Jason Wilson sent me a law review article by 7th Circuit Judge Richard Posner and Toronto (?) lawprof Albert Yoon,  What Judges Think of the Quality of Legal Representation, published in the Stanford Law Review.  It’s not a new article, but it’s one I had never read because nobody reads law review articles unless someone provides a really good reason to waste an hour of one’s life.  This one was worth reading.

Jason pointed me toward one aspect of the article, which I provide intact (without footnotes) to save you a bit of time:

The judges’ views of criminal lawyers (Tables 4 and 5) inform controversy over the relative effectiveness of these different types of defense counsel. Federal appellate and district judges in our sample express high regard for prosecutors and public defenders but low regard for court-appointed counsel and retained counsel, which is consistent with the previous legal and economic literature.

Retained counsel represent 25% and court-appointed counsel 33% of federal criminal defendants. If the quality of legal representation matters to criminal case outcomes, as recent studies suggest, a majority of indigent federal criminal defendants may be serving longer sentences by virtue of not having been represented by a federal public defender. The Constitution has been interpreted to place a floor under the quality of assistance of counsel tolerated in criminal cases, but one federal district judge described the work of defense attorneys other than public defenders as “exceedingly poor.”

The responses by state judges—who find a similar frequency of disparity in legal representation in criminal cases but greater parity between prosecutors and defense attorneys—are at odds not only with the experience of federal judges but also with the views of scholars and journalists, who paint an unflattering picture of the performance of court-appointed counsel in state courts.

The judges’ responses to Question 4 (Table 4) suggest which combinations of prosecutor and defense counsel are most likely to result in disparities in the quality of legal representation in criminal cases. For federal (appellate and district) judges, it is when a prosecutor opposes either court-appointed or retained counsel. For state appellate judges, it is more likely when the prosecutor opposes court-appointed counsel.

For state trial judges, however, a pattern is less apparent. Although judges may disagree on the relative ordering by skill level of the different types of criminal lawyer, the responses to Question 5 indicate that each judge group perceives significant disparities in quality of counsel in 20% to 40% of all criminal cases. Given the judges’ consistently positive impressions of prosecutors, the results suggest that criminal defense lawyers are indeed inferior.

That judges think better of prosecutors than defense counsel should come as no surprise to anyone who’s ever stepped foot in a courtroom.  That they think private criminal defense lawyers are, of all the players in the courtroom, inferior, however, is a harsh smack in the face.

The article is replete with issues that merit discussion, not the least of which is the institutional bias of judges who clearly and overwhelmingly favor prosecutors, and secondarily public defenders, to private criminal defense lawyers.  I hope that others will carry the water and write about this, but the many varied and monumental issues presented by this article far exceed the scope of a blawg post.  Instead, I chose to focus on one small aspect of this article. 

It’s not that most private criminal defense lawyers would disagree completely with the assessment that there are many in the game who are, using Posner’s word, “inferior.”  Of course, that would only happen in private, among friends and after a few stiff drinks.  Complaining about fellow CDLs is like trying to teach a pig to sing, so why bother?

But are private CDLs any different, any more deserving, of judges’ contempt than prosecutors and public defenders?  There’s the rub, and it reflects an irrationality on the part of the bench that can’t go unsaid.

The vast majority of private criminal defense lawyers cut their teeth in one of two places: They were either prosecutors or public defenders.  Those who went straight into private practice are a very small minority.  So how, I wonder, did such fine, excellent lawyers while on the public dole suddenly turn into such incompetent buffoons when they walked down the road apiece?

They didn’t.  I can’t remember how many times a newly minted private criminal defense lawyer walked out of the well shell-shocked because a judge, the one he stood before for a year while a prosecutor, the judge he believed loved him so dearly and thought of him so highly, suddenly turned on him and treated him like the enemy, unfit to be heard and unworthy of any credit at all.  When he was a prosecutor, the judge adored him and trusted his every word.  As a CDL, the judge didn’t believe his name without verification. 

It’s not the lawyer.  That judges believe, and I don’t doubt Posner’s survey, it’s the lawyer isn’t a question, but it’s not.  It’s the judges, and their altered state of consciousness (and conscience) when they put on a robe.  Not all judges, but many.  When they make the transition from advocate to Keeper of the Faith, they see clearly the role and utility of the players before them.  The players who make their life most problematic are the ones they least respect.

Let’s remember, just for kicks, that judges don’t spring from the womb in robes either.  You were one of us once, whether on the side of truth and justice or a prosecutor.  Us older guys remember when you made a fool of yourself, sloppy drunk and stupid at the Christmas part.  We remember bailing your sorry butt out when you yelled out objection in the middle of a closing and had no clue why. 

Some of you were darn good lawyers when you walked among humans.  Some of you hid in the backrooms licking envelopes.  None of you, however, suddenly became taller, more handsome and possessed of brilliance the day you put on a robe.  Your jokes aren’t funnier now, and we laugh because we see no benefit in pissing you off when you make a lame one.  You aren’t any better or worse as a judge than you were as a lawyer.  You just have sufficient authority to prevent reality from seeping through.

There isn’t a private criminal defense lawyer who doesn’t have a ton of stories about how a judge cut some snot-nosed prosecutor a break to compensate for some massive failure in the performance of his job, all because society shouldn’t suffer for a prosecutor’s inexperience or incompetence.  Same with public defenders, because they’re burdened with ten times the caseload that any lawyer should carry.  There are excellent excuses for the differential in treatment and perception.  But they are excuses.

There’s no break to be cut for a private criminal defense lawyer.  They are the enemy, paid provocateurs.  They serve no master but the criminal, guns for hire whose purpose is to lie and deceive the court and make the judges’ job painful and difficult.  If only private criminal defense lawyers could get with the program, become part of the finely honed machine of justice that gets cases off the docket and criminals incarcerated.

This isn’t to say that there are inferior lawyers in our midst.  We all know there are, and we know that they end up there because it’s the path of last resort.  There are no supervisors to oversee, no bosses from whom to seek approval.  There are vast differences in skill, ethics and honor.  You see that.  We know that.

But then, we are viewed through the prism of your judicial eyes, the same eyes that thought so well of us when we worked for the government, the same eyes that saw us as your friend, maybe savior, when you weren’t such a big shot.  Just as you didn’t suddenly get brilliant, we didn’t suddenly get stupid.

Rather than point at the private criminal defense bar and complain that we’re “inferior,” consider the changes in your perception.  We are you.  We are the prosecutors and the public defenders.  If we’re inferior, so is everyone else in the system.  We are every bit as much of the system as everyone else, except we don’t get a paycheck whether we do our job well or poorly.  We have to earn our pay with every client and every case, something judges no longer have to concern themselves with.

While Title III wiretapping is supposed to be a measure of last resort, so intrusive and potentially abusive that the government can only turn to it when normal investigative measures failed and there was strong reason to support extraordinary means.  Of course, that was when Title III enacted in 1968, when privacy was more of a concern and safety less so.

Wiretaps seem like a technological anachronism these days, conjuring up romantic images of agents slipping into house in the dark of night to plant bugs in telephone receivers.  No need for any of that nonsense anymore.  Today, it’s just a flip of the switch and your call is available for their listening pleasure.  But the rules of Title III remain intact.  These rules require minimization, that agents limit their listening to conversations relating to the basis for the warrant and not overhear privileged communications. 

It’s tricky business, with agents allowed to sneak back in for a couple minutes here and there just to be sure they haven’t missed anything.  Then again, it’s not always clear what’s relevant and inculpatory, since people can talk in code and appear to be speaking about ordinary stuff, like purchasing 10 and a half pizzas, when their discussion is more ominous.

Of course, sometimes a conversation has absolutely nothing to do with criminal conduct.  Sometimes husbands and wives talk, maybe argue, even fight, disclosing very personal information that was not intended for anyone else’s ears and has absolutely nothing to do with any criminal conduct.  It’s wrong of the government to listen in, record, enjoy overhearing these conversations.

As Michael Rothfeld writes in the Wall Street Journal, the Galleon case produced some highly dubious recordings.

Some of more than 40 secret recordings played for jurors at the trial of Galleon Group founder Raj Rajaratnam have contained stretches of dialogue that appear exclusively personal, focusing on marriages and alleged extramarital affairs, social visits and vacations.

Not only did the government overhear and record communications that bore no connection to crime, but the court allowed them to be played to the jury.  The argument was that these personal conversations established the relationship giving rise to insider information was passed along.  Like the ubiquitous claims of “background,” arguments like this can be used to admit anything and everything, since it’s all interconnected in some metaphysical sort of way.  Mind you, it’s total nonsense, but that never stopped a judge from acquiescing to a purely rhetorical argument by the government.

In the case of Craig Drimal, a similar problem occurred.

In a ruling on Wednesday, a judge overseeing a different but related insider-trading case excoriated the government for monitoring intimate calls between trader Craig Drimal and his wife about their marriage, which had nothing to do with the case.

Outrageous?  A total violation of the minimization requirements of Title III?

“The court is deeply troubled by this unnecessary, and apparently voyeuristic, intrusion into the Drimals’ private life,” wrote U.S. District Judge Richard Sullivan. He ruled, though, that the errors didn’t justify Mr. Drimal’s request to suppress more than 1,000 calls taped by the Federal Bureau of Investigation.

Judge Sullivan, whose path to the bench went through the United States Attorneys office in Manhattan, wagged his finger very, very hard at the prosecutors.  He probably had a very stern look on his face as well.  He told them that he was “deeply troubled,” but not deeply enough to do anything about it.  The remedy for violation of Title III, which was to be strictly construed, is suppression.  The government was not to enjoy the benefit of this horribly intrusive means to insert themselves in people’s most personal communications unless it played strictly by the rules. 

Or not.  Judge Sullivan ruled that the errors didn’t justify suppression.  Justification, however, has nothing to do with it.  The rules are the rules for minimization, and they ignored the rules.  Put aside the irony that the government prosecutes people, puts them in prison, for hypertechnical violations of rule, while ignoring rules at will to achieve that result.  

Nathan Burney noted Judge Sullivan’s ruling.

Namby-pamby judges in the past tried to deal with minimization violations by just suppressing the personal conversations.  This served no use whatsoever, because all that did was exclude evidence that wasn’t admissible at trial in the first place.  There was no penalty for violating this fairly important rule.

So there has been pressure on the courts to actually enforce the rule in a meaningful way, by suppressing all conversations that were intercepted on a wire where there were blatant violations of the minimization requirement.  Instead, the courts appear to have gone in the opposite direction.  ”We can’t suppress,” they seem to be saying, “because then we’d lose all that lovely lovely evidence.”

At the first stage, Nathan notes judges who do nothing more than excise that which the government should never have to begin with.  This, of course, provides the exact opposite incentive for adherence to minimization requirements, as the government can record everything and the worst that will happen is they won’t be able to use the recordings they should never have had in the first place.  No harm, no foul.

To call these judges “namby-pamby” strikes me as a bit too kind.  They know exactly what they’re doing, staring down a flagrant Title III violation and letting it slide through anyway, giving the government their  way without any consequence for the abuse.  Still, it’s not as bad as a judge who allows personal, private communications wholly unrelated to any crime to come in.  Why not just allow cameras in people’s bathrooms for fun?

The problem with the government’s failure to minimize wiretaps in corporate and financial crime cases strikes many as troubling, but it’s hardly surprising.

The use of secret surveillance is old hat for organized crime and narcotics suspects, whose lawyers say the government has for years captured personal conversations.

The strict construed rules developed in the 1960s became increasingly wavy, loosey-goosey, as wiretaps became the tool of choice for drugs and mobsters, two groups with few friends and advocates in the courthouse.  The government’s zeal to get these heinous criminals caused judges to loosen the rules, and nobody complained except the defendants and their lawyers. 

Nobody felt terribly bad about the ways Title III was ignored and abused when it came to drug dealers and mobsters.  And rulings chipped away at the rules, until the rules were nothing more than mere stumbling blocks to step over.  All those former prosecutors who got gigs at Biglaw were silent about the ways Title III was being undermined.  After all, it had nothing to do with their clients, just those nasty drug dealers and mobsters. 

Now that these weapons against heinous criminals have been turned on defendants accused of corporate and financial crimes, previously upstanding businesspeople and pillars of the community, it’s too late to wonder how all the protections of Title III have been eviscerated. 

So Judge Richard Sullivan is deeply troubled?  I bet that will make Craig Drimal feel better as he listens to recordings of conversations he had with his wife about their marital life played to a jury.  Let’s hope Judge Sullivan doesn’t sprain his finger wagging it so hard.

In the New York Times, Paul Krugman writes, almost as an aside to his primary point on health care costs, about consumers of medical services.

How did it become normal, or for that matter even acceptable, to refer to medical patients as “consumers”? The relationship between patient and doctor used to be considered something special, almost sacred. Now politicians and supposed reformers talk about the act of receiving care as if it were no different from a commercial transaction, like buying a car — and their only complaint is that it isn’t commercial enough.

What has gone wrong with us?

Doctors don’t have consumers. They have patients.  Lawyers don’t have consumers.  We have clients.  What has gone wrong with us?

This isn’t a mere rhetorical issue, but a reflection of the misguided change in the nature of our relationship with the people we serve, and how that relationship has changed from fiduciary to commercial.  Consumers purchase services, and their importance to us is reduced to the fact that they pay us money in exchange for those services. 

Clients, on the other hand, are people or entities who have entrusted themselves to our care,  We hold their fortune and freedom in our hands, and have accepted the duty to care for it without regard to a direct cash quid pro quo.  Once we accept the responsibility, their lives become our responsibility.  They don’t pluck legal services off the shelf as if they were walking down a supermarket aisle.

Not long ago, I start reading the pitch from legal marketers about how their services would generate “leads,” potential customers who, with the right pitch, may purchase your services.  Used car salesmen want leads.  They have cars to sell and want anyone interested in buying a car, anyone with sufficient cash in hand, to come to their used car lot rather than the one across the street.  Sellers want leads, and then it’s up to them to sell.

A couple of years ago, a brave (and foolish) legal marketer sent me an advance copy of his book, asking me what I thought.  There was a chapter in there about generating “leads.”  I told him I was offended by his characterizing clients as leads, that this was a marketing term and it fundamentally conflicted with what lawyers do.  Lawyers do not seek “leads,” I told him.  We seek clients.  I thought it was outrageous.

But the use of the word “leads” has become pervasive in the legal marketing realm, and there has been no tsunami of lawyer outrage at marketers referring to clients as “leads.”  It quickly dawned on me that I was the outlier, the lawyer who refused to see clients as mere consumers engaged in a commercial transaction.  These were not people to be “sold,” but to be represented.  These were not walking wallets, but human being in need of our professional help.  But that was just me.

What has gone wrong with us?

By changing our mindset toward clients into seeing leads that we hope to convert into consumers, we’ve diminished the nature of our relationship with our clients.  We now sell them however much justice they can afford, and are willing to buy.  Would you like fries with that?  Supersize?  We try to milk the leads for as much as we can, getting them to purchase as much of our service as they’re willing to buy, whether they need it or not.

There is no aspect of our work more disingenuous than “unbundling,” a concept which we market as a benefit to consumers when in fact it’s just a marketing boon for lawyers.  Instead of telling the client who either can’t, or won’t, pay for what he really needs that we cannot represent him, unbundling allows us to take whatever cash he’s got in his pocket and just limit our work, reduce our responsibility, cut our losses, while snatching up the small change the consumer is willing to spend.  We know that clients need holistic advice and representation, yet pretend that if we draft the complaint, they can carry the water the rest of the way.  It’s likely to prove disastrous, but we don’t care, as long as they’ve emptied their pockets and can’t blame us later for the mess they’re in.

It’s this quest for leads that has lead so many lawyers to create their own personal brand of porn, pitching consumers for the business by smiles and lies.  All marketers lie, because without lies they would get no leads.  Newer, better, shiner sells. If lawyers want leads, lawyers need to do the things that marketers tell us generates leads. 

The business of law is no longer about our responsibility toward our client, but generating the next lead, bringing in the next consumer and getting the next fee.  Once a lead is converted into a consumer and the sale is made, we move on to the next lead.

But we don’t sell used cars.  We are responsible for people’s lives.  We used to be, anyway.  And people who are responsible for the lives of others don’t think of them as leads or consumers. 

Old man Ed. at  Blawg Review sent me the link because he likes to tweak me on stuff like this.  You see, I have a really great email address from AOL because I was a subscriber years ago when the good email addresses were still available.  Mine is SHGLaw.  I’ve used it for what seems like forever.  Everybody who knows me knows that it’s my email address.  I was cool once.

But time marches on, and it’s no longer cool to have an AOL email address.  It’s been said before, but was reiterated by Ernie the Attorney.

Lawyers need a professional email address, and it’s not @aol.com

I submit that high on the list of “professionalism” goals should be for lawyers to get their own domain name for use with the firm email. Can it be considered professional these days for an attorney to use an email address like this: [email protected]? Same goes for @hotmail, @yahoo, and even @gmail.

I’m sure that Ed got a chuckle out of this, since he knows that I still use my old-fangled AOL email address and he loves to point out how un-techno-cool I am.  I have an email address for simplejustice.us as well, but it gets forwarded to my AOL address so I see everything in the same place.  It’s more efficient that way, and eliminating needless complications allows me to spend less time on being cool and more time doing my work.

Ernie, apparently, thinks otherwise.  There are many things that matter greatly in today’s complex world of lawyering, and one of those things is the domain name used by lawyers.  After reading his post, I asked a client how important it was to him that I had a really cool email address as opposed to my old fogey AOL email address.

“It’s very important, Greenfield,” he told me.  “Right after winning my case, it’s the most important thing in the world to me.”

After he left, I commented on Ernie post about his position that having the right email address was “high on the list of professionalism.”  I submitted, in response to his submission, that a lawyer’s email address really wasn’t terribly important, and that Ernie’s time and effort would be better spent submitting that professionalism is better accomplished by worrying about the ability to be a damn good lawyer than about the domain name at the back end of an email address.  I went so far as to suggest that his submission was seriously misguided.

My comment wasn’t the first.  Another person had already written this Ernie’s post was “great.”  Dollars to donuts (no hipster would ever use such a ridiculously archaic expression as this), this commenter had struggled long and hard to come up with the perfect email address, one that would impress the most astute hipster on the internet. 

It’s not really clear to me what a hipster is, though my teenage son has tried to explain it to me a few times.  My understanding is that it’s someone who is more concerned with the appearance of being cutting edge than possessing the underlying skills, knowledge or background to cut the edge himself.  Hipsters wear cool eyeglasses and very tight pants, because they make him look, well, hip.  I get my eyeglasses at the drug store because I lost the ones I bought from the optometrist, and I prefer relaxed fit because they’re roomy and comfortable.

As a matter of respect, I checked back to see whether Ernie had any thoughts on my comment.  It wasn’t there.  Ernie’s comments are moderated, and mine was apparently moderated into oblivion.

I don’t know Ernie Svenson, though from his picture, he doesn’t look like the sort of fellow to wear tight pants.  My guess is that there are different types of hipsters, and he’s just the Louisiana version.  But regardless, the elevation of such trivialities as one’s email address to appease those children for whom appearances trump substance makes one a hipster no matter whether you wear a neon glasses or pince nez. I just wish lawyers wouldn’t adopt hipster priorities.

It’s not that there’s anything wrong with having a really cool email address, with the domain being either your law firm marketing name or some variation that tells those for whom the domain name is a viable substitute for things like ability and experience, but on the list of things that matter to lawyers, and more importantly to clients, my bet is that winning their cases is likely to be more important than how hip your email address is.

I’m considering sending Ernie an email to ask him why he didn’t think my comment, though critical, was worthy of seeing the light of day.  I’ve got his email right here, [email protected].  It’s right at the top of his blog, where even us old fogeys can find it.  And no, I won’t hold it against him.

You can’t cross-examine a speed camera, but if you try really hard, it’s possible to beat the camera at its own game.  Via Jonathan Adler at Volokh Conspiracy, the Washington Post covers Will Foreman’s rage against the machine:

Nobody thinks that Porsche dealers give cars to law professors because they like them.  I mean, sure, who doesn’t like them, but still they have to pay for that Panamera Hybrid.  And they can, because unlike federal judges and criminal defense lawyers, senior professors at law schools averaged an income of $330,000.  And that was in 2006.

Had the flow of information stopped there, it would have been impressive.  Not as impressive as the Dean, who makes an extra hundred grand, but sufficiently impressive in a capitalist society to appreciate that a bunch of guys and gals whose very thoughtful efforts need not have helped a single living person are still pulling down enough dough to live a perfectly adequate middle class existence.

Then comes the kicker, that tiny bit of information that makes one wonder how such smart people manage not to walk into walls on a regular basis. Via the ABA Journal,

Top law professors make big bucks—money that supports law review articles that can cost as much as $100,000 each in salaries and other costs, according to an estimate made at a conference on the future of legal education.

The cost can range from $100,000 for an article by a well-paid tenured professor at a top school to $25,000 for an article by an assistant professor at a lower-paying school, says Hofstra University law professor Richard Neumann. He made his estimate at a Future Ed conference in New York last weekend, the National Law Journal reports.

In the grand scheme of allocating scarce resources, how is it possible that lawprofs believe that a dedication of $100,000 toward the completion of such critical scholarship as Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006) is a good use of capital?

Why do you care if some pointy headed lawprof thinks his desire for scholarship (which is connected at the hip to his desire for tenure) is sufficiently important that it’s worth the expenditure of $100,000?

 Neumann argued that expensive research doesn’t necessarily benefit students who end up paying for the articles through their tuition, the story says. He cited research suggesting that 43 percent of law review articles are never cited elsewhere. “At least a third of these things have no value,” he said. “Who is paying for that? Students who will graduate with six figures of debt.”

Yes, it’s that nasty old truism, somebody has to pay the freight.  As few member of the Academy throw bake sales to cover the cost of scholarship, it’s the money being paid by law students that covers the cost.

As noted, 43% of law review articles are never cited elsewhere.  What’s unknown from this post is how many are never even published, because law students who are very important editors before being unemployed Biglaw hopefuls think them unworthy of their prestigious journals.  Indeed, Eric Johnson at  PrawfsBlawg was prompted to write post about how to reject a law review article. 

Understand that we don’t take rejection personally. Thanks to ExpressO, the law review article submission process has become exceedingly depersonalized – and that’s on both sides of the equation. I understand that law reviews are generally getting hundreds of submissions, but law professors are commonly making hundreds of submissions at once, or at the very least scores of them.

Envision a large used car lot, except where there ought to be some beat up Chevy with “like new” written in marker across the windshield, there are reams of virtual paper with upturned corners and a big red



That’s you law school tuition at work.  That’s the debt you will carry when your kids need braces.  That’s why law schools allow young people to sit at desks and be tolerated by scholars whose true wish is to get out of their quickly so they can go back to their computers and continue typing out the next great work of scholarship, in the hope that some other law student carrying similar debt will think well enough of their work, and of their importance in the Academy, to find a spot to publish their intellectual baby.

Members of the Academy believe with all their heart that their scholarship is at the heart of the law school experience, the driving force that makes higher education, well, higher.  They use lofty rhetoric to justify the need to further the understanding of the law, because the 86,532 law review articles already published haven’t sufficiently illuminated matters. 

And they need you, law students, and you, parents of law students, to pay for them to do so. 

Had lawprofs put their generous salaries to good use, by the purchase of a really hot car with a reasonable resale value that would bring them some measure of enjoyment for years to come, plus give students something to admire about them besides their fine taste in attire, it would be completely understandable.  But no, that’s not where the big bucks are going.  The money is being squandered on the affectation of the Academy, the quest for the definitive law review article that will be admired by all the other scholars and cited by courts in every circuit.  This is the goal of the scholar.

This is what law students are paying for.  So what if you can’t produce a tawdry motion after completion of three years of law school, or find the debt crushing the life out of your twisted body as your resumes fill landfills on Staten Island.  Without law review articles, the experience of law school wouldn’t be nearly as rich.  At least for the law professors.

Greg George at  GTI Advisors  asked yesterday whether  this happens in New York.

Michigan State Police have been using data extraction devices to collect information from the cell phones of motorists detained for minor traffic infractions.

The mobile forensics units made by CelleBrite have the ability to download the data stored on more than 3000 models of cell phone, and are capable of defeating password protection.

“Complete extraction of existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags. The Physical Analyzer allows visualization of both existing and deleted locations on Google Earth. In addition, location information from GPS devices and image geotags can be mapped on Google Maps,” a CelleBrite brochure claims.

Say what?  What possible legitimate basis could exist to “extract” cellphone data from motorists stopped for a traffic infraction.  If it’s happening in New York, I know nothing about it.  If it’s happening anywhere, it’s totally nuts.

The article Greg offered, from  Infosec Island, provides no information about the basis for Michigan cops to gain access to a motorists cellphone.  Clearly, stopping somebody for speeding confers no authority to seize a cellphone, no less extract data from it.  My assumption is that the cop asks, “mind if I take a look at your cellphone for a minute,” putting the motorist in the position of either acquiescing in this bizarre request or appearing to have something to hide.  People hate giving cops the impression they have something to hide, and will do pretty much anything to dispel it. The wrong tact to take, but it happens constantly.

The ACLU is challenging the Michigan conduct.

The American Civil Liberties Union (ACLU) first learned of the Michigan State Police program back in 2008, and filed official requests for documentation on the standards for using the CelleBrite devices.

The Michigan State Police replied they would be happy to release the information provided the ACLU pays a fee of more than $544,000 for the data, an amount the ACLU finds to be unreasonable.

Aside from the absurdity of this situation on all ends, what possible purpose could there be in seeking the “documentation on the standards?”  That such documentation could cost more than half a mil to reproduce is a joke, but what difference does it make.  Are there any standards that could make sense of this conduct?

But what’s the big deal, you ask?  Maybe you have some questionable pics in that phone, or the telephone numbers of your wide circle of friends.  So what?

How about a record of every place, every single place, that phone has ever been.  As my buddy, former FBI spybuster,  Eric O’Neill, notes, your iPhone does more than you think.

British security researchers have figured out that iPhones keep track of where their owners go, saving data to the device and uploading it to a user’s computer when the phone is synced with iTunes. The data includes the phone’s latitude and longitude and is timestamped to the second, all of which is recorded in a hidden file–which is very much not secure.

This could theoretically be useful for anyone interested in knowing where an iPhone owner spends his or her time — advertisers, employers, spouses, parents.

Michigan state police?

To be clear, such a snoop would need access to your phone or computer and a way to extract and refine the data. It is not sent to Apple nor any third parties, as far as the researchers can tell — it’s just stored on an individual user’s devices. But it is apparently not very difficult to extract the location data from a user’s computer.

Like, say, using the CelleBrite data extractor?

And nobody wants to appear uncooperative with the police, as if they have something to hide.  In Michigan, New York or anywhere else they sell iPhones.

Update:  And because the internet abhors a vacuum, meet the Untrackerd, designed to continuously delete your location history from your iPhone.  H/T to Ed. at Blawg Review, who moves around the continent with sufficient frequency that his iPhone had to add an extra half G just to keep up.

The original charges against Dharun Ravi, roommate to Tyler Clementi, whose airing of Clementi’s private encounter has been blamed for Clementi’s subsequent leap off the George Washington Bridge, were based on his invasion of privacy.  And indeed, live streaming Clementi’s encounter was a terrible invasion of privacy, whether Ravi thought it was hysterically funny or otherwise to do so.

But that wasn’t enough for Middlesex County, New Jersey, prosecutors.  Given all the media attention, the primary driving force in law enforcement, and the suicide of a young man presumably caused by the revelation of his sexual preference, somebody had to pay.  Ravi had to pay.

The prosecution disclosed its characteristic of the Funky Junk generation.  But in this age, every tragedy requires that someone be prosecuted, that someone pay.  While it’s impossible to establish a causal connection between Ravi’s conduct and Clementi’s suicide, and likely that whatever drove Tyler to take his life was more than just Ravi’s invasion of his privacy, it won’t stop the prosecution or media from characterizing this as a heinous crime.

Tyler Clementi’s suicide offers an important teaching opportunity, about privacy, sexuality, online pranks and suicide.  Instead, forces with agendas will diminish this by placing all blame on another college kid who, like so many of his age, limited judgment and digital sensibilities, engaged in incredibly stupid conduct.  This isn’t to say that Ravi wasn’t terribly wrong in what he did.  He was.  He should never have invaded Clementi’s privacy.  It’s not funny. It was never funny. 

But to scapegoat Dharun Ravi because someone has to pay for the tragedy of Tyler Clementi’s suicide similarly misses the point.  The wrongfulness of Ravi’s conduct should be, and needs to be, pointed out and drilled into the subconscious of everyone who thinks the internet is a snarky, prank-filled, anything goes zone. 

Instead, Ravi will be hung out to dry for a tragic consequence without a crime beyond the invasion of privacy.  And that’s not enough to make him pay for the death of Tyler Clementi.

The story of Amy,  best known as the victim in the Misty series of child pornography, is a nightmare.  And the story continues at sentencing in kiddie porn cases nationwide, as Amy, appearing by her attorney, has sought restitution from defendants convicted of downloading videos.

The amount of restitution sought is generally in the amount of $3.4 million, and it’s brought a shocking disparity in reactions from courts around the country.

But the same problem in justifying restitution per se remains in attempting to arrive at a rational amount.  Since there is no attributable loss, the numbers are essentially arbitrary.  Are they a product of the totality of harm to the child, and then ascribed to every defendant who might possess an image?  If the harm to the child is determined to be $3.4 million, and the image has been spread to 1,000 defendants, should each bear restitution in that amount?  Granted, it will never be paid in full, but it will do enough to make sure that the defendant, and his family, are under water financially for the rest of his life.

And who cares?  Who feels sorry for the defendant who possesses kiddie porn?  Clearly, the victim is worthy of great sympathy, but does $3.4 million in harm explain $3.4 trillion in restitution?  And how does one court award $500 while another $3.2 million in restitution for the same offense?  How does any court arrive at a rational amount, and yet the court is required to provide restitution. 

In yet another Amy restitution opinion, U.S. v. Monzel, the D.C. Circuit sought to deal with an appeal from Amy, as well as the defendant, through her attorney, Paul Cassell.  Amy sought restitution in the amount of $3.2 million, but the court imposed restitution in the amount of $5000, calling it “nominal” and “less than the actual harm.”  Recognizing the problems created by multiple orders of restitution across the nation,

The court also declined to hold Monzel jointly and severally liable for the entirety of the harm Amy has suffered as a result of the distribution and possession of her image by others, given “the substantial logistical difficulties in tracking awards made and money actually recovered” from such persons.

Rather, the Circuit held that Amy is entitled, under the Crime Victims Restitution Act, to full and timely restitution.  However, the defendant, cannot be ordered to pay more than the restitution for the amount of damage he “proximately cause.” 

Reliance on proximate cause rather than joint and several liability is a critical distinction in the effort to make some minimal amount of sense out of the CVRA.  Rather than every child porn downloader being liable for the entirety of Amy’s restitution claim, no matter how many downloaders there turns out to be, and how the restitution is eventually paid such that it’s multiplied many times over across the nation, the restitution imposed on a defendant is limited to his share of the damage, what he proximately caused.

This makes perfect sense on paper, but perpetuates the conundrum:  How is it possible to determine the amount of damage a downloader of child porn caused?  For those directly involved in the creation and distribution of child porn, the determination seems far clearer, and they may well be responsible for most, if not all, of the harm suffered by the victim.  But what of the guy who watches?

The argument is that there would be no market for kiddie porn if no one watched it, so the downloader is hardly an innocent third party in the process of child pornography.  It’s a rational argument, certainly.  On the other hand, is there any different in harm caused the victim by the 100th, 1000th, 10,000th viewing?  Is the harm exacerbated by rewinding and watching again?  Of course, kiddie porn defendants aren’t the most sympathetic people in the courthouse, and there seems to be a very real question in sentencing of who cares how onerous the restitution award.

In Monzel, the court refused to rubber stamp either side of the argument.  As quoted in  Doug Berman’s discussion of this decision, the Circuit remanded with this direction:

On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount.  Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel’s possession of Amy’s image or to order the government to suggest a formula for determining the proper amount of restitution.  The burden is on the government to prove the amount of Amy’s losses Monzel caused.  We expect the government will do more this time around to aid the district court.  We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

While directing the district court to rely on “some principled method for determining the harm,” the Circuit offers no suggestion whatsoever as to what that method might be.  The reason seems clear. They have no clue what do with this mess.  No court has developed a principled method of dealing with mass restitution by defendants whose conduct defies any rational proximate cause analysis.

As much as we might despise the defendant who has any involvement in child pornography, and feel little concern as to the restitution imposed, the fact remains that the restitution order, which survives prison and affects not just the defendant but his family, his children, as well, the amount of restitution reaches far beyond the purposes of sentencing and impacts innocents as well as defendants.  It matters, despite our lack of the concern.

While the Circuit can craft the order compelling the district judge to arrive at a principled method of determining damages, it can’t make a pig fly.  The CVRA may “work” when the amount of restitution imposed reflects a concrete loss, the amount a defendant “stole” for example.  It works less well when the amount is based on a theoretical loss, the value of legitimate goods when the defendant is convicted of selling counterfeit goods.  It doesn’t work at all, however, when restitution is based on a rhetorical construct, as in Monzell and the other Amy cases, based on the extended argument that without watchers, there would be no producers of kiddie porn.

Once we take a step away from direct harm, where there is a factual basis to determine a quantifiable loss, there can be no principled method of establishing damages for restitution.  As the Amy cases show, no court has as yet been able to come up with a method, and by punting on the decisions has created a range of $500 to $3.4 million in restitution imposed on various defendants. 

No matter how sympathetic the victim, or unsympathetic the defendant, restitution must be rationally related to proximately caused damage or it’s just an arbitrarily imposed fine that goes to the victim rather than the government.  No overwrought argument is going to change that, and no appellate order is going to turn an irrational application of law into a principled method upon demand.  It just can’t be done because there is no principled way to make sense of this ill-conceived law.

The murders happened in 1970.  The book, Fatal Vision was 1983, and the TV movie was 1984.  And the  decision by the Fourth Circuit Court of Appeals allowing Jeffrey MacDonald to pursue a new trial based on his claim of actual innocence, bolstered by  concealed exculpatory statements and DNA evidence was issued April 19, 2011.

If you live beneath a rock and don’t know the story of this more than 40 year old case, MacDonald was an army doctor who claimed that four drug-crazed hippies came into his Fort Bragg home and murdered his wife and daughters, chanting “acid is groovy.”

Even back then, his claim sounded absurd.  Nobody chanted “acid is groovy,” and it sounded like the ridiculous stuff that some green beret guy would invent about things hippies would say.  Bizarrely, it appears that MacDonald may have been right.

On January 17, 2006, after obtaining our authorization, MacDonald presented the § 2255 motion to the district court. According to MacDonald’s memorandum in support of the § 2255 motion, the Britt claim was premised on the following newly discovered evidence:

In January of 2005, counsel for Jeffrey MacDonald, Wade Smith, Esq., was first contacted by a former deputy United States Marshal, Jim Britt, with information, previously concealed, about prosecutorial misconduct during the MacDonald trial. Britt, now retired, served with distinction for twenty-two years as a deputy United States Marshal entrusted with the security of the federal courts and judges in North Carolina. Britt was working at the Raleigh courthouse during the 1979 MacDonald trial and was responsible for escorting the key defense witness, Helena Stoeckley, who was in custody on a material witness warrant. Jim Britt was present in the prosecutor’s office when the lead prosecutor, James Blackburn, interviewed Helena Stoeckley, the day before she was to be called as a witness. As reflected in his sworn affidavit . . . , Jim Britt avers that he personally witnessed Helena Stoeckley state to James Blackburn that she and others were present in the MacDonald home on the night of the MacDonald murders and that they had gone there to acquire drugs; Jim Britt further avers that he witnessed and heard James Blackburn, upon hearing this, directly threaten Helena Stoeckley, telling her that if she so testified in court he would indict her for first degree murder. This threat caused her to change her testimony, as the next day, when called to the witness stand by the defense, Stoeckley claimed to have amnesia as to her whereabouts from midnight until 5 a.m. the night of the MacDonald murders — the precise time-frame during which the crimes occurred. James Blackburn never disclosed to the court or defense counsel what Helena Stoeckley admitted to him in Jim Britt’s presence. On the contrary, Blackburn, at a critical juncture in the trial, advised the court that Stoeckley, when he interviewed her, denied having any knowledge of the MacDonald family, the MacDonald home, or involvement in the MacDonald murders. Blackburn even went so far as to elicit from Stoeckley, through leading questions before the jury, testimony that was contrary to what she had told him during his interview of her the day before in the presence of Jim Britt.

And then there’s the DNA evidence, which didn’t become available until 2006.  His petition was dismissed by the district court for his failure to obtain leave to amend it to include the DNA along with the Britt evidence.  The Circuit reversed and allowed all of it to be heard as “evidence as a whole,” meaning that McDonald isn’t precluded from using the newly discovered DNA in conjunction with the newly discovered exculpatory evidence to prove his actual innocence.

Whether he pulls it off remains to be seen, but the court’s decision certainly suggests that this isn’t one of those nasty, wasteful petitions.  It would make one hell of a movie if it turns out that Jeffrey McDonald was innocent and telling the truth the whole time.  Joe McGinniss may have been a lying scoundrel when he scammed McDonald into cooperating with him on the book, but now he may turn out to be dead wrong as well.

Stay tuned.

H/T “Rob” Robertson, Fairfax, VA.