It’s unAmerican to say something about social media that has even the faint whiff of negativity.  We’re a “go get ’em” type of people, closing our eyes, holding our nose, and plowing forward into the abyss.  Damn the torpedoes, full steam ahead.  Well, you get the idea.

When news of the Practicing Law Institute’s full day program, Marketing-palooza, hit the twitterwaves, it caused an involuntary reaction compelling me to check it out.  On the bright side, no CLE credit was offered to lawyers to learn how to strut appropriately in high heels and satin hot pants.  On the dark side, it was full day of hugs, kisses and cheers.  No jeers in sight. Not a cloud in the sky.

My buddy, Kevin O’Keefe, was chairing the event, which was good news.  Despite his curious fascination with marketing, Kevin also preaches lawyer competency, which sets him apart from most of the social media gurus who wouldn’t know competency if it bit them in the butt.  They mouth the word sometimes, but  then they also think every kid with 12 minutes as a lawyer can honestly call himself “highly experienced.”

But then, Kevin offered this teaser for his program.

We have a real rockstar kicking off the program in Steve Rubel. Steve is the EVP/Global Strategy and Insights for Edelman – the world’s largest independent public relations firm. He’s done as much for blogging and social media as anyone I know. He’ll be speaking on Thought Leadership in the Digital Age.

Rockstar?  Thought Leadership?  Aw, geez.  I was kinda hoping that the  other Steve Rubell had come back to life, but chances of that weren’t very good.  The program was going to hype the new age of social media marketing for lawyers, start to finish.  There was no segment, no speaker, no curmudegeon, who would throw cold water on the enthusiasm. 

But perhaps one of the speakers, maybe one who was actually a lawyer, would at least mention that social media is not a truth-free zone.  Maybe someone would mention that manufacturing credentials and faux expertise was frowned upon.  Maybe somebody would say, “we’re still lawyers.”

Nope.  As Kevin and Bob discuss, during an interview by Kevin’s son Colin (who just happened to be hanging around with microphone and camera in hand, how fortuitous!), there was no mention, none, of the “perils and pitfalls” of social media.  The word “ethics” was never spoken.

Marcela Monroy, a student at the University of Paris II, Pantheon-Assas, working toward her Masters degree in Legal Sociology, has asked me to post a link to a survey she’s conducting on the impact of social networks (forums, blogs, chats, message boards, etc.) and the access to legal information.

After a bit of due diligence, her research is quite interesting, intended to ascertain not only how people gather information about the law, but whether it’s beneficial or dangerous.  So give Marcela a hand and take her survey.

Here’s the link to the English version of the survey.

Help a Parisian student out, guys.  It’s short, it’s painless, and it’s the least you can do to further our understanding of what the heck the internet means to people and the law.  And no, you don’t need to input your credit card number, social security number or register for Netflix.

Just do it.

That people do monumentally stupid things is almost definitional.  To err is human, and that’s putting it kindly.  One such stupid thing, as it turns out, is inviting people to hit you.  Charging $5 for the pleasure just adds to the aura of stupidity. 

Tiffany Startz, 22, put up her money and took her punch.  Aspiring rapper John ‘Fatboy’ Powell, 25, took the punch to the face.  Now he’s dead and she’s going to trial.  You can’t make this stuff up.

From ABC News :

John “Fatboy” Powell, 25, was attending and performing at a party with his band Krazy Killaz last September when he accepted a $5 party bet to be punched in the face by a woman.

A few minutes after Tiffany Startz, 22, had delivered a punch to his face, Powell passed out. He was taken to Provena Saint Joseph Medical Center in Joliet, Ill., where he died.

An autopsy on Powell showed that an artery burst in his neck and that he died from a brain hemorrhage caused by blunt force trauma.

Don’t you love the wacky names they come up with for bands?  I wonder why the Morons didn’t make the final cut. 

Now, Startz is on trial and facing charges of battery and reckless conduct. Her lawyer Ira Goldstein said, “There’s nothing reckless here. What she did was intentional. [Powell] said he would accept the punch from her.”

Startz is 5-foot-5′ and weighs 142 pounds and Goldstein said, “She’s a young girl with no training in body building or karate or fighting or anything like that.”

“There was no animosity, no maliciousness,” added Goldstein, “just a stupid party stunt that went terribly wrong. No one anticipated this.”

Goldstein moved to dismiss the charges, arguing that this was consensual conduct.  Stupid, but consensual.  County Judge Edward Burmila refused.  Not surprisingly, Fatboy’s mother was relieved.

Theresa Guy could barely breathe after a Will County judge refused to dismiss charges against a Joliet woman Friday who is accused of killing Guy’s son in a party game gone wrong.

Guy cried and hugged family and friends, and she tried to catch her breath. She knows the 22-year-old Startz could still be acquitted at trial, but the case isn’t over after the ruling from Judge Edward Burmila.

“She can’t walk away today,” Guy said.

Walk away from what?  From your rapper-wannabe son’s need to prove he’s a tough guy by being punched in the face by some girl for $5?  While I can understand a mother’s heartbreak about the death of her son, that doesn’t extend to absolving him of his stupidity in this incredibly idiotic scenario.

Startz’s lawyer, Ira Goldstein, makes the only reasonable point in this whole sordid mess, that as stupid as this entire affair may be, there is no crime when the conduct is consensual.  Consent is clearly a defense to battery, and stupid isn’t reckless, particularly when there is nothing to suggest that a single punch, even one to the face, had a likelihood of causing death. 

That Judge Burmila failed to dismiss is inexplicable, short of the basic judicial inclination to avoid making difficult decisions and earning his pay.  It’s so much easier to push it off to a jury, so that any residual anger will fall on their shoulders rather than his. 

This case, and indeed the entire scenario, is ridiculous, but for the fact that there’s a dead 25 year old.  It’s not that young people are suddenly stupid today when they weren’t before.  They’ve always taken foolish risks, and believed themselves to be invincible.  It’s been going on forever.

What is different is the belief that every outcome demands a legal solution, that if someone dies, someone must be held accountable for it.  Stupidity was once a sufficient explanation, but it has now become so deeply embedded into our lives that it’s no longer sufficient to explain why there’s a dead body on the ground.

The biggest question remaining is whether some legislator will latch onto this cause and propose Fatboy’s Law, prohibiting face punching at parties at $5 a pop.  Only afterward will I concern myself with the potential for a face punching registry.

There’s little doubt that neither Startz nor Fatboy desired or anticipated any real harm coming from this momentary lulz.  In the age of Jackass (1, 2 and 3D), this barely registers on the scale of pathetically stupid deeds.  And it should be anticipated that even more idiotic stunts will be performed in the future, since the need to surpass the depth of yesterday’s stupidity seems unquenchable.

But does the criminal justice system have to participate in this downward spiral?

H/T Jonathan “Houdini” Turley

Ken Lammers, former CLTV star, defense lawyer turned prosecutor extrardinaire, posits a provocative notion at Crimlaw.

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That’s more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things.

Royce Mitchell, 36, adamantly denied it.

“I did not have sex with Tiffany,” he told the judge in November 2009. “I most certainly did not. This is definitely a nightmare for me and my family. I wish Tiffany could be here.”

Tiffany, a Hawthorne High School student, was shot to death in September 2009 while waiting for her school bus. She was eight months pregnant. Her baby also died.

Mitchell was charged with statutory rape during the investigation into the shooting, but when DNA tests showed he was not the father of the baby, the charges were dropped for lack of proof.  But that didn’t mean Mitchell was free and clear, being under supervised release from a 2002 New York federal drug conspiracy conviction.  While the absence of a witness and lack of corroborating evidence precluded a direct accusation and trial, the supervised release was a big back door, which the feds were only too happy to enter.

Without Tiffany alive to testify, Mecklenburg prosecutors said there was no other evidence to support the sex charges.

But federal authorities went on to accuse Mitchell of violating the conditions of his release from prison, which required him to stay out of trouble.

Prosecutors did not have to prove beyond a reasonable doubt, as they must do in criminal trials, that Mitchell had sex with Tiffany. Instead, they had to show by a preponderance of the evidence that Mitchell committed the sex acts.

Based upon Tiffany’s accusation to the detective, and despite Mitchell’s adamant denial, he was held to be in violation of the terms of release and sentenced to imprisonment for an additional 2½ years by Chief District Court Judge Bob Conrad.

Mitchell appealed to the 4th Circuit, arguing that Tiffany’s allegations were “uncorroborated, unsworn and inconsistent with other statements she had made.”  In other words, this was a giant step below the typical he said/she said that would have been the centerpiece of a trial, just a pointed finger and no one to challenge.

Mitchell lost.

But earlier this month, the U.S. 4th Circuit Court of Appeals in Richmond ruled: “It is hardly surprising that such an intimate matter, especially one associated with illegality and social taboos, would not be subject to ready corroboration.

“We cannot say that, under these circumstances, the government’s inability to independently verify Tiffany’s statements render them inherently unreliable.”

Well, yeah, that’s true.  The inability to verify an allegations doesn’t render them inherently unreliable.  It also doesn’t render them reliable.  It certainly doesn’t prove the allegations.  And it would seem that it would make such allegations utterly worthless as a basis to violate Mitchell. 

The decision presents an untenable situation.  Mitchell can’t prove a negative, that he did not have sex with his young stepsister.  Mitchell can’t challenge the allegations, since Tiffany’s death precludes examination and the detective’s testimony merely repeats (assuming, he doesn’t gild the lily) what she said.  There is nothing to prove the truth of Tiffany’s allegations, and no way to prove them false.

This is why there is such a thing as burden of proof.  But the burden of proof at a criminal trial, beyond a reasonable doubt, is different than that for a violation of supervised release.  The latter is merely preponderance of the evidence.  Even so, it should fail.  But the 4th Circuit played the “abuse of discretion” card.

The decision to revoke Mitchell’s supervised release is committed to the district court’s sound discretion, and, absent an abuse of that discretion, not to be disturbed on appeal. See Copley, 978 F.2d at 831. In this case, the question of whether the district court abused its discretion is inexorably bound to the plausibility of its determination that Tiffany’s statements were reliable.

No it’s not.  No, no, no.  The reliability of Tiffany’s statements, at best, go to the court’s consideration of them at all.  Absent indicia of reliability, they are sheer hearsay and shouldn’t be considered at all.  That there is some basis for finding them reliable goes only so far as considering them. 

So is the 4th Circuit really saying that an out-of-court, unsworn, uncorroborated statement, as related by a detective, meeting the bare minimum threshold for admissibility sufficient to trump a sworn, in-court denial? Apparently so.  At least, it says that a judge didn’t abuse his discretion for so concluding.

The allegation against Royce Mitchell was pretty sick and disgusting, which no doubt tainted him in the judge’s mind, particularly when coupled with his being a convicted felon.  while drug charges and sex with a 15-year-old step sister have no relationship, the sense that somebody is just a “bad guy” is often enough to make people assume all manner of evil.

But just because somebody is pigeonholed as the presumptive bad guy doesn’t make him presumptively guilty of any allegation leveled against him.  Royce Mitchell never stood a chance of fighting the accusation.  There’s no way to challenge the allegation of a dead person, hanging in the air with nothing but it’s lingering taint.  With the abuse of discretion machinations of the 4th Circuit to make Judge Conrad’s whim untouchable, he was powerless to fight.

Under the best of circumstances, Mitchell’s denial should have rendered the determination a draw, with the hearsay allegation against him and his sworn denial in his favor.  Frankly, it’s not even that, as hearsay isn’t the equivalent of a live, sworn denial subject to cross-examination.  And yet it was “likely” enough to put Mitchell in prison anyway.

H/T Bad Lawyer

The  acquittal of former cops Kenneth Moreno and Franklin Mata for rape does not sit well with some.  It’s not that few people bought their story, that their drunken charge enticed them by dancing naked, except for her bra.  It’s not that people bought the claim that Moreno just “snuggled” with her, maybe kissed her on the shoulder.  Nah.

It’s that in the hierarchy of things hated, rape is a sacred cow.  If a women says she was raped, then she was raped (unless she later admits she wasn’t raped, but then we start screaming “lalalalalalala” so the offensive idea can’t be heard).  The acquittal sparked outrage.  By definition, an acquittal couldn’t possibly mean that despite the stench of guilty cops, the proof fell short.  Except in this case, it did.

Howard Wasserman at  PrawfsBlawg raises the specter of one of the most dreaded weapons in the prosecutors’ arsenal, the nuclear option for prosecutions that fail to achieve the societally demanded outcome. 

Last week’s acquittal of two New York City police officers on rape charges (they were convicted on three counts of official misconduct, resulting in their immediate firing and some further criminal punishment) has sparked outrage and protests. The victim still has a multi-million dollar federal civil rights action against the officers and the city.

But might the Justice Department also bring a federal civil rights prosecution against the officers? Successive or dual federal prosecutions based on “substantially the same act(s) or transactions involved in a prior proceeding” are governed by DOJ’s Petite Policy, which lays out three requirements for a federal prosecution:

[F]irst, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The Petite Policy isn’t law, but rather the Department of Justice’s internal guidelines for when it should exercise one of the law’s most dreaded and disingenuous weapons: Dual Sovereignty.  It smacks of a violation of double jeopardy, but the caselaw says otherwise.  It’s one of those things that only judges and lawyers can accept; by common definition, the construct of dual sovereignty is little more than a hypertechnical rhetorical trick to circumvent the constitutional prohibition against trying a person twice upon the same facts.

There is a real purpose to the policy, to overcome the situation where a local prosecutor takes a dive in a case against someone, assuring acquittal (and thereby precluding penal consequences) against someone when there is strong evidence of a heinous crime, but where a conviction is locally unpalatable, whether politically or socially.  The acquittal of a “respected” Klansman for the lynching of an “uppity” black man is the paradigm.

Wasserman talks about the prosecution of Stacey Koon and Laurence Powell following the Rodney King beating as the “most famous example” in his lifetime.  By limiting his point to his lifetime, he omits the best argument for dual sovereignty, and relies instead the less convincing application of the government’s rationale.

The second element is where a lot of the action occurs. Under the policy, federal interests have presumptively been served by a state prosecution, regardless of outcome. That presumption may be overcome based on a number of factors, including indications that nullification occurred in the prior prosecution or where the state prosecution failed on an element that would not have to be proven in the federal prosecution. The presumption also may be overcome, regardless of the outcome in the state prosecution, where:

first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The nullification point, one that current adherents of the cause of jury nullification often forget, relates back to the Klansman example, where the jury of whites won’t convict one of their own.  The second, where the state prosecution includes elements not needed in the federal prosecution, thus allowing a successful second prosecution solely because it’s just plain easier to convict, is particularly noxious.  Not enough proof? Eliminate the troublesome elements. Easy.

The third argument to overcome the presumption that a state prosecution vindicated federal interests, however, is where the Petite Policy is reduced to a joke.  The language aside, it simply means where the feds decide that they really, really want to convict.  Where the “result” was “manifestly inadequate” sounds better, but means the same thing.

So is this an appropriate case for a successive federal prosecution?

This was a high-profile state prosecution that drew a lot of media and public attention. There is visible public anger over the verdict . . .

DOJ obviously wants to avoid the appearance that it brings subsequent civil rights prosecutions simply because the media pays attention to a case and enough of the public believes a state court verdict was wrong and expresses that belief loudly enough. But there are serious federal interests in gender equality and in stopping police misconduct that may justify a prosecution here. And because the case is something of an outlier on its facts, it could be a flashy-enough prosecution to give the federal government “more bang for the buck” in civil rights enforcement.

And this is what’s wrong with the Petite Policy and the concept of duel sovereignty.  Manhattan District Attorney Cy Vance was right to bring the case to trial, there being enough evidence to try the case and put it in the hands of a jury to decide.  It was fought hard.  Even the brothers in blue didn’t back up Moreno and Mata, as they would have if they had simply raped some black guy with a plunger.  And yet, the jury acquitted because the evidence fell short of proof beyond a reasonable doubt. 

Sadly, the defendant police officers may have gotten away with a horrific abuse of their office and authority.  Happily, a jury decided the case not on the anger and disgust of the allegations, but on the lack of evidence of guilt, despite the stink.  That’s how it’s supposed to work.  For those who balk at the fact that the system always seems to work better when it’s a cop in the dock, another unfortunate reality, the answer isn’t to be unfair to cops, but to be more fair to all.

There may well be some great headlines available for the United States Attorney for the Southern District of New York, Preet Bharara, for trying to appease the the blood lust, but there is no legitimate basis to prosecute Moreno and Mata a second time.  The Big Apple tried hard to convict the cops for rape and failed.  There is no legitimate justification for the government taking a second bite.

It’s bad to be a psychopath.  Criminal defense lawyers, for all our commiserating with our clients, the unfairness of the system, and our empathy, the reality is that some of those who commit crimes, and yes, some defendant do indeed commit crimes, are psychopaths.  Represent one and you can understand why it’s a bad thing.

Psychologist Robert Hare created a test, called the PCL-R, to determine who is a psychopath.  From all reports, the test is a good one, though I’m not qualified to tell one way or the other.  And so, its widespread use and acceptance within the criminal justice system should similarly be good, right?  Not necessarily.  NPR interviewed Hare, who explains his concern over the use, and abuse, of his test.

SPIEGEL: Hare began collecting these interviews in the 1960s, at a time when research on psychopaths was considered both obscure and basically irrelevant to understanding crime. You see, at that point, Hare says, there was a very clear consensus about where crime came from. Criminals were made, not born.

Dr. ROBERT HARE (Psychologist/Creator, PCL-R): In those days, social factors, environmental factors were the explanation for all crime. When you’re born, just a blank – you’re a blank slate and I can train you to be anything you want.

SPIEGEL: But Hare didn’t really buy this. He thought inborn personality was important. He says, as a psychologist, when he looked at people he just saw these incredible differences in temperament.

Dr. HARE: Differences of impulsivity, differences in the capacity for empathy, for feeling guilt. As, you know, we have individual differences in intelligence, well, we should have individual differences in the personality traits that are responsible or related to crime.

What Hare found was that some people were, well, different.

Dr. HARE: It’s sort of like trying to explain to a colorblind person what the color red is. Can we teach a colorblind person how to see red, what red is? You can have all the dictionary definitions you want, but this person will never quite get it.

And so he developed PCL-R, which could be used to predict who was likely to continue to engage in criminal behavior, certainly a very important piece of information in determining who should be released from prison and who was a psychopath.  What could go wrong?

When the test found its way into the hands of prison psychologists, its reliability suddenly dissipated.

Daniel Murray did a study of the real-world reliability of the test, and found definitive discrepancies.

Mr. MURRAY: You know, we don’t know if people giving it in the field have received formal, rigorous training or if they’ve just sort of bought the manual and maybe read a couple papers and decided they’re going to start using it.

SPIEGEL: But Murray thinks it’s also something else. He says that in his study, psychologists hired by the prosecution consistently scored higher than psychologists employed by the defense, probably, Murray says, because they’re being paid for those opinions, and that money influences them.

A tool is only as good as the mechanic using it.  Whether it’s the uncalibrated radar on the side of the police cruiser, or a sophisticated psychological test that will label a person a psychopath and keep him imprisoned forever, the human factor is always a weak link.  Our adoration of science, for taking the onus off of people to make hard decisions, allowed this tool to become a weapon in the hands of the wrong people.  What a shock.

Of the many tools available to provide what judges and parole boards will latch onto as absolutely conclusive, a test that “proves” a defendant to be a psychopath is about as destructive as it gets.

Mr. HARE: Empathy is highly genetic in origin, modified and shaped by the environment, of course. But if you’ve got an adult who has virtually no empathy in the normal sense of the term, you’re not going to send him to school to learn empathy, Empathy 101. It’s just not going to work.

SPIEGEL: And when you think about criminals in this way, as people who are almost genetically predisposed to crime, you are much less likely to invest in their rehabilitation than if you say their acts as a product of unfortunate environmental circumstances.

This is why it’s so important to figure out if bias and bad training are affecting Hare’s test to the point that it is potentially mislabeling people. After all, once someone is labeled as a psychopath, what can you do with him? Nothing but lock him away.

There are psychopaths out there.  They are monumentally dangerous, because they are incapable of comprehending harm to others the way others do.  If you have never had the pleasure of sitting in the same room as one, then you can’t begin to appreciate the seriousness of this emptiness where normal human empathy should be. 

But a big red rubber stamp that says “psychopath” in the hands of some prison-paid psychomonkey is a perversion of the problem.  The net effect is that their testing cannot be presumed reliability, and Dr. Hare’s methodology in their hands is just another weapon to be used against those people the government doesn’t like.

The problem isn’t the test, but its abuse in the wrong hands.  And once someone is labeled a psychopath, it’s essentially impossible to change.  After all, tests can’t be wrong and the defendant is crazy.

H/T Dissent from Pogo was Right

In a New York Times Op-Ed, Brigham Young lawprof Shima Baradaran claims that  her research shows how courts can safely release 25% more pre-trial detainees, thus significantly reducing jail overcrowding.

The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.

For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail. On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.

Ignoring, at the outset, that bail determinations are based on both risk of flight, and limiting it to her chosen factor, risk of the commission of new crimes, that’s it?  Which judges are setting unreachable bail for older defendants with clean records and cutting younger defendants with long rap sheets free?  Where is this happening?

Is it that simple, that there is an epidemic of judges who are so incredibly incompetent that they are making bail determinations backwards? 

In the law review article referenced in the op-ed, Baradaran talks about predicting violence.  Not all defendants, young or old, are there for acts of violence.  Not all priors are about violence.  If Young Steve has twenty arrests for smoking a blunt on the street corner, where the cops kept tripping over him despite their efforts to be there when the new tray of donuts greeted the day, his rap sheet will be lengthy indeed.  Completely inconsequential, and utterly  meaningless in terms of violence, as Young Steve is more than happy to hang with his buds and pass around the doobie, but still long.

And where are these courtrooms stuffed with middle agers with clean records, remanding them for fear that at 37, they will embark on a career of carjacking when their single alleged wrong to date was dipping in their employer’s cash register?

Baradaran says that her research is extensive, comprehensive, clear and overwhelming, that she knows what to look for when deciding whether to keep somebody under lock and key.  And the answer is?  Nowhere to be found in this op-ed.  I didn’t read her law review article beyond the abstract. 

But if she’s going to write an op-ed for the Gray Lady, then I fail to see why I have to indulge in such self-loathing.  Either say something meaningful or stay off the op-ed page.  This isn’t a teaser for the 6 o’clock news, forcing one to watch until the bitter end to find out which common household item will likely kill your children.

For at least the almost 30 years I’ve been in the well, I can’t remember a time when judges were expected to concern themselves with either jail overcrowding or the cost-benefit of a bail determination.  Like the bunker buster bombs dropped on Baghdad, cost was irrelevant.  It was something that just had to be done, whatever the cost.  The youngest and rawest recruits in the District Attorneys office would argue for huge bail for first time offenders, or small but simply unreachable bail for the most inconsequential crimes by a guy whose entire personal wealth consisted of a bottle of Thunderbird, and judges were left to sort it out.

Baradaran notes that bail decisions by judges tend to come from the gut rather than anything remotely resembling some empirical perspective.  That’s not entirely correct, at least in New York City courts, where the Criminal Justice Agency would interview defendants, ascertain their community ties in relation to their prior criminal history, and offer a recommendation based on an overly simplistic paper model.  It wasn’t much, but then, neither is what Baradaran offers.

She argues that alternatives to pretrial detention, like GPS and house arrest, aren’t being used to their maximum advantage.  It begs the question of whether defendants who can’t afford bail can pay the costs associated with techno-jail, and leaves one to wonder who is going to be monitoring the people released, given that there aren’t a bunch of probation officers sitting around now eating bon bons.  But when needed, it’s certainly an alternative that isn’t regularly considered.

The upshot of this op-ed is that it makes this situation, the over-detention or excessive-bail of pre-trial defendants (meaning people who have yet to be found guilty of anything) sound as if its a product of a nation filled with idiotic judges who just can’t tell the difference between the guy who ought to be out and the vicious young predators.  How trading incarceration of one group for another changes anything isn’t clear, but that’s what she says.

Historically, judges erred on the side of higher bail rather than lower.  It wasn’t their job to take risks, either with their careers or other people’s safety.  The result was far too many people held in jail pending trial, for reasons that were far more rhetorical than real.  It’s easy to explain why a person poses a threat, either of the commission of a new crime or the failure to return to court as required.  It’s far harder to take a chance, and there were few incentives beyond sheer humanity, to let defendant’s walk out of court.

The problem Baradaran raises, that we can significantly reduce the jail population by making more cost effective decisions at the setting of bail, is real.  The solution requires either a more effective incentive system for judges to stop taking the easy route, if in doubt, lock ’em up, or a better way for judges to confidently distinguish the defendants to be released from the ones who will go out and do harm. 

If only Shima Baradaran had written an op-ed that offered something, anything, to aid in the determination.  But she didn’t.  And we’re not smarter after reading her op-ed than we were before. Maybe less so.

Rather than offer my pale thoughts this year, I defer to those of Eric Mayer at the Military Underdog.  My father, like Eric’s, served in World War II.  My father, unlike Eric’s, is still alive, and goes to work every weekday at the Coast Guard base where he’s the public affairs officer.  I’m fortunate to still be able to tell my father that I love him.

He won’t live forever, and someday I hope to be able to express my thoughts to my father as well as Eric expressed his.

Please read A Memorial Day Letter to Dad.

The underlying story is one of those that makes your head explode from its sheer stupidity.   Radley Balko sums it up.

Family with an unsecured wireless connection gets an early-morning FBI raid, lives under a cloud of suspicion for two years.

Note that though the FBI arrested the guy they were after in November, it took them until May to get around to notifying the family they were no longer under investigation—and even then only after the media got wind of the story.

It was a simple mistake, simple in the sense that anyone with the slightest clue of how wifi and the internet works would have understood that there was a  huge factual gap in what appeared superficially and reality.

“There were FBI and police at the door. They came up into our bedroom flashing lights in our faces,” said Tracy. “I ran to my daughter’s room. She was sitting on the side of the bed crying. She was terrified,” she said.

Investigating a child porn case, the family was interrogated for 3 hours. With search warrant in hand, agents took seven computers and a router from the home.

“They kept asking us about the screen name ‘babytodd’ which we knew nothing about. The whole manner of interrogation was degrading, demeaning and cruel,” said Tracy.

Somebody horned in on the family’s wifi.  Somebody, using the name “babytodd,” downloaded kiddie porn.  It was pure kismet that they didn’t shoot and kill anyone in the misbegotten raid.  Smart bunch of guys working for the FBI, right?  Keeping America safe, one mistake at a time.

So the FBI made a mistake.  Hard to imagine, at least if you’re in law enforcement.  Even after it was all over, the FBI couldn’t quite grasp that they were the ones at fault.

In a statement the FBI told NewsCenter 5: “We understand it must be very upsetting for innocent people to have their home searched by the FBI. They were victimized by a wireless trespasser.”

Of course, the “wireless trespasser” didn’t raid their home in the wee hours of the morning, seize them, interrogate them.  But they were just doing their job.

Two years after the raid, and six months after they arrested a neighbor who happened to use the screen name “babytodd,” Denise Tacey and her family remained, as far as they know, the unarrested suspects of distributing child porn, under the cloud of this horrific charge. 

For two years the Tracys didn’t hear a word from the FBI. They sent letters to government officials demanding resolution.

“The worry and stress and sleepless nights have aged us,” said Tracy.

The feeling of being an innocent person involved in some Kafkaesque nightmare is hard to explain.  There is no comfort to be found in knowing that you’re innocent, as the taint of accusation and fear of prosecution hangs over your head every day.  The threat of another morning raid, the door smashed in as armed men seize your children is omnipresent. 

Yet there’s this naive hope that a day will come, a phone call or maybe a letter, from the FBI, saying in official language that they realize they made a mistake, that they realize they broke down the wrong door, that you are officially declared innocent.

That’s not how it happens.

They may be lightning fast in leveling falsely accusing, but there is no interest whatsoever, none, in conceding a mistake.  The Tracey’s sent letters. They heard nothing back.  They caught the the man they were looking for, and still nothing.  The allegations still hung over the family.  And they would have forever but for the intervention of media.

After NewsCenter 5 made inquiries to the FBI, the Tracys were finally called and offered an apology and promised to return their computers.

That’s right, not only were they forced to live under the accusation of being child pornographers, but the FBI naturally had to seize all their computers, since they contained all the evidence.  Like nice pictures of their cat Fluffy.  Shouldn’t that have had some impact on the FBI’s allegations? 

One would think, but the lack of evidence of guilt doesn’t mean you’re innocent.  Quite the contrary, it makes you an especially devious criminal mastermind, capable of concealing your guilt, even from the brilliant minds at the FBI.  Aw, you clever criminal.

So the Tracey family will be given it’s two year old computers (any new programs for that Wang?) back.  And a begrudging apology, of sorts.

The FBI tells NewsCenter 5 the incident should remind people to secure their wireless networks.

Only in law enforcement can the party that screwed up the worst, the dopiest guy in the room, give advice to others.  But despite everything, this is a rare success story.  The Traceys were not prosecuted and imprisoned.  The Traceys learned, albeit two years too late, that they were no longer upon the cloud of suspicion.  The Traceys got their outdated and useless property back.

This is a success story, because most of the time, the targets of an investigation never achieve closure.  The fingers point, the home raided, all the bad things that aren’t supposed to happen to nice, law-abiding folks, and then . . . nothing.  Silence.  No charged, but no letter saying they’re cleared.  Perpetual silence, and the fears continue day after day, night after night, without end.

The official response to demands that they end the nightmare is “it’s under investigation.”  This is a lie. There’s no investigation, just a refusal to admit they blew it. There will be no further investigation, and there will be no letter or phone call informing the targets that they are no longer under suspicion.  The story will never end.

To the extent an explanation exists, it might be found in the inability to concede that law enforcement is wrong.  The FBI has great difficulty with this concept, adhering to the certainty of their knee-jerk, half-baked, often ignorant conclusions.  They aren’t wrong, just haven’t gotten the goods yet.  They can’t be wrong.

Once law enforcement officers have pegged someone as a criminal, that’s where they remain.  They are not due an apology, or notification that they are no longer under suspicion.  They are not due the courtesy that one would expect from a slightly normal human being.  They are criminals, once and forever, and they deserve nothing. 

And so people, families, like the Traceys, live the rest of their lives under a cloud of suspicion for some heinous crime that they never committed.  And no FBI agent loses a minute of sleep feeling badly that their nightmare never ends.