There are only three things a cellphone and a pack of cigarettes have in common.  Both begin with the letter “c”, and they are roughly the same size.  Oh yes, and they are ordinarily found on a suspect’s person.  That was all the California Supreme Court needed to conclude that police do not require a warrant to search a cellphone.

From the SFGate :

Under U.S. Supreme Court precedents, “this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body … but also to open and examine what they find,” the state court said in a 5-2 ruling.

The majority, led by Justice Ming Chin, relied on decisions in the 1970s by the nation’s high court upholding searches of cigarette packages and clothing that officers seized during an arrest and examined later without seeking a warrant from a judge.

Regular readers can anticipate what I’m about to write: This is another instance of following the rubric while forgetting the rationale, the judicial road to perdition.  Searching the contents of a pack of smokes as a search incident to arrest is justified under the notion that it could contain a weapon, such as a razor, or physical contraband, such as marijuana or cocaine, neither of which would do well to remain in the defendant’s possession after arrest, nor returned to a defendant subsequently.  It’s not the firmest rationale around, but not entirely nonsensical.  It’s at least the natural offshoot of container searches.

Of course, container searches, as part of a search incident, are a slide down the slippery slope, as a seized defendant, once separated from any container that might hold a weapon or contraband, no longer has access to it for use against a police officer.  At that point, there is nothing to prevent police from obtaining a warrant at their leisure to search anything they have cause to search. 

Container searches are nothing more than a shortcut to ease the burden of requiring a warrant.  This is justified under the “easy button” clause of the 4th Amendment, a little appreciated, invisible portion of the text that says “no officer shall be required to obtain a warrant from a neutral magistrate when we all think it would be easier to just let them search what they want, knowing that they’re going to do it anyway.”

Which brings us to our latest, favorite, ill-conceived theoretical justification for using bootlegger-conceived law to eliminate virtual privacy, tech neutrality.  The brain-child of Orin Kerr, and being increasingly adopted by courts due to its ease of application combined with its scholarly approval, tech neutrality will, in my opinion, result in digital privacy being dead on arrival.

In the past, Orin has asked me to give him an example of why I disagree so strongly with his approach.  Add this case to the list.

Monday’s decision allows police “to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person,” said Justice Kathryn Mickle Werdegar, joined in dissent by Justice Carlos Moreno.

When you open a pack of cigarettes, you may find a weapon.  Maybe even a small quantity of drugs.  Regardless, you are likely to find some tubular objects containing brownish vegetative matter.  What you will not find is eight gigs of names, phones numbers, messages, texts going back seven months, laundry lists, songs, ringtones and a whole host of personal information about a person that ends up stores in a chip.  Cigarettes tell you that the defendant may not be as concerned about his health as others, and whether he prefers regular or menthol.  Cellphones tell a lot more. 

And let’s not even talk about those newfangled cellphones, like iPhones or Blackberries, which may well have a person’s life story inside.

There’s no question that a cellphone or smartphone passes the Katz test, that we have a reasonable expectation of privacy in its contents.  There’s no question that it’s common, and will be increasingly common, for people to have a cellphone or smartphone on their person at the time of arrest, making it subject to the search incident exception.  Let’s face it, cellphones are now a ubiquitous part of our existence.  Heck, even  I carry a Jitterbug (#notreally, for those too literal to realize this is a bit of humor) if I can remember where I last put it.

Of course, the appropriate reaction to this plaintive post is that the rationale behind container searches, finding physical items before harm is done, doesn’t apply to a device that can only contain digital evidence, and that the California Supreme Court’s decision is a wrong application of the tech neutral doctrine.  Had the court applied the doctrine properly, it could be argued, by returning to the rationale for container searches rather than knee-jerk employing the rubric that “containers = exception to warrant clause,” we wouldn’t be in this pickle.

While the point has some merit, it fails in light of legal experience.  We start with The Rule, contained in the visible words of the Fourth Amendment.  From there, a judicial eternity is spent chipping, chipping, chipping away at the rule, crafting exceptions to prevent the rule from applying in individual circumstances.  Each time an exception is crafted, it’s grafted onto the rule in the form of a rubric.

Courts love rubrics.  They make for easy application, shorter opinions and a firm launching pad for the next extension of the exception.  Baby steps, if you will.  Given enough time, even baby steps cover a long stretch, until they’ve far outpaced the rule itself. 

That’s where we found ourselves in the late 1990s, where the warrant requirement was swallowed up by exceptions, rubric building upon rubric. Only by tracing each back to its roots could one discern that we ended up in a place that eviscerated the original point, The Rule.

And now, the exceptions are being applied, by analogy, to a technological world to which any pretense of reason would suggest there is no conceivable logical application, but only if one remembers why the exceptions were created and how we got from there to here.  That requires a long memory, and a lot of writing.  Rubrics are so much easier to apply.

So, in California at least, we now have a fourth similarity between a pack of smokes and a cellphone.  Neither requires a warrant to search.  It makes perfect sense, if you squint your eyes, don’t think too hard and are prepared to give up any privacy we once believed we possessed in exchange for a new iPhone and an easy button.

Over at Volokh Conspiracy, Orin Kerr writes about the 11th Circuit’s decision in United States v. Rodriguez, the latest decision on the crime of exceeding authorization in the use of a computer, per the Computer Fraud and Abuse Act, 18 U.S.C. 1030.

Belying the decision is a Social Security Administration employee, Roberto Rodriguez, who looked up 17 people on his government computer to, well, you know, just find out what they were up to.  Curiosity may kill the cat, but got Rodriguez fired and convicted.  The circuit affirmed.

Orin’s issue isn’t so much with poor Mr. Rodriguez and the 12 month sentence he received, but with the lackluster decision.

The phrase “exceed authorized access” is a defined phrase, but unfortunately the definition is circular. According to 18 U.S.C. 1030(e)(6), “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter.” That’s not a very helpful definition, if you think about it.

The missing aspect of the definition is what principle governs authorization (or entitlement, if you prefer). Is it just the computer owner’s say so? Does it require the computer owner to put up some sort of password gate that limits authorization? How do you know what you’re entitled to do for purposes of the criminal law?

State and federal prosecutors have shown that they’re willing to take favorable precedents like Rodriguez and run with them through the different scenarios. Given that, it’s troubling to me when a court endorses the government’s theory in a case like this without any apparent realization of where the government is going next or the broader possible impact of the decision. To be clear, I’m not blaming the panel: This was a very strong panel; the opinion was authored by an excellent judge; and the facts of this case were pretty egregious. But I think the issue is a bit more complicated than the opinion suggests, and it’s frustrating when defense attorneys don’t successfully bring out these complications in ways that judges can factor in to their decisions.

Any criminal defense lawyer who has suffered through a civil deposition knows that “civil lawyers” are not like us.  It’s long been my theory that this is all about displaced anger at the fact that they tell people at cocktail parties that they’re litigators, but know in their hearts that they couldn’t find the courthouse with a map.  They are ashamed of their deception, their pretense. 

When they get the opportunity to play “tough” lawyer, this seething anger and shame within surfaces.  They go bonkers at depositions over nothing to prove how macho they are.  They argue motions over discovery deadlines as if lives are in the balance.  And they treat each other like dirt.  Or in St. Petersburg, worse than dirt.

From the St. Petersburg Times:

The e-mail messages show two lawyers trying to schedule hearings and depositions for a lawsuit. They can’t agree on dates, or much of anything else.

Then it gets ugly.

Tampa lawyer Nicholas F. Mooney calls his opponent a jerk and a “junior lawyer.” Palmetto lawyer Kurt D. Mitchell questions Mooney’s mental health. The name-calling continues over six months.

Jerk?  Junior?  Seriously?  If you’re going to smack each other, you need to do a whole lot better than that.  And they did.

Mooney said his caseload includes more than 200 cases, “many of which were more important/significant than these little Mag Moss claims that are handled by bottom feeding/scum sucking/loser lawyers like yourself.”

What do you call it when a lawyer calls another lawyer a “bottom feeding/scum sucking/loser lawyer”?  A start.

In October, the insults got truly personal. Mitchell said he was looking online for a mental disability based on Mooney’s “symptoms,” such as “closely spaced eyes, dull blank stare, bulbous head, lying and inability to tell fiction from reality.” Mooney, who said his son has a birth defect, called Mitchell a jerk and suggested he look in the mirror for signs of mental disability. “Then check your children (if they are even yours. … Better check the garbage man that comes by your trailer to make sure they don’t look like him).”

Mitchell’s reply: “While I am sorry to hear about your disabled child; that sort of thing is to be expected when a retard reproduces. … Do not hate me, hate your genetics. However, I would look at the bright side, at least you definitely know the kid is yours.”

Decorum generally suggests that one draw the line at a disabled child. Not a chance.  Not only does Mitchell refuse to back off in the face of Mooney’s disabled child, but he seizes upon it as the launching pad for his next round of smacks. 

Some may see this as two lawyers who are overly antagonistic, immature and lacking in the judgment normally found in a rock.  Not me.  I see this as the by-product of the civil litigator syndrome, where machismo lacks a viable outlet and ends up spewing all over a professional relationship.  And some thing us criminal lawyers have disagreements.  We’re boy scouts, I tell ya.

And so, I offer some unsolicited advice to Messrs Mitchell and Mooney.  Nobody wins anything by writing nasty emails.  Mud wrestling is where real men prove the mettle.

And the State of Florida wasn’t impressed either.

After two complaints by the Florida Bar, Mitchell was suspended for 10 days and was ordered to attend an anger management class. Mooney gets a public reprimand and must take a class on professionalism.

I understand that private anger management classes are available from  Brian Tannebaum to members of the bar at a very reasonable fee, and will be  conducted on twitter in order to make sure that the public reprimand if as public as it gets.

The wild west of the internet just got a little less wild, though it remains decidedly west.  California’s SB 1411 goes into effect today, making it a crime for you to be me (and vice versa).  It could cost your friendly neighborhood sockpuppet $1000 and a year in jail.  It remains unclear whether there will be special jails for sockpuppets, given that they can slip through the bars.

The  law prohibits impersonating someone else online.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 528.5 is added to the Penal Code, to read:

528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

As is generally the case, intent will be established backward, presumed by the conduct engaged and the result produced.  We can’t see into a person’s mind, obviously, so we pretend that people intend the natural consequences of his act as seen from the outside.  Nothing new here.

The four purposes enumerated, “harming, intimidating, threatening, or defrauding,” cover the whole spectrum of possibility, largely due to the vagary and breadth of the initial work, “harming,” with the following words consumed within it.  The use of such a broad catch-all enables prosecutors to manufacture harm out of anything.

“Your honor, the defendant’s outrageous sockpuppetry has cause the victim to lose sleep, feel badly about himself, refuse to wear clothing that makes him appear pear-shaped and no longer desire to eat his favorite confection, bon-bons, all to his terrible harm.  The defendant is an animal and must be punished!”

The balance of this new crime comes not from the breadth of its coverage, but its requirement that the impersonation is “credible.”  This is defined as, “if another person would reasonably believe, or did reasonably believe,” a hybrid definition that incorporates the reasonable man standard with the dumbest moron on the internet standard.  My mother-in-law still secretly believes she’s the heir to a Nigerian kingdom, as do thousand of others.  Despite unanimous disagreement, she believes she’s reasonable.

In time, there’s a fairly decent chance that this will change, but at the moment, it seems impossible to reach a reasonable man consensus on the question of credibility.  For those who are digital natives, their grasp of internet use is fundamentally different than fertile octogenarians. 

Does this leave it to judge as gatekeeper (OMG) to decide credibility, or the median age of the jury?  One person’s joke is another’s sleepless night.   Do you truly believe that a jury can’t be constructed that believes impersonation is what makes  Keanu Sad?

The statutory prohibition makes no pretense of taking into account issues of free speech.  As Michael Arrington at  TechCrunch states:

Free speech issues, including satire and parody, aren’t addressed in the text of the bill. The courts will likely sort it out. Hopefully without my direct participation.

While we’re all, no doubt, in agreement on that last sentence, this isn’t quite the best practice for crafting laws that pass constitutional muster.  No decent satire or parody works without a bit of sting; that would be “harm” for those of you who don’t think with a prosecutorial mindset.

And yet, there’s a certain benefit to the creation of this California law that wouldn’t have occurred to me six months ago.  In light of the conviction of  Raphael  Golb in New York by cobbling together a fraud out of existing statutes and ignoring the elements that don’t fit digital reality, we’ve seen the harm that can happen when crimes are manufactured in the trenches rather than legislative hallways. 

At least SB 1411 tries to craft some parameters to establish the elements of the offense.  In the absence of such an effort, we can end up with a crime with no parameters at all.  Without elements, even vague elements and criteria that depend largely on how little one knows about trends online, there is something to argue about and again.  Without them, we’re just pissing in the wind.

Efforts to craft laws to address some of the nasty and destructive things people can do online are here, and will continue to grow.  There are people who are using the internet to harm others, to steal from others, to cause terrible and unjustifiable harm to others.  This isn’t a joke, and it is certainly happening.

That doesn’t mean that it’s easy to do.  The target is constantly moving, and even a deep appreciation of life on the internet, something that few legislators or judges have, won’t necessarily make one adept at putting into meaningful words the things that should constitute a crime.  Promises that prosecutors will exercise discretion in its enforcement bring little comfort, even though we can all agree that if we can’t trust prosecutors, who can we trust?

Expect a rough patch ahead on the invention of new laws creating internet crimes.  Perhaps this will last a decade.  Maybe forever.  Until technology stands still, there will be people putting it to use criminally harming others, giving people with whom they disagree a good smack, and just having some fun. 

For the time being, make sure that you don’t pretend to be anyone you’re not on the internet.  Or at least make sure your internet musings don’t find their way to California.  Certainly, that can’t be too difficult to accomplish.

A turf war has broken out between some good folks in the criminal law blawgosphere, which has ballooned from anger at  Mark Bennett’s schadenfreude following the drunk driving arrest of Harris County assistant Lester Blizzard.  The problem goes back to Blizzard’s arguing for life in prison for Jim Howard III for, you guessed it, drunk driving (that resulted in two deaths).  Blizzard argued that the court needed to “send a message.”

Former prosecutor turned defense lawyer,  Murray Newman responds by challenging the hypocrisy of criminal defense lawyers in general, Bennett in particular.

I never relished in the misery of a defendant that I was prosecuting.  I was always keenly aware of the repercussions prosecuting somebody had on collateral matters such as a defendant’s family, his job, etc.  

Somewhere along the way, people picked up the erroneous perception that prosecutors, and by extension, police officers do their jobs because they just truly enjoy ruining people’s lives.  They enjoy the power trip.  They enjoy the chaos.

Those same defense attorneys, who will gladly stand by any accused murderer, rapist, or pedophile, will vocally celebrate if a police officer or (fingers crossed!) a prosecutor gets arrested for anything.  Die-Hard civil libertarians who will (rightfully) proclaim any citizen’s Presumption of Innocence, suddenly forget that standard if the person accused is a public servant enforcing the law.

It is a double standard beyond comprehension to me.

As far as the issue of what my initial blog post was about, there is something very disingenuous about being a member of the defense bar who celebrates the arrest of someone just because they are a prosecutor. That’s foolish, and I’ll be damned if there isn’t old Mark Bennett justifying why the pleasure is there.

You are certainly entitled to your opinions, but don’t be so outraged that others find you condescending and pompous and say so in response.

Like so many things in life, criticism is a two way street.  Whether Bennett “celebrates” Blizzard’s arrest, he certainly didn’t endear himself to Harris County prosecutors or former prosecutors who still feel the weight of the sword they carried in office.  It may not be fair for Murray to compare the two, but fairness doesn’t enter into the mix.  Just as Blizzard must face the consequences of taking a stand, so will Mark Bennett.  

There may be some angry prosecutor who goes out of his way to make Bennett’s life a bit more miserable tomorrow because of the words he wrote yesterday.  Bennett no doubt realized that might be the case, and yet chose to write them anyway.  He will tough it out.

We all bear the consequences of our choices, one way or the other.  If you can’t take the heat, then hide under your bed and say nothing.

George Santayana warned that those who don’t remember the past are condemned to repeat it.  Seth Godin, on the other hand, warns that telling someone that’s not the way we do things about here stifles innovation and creativity.  Fortunately, one can learn from the past without being constrained by it.

The blawgosphere can be troubling in its lack of institutional memory.

Institutional memory is a collective set of facts, concepts, experiences and know-how held by a group of people. As it transcends the individual, it requires the ongoing transmission of these memories between members of this group.

Institutional memory may be encouraged to preserve an ideology or way of work in such a group. Conversely, institutional memory may be ingrained to the point that it becomes hard to challenge if something is found to contradict that which was previously thought to have been correct.

Every newcomer to the blawgosphere sees virgin territory, a place where nothing existed until they arrived.  It smacks me in the face every time a commenter here informs me of a case that she believes critical to a current post, unaware that there are seven previous posts at SJ specifically on the subject.

But what really started me thinking about institutional memory, and yes, the blawgosphere has become an institution in my way of thinking, was  Blawg Review Ed’s twit of  old Number 38 by Evan Schaeffer.  The date on this BR was January 2, 2006, and it was posted at Evan’s weblog, Beyond the Underground, subtitled, Notes and observations since January, 2004.

What were you doing in January, 2004?

To provide a little context, Simple Justice was born on February 13, 2007.  I hadn’t even heard of the blawgosphere in January, 2004, no less considered becoming a part of it.  By the time I did, it was already in full bloom.  From Evan’s BR #38, you’ll find some familiar names:

In mixing it up, weblog authors instinctively know they should provide relevant, quality information. But what about opinion? Some lawyer-webloggers seem afraid their opinions will offend readers or generate unwanted controversy. But if you can say it on an Op-Ed page, you can say it in a weblog. Besides, in the blogging business, controversy is good.

Example At Crime & Federalism, Norm Pattis isn’t afraid of sharing his strong opinions. In “Just Move Padilla,” he chastises both the Bush administration and the Fourth Circuit Court of Appeals for their handling of the Jose Padilla case. “All this pussyfooting around creating special rules, precedents and issues relating to the so-called war on terror devalues the currency of liberty.”

Example Colin Samuels of Infamy or Praise is another strong writer who isn’t afraid of sharing his opinions on a weblog. In “You Can’t Spell Sedition Without I,D,I,O,T, and S,” Samuels defends the right of citizens to engage in unpatriotic speech in wartime while at the same time recommending against it. Says Samuels, “As an American, you have the right to root against your own nation in time of war, but doing so does not make you a good American.”

Example Legal webloggers are notable for using their expertise to create posts containing analysis you just can’t find anywhere else. Considers these two recent Enron-related posts by Tom Kirkendall at Houston’s Clear Thinkers : “Causey plea deal expected today” and “Causey pleads to seven years.” Another site that contains great analysis is The Volokh Conspiracy. Did you see Orin Kerr’s recent post, “Legal Analysis of the NSA Domestic Surveillance Program“? Wow.

Even back then, posts about learning to blog from the old-timers were popular.  Then again, not every blawg from the old days survived.

Example At Crescat Sententia, Will Baude provides readers with two links on First Amendment issues in his post, “… Shall Make No Law …” Says economist David Friedman boldly in one of the linked pieces, “the existence of public schools is inconsistent with the First Amendment.”

Example Among law-related webloggers, it’s law students who seem to have the easiest time revealing their personalities on their weblogs. Examples abound, but I enjoyed the fun of waiting with Matt Schuh last week for the cable guy in his post at Matt Schuh Online, “Liveblogging Waiting for the Cable Company.”

Example There are many personal things, of course, that would be foolish to reveal on a weblog. How do you strike a balance? Scheherazade Fowler of Stay of Execution (a longtime legal weblogger who recently took a job outside the law) had a recent post on this very topic, titled “Private Journals and Real-Name Blogging.” Key quote: “If I were trying to use this blog to appear professional and accomplished, I wouldn’t write half the things I do.”

Ancient history, though at the time they were in their prime. 

The message is that there already exists a wealth of knowledge and experience in the blawgosphere, even though you’re not aware of it.  When you assume that no one has thought of that bit of brilliance that dawned on you as you read a post, or decided to put pen to paper (metaphorically), chances are pretty good that it’s not only been thought about, but written about.  Maybe even written about a dozen times.

When I first became aware of the existence of the blawgosphere, I went on a long walk, reading what the stalwarts wrote, seeing how the big time blawgs handled themselves, dealt with things, thought about our legal world.  To the extent anyone would give a hoot about anything I had to say, I realized that it would require that I mesh into an existing structure.  Not conform, so much, as not clash.

While my purpose from the outset was to have an outlet for my thoughts, I hoped to find others with whom to have a discussion about things that interested me.  It seems like a fun idea.  But it was apparent from the outset that all these well-established blawgs would either ignore my existence, or worse yet, crush me like a bug, if hubris guided my entry.  They were here.  They were good.  There was a reason why they were the big boys and I was some piddling newcomer.

By the first time I hit the “publish” button, there were some who wondered whether the blawgosphere was already stagnant, dying a slow death after everything had already been said.  It can feel that way sometimes.  That’s why new life, new blood, new ideas, are always needed.  That doesn’t mean, however, that just because an idea popped into someone’s head that it’s a good idea.  While the blawgosphere will always need new blood, it doesn’t necessarily need your blood.

A reader sent me a link the other day about a relatively new blog that I read initially then put on ignore.  The blogger, unhappy about being ignored, came up with some assumptions about why the established blawgs didn’t immediately recognize his genius and embrace his wisdom. 

He rationalized that others lacked his courage, his boldness, his insight.  Nah. He just overestimated the worth of his ideas, and underestimated the value of institutional memory.  He’s not the first newcomer who thought he could change the world overnight.

There’s a big blawgosphere out there.  Sure, it’s far fuller today than it was back in January, 2006 when Evan Schaeffer did Blawg Review #38.  But fuller doesn’t necessarily mean better.  We’re stuffed to the gills with junk, and whatever opportunity this afforded those lawyers whose purpose was to backlink and SEO their way to page one of Google, the ship has likely left the port and sailed around the world a few times.

But there’s still plenty of room for solid, quality thought in the blawgosphere.  Just remember, should you decide that today is the day you want to express your most brilliant thoughts, that others came before you.  It doesn’t mean your thoughts aren’t brilliant, but you would probably do well to remember that the blawgosphere didn’t come into existence the moment you arrived.

In the remake of President Ronald Reagan’s famous demand to Mikhail Gorbachev, read with the precision that only a trained actor could achieve, Andrew Cuomo  began his administration as Governor of New York.

In his first act as governor, Andrew Cuomo Saturday symbolically moved toward his promise to open up government to the people.

Crews were busy at work removing concrete barriers erected in front of the state Capitol under then Gov. George Pataki following the Sept. 11, 2001 terrorist attacks.

 He was also preparing to open up the historic Hall of Governors that houses his suite of offices as well as portraits of past governors.

Dubbed “Fort Pataki,” the wing was sealed off from the public early in Pataki’s tenure.

This morning, the doors were open and the security desk moved to the side.

Like you, I’m a huge fan of symbolic gestures, particularly ones that bring the powerful closer to the rest of us.  Of course, Governor George Pataki’s concern that he would be a target of terrorists, who would squander their efforts on bringing Albany to its knees, might be seen as a bit overwrought nearly a decade later.  

The concrete barriers that protected him from the common folk have long since been paid for, and Cuomo, scion of Mario, a governor who knew how to keep the people happy at arm’s length with only a look, knows that some changes are needed.  After all, the last anointed governor, Spitzer, didn’t do too well.

In all fairness, New York State thrived under Mario Cuomo, the personification of the old saw, “I love mankind; it’s people I can’t stand.” 

Our new Governor has a decade of legislation and policies borne of fear, the decade of “better safe than sorry” that excused overreaching across the criminal justice system.  The concrete barriers and closed off corridors of power are very much symbols of what became of the State of New York.

The question now is whether this symbolic gesture reflects a change in how the Governor of the State of New York plans to do business, or is merely a gesture.  As I did when Eliot Spitzer assumed office, I wish Andrew Cuomo both the luck and fortitude to bring the legal system of New York back to its historic position of leadership and courage, an example of how a government can function by protecting the civil rights and individual freedoms of its citizens.

Thank you, Andrew Cuomo, for tearing down that wall.  But it’s only the first step.  I hope you inherited the strength of your father, even though Chris got the good looks.

If you need any help, let me know.

H/T Turk

Disorderly conduct, the catch-all offense for all manner of human activity that annoys police, was getting out of hand in Washington, D.C.  After all, it’s a city filled with hostile, antagonistic, belligerent nutjobs, even when Congress isn’t in session.  The cops were overwhelmed.

A plan was needed to take the burden of trivial matters off the police and courts, while allowing the cops to maintain order.  They came up with one that worked spectacularly well, until now.  After the cops hauled you in for a dis con, all you had to do was pull $35 out of your pocket and you’re on your way. No muss. No fuss.

Until some lawyer (isn’t it always a lawyer?) took issue with the scheme and  sued  for $1.2 million (plus $700k for his wife).  Now there’s fuss, largely because this isn’t  some slippery lawyer trying to make a quick buck.

You might be rolling your eyes at this point at the idea of a lawyer kicking up that kind of a fuss over a $35 fee; this is the town that brought us the Infamous Pants Lawsuit, after all. But when I read the LT item, the lawyer’s name, Hamilton P. Fox III, sounded familiar, so I did what any self-respecting web writer would do: I Googled.

Hamilton Fox was an assistant prosecutor on the Watergate Special Prosecution Force. He was an investigator on the House Committee on Standards of Official Conduct in the 1983 Congressional page scandal. He was a defense attorney on appeal for Jonathan Pollard, the naval intelligence employee convicted of spying for Israel. My point is: this guy actually DOES have better things to do than sue the District over $35.

Isn’t it curious how some people can’t seem to stay away from scandal?  Fox took issue with a procedure called “post & forfeit,” an ingenuous little plan to cut out the middleman.

It’s sort of an abbreviation of usual procedure: Ordinarily, if you’re arrested, you can be released “on citation,” which just means you get a piece of paper telling you when to report for court; or you have to post some kind of collateral against your appearance at some future court date in the form of bail or bond. You either show up for court and get your money back, or you don’t, and you forfeit the money, along with any other consequences the court may impose for blowing it off.

If you get arrested for a trivial offense and the police decide they’d rather not deal with sending you to court, they can offer you another option. The officer hands you a form, tells you how much money you need to post-and-forfeit, and you can go home, directly from the station. You pay something that looks like bail, forfeit it in a way that keeps you out of court (or a real jail cell), but without the actual legal nicety of having the option to go to court and argue your case before a judge.

You gotta admit, it’s cheap and quick, though the cash pay out ranges rom $25 to $1000, the high end perhaps stretching a bit.  Still, certainly better than having to sit around in a jail cell awaiting arraignment.  Maybe even better than paying bail and being required to return to court, where you end up with a quickie plea for some silly conduct that disturbed a cop, and being fined anyway.  For many people, they would much prefer this option over the routine.

That doesn’t mean it’s without problems, however.  First, what if you didn’t engage in disorderly conduct, and aren’t in the mood to be railroaded because your conduct was perfectly lawful, like contempt of cop, and you’re not inclined to let the cop get away with it?  Your choice is to refuse the “post & forfeit” option and cool you heels in lockup until you’re arraigned.  Not a pleasant option, which means that a lot of folks who might otherwise fight the charge and say mean things about the police find themselves inclined to buy their way out rather than fight the good fight.

The second problem is more insidious, that it serves as an incentive for cops to arrest anybody they want, regardless of basis, knowing that no one will ever scrutinize or challenge their actions in court.  Sweep up a few hundred people who just won’t listen, then collect some cash and everybody’s happy.  The groundlings learned their lesson, the City made some money, and the judges aren’t bothered with any of it.  It’s win, win, win, provided you have blind faith in the police to never abuse their power and use it for less than savory purposes.

Though not quite a splashy sort of scheme, this “post & forfeit” plan can affect huge numbers of individuals with a fundamentally improper, and unconstitutional, deprivation of the ability to challenge their arrests.  The flagrantly coercive nature of the scheme, trading off the right to challenge for a night in jail, strikes just the right balance to make any reasonable person walk away from his rights.  It really is quite the brilliant scheme, but for its inherent impropriety.

Of course, if the cops issued citations, what we in New York call a desk appearance ticket, it would mean that all those naughty people would end up clogging the courts and being a terrible burden on judges.  Bummer. 

That would mean that judges would be compelled to do what they’re paid to do, adjudicate the propriety of arrests and charges, or, in the hopeful alternative, toss the cases of people whose only crime is pissing off police and hold the police up for public ridicule for their abuse of power. 

As for the moral of the story, it’s one thing to screw with a lawyer, but  don’t make his wife (or her husband) cry.

Despite the resounding success of the first annual Best Criminal Law Blawg Post, the second blew it away.  The swarms of locusts that seek to devour the blawgosphere failed to make 2010 the year that the criminal law blawgs were reduced to an intellectual wasteland.  We survived.  Against all odds, we thrived.

The quality and diversity of the offerings made the selection of a best blawg post extremely difficult, nearly impossible.  It was akin to comparing apples and carburetors, a task that can’t really be accomplished.  For that reason, I would be remiss in not recognizing some of the great achievements along the way.

First, this post by Sam Morrison at the  LA Times blog about “the deep-seated institutional bias of the Justice Department against the exercise of executive clemency,” is startling and one of those must-read posts.  Then there’s the post by the Military Underdog, Eric Mayer, on the fragility of attaining the right outcome.

Jeff Gamso, whose posts are never drivel, drove home the hypocrisy within our own ranks, while Norm Pattis, in a very imaginative series, told of Gerry Darrow, the trench lawyer who never was, breaking the glass ceiling of power.  Striking a similar chord was  Matt Brown’s realization of how power rests in the hands of the ignorant.

Walter Reaves’ painful memories of the execution of the innocent Todd Willingham, as was  Public Defender Revolution’s Carol opening her own wounds.  Then there is the unempathetic work of empathetic lawyering, as  Mark Bennett and  Brian Tannebaum consistently provide, and with which  Rick Horowitz struggles.

There are a wealth of criminal defense lawyers who offer their time and thoughts both to broaden our collective knowledge base, from the more banal aspects of our work in the trenches to the broader philosophical issues that leave us year after year wondering how and why we strap on our briefcases to try to defend the accused for one more day.

It goes without saying that there are blogs that seek nothing more than to capture the search of the latest drunk driving defendant, or offer explanations, counsel, views that are seriously misguided, sometimes dangerously so.  These use of words can serve to enlighten, or mislead and confuse, and it is the duty of lawyers, particularly in our niche of the profession, to not allow others to walk away from the blawgosphere stupider than when they arrived.

The best of the blawgosphere does that; it both raises our wisdom and dispels the foolishness.  It’s not acceptable to play on the ignorance or emotions of the very people who need us for one’s self-interest or aggrandizement, and I salute the excellent work of the criminal law blawgosphere for the not always pleasant work of keeping our corner a better place.

Yet, one post stands out among all the others, and they are great others, to be the Best Criminal Law Blawg Post of 2010.  The winner of the second annual award is a not-as-young-as-he-used-to-be Public Defender, who oddly is seen in the mind’s eye of almost everyone across the blawgosphere as an old white man wearing less than fashionable glasses.  And he likes it that way.

The Best Criminal Law Blawg Post of 2010 goes to Gideon at A Public Defender for Life Without Possibility of Redemption, combining almost every aspect of what lawyers in the criminal law blawgosphere have to offer.  Substance, passion, the banal aspect of our work implicating deep philosophical roots, integrity and brutal, clear honesty.

Gideon has been at the foundation of the criminal law blawgosphere for a long time, before I arrived, and has never wavered in his commitment to making every person who reads his words better for having spent the time.  This year’s award couldn’t go to a more deserving blawger, and I’m honored to count myself among Gideon’s readers and admirers.

Gid, this badge (from the fingertips of Amy Derby) goes to you: