend their time pretending to be somebody on the internet rather than actually doing something with their lives.

No one pays attention to one voice complaining   We can’t hear it. But put enough voices together and the sound grows louder and louder.  Nothing wrong with that, except when you look to see what they’re complaining about.  When it’s whining over the unfairness of expecting hard work and excellence, hard core effort, the internet provides the medium for the mediocre to have their say.  This doesn’t mean that government is doing a bang up job, or that people who get less than 800 on their SAT have nothing to offer society.  Not at all. 

But never before in the history of mankind has complaining been elevated to lifestyle.  And it’s because of technology, that allows the mediocre to meet each other, share their vision of a mediocre society that provides them with the stuff of their dreams without any heavy lifting, and create a virtual public square to demand that society change to meet their needs.

Tom Friedman says that tech has eliminated much of the routine that was sufficient to keep the mediocre busy and sustain a middle class lifestyle.  It’s gone, baby, and it’s not coming back.  If you’re satisfied with mediocrity, then get used to being hungry and miserable because you’ve just ended any hope of doing better on your own. 

What about mass protests organized around twitter against governments that fail to provide young people with the opportunity to have wonderful lives?  The medium can do that, join together people from diverse places to coalesce into a massive force promoting their goals.  But no government, no ABA, no law school, can make you better than you make yourself.  The most it can do is create a tyranny of the mediocre, where society agrees to its demand to provide Cheetos* and low-cost internet connections so that they won’t take to the streets and attack defenseless hipsters.

But the best you can hope for is the trickle down from those working harder than you, who are too busy achieving to join your protest.  The reason for this is obvious, because no creates anything of value by whining about it.  Complaints don’t create.  We have great tools available to us today, but they’re just tools.  We can use them to achieve more, faster, better, or to find a bunch of malcontents with whom to share  unhappiness.

The constant sound of whining on the internet about how unfair it all is won’t make your lives happier or your futures brighter.  You have to do that for yourself.  Too much effort?  Bummer.

*No Cheetos were harmed in the writing of this post.

Survey says that Casey Anthony is the most hated person in America, much to Michelle Bachmann’s relief.  That her life is in serious danger is beyond question.  Yet Florida Judge Belvin Perry, after ten days of soul searching, has decided that she must come out of hiding and serve her year of probation.

This may not end well.

Given the residual anger over Anthony’s acquittal for murdering her daughter, Caylee, combined with the broad array of nutjobs who believe that they have been chosen by God to exact revenge, there’s an awfully strong possibility that some Florida yahoo will try to execute Anthony.  Perry knows this. He doesn’t care.

In the order filed today by Perry, he writes that probation is meant to rehabilitate an individual and that serving probation while incarcerated “would clearly thwart society’s interest in extracting a full, fair, and just punishment for a crime.”

“To permit the Defendant, whose counsel was well aware that the probation was to begin upon the Defendant’s release from jail, to avoid serving probation now, would take a lawfully imposed sentence and make it a mockery of justice,” he writes.

All of this would be fine if this wasn’t tantamount to putting a target on Anthony’s head, but when the reality is that a bunch of nice folks have suggested that Casey Anthony needs to die, the old order of probation takes on a different character.  As in a death sentence.  If Judge Perry is worried about a mockery of justice, then he really ought to consider the impact of compelling a defendant to put in a position where her murder seems pretty darned likely.

Perry blames Jose Baez for trying to bootstrap a “scrivener’s error” in the sentence to argue that her probation was already served.

“To additionally seek to use a scrivener’s error to achieve an end that was against the court’s intent, especially where both parties had argued the issue of when probation should commence, strikes at the very foundation of our justice system,” Perry writes.

He said that Baez violated his duty of candor, which is “the gold standard that all officers of the court — especially attorneys — must live by.”

Bad Jose, taking advantage of a mistake in the order to save his client from near-certain death.  Notably, Judge Perry doesn’t blame the incompetence of the scrivener.  Hey, stercus accidit.  It’s very noble of Judge Perry to think so much about the foundation of our justice system, but it would be nice if he considered the foundation of Anthony’s continued existence, which precludes a bullet in the head.

The problem here isn’t a matter of whether she served her probation already or should be compelled to serve it in the ordinary course.  All things being equal, she should complete her probation just like any other defendant.  The difference, of course, is that not too many other defendants have good reason to believe that serving a sentence of probation will result in their death.  Casey Anthony has every reason to expect that to happen.

The decision by Judge Perry that justice demands that Casey Anthony come out of hiding and play by the same rules as everyone else fails to take into account another, countervailing duty.  He has a duty not to issue a ruling that is likely to result in a defendant’s death, unless he’s imposing capital punishment.  Anthony was acquitted, preventing Perry from ordering her execution straight out, and enabling him to give that great speech he wrote for the time of sentence about the horrors of a mother murdering her daughter. 

But is he ordering her execution through the back door?  It sure looks that way.

This court is very mindful that it is a high probability that there are many that would like to see physical harm visited upon the Defendant,” Perry wrote.

Yeah. So?  Does Perry suspect his “mindfulness” has the power to stop bullets?

While he may feel an obligation, not to mention public pressure, to force Anthony to serve out her probation, Judge Perry has concomitant obligation to make sure his order, particularly given that we’re talking about probation here, doesn’t compromise her life.  This isn’t your everyday probation situation, and pretending that it is by failing to account for the very real threat to her life, undermines the foundation of the legal system.  Judges don’t expose probationers to death to make a point and curry public favor.

And what is probation to do with this?  Should her probation officer help get her a job at the Piggly Wiggly?  Will she report under cover of darkness?  Casey Anthony’s notoriety is something that no one can ignore, including the cogs in the system that are likely to be blamed should harm befall her.

Unusual circumstances call for unusual responses, and Judge Perry’s handling of this issue in the most ordinary of manners (and with some of the sorriest platitudes every uttered), isn’t merely offensive, but a shocking dereliction of duty.  No matter how hated Casey Anthony may be, and no matter whether she deserves the hatred being heaped upon her, her death at the hand of some wacko is not part of her probationary sentence.

So what speech will Judge Perry deliver at her funeral?  There aren’t many platitudes to cover the murder of a hated but acquitted defendant for having been order to serve out probation, and Judge Perry’s way with words clearly isn’t up to the job.