It looks like Mirriam Seddiq has worked through her  writer’s block to post about a Fourth Circuit decision. 

[T]his week, the Fourth Circuit, in case called U.S. v. Foster,  pushed back and said hey, listen, we give you a ton of leeway in violating people’s rights conducting your investigations, but you need to cut it out, Government, and actually have SOME reason to search a person’s car.

Ok, let’s step back and give you the facts in this case, they are pretty simple and straightforward.  Police officer Ragland is having lunch with his wife.  He walks back to his car and notices a black male sitting in an SUV.  As he continues to walk he sees the black male’s mouth move and then another person pops up out of the passenger side and the passenger’s arms start moving (going ‘haywire’ the cop says, although he can’t actually see the arms above the elbow).  Ragland recognizes the passenger as David Foster, see the cop used to date Mr. Foster’s cousin and so they knew each other.  Also, Ragland had arrested Mr. Foster on some traffic stuff and knew he’d been arrested for marijuana. 

Ragland walks by the SUV and says hi to Mr. Foster and asks what they are doing.  The response is something innocuous “chilling” or some such phrase.  Then, for some reason Detective Ragland goes to his car and calls in to another officer and finds out Mr. Foster is under investigation – for what is not clear.  So, cop 2 shows up and Ragland and cop 2 block the SUV and search it.  Inside they find cocaine, scales, and all sorts of other bad stuff that people are not allowed to have.

We also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. We recognize that we must look to the totality of the circumstances when evaluating the reasonableness of a stop. Arvizu, 534 U.S. at 273. However, an officer and the Government must do more than simply label a behavior as “suspicious” to make it so.

§§§

Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. Although these matters generally only come before this Court where a police seizure uncovers some wrongdoing, we would be remiss if we did not acknowledge that the exclusionary rule is our sole means of ensuring that police refrain from engaging in the unwarranted harassment or unlawful seizure of anyone—whether he or she is one of the most affluent or most vulnerable members of our community.

§§§

We appreciate that police are often called upon to make very difficult decisions about when to conduct Terry stops, and, for that reason, we give them leeway to make these determinations. Nonetheless, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband.

Certain words and phrases have become entrenched parts of the law enforcement lexicon, as required to skirt the black letter of the law.  Don’t blame cops, as courts hand them the solution to their problem on a silver platter.  Consider, for example, a long-time favorite of all criminal defense lawyers, furtive gestures.

When’s the last time you used that phrase, furtive gestures, at a cocktail party or when hanging out with friends?  Hey, Joe, seen any furtive gestures lately?  Susie, watch those gesticulating arms, as someone might think you’re making furtive gestures.  You can be reasonably assured that anyone who talks this way, except at a law student party, is not likely to get lucky that night.  Note:  The rule is different for law students, who tend to be remarkably indiscriminate and get turned on by hearing words from class repeated in social settings.

Of course, it’s possible that the police could fabricate suspicion from whole cloth, claiming a furtive gesture when there was no gesture at all.  After all, who could dispute it?  But for the purpose of this post, let’s assume that the police aren’t being totally disingenuous, but rather relying on their spidey-cop sense of seeing something and, as noted by the Fourth Circuit, bootstrapping it into a post hoc rationale because they found something.

Ever notice how nobody who ever put a gun under a car seat managed to get it all the way under?  There’s always some part of the gun sticking out from under the seat so that any cop who looks through the window into the interior can see it in plain view?

Ever notice how a bag of marijuana, triple heat sealed, placed into an air tight container in the trunk of a car, still emits a “poignant” odor when the driver of the vehicle cracks open his window?  Nonetheless, the search of the vehicle begins with the glove box and not until 15 minutes later, having found nothing, does the officer get around to opening the trunk? 

The unfortunate fact for those criminal defendants found in possession of contraband is that they are alive.  Being alive means that their bodies remain reasonably mobile.  Arms move.  Heads tilt and turn, sometimes in ways that are unpredictable to those observing from outside a vehicle.  After all, if someone is having a conversation with another person in a car, they might be inclined to turn their head toward them, maybe even nod in agreement.  Some cultures even gesticulate with their hands in order to emphasize a point during a conversation.

From outside the car, one would have no clue why the person of interest is moving about, turning to and fro, bobbing and weaving in a way that could indicate that he is concealing evidence of massive quantities of narcotics.  How could they possibly know such a thing?  And so suspicion is aroused.

These are the mundane realities that are either utterly inconsequential or transformed into sufficiently suspicious to obviate our right of privacy based upon the rhetorical skill of a cop and prosecutor to articulate suspicion.  By merely attaching magic words, like furtive gesture, to the actions, protections magically fly away and, with the blessings of court after court, judge after judge, we are searched.  And if we have something nasty, it is seized.

Enjoy this decision from the Fourth Circuit, and repeat its language often.  Still, the converse of the decision, that sometimes furtive gestures are furtive, and sometimes the smell is pungent poignant, is true.  And another court, or maybe the Fourth Circuit as well, will take the exact same mundane conduct and hold it to clearly and obviously show that criminal activity is afoot.

When I first read Orin Kerr’s post at Volokh Conspiracy, I sent him an email asking, essentially, “are you nuts?”  Why, oh why, would he incite and empower the nutjobs?  But he did, and he did so intentionally as part of a pedagogical challenge so others could understand.  I admired his fortitude.  I particularly admired it from afar.

To understand what the heck I’m talking about, you have to read the original post.  It’s short, so go now.  I could repeat it here, but that would be wrong when you can read the original.  I’ll wait. (tap, tap, tap, tap.)

Caveat: This post is about the commenting dynamics of non-lawyers on legal issues, not the merit or clarity of Judge Vinson’s decision.  Anyone commenting about the merit or clarity of Judge Vinson’s decision will be ridiculed unmercifully by me. 

Roger Sherman says:

Mr Kerr:
Your post is why most Americans who are not lawyers hold your profession in contempt.
From Judge Vinson’s (original) decision: “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.“
Are you really serious that the meaning of such a simple declarative sentence is not clear to you?

Roger Sherman says:

Mr Kerr:
No, I’m not a lawyer. I’m an electrical engineer with a master’s degree in in the field of semiconductors. Is this how you attempt to dismiss other opinions and not deal with the premise of the comment? Again, contempt.

When I first started SJ, the Queen of New York law bloggers was Rochester’s Nicole Black, with her foundational blog, Sui Generis.  It truly was the backbone of New York blawgs, and Niki was more than just a player.  Niki was the Queen.

Over time, Niki’s interests drifted toward technology and its interconnection with the practice of law.  She had a unique perspective, given that she went from criminal defense lawyer in the trenches to mommy-track, and then creating a niche to suit her lifestyle and reality upon her return to the outside world.  It ain’t easy being a mother, and Niki was determined to find the right place for herself.

Niki has given me some awfully good tech advice over the years, for which I’m very grateful.  Even a luddite like me knows that telling a computer it’s stupid isn’t a viable approach.  It’s here, it’s queer, get used to it.

Thats why I pay attention to Niki’s prognostications on the future of blogging.  She’s got her finger on the pulse of technology, and I can barely find its wrist.  And Niki says blogging is dead.

A recent report (http://www.pewinternet.org/Reports/2010/Generations-2010.aspx) issued by the Internet and American Life Project at the Pew Research Center supports my conclusions. According to the report, for the younger generation, blogging is being replaced by posting on social media sites such as Facebook and Twitter. In comparison, the older generations, always the last to latch onto new trends, are finally beginning to blog.

The statistics regarding blogging from the report indicate that between 2008 and 2010:

• Blogging dropped 2% for 18-33 year olds
  
• Blogging increased 6% for 34-44 year olds
  
• Blogging increased 5% for 46-55 year olds
  
• Blogging increased 4% for 56-64 year olds
  
• Blogging increased 2% for 65-73 year olds.

These statistics are striking for any number of reasons. First, for the older generations, the increase in blogging is only between 2-6%, which is, all things considered, a fairly small increase for a 2 year time frame. This is so especially given that the use of social networking sites increased between 12-32% for those same age ranges during the same time frame. 

Also significant is that blogging is decreasing for the younger generation.

Dead, dead, dead.  Niki, of course, is much too nice to just come out and say it.  She is a lady, genteel in her ways and circumspect in manner.  She would never smack someone across the face and cause them pain.  That’s not how Niki rolls.

Niki tries to soften the blow by saying “Legal blogging isn’t dead, it’s just changing,” like the Black Knight said it was only a flesh wound.  This could explain the dearth of inter-blawg discussion over the past year and the corresponding rise in nutjob commentary. 

Offering a crumb to those who still harbor hopes of a vital blawgosphere, while not wanting to work too hard to participate in it, Niki writes:

However, one trend that I think will become more evident over the next year or so is that individual blogs will decline and group blogs will become the blogging standard. Many individual blogs will continue to succeed, but group blogs will dominate. This is because group blogs provide more varied content, different viewpoints, and draw in more eyes, since the individual bloggers can promote the group’s blog across their own social networks.

For lawyers, the most effective group blogs will consist of blog posts from geographically diverse lawyers focusing on the same practice area, such as criminal law, environmental law or personal injury law.

This, of course, means that the next wave of blawgers, should there be people bold enough to ignore the subtext and try it anyway, can take comfort in knowing that it’s no longer shameful to lack the gumption to go it alone, to take ownership of a blawg and build readership based on one’s own ability and perseverance.  Instead, the next-gen blawger will have others, too far away to sue, to blame for its failure. 

Yet Niki, a die-hard supporter of the blawgosphere she helped to create, offers this final bit of solace:

And, it’s passion that separates the good blogs from the bad. If you enjoy writing and have a passion for the topic about which you are blogging, your blog, whether it’s a group blog or an individual one, will be a success.

Passion is the key element; if your passion shines through, people of all ages will want to read, discuss and share your blog posts. And, after all, isn’t that the point of blogging in the first place?

The good thing about passion is that anyone can have it.  Good writing, insight and an eye for interesting subjects may be very hard to come by, but we can all be passionate about something.  And lest you think I’m being snarky here (well, maybe a tiny bit), Niki is right. 

If you feel strongly enough about something to take the chance of putting your opinions out there for all to see, and suffering the slings and arrows of those who disagree, then you’ve both accomplished something and deserve the respect of those too gutless or lazy to try it themselves.  I may be a bit less sanguine about the prospects of creating a successful blawg, having see way too many arrive and die unseemly deaths, but I certainly respect the effort.

And you know what?  There’s nothing wrong with having passion and taking a chance with a blog, even if blogging is dead, dead, dead.  The worst than can happen is no one reads it.  So what?  You’ll survive.

Update: For those who didn’t “get” this post, which means most of you, Seth Godin did. 

It would have been nice if he gave Niki credit, but we can’t be piggish about these things.

Galleon Management hedge fund guru Raj Rajaratnam is set to start trial in the Southern District of New York.  Being a billionaire and all, he won’t suffer the indignity of being unable to afford counsel of choice.  If anything, he suffers an embarrassment of riches.  And embarrassment it is.

From the Ashby Jones at the WSJ Law Blog, a motion was made by John Dowd of the well-known criminal defense law firm of Akin Gump:

We respectfully request that you allow each member of Mr. Rajaratnam’s defense team to bring one Personal Electronic Device into the courtroom.

The Court’s Standing Order regarding Electronic Devices and General Purposes Computing Devices generally prohibits the use of Personal Electronic Devices, such as a cellular telephones or Blackberry’s, in courtrooms without an Attorney Service pass. These passes, however, are only available to members of the bar of the Court who possess a New York State Unified Court System Attorney Secure Pass (“OCA Card”).

It would greatly aid Mr. Rajaratnam and his counsel at trial if the following individuals were allowed to bring with them the highlighted Personal Electronic Device into the courtroom . . .

The motion then lists 11 people, nine Akin Gump attorneys and two others.

[W]hy, when the government assents to the Blackberry request, does the court still put up such a fuss? Blackberrys can be operated discreetly and quietly — why such insistence on keeping them out?

It occurs to me that one person’s “discreet and quiet” operation is another’s annoying, bordering on offensive, lack of attention.  Having spent some time with youthful people inclined to grasp their electronic device like a lifeline, and endured their heads bobbing up and down, thumbs akimbo, attention wandering back and forth, without the slightest notion that they are doing so or any clue that their speech is disjointed, in bits and spurts, and just a bit short of coherent, it’s not nearly as discreet as Ashby thinks.  But that’s just my view.

As for Raj, he might consider the appearance to the jury of a defense table so jam-packed with pinstriped bodies as to look utterly absurd.  Want to look guilty as sin?  Surround yourself with almost as many people at the defense table as sit in the jury box.  It just doesn’t look right. 

You look like you’re ganging up on the government, making the United States Attorney seem like David to your Goliath.  This really isn’t the impression any defendant wants to have at trial.  This is like the lawyerly equivalent of the $6,000 shower curtain.  You may be able to afford it, but is it really what you want to shove in the jury’s face?

More to the point, if you take all the money you’re paying that renown criminal defense firm, Akin Gump, for their nine plus two warm bodies in the courtroom, and put it toward one really good lawyer who actually tries cases of people accused of crimes in the Southern District of New York, chances are that you wouldn’t have to pay for a motion to allow his Blackberry in the courtroom.  He would already have a Secure Pass.  Because real New York criminal defense lawyers have Secure Passes. 

Normally, I would charge for this advice.  But since Raj doesn’t seem to care how much he shells out, no reason not to put my hand out as well.  I don’t take credit cards, Raj, but a check will do nicely.

At the outset of jury selection, the judge will tell the prospective jurors the names of people anticipated to be witnesses at the trial, as well as the lawyers and defendant.  She will then inquire whether the jurors know any of these people.  On occasion, someone will raise a hand, but it’s a rarity.  After all, there are a lot of people in the world, and what are the chances that people who know each other will happen to be in the same courtroom at the same time?

But it happens.  And it happened big time in Earl Berry’s trial in Albany. From the Albany Times-Union :

A woman is chosen for jury duty in a rape case. On the second day of the trial, she realizes … she spotted the defendant committing the alleged crime.

Well, that is exactly what happened in Albany County Court on Tuesday when a juror informed Judge Thomas Breslin she witnessed 40-year-old Earl Berry on Sept. 21 with the alleged victim on Henry Johnson Boulevard.

It’s not like she knew the name, or hung out with the defendant.  It’s like she was an actual witness to the crime.

“I was actually driving home and saw him dragging her down the bridge — and he gave me the dirtiest look,” the juror told the courtroom. “I said, ‘Where is he going with this?’ “

She told the court she recognized Berry because “he looks like my cousin.”

Inexplicably, however, she didn’t realize that she had witnessed the crime, or that the defendant looked like her cousin,  It wasn’t until the second day of trial, during a detective’s testimony when the prosecution introduced photographs into evidence, that it dawned on the juror that she had seen the defendant before.  Which leaves one to wonder about her powers of observation with the living, breathing defendant in the same room with her up to that point.

Upon learning of the juror’s epiphany, Judge Breslin offers this astute observation:

“You realize, obviously, you cannot continue as a juror?” Breslin told the woman.

“Absolutely,” Juror No. 8 replied. “I don’t want to.”

Was there a question?  Similarly, as the prosecution realized that it had a newly discovered witness in its midst, defense lawyer Michael Jurena moved for mistrial.

“I think it’s the only fair thing to do,” the judge said noting the bond between jurors would create an awkward situation. “One of your own is now testifying. I think it’s unfair.”

Yet another masterful observation.  The prosecution considered proceeding with the trial without calling the juror as a witness, but decided against it, leaving Jurena with no choice.  This, however, meant that the defendant, having selected a jury with which (aside from the witness against him) he felt comfortable, and having commenced the trial that was, in Jurena’s view, going well, was forced to lose his jury and start over.

Two lessons obviously come to mind from this bizarre situation.  First, be sure that the jurors take a good look at the defendant before acknowledging that they don’t know him, and second, pray that your client doesn’t give “dirty looks” to passersby as he drags a woman over a bridge.

When the case is retried, it appears that the defendant will have some solid impeachment material to use against juror number 8 when she’s asked to identify the person she observed.  Like how she saw him for an instant and can identify him, but couldn’t tell that he looked like her cousin (Vinny?) when she spent two days in a courtroom looking at him.

As Jurena said, “you can’t make this stuff up.”

From Turley :

Prof. John Michael Bailey gave his students an optional demonstration as part of his “Human Sexuality” class with a naked couple having sex in his class.

Over 100 students watched as a man used a sex toy on a woman in the class. The woman told reporters that she agreed to speak with the students as a member of the “fetish community” but was happy to serve as the focus of a demonstration in the aptly named Ryan Family Auditorium.

If there is any consistency in students, I hope at least one student ask “is this going to be on the test?”

Professor Bailey did not require his “roughly” 600 students to attend. 

The University stood by its professor as a matter of academic freedom. Alan K. Cubbage, vice president for University Relations, stated “Northwestern University faculty members engage in teaching and research on a wide variety of topics, some of them controversial and at the leading edge of their respective disciplines. The University supports the efforts of its faculty to further the advancement of knowledge.”

There is no video of the demonstration available.  Well, there is, but not of this specific demonstration.  And none that I’m inclined to post here.

There is, however, one question that must be asked.  Does Northwestern really have a course in Human Sexuality?  Because their students need to be taught it?

Whatever happened to the good old days when you learned about such things at fraternity parties?

Not long ago, the point was made that  consent is the new dropsy when it comes to cops circumventing the Fourth Amendment.  It’s got all the great attributes that any police officer would want from a lie, and the only witnesses to it are the cop and the criminal.  Who you gonna believe?  Bingo, the new open door policy.

And so it was used in San Francisco, where a drug raid required a lawful entry to nab the perp and grab the evidence at the Henry Hotel, a skid row joint.  The  SF Appeal provides the official details:

In the first incident on Dec. 23, four officers arrived at the Henry Hotel and obtained a master key that allowed them to open the doors to any room.

At that point, Officer Arshad Razzak wrote in his police report that officers knocked on the resident’s door, announced themselves and waited for a response.

According to the report, after hearing no response, the officers used the key to slightly open the door and, without entering the home, told a female resident they were waiting outside until they could obtain a search warrant.

The woman then gave the officers verbal permission to search the premises while officers contacted headquarters and asked for a consent form she could read, according to Razzak’s report.

A man inside the room was then arrested on suspicion of possessing 65 grams of heroin and a single rock of crack cocaine, said Deputy Public Defender Anne Irwin, who represented the suspect.

At a press conference, deputy public defenders Tal Klement and Anne Irwin showed video taken by surveillance cameras during separate drug raids in December and January at the Henry Hotel, a residential hotel on Sixth Street’s skid row.

In both instances, the defense attorneys said, the police officers failed to get consent from the apartment-dwellers before conducting warrantless searches for narcotics.

San Francisco District Attorney George Gascón said today that his office will be investigating surveillance video taken during two drug busts at a residential hotel in the city’s South of Market neighborhood that appears to show police misconduct.

Given Gascon’s ties to the Police Department, Adachi had called for an outside agency like the state attorney general’s office to investigate the case.

Gascon said he saw “absolutely no reason why I should recuse myself” from the case.”

After all, just because police officers felt entirely comfortable fabricating consent in order to bust into a room at some skid row motel under Gascon’s watch is no reason to suspect that he would be slightly protective of his legacy as an honorable police chief running an honorable police department of honorable cops with a culture of honor. Except for that damn video.

So Adachi, in what Gascon obviously sees as a gross excess of caution, calls for the state AG to handle the investigation.  What could possibly go wrong?

That request could pose another conflict of interest because state Attorney General Kamala Harris was elected in November to her current post while she was still the city’s district attorney.

That would make Harris the person embracing the cops’ claims of consent as they broke down doors at the Henry Hotel, suggesting perhaps that Harris’ assistants might not have scrutinized the police allegations with sufficient skepticism to honor that oath to protect and defend the Constitution.

One might begin to wonder what the heck is happening on the streets of San Francisco.  Karl Malden passes, and the whole place goes to seed.  Given the inbred nature of those charged with watching the watchers, making sure that the police aren’t lying through their teeth because it’s a whole lot easier to claim consent than get a warrant, or actually wait a few minutes to see if they can manipulate some scared woman into opening the door, one might never know the truth.

But for video.

H/T Sean

The Supreme Court’s decision in Snyder v. Phelps fleshed out at 8 to 1, holding that Fred Phelps’ First Amendment rights precluded Albert Snyder’s action against him for the conduct of the Westboro Baptist Church at the funeral of his son, Matthew.  Hopefully, my own constitutional bona fides will enable me to write what follows without being hung, in effigy or otherwise.

Many, in fact everyone but Sarah Palin, praised this decision as upholding the vitality of free speech at its extreme edge.  Not surprisingly, no one does it better, or in a more unique voice, than my pal Marc Jon Randazza, who describes the case thus:

To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).

As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.

There is no one, absolutely no one, who holds the first amendment dearer than Randazza.  And yet even Marco can’t describe this case without noting that Phelps, and his lowlives at the Westboro Baptist Church, are the sort of scum worthy of extreme measures to be sure it doesn’t touch the bottoms of our shoes.

To note that rights are protected at their most extreme is obvious, at least to lawyers.  It’s meaningless to protect the rights of those we like and embrace.  The test of our adherence to the Constitution is whether we afford those rights to those we despise.  And if ever there was a group we despise, it goes under the name Westboro Baptist Church, with Fred Phelps leading the way.

If there was a merciful/vengeful God, he would run Phelps down with a Ford F-150.  Then he would throw it in reverse and do it again. Phelps is giving the Big Guy a bad name.  But the magic space zombie jew (Randazza’s words) has yet to do so, commending Phelps to the Supremes for judgment.

In my mind’s eye, I see the post oral argument conference, where the justices take their preliminary vote.  Not a voice is raised against Phelp’s First Amendment right, but C.J. Roberts sees the slight twitch, just below Sam Alito’s left eye at the crease where his cheek bone meets the fold of skin that wasn’t there in his youth.  As they walk from the room, they chat.

C.J. Roberts:  You know, Sam, that we’ve got to stand behind the First Amendment on this one.

A.J. Alito:  Of course.  What else can we do?  But this mutt…

C.J. Roberts:  Everybody feels that way.  Wild Bill Douglas would have felt that way.

A.J. Alito:  And yet a branch of government, a whole branch, is going to empower the lowest nutjobs in America.

C.J. Roberts:  Well, Sam, an 8 to 1 decision sends as strong a message as a 9-0 decision.  If someone was to break ranks, kinda take one for the team by ripping this wackjob a new one, well…

A.J. Alito: You wouldn’t be miffed if someone goes off the reservation, J-man? Thanks. I owe you one.

And Associate Justice Samuel Alito dissents.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

The First Amendment is not absolute.  Not every word, thought, expression is protected. Most of the time, the limits are imposed to protect others from imminent, actual, physical harm.  The limits are not used to shut down speech because of the offensiveness of its content on a subject of public interest or concern.  But then, Albert Snyder was, as Justice Alito notes, not a subject of public interest or concern.  Albert Snyder was a father who gave a son for his country, and only seeks to mourn his loss.

Fred Phelps was not merely a nutjob, but a nutjob with an acute sense of publicity. The picketing of Matthew Snyder’s funeral, even though 1000 feet away and on public ground, would get his name in the papers and his face on the telly.  Fred Phelps desired prominence.  Whether because of a belief in his warped message, or just because he’s warped, I can’t say, but Albert Snyder’s misery was Phelps happiness.

Was the fact that Albert Snyder was a private figure, and the funeral of his son a private function, sufficient to fashion a conceptual ledge that would the stop the slide down the slippery slope?  No.  It was a darn good try, but deeply flawed.  If outrageous and offensive speech was limited to those people, those events, that deserved it (as far as some judge or  twitterer was concerned), the freedom to speak would be fundamentally undermined.  No question about it.

But is there anyone, any lawyer, who doesn’t wish that there was some test that would provide an iron-clad rationale that would shut Fred Phelps’ mouth, wipe the smirk off his face and shove his insanity down his throat?  Let’s be honest about it: We all agree that the Supreme Court made the right decision, but we all wish that this one time, just this once, we could rev up the old Ford F-150, close our eyes, and hit the gas.

Sam Alito’s dissent did not harm to the First Amendment.  At 8 to 1, no one doubts that the Court, even with all the negging that came out of its Citizens United decision, did what it had to do in sufficiently clear terms that the message cannot be denied.  The First Amendment protects the free speech of scum.  As it should.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn’t walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.

At one time, Marni Yang was an attractive woman.  She’s been in jail since 2009 awaiting trial for the murder of ex-Bear Shaun Gayle long-time girlfriend, Rhoni Reuter.  She’s not looking very good these days.  Jail can do that to a woman.

Yang is looking at a tough trial.

Yang allegedly shot Reuter at least six times — and intentionally fired two bullets into her abdomen in an attempt to kill her unborn child, prosecutors have contended. Stride agreed to allow jurors to see an autopsy photo showing the infant had been hit twice by bullets.

The impact of seeing an autopsy photo of the bullet-ridden fetus can’t be understated.  It will be a horrible and outrageous image, one that may (and should) cause revulsion in every juror’s mind.  And as with all things more prejudicial than probative, it will cause jurors to feel compelled to blame someone for the horror.  That’s the only reason to introduce such a horrific image at trial.

But the anger and outrage bears no connection to who shot the gun, and that remains the fight for Yang.  Among the many issues she faces is her appearance.

“Her appearance has declined,” said Hedrick. “She looks like a crazy woman. She does not look like anybody who Shaun Gayle would ever have a second of interest in.”

In an effort to return his client to the status quo ante, William Hedrick moved the court to allow the defendant to wear make-up and have her hair, now gray and wild, cut and died.

Stride also again denied requests that the 43-year-old Yang, who has been jailed since her March 2009 arrest, be allowed to wear makeup during the trial and have her long, graying hair cut and dyed. Her attorneys have contended that her appearance otherwise makes her look “like a crazy woman.”

Like it or not, appearance matters.  It matters a lot.  It matters in every case, but it’s particularly critical in this case where the defense is founded upon the defendant’s claimed involvement in a sexual relationship with Gayle.  Not only does she look like “a crazy woman,” but she most assuredly doesn’t look like a woman with whom Gayle would be having sex.

It’s not that the defense is seeking to turn Yang into someone she isn’t, and never was, but return her to the physical appearance she had at the time the murder happened.  This has nothing to do with vanity, and isn’t really linked directly to giving the jury the misimpression that “she looks guilty.”  This goes to the heart of her defense, and the judge’s denial of the application deprives her of her right to present a defense.

Here’s an image of what Yang looked like in her pre-jail days.  Whether her come-hither look is the sort of thing that turns you on isn’t the point.  The point is that she didn’t look like a prison crazy woman.

Here’s her mugshot.



Not quite as nice.  I haven’t found any picture of her recently, but I imagine it’s likely to look a lot worse than even the mug shot.

But that’s not the woman who Gayle allegedly had the hots for, and it shouldn’t be the woman the jury sees sitting at the table attempting to make her defense.

Judge Christopher Stride’s denial of the defense application, to allow an incarcerated defendant the opportunity to address her appearance such that jail, and not conduct, undermines her defense isn’t a laughing matter.  The application isn’t a plea for vanity, but the constitutional right to present a defense unaffected by extraneous and improper forces.  His denial is wrong.

And it’s not the only wrong thing about this story.  This came to me via Above the Law’s Morning Docket, a round-up of the more salacious legal news of the day.  Written by some anonymous twinkie straining to find humor in things beyond her grasp, this was the snippet:

A judge in Illinois won’t let a defendant who looks like the Crazy Cat Lady from the Simpsons get her hair done or wear makeup at trial. [Chicago Sun-Times]

How nice that some bimbo baby lawyer saw an opportunity in this murder case, where a defendant will be subject to untenable prejudice at every turn, to make reference to the Simpsons crazy cat lady.  Let’s all enjoy a good laugh at a severely prejudiced defendant’s expense.

Hot mikes are so much fun. No, not this type of hot Mike, but microphones that are electrified and recording words spoken when the speakers don’t realize it. Sometimes it’s a  president (or vice).  Maybe even  the host of a children’s television show.  And sometimes it’s a cop.  Or two.  From Radley Balko :

Cops launch drug raid based on anonymous tip and a single marijuana stem found in the trash. End up raiding a home recording studio. Begin deliberations on what cool stuff they’re now permitted to take

The report, stating that police are only authorized to take property purchased with money earned from drug sales, is totally wrong.  Police are authorized to seize contraband, proceeds, substitute proceeds, and the instrumentality of a crime.  If drums aren’t instruments, than what is?

Nothing goes better with drugs than music, whether it’s jazz (the traditional gateway to drug addiction) or rock ‘n’ roll (which also goes better with coke).  And it’s hard to make music without musical instruments, right?  And that makes them the instrumentality of the crime.  And by the way, you don’t end up with a stem in the trash until you’ve fished through the baggie to separate out the buds, so let’s not harp on the “it was only a stem” factor.  Where there’s smoke, there’s fire, and where there’s stems, there’s weed.  Everybody knows that.

At the scene of the crime, it’s often hard for police to figure out what exactly should be seized and what should be left behind.  If they fail to seize when the time is ripe, chances aren’t good that they can come back at some later date and grab whatever loot is left lying around.  It’s now or never, and let the courts sort it out later.

Most importantly, it’s actually good news, no great news, that the police had a burning love for musical instrumentalities as they packaged up their seizure for eventual forfeiture or, more likely, use at their next office party.  When the cops like the stuff they’re seizing, the treat it with relative care, trying their best not to damage and destroy everything they touch in the process.  As anyone who has gotten seized property back knows, it’s not always in the same condition as when taken.  One of the best businesses in town is owning the flat bed truck parked outside the police impound yard.

So before people jump on the bandwagon and criticize cops for doing their job too well, I implore you:  Think of the drums.