An arrest is a curious thing.  It’s the justification for the government to seize a person physically, for agents to stick their hands into places that would land ordinary people in prison.  It’s sufficient reason put a person in a cell, for a day or two, and deprive him of the ability to go about his routine. 

Yet, the presumption of innocence, a phrase given lip service by judges who may not hold it as dear as their words might suggest, would suggest that more is needed before we do all these unpleasant things to people.  After all, the only thing needed to arrest someone is a cop’s decision to do so, which could be explained by his observation of a violent act, or his desire for some overtime, or his use of power to teach someone a bit too mouthy for his tastes that he can make their life miserable whenever he wants.  The latter is wrong, but there’s no penalty for being wrong. Not really.

But in United States v. Mitchell,  the Third Circuit held otherwise.  From the WSJ Law Blog :

In 2009, Pennsylvania federal judge David Cercone ruled that the collection of DNA from someone not convicted of a crime would constitute an unreasonable search and seizure, in violation of the Fourth Amendment. DNA samples, Cercone reasoned, carry much more private information about a person than a mere fingerprint.

But in an 8-6 ruling, the 3rd Circuit reversed, holding that people arrested have “a diminished expectation of privacy in their identities.” Those privacy interests, the court concluded, were outweighed by the need for law enforcement to correctly identify people who are charged with crimes, determine their criminal history, potentially link them to unsolved crimes and promptly rule out involvement in a crime in cases in which the DNA does not match that found at the scene, the Post-Gazette reports.

The decision relies on two justifications, the “diminished expectation of privacy” of people arrested, and the “need” of law enforcement to obtain and utilize DNA for identification.  These, the court concluded, outweighed privacy.

The reasonable expectation of privacy, the  rule of Katz that has guided Fourth Amendment law since 1967, hasn’t worked out terribly well because it is, by definition, subject to the sensibility of judges.  They decide what we believe to be reasonable.   Dan Solove has  argued strenuously that Katz is a failure, which, while true, is like blaming the gun because the shooter pointed it at you.  Any weapon that leaves discretion in the hands of people inclined to use it poorly is going to turn out to be a bad tool.  Bad, bad tool.

To the extent a person arrested has a diminished expectation of privacy, it’s not a matter of choice, but because the government has thrust it upon him.  The arrested person is an innocent person.  He may be in fact innocent, or by law innocent, but innocent he is until that status changes by conviction.  The only thing that’s happened is that someone, maybe a police officer or maybe some other person, has leveled an accusation against him. 

The accusation by another person doesn’t have any connection to a person saying to himself, sighing, “oh well, I don’t believe that my privacy should remain intact.”  Rather, the person anticipates that he will be questioned, and have fingers stuck into clothing and body parts, because the government has been doing that to people for so long that we are all aware, at least to some extent, of the process.  We know that they don’t ask “may I,” but just do it.  It’s got nothing to do with what our relinquishment of expected privacy, but with law enforcement control being forced upon us.  That we’ve seen it happen in the movies doesn’t mean we like it or accept it, but that we know what they’re going to force us to do.

More importantly, the Third Circuit weighs privacy against the needs of law enforcement.  Balancing tests are a particularly nefarious means of enforcing constitutional rights, as they not only eliminate any potential for absolute rights, but substitute our individual determination of the relative value of our rights for those of judges.  It’s a lot easier to trivialize the rights of another, particularly when contrasted with the needs of system of which one is a part. 

Judges preside over criminal cases, and see the merit of convicting criminals and the need to facilitate law enforcement to achieve that end.  Many people cheer them on, angry about crime and in favor of using every weapon available to put criminals away.  Far fewer people are concerned about the nuanced distinction between criminals and people arrested.  As with the diminished expectation of privacy, they are familiar with innocent until proven guilty.  But it’s all a bunch of words, since they are fully prepared to sacrifice a few (other) innocent people to assure that the guilty get what they deserve.

The problem with DNA is that if it was merely a really good means of identification, and nothing else, it might not prove more troubling than a fingerprint, and perhaps be far more useful given that fingerprints aren’t nearly as good for identification as people see on TV.  But this is a setup.  DNA isn’t used for identification on arrest, which would take far too long and be far too expensive, as the Third Circuit’s decision might suggest.  Rather, it’s purpose is to be placed in a databank so that the government can accumulate DNA from all the people it can.  If it could get away with it, they would collect DNA from every newborn, still pure, just in case.

And of course, the use of DNA goes far beyond the handful mentioned by the court, well into areas of personal privacy that nobody on the court wants to mention.  The government wants this too, but is smart enough not to mention it.

So the Third Circuit, the court that gave us Sam Alito, has ruled that our expectation of privacy is diminished when we, innocent all, come into the clutches of law enforcement.  The Third Circuit has ruled that law enforcement’s need for DNA is more important than our need for privacy.  By doing so, they have diminished our expectation that the court’s rulings demonstrate a concern for constitutional rights, as any right can be balanced away. 

That’s all it takes to lose a right.  As technology advances, courts will balance them away, and our expectations of the legitimacy of judges to serve as the bulwark between the power of the government and the rights given by the Constitution will diminish.  It’s not the test, but the hands into which the test is placed. 

I received an email asking if I would do a podcast for someone or something named Rocket Lawyer.  I responded by asking who Rocket Lawyer might be, as the email took for granted that I would have a clue, and why I would want to spend my time doing Rocket Lawyer’s podcast. 

I heard back from Eva Arevuo, who informed me that she “co-hosted” and “produced” the podcast, with this blurb about the biz:

Rocket Lawyer is an online legal services company where we connect people looking for advice on anything from writing a will, to immigration issues, to estate settlement, to an independent lawyer who has chosen to work with us.

For the better part of a decade, Della Tarpinian has been locked in a Kafkaesque battle with a trade association she doesn’t belong to, the Kentucky Bar Association. She’s been fined $5,000 and ordered to pay the costs of her investigation, for violating rules that the average non-lawyer might find maddeningly vague and hard to understand.

After a lengthy investigation, the Kentucky Bar determined that Tarpinian’s clients couldn’t possibly have figured out how to fill out the paperwork they filed in court, without her coaching them behind the scenes. What surprised Tarpinian — and many other document-preparers around the country — is that the Bar could drag her before the state Supreme Court and have her fined for, as she sees it, competing against its members. Especially since a jury acquitted Tarpinian of similar charges in a 2004 criminal trial, after less than half an hour of deliberations.

“They only charge people that’s making money,” said Tarpinian, who has a paralegal degree and worked in a lawyer’s office before opening her own document-preparation firm in Owensboro. “It’s so ambiguous, so unclear.”

His point has merit, as attempts to fine-tune a definition of the practice of law, drawing a line bright enough that a non-lawyer can know what conduct is prohibited.  Fisher further notes that some “favored” entities, such as realtors, manage to fly below the radar, preparing contracts for the most significant purchase in most people’s lives that evade scrutiny in many states.

This self-regulatory scheme bothers experts like Gillian Hadfield of the University of Southern California Law School, who thinks lawyers can use it to squelch  competition and innovations such as automated legal document services. 

Gillian has long made the point that legal services are priced well outside the ability of many Americans to pay, yet they’re held to standards of legal expertise in their dealings.  Her point is undeniable, though her solutions to the problem, one of which is opening the practice of law to all comers, is likely to cause far more problems than it cures.

Enter the legal forms for lay-people business, like Rocket Lawyer and its better known competitor, Legal Zoom, offering inexpensive paperwork which shifts the burden to purchasers to figure out what documents they need, how to properly use them and suffer the consequences on their own.  The  WSJ Law Blog notes that Legal Zoom, cash machine for former O.J. lawyer Bob Shapiro, is the target of a class action.

The case claims that LegalZoom, which sells do-it-yourself wills, leases and other documents online, is illegally practicing law in the state of Missouri.

Last week, Missouri federal judge Nanette K. Laughrey partially rejected LegalZoom’s motion for summary judgment and set the case for trial on August 22.

In a statement issued yesterday, LegalZoom said that if the plaintiffs win at trial, it could dramatically impact the  availability of self-help legal books and forms in Missouri.

Dramatically?  Isn’t that the point, to shut down document mills that make good money off photocopies and take no responsibility for the well-intended folks who are trying to figure out whether the form will means their children will eat after they pass or their life-savings will escheat to the state?  Try asking your fertile octogenarian about cy pres.

David Butsch, plaintiffs lawyer in the class action contends:

“The state licensure of attorneys was established to protect the public from those untrained and uneducated in the practice of law,” Butsch said. The preparation of wills and other legal documents “may seem simple to a layman, but they aren’t,” he added. “There are consequences of signing a will . . .and those consequences can be great and they can’t be properly communicated by a company over the internet.”

True, but:

Aren’t online legal documents, however crude, preferable to having folks go without any form of legal guidance? In response, Butsch noted that there is now a glut of legal talent in the market, with many law graduates unable to find full-time employment. That fact, he said, has made customized legal help from practicing lawyers increasingly affordable. “I know quite a few lawyers who offer a quality legal service at very good rates,” he said.

A terribly lame response, both because it’s not necessarily the case, and even if lawyers are a dime a dozen at the moment, there’s nothing to suggest things will remain that way.  He may know “quite a few lawyers,” but what Butsch knows is no more meaningful than anybody else’s self-serving, unverified anecdotes, and hardly a basis for a class action.

The problem, the unaffordability of competent legal representation combined with the vague definition of what constitutes the practice of law, has opened society up to a bunch of putative solutions that are every bit as dangerous and troubling as the problem.  “Pick your poison” isn’t really a viable method of addressing the problem.

I’ve long argued that we need to do better than offering the public the opportunity to pick from only bad choices when it comes to the availability of legal services.  In the meantime, however, I have no plans on playing a pawn in someone else’s marketing scheme for a product I consider to be potentially ruinous to the public.   Whether it’s the unlawful practice of law, or just a really dangerous idea, remains to be seen, but it’s not something to which I’ll let my reputation.

One problem is that there are crimes no one knows exist.  Another problem is that there are crimes that don’t require, as an element of culpability, that one knows one committed it.  The second caused United States District Judge Mary Scriven to hold Florida’s narcotics delivery statute unconstitutional in  Shelton v. Florida DOC (via the NACDL).

“Actus non facit reum nisi mens sit rea” – – except in Florida.*

*Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the “unknowing” possession of a controlled substance.

Sounds crazy?  Of course, as we would hold the postman guilty of delivery of drugs for carrying a package to a mailbox, even though he had no clue what was inside.  There’s nothing blameworthy about it, but Florida didn’t care.

The requirement to prove some mens rea to establish guilt for conduct that is criminalized is firmly rooted in Supreme Court jurisprudence and, as reflected in the ineffectual response by the State to this petition, cannot be gainsaid here. Well established principles of American criminal law provide:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. . . . [T]o constitute any crime there must first be a ‘vicious will.’

Morissette v. United States, 342 U.S. 246, 250 (1952).

Absolutely correct.  And so the Florida strict liability drug delivery statute is unconstitutional, as it should be.  But what of the myriad other crimes that are strict liability?  Say, for example, drunk driving, perhaps the most commonly prosecuted crime in the nation.  People haven’t got the slightest clue what their blood alcohol content might be, whether .06 or .12, and thus can’t know whether their driving is perfectly lawful or completely unlawful.

[A] strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct. See Staples v. United States, 511 U.S. 600, 619-20 (1994).

Note that this is in the conjunctive, such that all three conditions must be met for a strict liability crime to pass constitutional muster.  Few today would argue that driving drunk isn’t inherently dangerous conduct, largely because we’ve been bombarded for decades with the message.  Of course, a few decades ago, drunk driving penalties were still fairly trivial, the loss of the privilege of driving and maybe a 30 day sentence.  There was little stigma, it being the sort of offense that would cause others to mutter, “there but for the grace of God…”

But decades of MADD and SADD and BADD have changes all that, with drunk driving being tantamount to murder, whether inchoate or real.  Penalties for repeat offenders aren’t counted in days, but years and decades.  And yet it remains a strict liability of offense, without the perpetrator aware that his blood alcohol content exceeds the legal, and notably arbitrary, maximum.

Another strict liability crime, statutory rape, similarly defies the Staples analysis.  If the age of consent is 18, for example, and a woman a day shy of the magic age has sex with a man a week more mature, but claims to be of age and has every appearance of a woman one day older, the crime has nonetheless been committed even though the man has neither knowledge nor reason to believe that he’s done anything wrong. 

Of course, this wasn’t viewed as a terribly horrendous crime long ago, but more an anomalous situation demanding a stern reminder to keep one’s mitts off of under age women.  Today, however, the stigma and punishment are monumental, as sex offender registries abound (but this isn’t punishment, it should be noted, since it’s called “civil” and therefore doesn’t count) following lengthy and draconian sentences. In this age of pedophilia, there is no sex offense, so broadly defined as to include public urination, that won’t ruin a person forever.  And in this case, not even the third factor, inherently deleterious conduct, applies, as no one can argue that the woman, a day later, had so ripened that no harm done.

Society’s attitudes toward crime shift, often significantly, over time, with one becoming more heinous and commanding more severe punishment, while the laws criminalizing conduct get stuck in the mindset at the time they are enacted.  Strict liability laws, the ones where legislatures decide that blameworthiness is just too much trouble to prove, and the ones where courts deem them too trivial to be worthy of full constitutional protection, are passed and approved at times when nobody seems terribly concerned. Times change.

The notion of strict liability crimes is itself anathema to the fundamental belief that crimes require blameworthiness, though many in the public couldn’t care less about culpability when there’s a harm to be avenged. That Florida took it to the extreme in Shelton, an absurd elimination of the element of knowing delivery (which isn’t likely to help the multitude of defendants convicted under the statute for whom the time to seek habeas relief has come and gone) gives rise to rethinking its propriety in general.

There aren’t many crimes, if any, that carry no stigma and harsh consequences anymore.  Particularly now, with  potential employers searching criminal records and the internet to remind others forever of any wrong ever committed, the mere conviction for anything stands to destroy any future normalcy.

It’s time to revisit the constitutionality for all strict liability offenses, and to recognize that there is no crime so trivial that it’s unworthy of basic constitutional protections.  It’s time to return the notion of blameworthiness to conduct deemed criminal.

H/T WSJ Law Blog

Stephen Colbert, at his finest.

In the New York Post, Virginia Backaitis writes about how deep, dark criminal pasts, whether childhood indiscretions or trivial, unrelated matters, come back to bite otherwise competent and qualified job applicants in the butt, and they never know about it.

When he was downsized from his job as a software engineer last winter, Ted Brown (not his real name) figured scoring his next gig would be a cinch. His cloud-computing skills were in high demand and he had a stellar reputation in his industry.

“I was sure that companies would be lining up to get their hands on me,” he says.

And that’s exactly how it played out at first. There was the manager who wooed Brown over a dinner of scotch and beef tenderloin, and promised a five-figure signing bonus. He said he’d send an offer via FedEx — but it never arrived. When Brown called, he was told that they’d decided to go with someone else who was “a better fit.”

From Lenore Skenazy at Free-Range Kids, a Delaware mom put her three-year-old down for a nap, and then went to take one herself.  That’s how a good parent does it, exhausted from the daily grind plus caring for a child, the only safe time to sleep is when your kid sleeps.  Except this time.

Unbeknownst to her, her daughter then got up and managed to get out of the house. When police found the little girl later, they went looking for the mom and charged her with child endangerment.

Lenore asks why, instead of charging mom, they didn’t just help mom.  She sums it up:

When we criminalize the ups and downs of normal life, we start making it seem as if living that normal life (which inevitably involves some mistakes and surprises) is criminal. That’s when we start believing we need to take extraordinary precautions against unlikely events, and hovering over our kids out of fear for them and fear for ourselves — we could be blamed!

Whether we get crazy out of fear of being charged with a crime isn’t clear to me.  Few of us think much about it, not truly believing we, fine, upstanding, law-abiding citizens, could ever be charged with a crime because we’re the good guys.  No matter what we read about, see or hear, there’s a bone in our head that says only bad people get arrested.  Good people have nothing to fear.  We have nothing to fear.

It’s not until a bizarre event happens to us or someone who touches us that this becomes real.  We enter the incomprehensible world of the legal system, where nothing works the way the platitudes say it should, that the realization that Kafka wasn’t nuts hits home.

But in Lenore’s story, a different issue presents itself.  The mother did what pretty much every mother does. Fathers too.  She did what good mothers do.  And then, something went badly awry, as the toddler got loose and she was blamed.  With a slight variance in circumstances, picture the mother at the mall whose 3-year-old wandered away when she wasn’t looking for a second. That’s all it takes, as any parent knows, for a kid to escape.  It’s not a stretch to have the child found and the mother arrested for endangerment.

While the numerosity of laws criminalizing conduct is unknown, the nature of conduct being criminalized has become clear.  Don’t make a mistake.  Don’t leave any possibility that an accident might happen.  Are you less than perfect?  Then you’ve committed a crime.

Tolerance for human imperfection has reached an all-time low.  Before you scream about the government and its henchmen, look in the mirror. 

The other day,  a commenter felt compelled to express that a father who made the mistake of putting a gun in the drawer of a night table, and whose 3-year-old found it and, somehow, managed to kill himself, was criminally blameworthy.  The accidental loss of his son wasn’t enough.  Prosecution for his crime was needed as well.  This wasn’t some nasty East Texas crank, as the commenter informed me, after my dismissive interest in her views, that she was an experience appellate criminal defense lawyer of some import, at least to her.  Yet she felt an accident demanded conviction.

Is this a product of marketing, that interest groups hoping to bring about a perfect world where no child, perhaps no person, is ever harmed by anything, ever?  Consider the influence groups such as MADD have had in crafting drunk driving laws that lack rational foundation and vilify a broad swathe of otherwise law-abiding society.  That they’ve been incredibly effective is beyond dispute; and the more than sufficiently sober drive who had an alcoholic beverage and ends up in an fatal accident, even one not of their own fault, is deemed as blameworthy as the sociopath who commits a random, intentional murder.

There’s no arguing the relative merit.  When someone is harmed, someone must be blamed.  When someone could potentially be harmed, someone must be at fault.  No longer do we accept the concept of stercus accidit, that in the natural course, bad things sometimes happen.  While we can usually explain how it could have been avoided if only a person did something differently, we are no longer concerned with the normalcy of the choice, but with the severity of the outcome.

No normal human being wants to see a child harmed. Heck, we don’t want to see anyone harmed.  If only accidents didn’t happen, if we could anticipate every potential problem and, through our diligence and prescience, make it go away.  But we are not that excellent a species, not even the best of us.  To err is human.

The culpable state of recklessness, where we perceive a risk is so grave that harm can be fairly said to be inevitable, yet make the decision to ignore it, is one thing.  For me, even this remains too vague and presumptuous, too subject to the overlay of other people’s sensibilities in many instances, that it fails to provide a sufficiently clear line to distinguish conduct deserving of criminal sanction from that reflecting the imperfection of humanity.

But we’re coming to the point where no mistake is tolerated.  Indeed, many would argue we’ve reached, even passed, that point.  That we’re all criminals based on the plethora of crimes is beyond cavil; that we better pray every day that nothing goes wrong in our lives lest we not only suffer the tragedy of a loss, but the insult of prosecution that will follow, is the world we’re facing.

We can’t do this to ourselves and others.  We’re not good enough to survive such a vision, and we don’t deserve to be held to a standard that no person can achieve except by mere luck.  Accidents happen, not because we’re criminals but because we’re human.

H/T Radley Balko

When Harvey Silverglate, notorious civil rights lawyer, says we commit three felonies a day, only those of us who appreciate what he’s saying nod our heads.  But when that arch bastion of civil liberties, the  Wall Street Journal agrees, the message gets out.

Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

Faced with that reality, the two men, who didn’t find arrowheads that day, pleaded guilty to a misdemeanor and got a year’s probation and a $1,500 penalty each. “We kind of wonder why it got took to the level that it did,” says Mr. Anderson, 68 years old.

Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. “Folks do need to pay attention to where they are,” she said.

US Attorney Olson is so right, folks do need to pay attention to where they are.  They’re in the United States of  America, where a very hard working Congress has created so many crimes, many of which are so trivial in nature, that no one can provide an accurate count.

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

This won’t come as surprise to regular readers, but it raises an issue that may play a significant role going forward.  A fundamental axiom is that ignorance of the law is no excuse.  Not that every citizen is supposed to keep a set of Title 18 of the United States Code on his bookshelf (with pocket parts), as if any lawyer has read it cover to cover, but that the proliferation of criminal sanctions as the backside of regulation makes the axiom absurd. 

On the one hand, it’s the fist in the legislative scheme, that for every bit of conduct Congress would have us perform or not, the flip side is a penalty for our failure to adhere.  Without it, regulations would be toothless, and violations of regulation, intentional and malevolent, would be meaningless. 

Of course, the need for a criminal sanction rather than a civil one can’t quite be explained this way, but then what would legislators have to say when it came time for re-election?  Indeed, the WSJ articles provides a wealth of examples of facially ridiculous “crimes” that turned unsuspecting people, from lobster importer Abner Schoenwetter (sentenced to 69 months) and auto racing legend and snowmobile challenged Bobby Unser (sentenced to $75 fine), into criminals.  No doubt somebody crowed about how his legislation saved us from their heinous acts.

When it comes to financial and corporate crime, the government has undertaken to qualify the business judgment of corporate executives by the sensibilities of young lawyers and special agents who have never spent a day working in any industry whatsoever.  For such amorphous concepts as fraud, effectively defined as doing things differently than an AUSA thinks you should, even if they made money for the corporation, saved money for the clients or were consistent with centuries old business practices, the penalties are monumentally harsh following the public’s outcry after Enron.  Ever wonder why the government bought 54  $600 toilet seat shrouds?  This is what happens when slavish adherence to regulation replaces thought.  This is how the government expects us all to conduct ourselves, upon penalty of imprisonment.

That the Wall Street Journal thought to highlight this issue is the sort of thing that carries the potential of turning heads.  The glaring failure of Congress’ use of criminal sanctions to regulate conduct that otherwise bears no blameworthiness, and the fallacy that it’s needed or no one would follow the law, is well noted in the article.

But as long as people keep screaming that we need another law in order to achieve a perfect society, no matter that Casey Anthony’s acquittal isn’t a regular occurrence, we will not only continue to suffer a never-ending increase in criminalization, but watch as laws meant to solve one crisis put unintended people in prison.

So does the axiom that ignorance of the law is no excuse merit continued vitality?  What of the maxim, de minimus non curat lex?  What about the requirement that criminal laws provide fair notice of what they prescribe, when Supreme Court justices can’t agree whether certain conduct is criminal, yet its sufficient to put you or I in prison? What about the fact that there are so many federal criminal laws that nobody, nobody, knows how many?

It would be easy for a defendant to claim, “but I didn’t know,” every time some malum prohibitum regulation was violated, and this would wreak havoc with the existing approach to the government’s regulatory scheme.  Prosecutors might contend that we can trust them to exercise restraint in the prosecution of otherwise nice, law-abiding folks, but the examples in the article clearly demonstrate the contrary.

I countered Harvey’s three felonies a day with three felonies by coffee break, not as catchy a title but probably more accurate.  Maybe the answer is that our inability to know whether conduct is criminal can no longer be captured by the notion of presumptive ignorance, but rather by the need for notice? 

When we hit 5000 federal crimes, the burden should shift to the government to tell us first that we can’t do something before we become criminally liable for it.  If Congress doesn’t like this idea, there’s always an alternative: Stop creating crimes.

Detroit Gang squad cop Nevin Hughes must have been one heck of an officer.  Not just tough, but something truly special.  After all,  Hughes had been sued eight times over his 15 year career and cost the taxpayers more than $677,000 in damages.  He had to be some sort of supercop to be worth that much.

And now it’s happening again.

This time there’s video, and so it now requires stern warning number 3:

When video surfaced last month of Detroit Gang Squad officer Nevin Hughes apparently roughing up a customer at a local gas station, Chief Ralph Godbee vowed that “alleged behavior of this nature will not be condoned or tolerated.”

Does that mean it was condoned and/or tolerated the last 8 times?  You bet, to the tune of more than a half million paid out to the public.  Aside from the pain, humiliation and injury, running into Officer Hughes was like winning the Detroit lottery, even though the price of the ticket was a bit steep.

Hughes is currently on restricted duty as Internal Affairs reviews accusations made last month by Harrison Township resident DeJuan Hodges-Lamar, who says the officer assaulted him at a Zoom gas station on Detroit’s east side in 2009.

The suburban college student claims he was sitting in his SUV awaiting an open pump when Hughes snatched his keys from the ignition, put him in a choke hold and — as captured by a surveillance camera — threw him to the ground.

It’s difficult not to notice that Hodges-Lamar is black, one of the foremost indicia of gang membership.  If you ask any lawyer who defends people accused of gang violence, breathing is also a primary indication of gang membership.  Wear a red shirt? Gang member. Blue shirt? Gang member. Tattoo? Major gang member.  Black of Hispanic? Do you really need to ask?

The cops who work gangs will tell you about how violent they are, and indeed, it’s true.  Some gangs are terribly violent.  Worse still, they’re often random in their violence, beating, sometimes murdering, people who no reason other than to prove their machismo and worthiness of being in the gang. 

It’s not an easy job, working the gang beat.  And to allow a gang member the courtesy of even momentary respect is to risk one’s life.  This would violate the first rule of policing.  And yet, not every young person a gang cop comes across is a gang member.  Sometimes, black and Hispanic young men are just black and Hispanic.  I know, but it’s really not a crime.

Gang cops become jaded pretty quickly.  They see gang members everywhere.  They see gang members as subhuman.  They see every young person of color as subhuman, and a potential threat.  The good ones know how to turn it down. The bad ones can’t, and treat them harshly.  The really bad ones see no problem with doing so, and become as violent, if not more, as the gang members they are there to police. 

This isn’t one of the easier jobs in law enforcement, attempting to deal with the proliferation of gang members.  But nobody promised cops that their job would be easy. And nobody said it was acceptable to assume the methods of your enemy, to pre-emptively assume all black and Hispanic youths to be criminals and violent, to physically harm them before they have a chance to harm you.

But this doesn’t seem to concern those in law enforcement charged with assuring the public that their officers aren’t worse than the criminals.  The people of Detroit have more than $677,000 reasons to believe that Chief Godbee is blowing smoke, “concerned” now only because a video has emerged that makes him and his department look bad.  That the taxpayers paid out such a huge sum meant nothing, and Nevin Hughes was sent out to the street to harm again.

And lest we believe that the eight prior cases exhausts Hughes’ potential for abuse, it wouldn’t be much of a stretch to assume that there were a couple other instances where someone was beaten but failed to sue.  Or assaulted by whose injuries weren’t sufficiently severe to capture a lawyer’s interest.  Or whose constitutional rights were violated, which didn’t sufficiently surprise the citizen to take any action in response.  Cops inclined to be violent toward people tend to do so with unfortunate regularity.  Not everyone ends up suing.

Yet Nevin Hughes remained on the force, out on the streets working the gang squad, and nobody cared.  Yup, he must have been one heck of a cop, valued more than the amount of the payments to his victims.  That or the Detroit Police Department doesn’t mind that its officers are just as bad as the gang members, and that the citizens of Detroit paid gravely for this cop, both in money and blood.

Accusers of rape, ordinarily referred to by politically correct society as victims, are usually unidentified to protect them from attack, humiliation and inspection.  But when the New York County District Attorney’s office conceded that the accuser of Dominique Strauss-Kahn was not credible, after the bizarrely harsh treatment afforded DSK by  the media and the court, no one  referred to her as victim anymore.

Nafissatou Diallo decided not to slink away.  Instead, she went on the attack.  In an unprecedented interview in Newsweek, she tells her story. she tells a graphic story of what happened in the Sofitel room.  She avoids discussion of things that don’t help her cause.  The story is unchallenged, which doesn’t make it false.  Just untested.

Via TalkLeft, the  defense responds to the three hour interview conducted in her lawyer’s office.

Ms. Diallo is the first accuser in history to conduct a media campaign to persuade a prosecutor to pursue charges against a person from whom she wants money. Her lawyers and public relations consultants have orchestrated an unprecedented number of media events and rallies to bring pressure on the prosecutors in this case after she had to admit her extraordinary efforts to mislead them. Her lawyers know that her claim for money suffers a fatal blow when the criminal charges are dismissed, as they must be.

This conduct by lawyers is unprofessional and it violates fundamental rules of professional conduct for lawyers. Its obvious purpose is to inflame public opinion against a defendant in a pending criminal case. The fact is, however, that the number of rallies, press conferences, and media events they have orchestrated is exceeded only by the number of lies and misstatements she has made to law enforcement, friends, medical professionals and reporters. It is time for this unseemly circus to stop.

It’s often said that we don’t try cases in the media.  It’s not quite true.  We try cases wherever we can aid our cause, and this putative axiom came about because we can’t control the media and don’t trust it.  Since defendants are presumed guilty, the media tends not to be kind to them, and any effort to work with the media usually comes back to bite the defense in the butt.

What makes this particularly unusual is that this isn’t happening upon the media’s initiative, but at the hand of Diallo’s lawyer, Kenneth Thompson.  As Jeralyn Merritt points out, the strategy is less than kosher.

The only excuse I can fathom for this kind of behavior is if the accuser’s lawyer knows something we don’t know: that DA [Cyrus] Vance has already decided to drop the charges against Dominique Strauss-Kahn. Otherwise, this interview violates every ethical rule in the book. As the Supreme Court said in Shephard v. Maxwell:

Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.

….Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and an outcome affected by extrajudicial statements would violate that fundamental right. Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other device, these measures entail serious costs to the system.

If Vance doesn’t join in a defense motion to prevent this accuser from publicly claiming DSK is guilty and publicizing her version of the details of the encounter, I hope the judge steps in on his own. “As the Supreme Court has said, legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” (Bridges v. California, 314 U.S. 252, 271)(1941).

Whether the motive is to prejudice the jury pool, influence public pressure to compel Cy to prosecute, rehabilitate Diallo’s reputation in the hope of a settlement or money judgment or keep the attention alive isn’t as clear to me, but the issue of the perverse relationship between lawyers and the press remains.

Certainly the media won’t shoulder any blame for using whatever fodder it’s offered.  Isn’t that the point of a free press, to disseminate whatever news people find interesting?  It’s not the media’s job to concern itself with the accuracy or truthfulness of what a person says. That they say it is enough to publish it.  It’s wrong but true. The media enables the sickness, and they know it, but they have airtime to fill and eyeballs to capture, and they will do whatever they have to do.

It comes down to the lawyers, then, to conduct themselves properly, to neither use nor be used by the media to undermine the integrity of the legal system, regardless of motive.  Unfortunately, lawyers suck at it.  We weren’t very good about it before, and we’re becoming increasingly bad at it.  Like the idiots who engage in conduct likely to kill them, videotaping it for upload to Youtube in the hope of it going viral and turning them into overnight stars, lawyers desperate for attention ignore all ethical precepts in the hope of getting on air.

This disease has reached epidemic proportions. 

There’s been much talk of legal ethics lately, with lawyers playing the media for their own benefit.  What’s become painfully clear is that lawyers don’t care, and the public doesn’t know. 

It used to be enough for a lawyer to have a full calendar and be respected by his peers.  The silent telephone was a problem, as lawyers turned to increasingly less savory ways to get business and fill up those empty daytime hours.  The respect of their peers was replaced by the adoration of media prominence.  See how many lawyers twit about their television appearances or speaking engagements to let others know of their importance.  It offers no insight as to their competence, but fame has become the most important metric.

As the response issues by Bill Taylor and Ben Brafman says, “it’s time for this unseemly circus to stop.”  It’s up to us lawyers.  Can we resist the lure of potential celebrity?  Or are ethics some archaic nicety to be enjoyed only by those who have already made it, and to be ignored by those who desperately need their 15 minutes of fame?

He appeared in the blawgosphere suddenly, and made almost an immediate impact.  He wrote without fear because he was free, and those of us who read his words knew they were honest.  He was free because he was soon to go to jail.  He was a lawyer, but not for long.  He blew it.

There was nothing to stop him from telling his story, one that might serve to let other lawyers know that they could face the same fate.  He spelled it out without trying to color it to minimize his wrong. 

My professional conduct deviated from the standards of the ethical attorney in the maintenance of my IOLTA account;  and, in the reporting of income and payment of taxes.  I rationalized that I would be able to “catch-up and negotiate.”  This was delusional on my part.  I thought to myself that I was not stealing from my clients, I was just taking from my allocated attorney fees.  While technically true, the rules mean something—if in fact, I could not pay may bills, keep the phones turned on and pay the secretary without cheating then I really had no business holding myself out as being fit to practice law. 

As the secrets of my incapacity compounded I was sicker, and less able to practice.  After 15 years of sobriety I relapsed, seriously oblivious to the connections between my unethical and illegal conduct and sobriety.  I thought my relapse related to my father’s dying—I recognize now that my father’s dying and the crisis in my family was just an excuse to medicate my more profound disorganization and emotional disorders. I was sick.

I liked “blawging” because it offered me a soapbox to try to be socially relevant despite my situation.  You should never doubt that the stories I posted about “bad” lawyers, judges, doctors, drivers, parents, idiots, and morons–these stories, were always about ME.  Likewise, I posted the occasional story about admirable persons in and out of the law, these were stories also about me, as well.  Or rather, I should say the stories were about–who I aspire to be by the grace of God. 

I have some other things, other projects, and a life with my family to live.  I’m now letting go of the “past” absolutely.