It was a very effective advertising campaign for Verizon wireless, some geeky-looking guy walking around asking, “can you hear me now?”  Sadly, the campaign ended when he was run down by Peterbilt semi.  He never heard it coming.

From the New York Times, Brooklyn Senator Karl Kruger has introduced a bill prohibiting the use of cellphones, iPods and other electronic devices that give rise to “distracted walking,” after three pedestrians were killed and one critically injured on the streets of New York City since September.  Similar laws are proposed elsewhere.

In New York, a bill is pending in the legislature’s transportation committee that would ban the use of mobile phones, iPods or other electronic devices while crossing streets — runners and other exercisers included. Legislation pending in Oregon would restrict bicyclists from using mobile phones and music players, and a Virginia bill would keep such riders from using a “hand-held communication device.”

Exercising in Central Park on Tuesday, Marie Wickham, 56, said she understood what all the fuss was about: “They’re zigging, they’re zagging, they don’t know what’s around them. It can definitely be dangerous.”

But Ms. Wickham added that she would be opposed to any ban of such devices. “I think it’s an infringement on personal rights,” she said. “At some point, we need to take responsibility for our own stupidity.”

Jordon Furlong posts at  Law21 (eh?) about a particular pet peeve of mine, the rudderless direction of bar associations,  As the wind blows, so goes the bar, whether the ABA in it’s “lets form a committee” approach to long-standing, well-known issues that have sailed past it, to local, specialized bar associations that become so embroiled in the fragile egos of its self-important “leaders” that it squanders what little authority it might have had on parochial projects of no consequence to its members.

Jordon, being a better natured fellow than me, allows these pointless institutions some leeway.

[A]ll of these activities have merit, to one degree or another, and lawyer associations legitimately can pursue any of them. The challenge is that, especially in a recessionary period and in the face of unprecedented private-sector competition, they can’t pursue all of them. Associations have to choose strategically — and more importantly, they have to decide what their foundation is.

What’s that one thing, that single unique and effective purpose, that associations primarily serve and upon which they are built? It’s not annual meetings, which have dwindled in attendance and importance as physical distances have become less of an obstacle to networking. It’s not improving the image of lawyers, investing thousands of dollars in fruitless efforts to make lawyers more appreciated and valued by a public that is quite happy to stereotype and scapegoat us. So what’s left?

My own suggestion is this: lawyer associations should transform themselves into lawyers’ marketplace evangelists. They should adopt as their mission a sustained campaign to trumpet the unique advantages of choosing lawyers over the many other options spreading throughout the legal services market. Our de facto monopoly on legal services is already disappearing, and our regulatory advantages likely will follow shortly.

Lawyers need to differentiate themselves from the people, processes and programs that are coming into the marketplace and drawing clients away; but no lawyer or firm is going to launch an expensive and complex campaign that will benefit competitors as well as colleagues. Lawyer associations can. And they can do so by emphasizing lawyers’ training, professionalism, ethical standards and other outstanding characteristics with which lawyers are proud to be associated.

He’s absolutely right.  Lawyers, when we conduct ourselves in the highest order of our profession, fulfill a need that no online legal form can serve.  The public has lost faith in lawyers, and the law, to serve them in a professional manner, meaning putting our clients’ interests before our own and putting in our own efforts to provide excellent representation.  The path of professional failure is strewn with our crass laundry-soap marketing efforts, and whining about work/life balance and the unfairness of every kid a year out of law school not being able to buy a BMW while leaving the office by happy hour.

But it’s not just the reinvention of the image of the profession, but a renaissance of the profession itself.  Lawyers do not only possess a monopoly on the right to practice law, but a duty to practice is professionally as well.  Without the latter, the former is just more garbage marketing.  We clearly need to change the image, but we need to live up to the image we want other to see.

How many out there are prepared to take down the crap on your websites that proclaim your vast experience when you’ve only been a lawyer for 12 minutes? 

This too can be part of the same mission, to strongly encourage lawyers to return to the fold of a learned profession.  We can embrace those who strive for excellence, and we can shun and reject those who think they look better walking the street in short shorts.  We can be proud of what we do and who we are, but only if and when we deserve to be proud.

As Jordon urges bar associations to change their external focus, he also offers this suggestion to change their internet focus:

Internally, I think they need to focus on collegiality and collaboration. As society becomes more virtual, face time becomes far more valuable. But lawyer gatherings of all kinds still over-emphasize the role of educational sessions and business meetings — events that lawyers can attend from their desks or on their smartphones — while relegating socializing and networking opportunities to short coffee breaks or abridged cocktail parties at the end of the day. Associations should reverse this: host gatherings to network and socialize first, and to learn or conduct business formally as a sidebar. Look for ways to encourage face time and personal interaction among lawyers — hold un-conferences, sponsor speed-roundtables, form micro-panel discussions for small, specialized groups, and so forth.

It’s unclear whether Jordon’s suggestion is similar to mine, as neither collegiality nor collaboration are goals in themselves, but merely means to an end.  Initially, I’m not a fan of collaboration, the elevation of consensus and compromise over the far harder choices of right and wrong.*  While I realize that collaboration is fashionable, it’s also the quickest route to mediocrity.  I’m not a fan of mediocrity.

But the collegiality suggestion is more promising.  Through the growth of norms of conduct, praise and admiration for those within the profession who strive for excellence, and bringing those whose concerns are limited to the quick buck back into the fold of personal pride and responsibility, we can do far more to elevate lawyers back into a profession, one worthy of the public’s trust and admiration, than can a hundred new ethics regulations.  Through collegiality, we can create an atmosphere that rewards those who strive for excellence and shows disdain for those who would turn law offices into used car lots.

The bottom line is that we’ve watched the law slide down the slope of professionalism into the gutter of mercenary self-interest.  If this is the best we can do for ourselves, then perhaps self-help forms and pro se trials are no worse than wasting money on a lawyer.

Bar associations have, for the past decade, played a critical role in encouraging our downward spiral.  Their focus has been on appeasing the latest craze, enabling the quick buck and excusing the self-serving behaviors of lawyers who have disgraced a once-great profession.  If only the pompous few who feel compelled to be important bar association leaders could put their self-aggrandizing energies to use in restoring a sense of professionalism among lawyers, and furthering our purpose as learned professionals to help our clients, they might have a point to their continued existence.

And so might we.  If our only point is to make a buck, then we have come to the end of the road, just like our associations.  Sure, lawyers need to earn a living that justifies the cost, in both money and opportunity, of entrance, but that comes as an adjunct to our deserving the respect and trust of the public for our dedication to excellence and our clients’ cause.  It would be a damn worthy mission if bar associations would become a part of this fight.

* Addendum: Having thought about this a bit further, it occurs to me that I may have misunderstood Jordon’s point about collaboration.  It may be that he’s suggesting that we help each other, to be better lawyers and better serve our clients, rather than become enablers of mediocrity within the profession.  If so, then I’m with him all the way and apologize for having maligned his ideas due to a disagreeable choice of words.

Ahmed Khalfan Ghailani  was sentenced by SDNY Judge Lewis Kaplan yesterday to life in prison upon his conviction for conspiracy in the 1998 East Africa embassy bombings.  The government argued that he was a remorseless terrorist.  Ghailani’s lawyer argued that he was a dupe who had been tortured by the United States along the way.

But the judge, Lewis A. Kaplan of Federal District Court in Manhattan, said that no matter how Mr. Ghailani was treated while in detention, “the impact on him pales in comparison to the suffering and the horror that he and his confederates caused.”

“It was a cold-blooded killing and maiming of innocent people on an enormous scale,” Judge Kaplan said. “The very purpose of the crime was to create terror by causing death and destruction.”

While this quote from the Times doesn’t seem to address anything substantive, dwelling instead on the melodramatic aspect of the sentence since actual findings can be so very boring, I’ll accept, arguendo, the proposition that Judge Kaplan did not agree that Ghailani was a mere dupe, but knew what he had gotten himself into and proceeded nonetheless.

So what’s the problem?  From the Wall Street Journal :

In November, a jury convicted Ghailani of one count of conspiracy but acquitted him of more than 280 other counts in connection with two truck bombings outside U.S. embassies in Tanzania and Kenya that killed 224 people and injured thousands.

If memory serves, the acquitted counts numbered 284.  Our mighty and powerful government indicted this man of 285 counts and managed to eke out a conviction on just one count?  How strong and omnipotent we are.  How righteous our use of our vast might. 

How embarrassing that Preet Bharara and Eric Holder piled it on, higher and higher, The most power nation to ever exist on the face of the earth, with resources so vast and overwhelming put toward the conviction of this one little man, and the best they could do was convict on the one generic conspiracy out of 285 counts of heinous crimes. 

Judge Kaplan imposed a sentence of life in prison without possibility of parole on the single count of conviction.  I lack the knowledge to suggest that his sentence was inappropriate, and credit his sentence as fully justified.  But what would he have done had Ghailani been convicted to two counts? Or 37? Or all 285 counts?  Would Ghailani have been sentenced to life times 37?  What about life plus cancer? 

As it stands, there appears to be 284 counts that were tried that didn’t matter at all.  Is this what our system is all about, pointless charges that are merely piled on in the hope that the jury will find one, for whatever reason, to hang their hat on?  Would this life sentence be any different if it came upon a conviction for more than a single count?  Certainly Ghailani doesn’t get extra lives so that he can be punished over and over.

Assuming, as I do, that his connection to the deaths of 224 people, not to mention those injured by the attacks, justifies a sentence of life in prison, even if for only a single count of conviction, how does that compare to the life sentence imposed on those whose heinous crime is the theft of money?  It should give on pause, a long, long pause, when comparing the relative evils.  If Bernie Madoff should die in prison, shouldn’t Ghailani die many times in prison?  But it doesn’t work that way.

The one fact that cannot be ignored is that Ghailani was acquitted of 284 counts after trial.  That’s a massive number of counts, so much so that it cannot do other than make one believe that our government is insufferably petty, and our legal system can be so easily loaded, manipulated, drowned under raw numbers of meaningless charges, as to reduce it to a farce. 

Acquittal of 284 counts, with conviction on one, is farcical.

I’m well aware of how and why multiple counts can be charged, how the numerosity of laws, victims, the interplay between elements of offenses, could result in massive numbers of charges.  But I also recognize that most of the time, when a discrete act of carnage occurs, there is a fundamental point at issue.  Here, the point was whether Ahmed Khalfan Ghailani was part of the coordinated Al Qaeda conspiracy to blow up the United States embassies in East Africa.  So charge him for that crime, and if the evidence is there, convict him and then sentence him.

Instead, the United States government embarrassed itself by losing 284 counts against Ghailani.  And embarrassed us, the citizens for whose benefit this government exists, in the process.  And embarrassed the legal system for which lawyers have dedicated their minds, efforts and beliefs, by making it appear farcical, fundamentally lacking in integrity, rather than the core of fairness and propriety that terrorists fight to undermine.

When the government decided to charge Ghailani with 285 counts, it put our system on trial.  It lost on 284 of those counts.  What sentence should be imposed on the government for being on the losing end of this farce?

There was a time when every well-dressed man wore a hat, often a fedora but sometimes as wacky as a bowler or even a boater.  Hats fell out of fashion, and were rarely seen.  They’ve come back, mostly resembling the caps worn by baseball players and drivers of John Deere tractors on farms, though sometimes worn slightly askew, sometimes backward, with or without price tags, and are frequently worn by young men.

This means the old rule that gentlemen removed their hats indoors was again in play.  The difference is that hat wearers today don’t ascribe to the old rule, and indeed see little wrong with keeping their lid on at all times.  Old-timers see this as a critical lapse of etiquette.  New-timers see this as, well, nothing of any consequence at all.

Courts, however, had a fairly uniform rule when it came to hats.  They were not permitted in courtrooms.  Neither cowboys nor millionaires were allowed to wear hats in a courtroom.  There was no hard reason for it other than maintaining a semblance of dignity and formality, the atmosphere that courts hoped to maintain.  The rule existed back when fedoras were favored.  It existed when hats were scarce It will exists today.

The only exception is for hats worn by police, largely because they are comrades in arms of court officers and comrades don’t tell comrades what to do, especially when police are armed and higher on the law enforcement pecking order.  Issuing an order to a police officer to remove his hat, a hat that was part of his required uniform even when it wasn’t fashionable or a hat worn to keep his “high and dry” warm in cold weather, was bad form, even worse than hat-wearing indoors.

Lawyers largely accept and adhere to the rules of courtroom etiquette.  Indeed, we rarely give a thought to why they exist or whether they make any sense.  It’s just part of the job, dressing in the lawyer uniform and uttering the lawyerly words expected of us.  Why call the black-robed guy “your honor,” for example.  It’s less that we maintain a personal belief that the fellow is particularly honorable than we employ the usual honorarium honorific.

We are there to fight battles, but screwing with the rules of etiquette isn’t among the battles we care to fight.  More to the point, we accept for the purpose of maintaining an orderly process that these rules exist, and play along.  It helps our ability to do our job as well.  Imagine if audience members were allowed to hoot and holler if they didn’t like what we said.  We don’t want to be disrupted, so we enjoy the benefit of the atmosphere of formality.  It’s not that it always helps us, but that the alternative would be worse.

But what happened to  Pete Eyre in Keene, New Hampshire, via his friend Radley, forces me to think long and hard.

Eyre should have removed his hat when he was first told to do so.  His response when told of the court policy, “I didn’t sign that policy,” was childish and wrong.  As we wander through life, we are not entitled to have individual approval over the way others run things.  When Pete walked into that courtroom, he understood (or at least should have) that he subjected himself to the rules of the court.

Granted, his political view may be that individuals should not be subject to the unilateral fiat of the government, and that this was an act of civil disobedience mandated by a pointless policy that government has no authority to impose.  Perhaps, but if so, then what followed is what he asked for.  If this is the sort of fight he wishes to make, so be it.

However, the issue doesn’t end here.  In a split second, the court officer went from right, if not silly, to wrong by ordering him to leave and then following his words by “or you will be arrested.”  This was immediately followed by the officer wrestling Eyre to the ground and cuffing him.  Eyre continues to sound off about his hat being his property, an irrelevant point since the demand was to remove it the courtroom.

The gist of the “Free Pete” is that wearing a hat is not a crime.  Of course it isn’t.  Refusing to adhere to the rules of decorum in a courtroom can be a crime, however, as can failure to follow a lawful order.  That some feel differently isn’t much of an argument; we don’t each get to decide what rules to follow and what rules we think are ridiculous, and therefore can be ignored.

The problem here is that the resort to force, to the assertion of physical control, to arrest, comes far too quickly and easily.  The state has armed men to make us behave as they demand, but they should only be used as a last resort and only when necessary to protect a more substantial interest.  Wearing a hat?  Not worthy of force, and certainly not worthy of arrest.  Tell him to remove the hat or leave.  Tell him a few times.  So what if Pete Eyre’s “argument” that he never agreed to the “no hats” policy is asinine.  Behaving badly isn’t a crime either.

The near-immediate resort to force, to the ultimate power of arrest, for something so trivial and, frankly, a rule of etiquette and decorum rather than one that protects anyone from any actual harm, is what pushes people, like Eyre, to engage in silly resistance and refuse to acknowledge a middle ground of relative order so that bigger, more important battles can be fought.  There are critical fights to be had in this world, and foolish ones do little by distract from them.

The bottom like of Eyre’s fight is that Pete Eyre doesn’t think he should have to take his hat off in court.  He believes that he gets to make his own rules, to adhere to whatever code he personally finds acceptable.  Anarchy or narcissism, I can’t say, but Eyre is wrong.  Without some general order, nothing gets done, neither good nor bad.  For people who have things to achieve beyond fighting for Eyre’s right to behave like a three year old, this is just a sideshow that makes the main event that much more difficult to accomplish.

Free Pete?  Sure.  His “offense” was ridiculous, as his conduct was beyond churlish.  But if there was only one person to be freed today, Pete Eyre wouldn’t be my choice.  There are far more worthy people, who have suffered far greater indignities with far less reason, that deserve our concern.

Free Pete? The officer who managed to take a dopey problem that could and should have been ably handled without anyone getting touched, cuffed and arrested was an incompetent buffoon whose conduct breeds the attitude in people like Pete Eyre to refuse to follow any rules but his own.  Since the officer acted with the authority of the state behind him, he’s more wrong than Eyre.  He too doesn’t get to behave poorly because he can’t think of any better way to perform his job.

If you don’t want to remove your hat in the courtroom, then stay out.  If you’re told to remove your hat by the bailiff, then take it off.  It’s a silly rule, perhaps, but real people suffer because of what happens in courtrooms.  Get a grip and some perspective.  There are plenty of silly rules in courtrooms, but they mean nothing compared to the harm done by serious rules.  If you feel the need to take a stand, then focus on the serious harm and let the trivial go.

Is there a boy who hasn’t pointed his finger like a gun and pretended to shoot?  From KOCO :

OKLAHOMA CITY — Mid-Del parent Lydia Fox said Tuesday her 7-year-old son was suspended Friday for fidgeting in class.  Fox said her son, Patrick Riley, who is in first grade at Parkview Elementary, was asked to go home after he formed a gun with his hand and started to pretend he was shooting at a wall.

Parkview Elementary said in an official statement that “a student has repeatedly used his hands to simulate a gun and act as if is shooting fellow students.”

However, Riley said he did not point his make-believe gun at anyone.

“One of the things I’ve always been able to brag about Oklahoma is that common sense still rules here. Unfortunately, I don’t think I can say that anymore,” Fox said.

Fox said she met with the school principal on Tuesday. She said they decided to “agree to disagree” on the matter.

Coming fresh on the heals of the discussion about  swearing contests at Suppression Hearings, where the tailored or sanitized testimony of a police officer invariably trumps a defendant’s directly conflicting testimony, is this decision via  Volokh Conspiracy from the Eighth Circuit in United State v. Prokupek.

In spectacular fashion, the circuit reversed the denial of suppression, holding the magistrate’s finding that the cop was credible to be “clearly erroneous.”  The cops were busy pulling a cute little move:

Officers put up a sign indicating that there was a drug checkpoint ahead, and they then parked their cars by the nearest exit. Prokupek was driving on the highway, passed the sign, and then pulled over into the exit lane of the highway. At the end of the exit lane, he pulled over on to a country road and was stopped by the police. The police brought out the dogs, the dogs alerted to drugs in the car, and a search of the car yielded 151 grams of methamphetamine in the car.

The district court’s factual finding that “Prokupek failed to signal his turn before turning from the exit ramp on to the county road” is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with the “firm and definite conviction that a mistake has been made,” United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous.

Of course, had there been no dash cam, or had the cop not shot off his mouth on camera about why he stopped Prokupek, thus establishing a baseline upon which his hearing testimony could be revealed as wholesale fiction, or better still, having adequately prepared for the hearing by making sure his two stories lined up, there outcome would have been the opposite.

As Orin Kerr notes in his discussion, there would have been no basis for reversal in the absence of this “objective evidence” that the cop was lying through his teeth.  I add that there were numerous opportunities for the cop to have gotten his lies straight, conformed them to the content of the dash cam, and still gotten away with lying. 

While we have video to thank, we also need to appreciate the fact that Trooper Estwick is a moron.  A smarter liar would have easily gotten away with it.

Calls for videotaping, whether by police or civilians, these interactions is often held up as the cure for the disease of police testilying, whether tailoring testimony or fabricating excuses wholesale.  In the instances where a camera shows the wrong or conflicts with testimony, we applaud, as well we should.  Anything that shows when a police officer violates his oath and abuses his authority is a day that another life was saved.

Yet it would have been shockingly simple for this cop, had he not been such a blithering idiot, to conform his hearing testimony to what was recorded on his dash cam.  Had he made the slightest effort to prepare, the dash cam video would have bolstered his fabricated testimony rather than contradicted it.  Suppression denied, end of story.

That said, I would be remiss not to take further note of the little scam played by the troopers who put up the sign warning of a drug check point ahead, motivating drivers with drugs in the car to exit immediately and play right into the hands of the waiting troopers. Yes, Virginia, the police are lawfully allowed to lie to you.

Does such a ploy smell badly?  Does it reflect poorly on the integrity of the police?  Perhaps, but its a perfectly lawful means of goading a driver into revealing that he has no intention of going through a drug checkpoint.  It may seem unfair, but it’s pretty darn effective.  And really, isn’t that what law enforcement is all about?

But the fact that a driver pulls off the road after seeing this faux sign doesn’t give rise to a stop.  After all, he may just as well be pulling off the highway because that’s his exit rather than an intent to avoid a drug checkpoint.  So the cops need an objective basis, an offense committed in their presence, to justify the stop, after which they can lawfully walk the dog around the car for a quick sniff, and a hit constitutes probable cause to search under the automobile exception.

No turn signal?  That’s all it takes to distinguish a lawful stop and the ensuing sniff, search, bust.  Who’s to say that a driver actually did signal, in conflict with the police officer’s testimony that he observed a clear violation of traffic law in his presence?  Only the driver.  We all know how that testimony comes off.

Over the past two weeks, I’ve been the target of another massive spamming campaign, brought about by my blawg being “sold” by some SEO spammer to those who believe that the way to your pocketbook is through the introduction of paid comment spamming. 

Who is doing this?  It’s websites from chiropractors to used care lots, pepper mills to puppy mills, incest rape videos to law firms.  These are businesses that pay some marketing scoundrel to build their search engine optimization juice by placing worthless, link-infected comments, dozens at a time, hundreds a day, all with one goal in mind.  Get on page one of Google.

The sad reality is that we all behave the same, looking for something we need on a search engine and clicking on the links on the first page.  It’s convenient, and the products are staring us in the face, and there’s a lingering belief that the reason they appear on the first page is that they are the most popular, and hence best, website for the product we want to purchase.

What’s dawned on me is that there is an awfully good chance that the reason these products and services are found on the first page is that they’ve been busy paying SEO spammers serious money to get them there.  Instead of reflecting quality of service, or fairness of price, or popularity of product, it reflects that they are the worst, lowest scum around.  By clicking on those websites that come up on page one, we fuel an industry of lies, deception and abuse.

We are the incentive system for spam.  We may hate it, but we cause it to exist and thrive.

As I was deleting the spam comments that have clogged SJ over the past two weeks, and caused the many problems with comments that some of you have written to me about, I briefly stopped cursing the absurd fawning comments in broken English tempting me to leave them there to flatter my fragile ego and considered what could be done to stop these animals.  It was then that the Fifth Page idea came to me.

While it would take a fraction of a second longer, an eternity in iPad time, rather than start clicking on those websites appearing on the first page of Google, if we went to the fifth page and started there, it would undermine the incentive to engage in SEO spamming to raise the profile of some misbegotten website whose appearance on page one is only due to its paying former Russian collective farmers to sit at computers all day long and spam the living crap out of others. 

Start on page 5.  Ignore page 1.

We are all aware that our Google searches bring up hundreds of thousands, if not millions, of websites spread across more pages than can be shown at the bottom of the screen.  What makes anyone think the businesses on page 17 aren’t just as good, if not better, than the businesses on page 1?  Sure, there will be some websites, some businesses, who appear on the first page because of true organic merit, that their service or product excels, but we already know these big names by virtue of their inherent worth. 

On the other hand, if you search for doggy toe clippers, or some similarly unusual items, chances are that the website you come up with on page one is there because they’ve invested a tidy sum in spamming.  Is that the sort of website you want to do business with?  Is that the sort of person you can trust, the one whose placement is due to lies, deceit and abuse?  Is that the sort of conduct you want to encourage by doing business with those whose business plan is to spam?

We need to address the problem of massive SEO spamming, and for those of you who have never had the pleasure of a thousand new spam comments greeting you in the morning, let me tell you it’s unpleasant.  This isn’t one or two, or even ten, but literally hundreds of worthless comments whose sole purpose is to scam consumers by jettisoning websites to the top of Google. 

Sure, this is the longest of shots, changing behaviors that encourage such spamming, even if it involves a mere fraction of a second and one additional mouse click.  But if it defeats the incentive system for SEO spamming, maybe it would be worth it.

If nothing else, it would free up my mornings to write posts about drug collars rather than delete spam comments about flea collars.

Update:  In an early comment to this post, “Palatandnob” wrote:

You certainly have some agreeable opinions and views. Your blog provides a fresh look at the subject.

I’ve never been to Tulia.  There’s no particular reason why I would go there, and yet after reading Alan Bean’s book, Taking Out The Trash in Tulia, Texas,* published by Advanced Concept Design Books, I feel as if I know the place well. 

The story is now well known to those who are concerned about criminal justice, when one early morning in July, 1999, saw a round up of 46 people, 39 of whom were black and comprised 15% of the towns black population, all based on the “undercover” activities, and integrity, of a mutt cop named Tom Coleman.  Based on Coleman’s uncorroborated, and facially false, testimony, the Tulia defendants dropped like flies. 

The story of Coleman’s exploits produced a local newspaper headline, “Tulia’s streets cleared of garbage,” giving rise to Bean’s title.  The men and women, marched off in their underwear to holding cells, and from there to pre-ordained convictions that would rid Tulia of “their kind,” was embraced by the good folks of Tulia, disinclined to quibble over the niceties of law and proof.  The one-time high school sports heroes and regulars in town were no longer desired in Tulia, and ridding the town of them was a sufficiently necessary goal that otherwise God-fearing and kind residents wouldn’t lose any sleep.

Alan Bean, a minister and author who came to Tulia because of his wife, Nancy’s, parents, Charles and Patricia Kiker.  Bean recounts the story of people with such colorful names as Kizzie White and Bootie Wootie (because Joe Moore sounded too, well, normal?) in a narrative that captures the flavor of Tulia’s underbelly, the poverty, the desperation, the way life goes on as if this was how it was supposed to be.

His story used the colorful language of colorful characters, and characters is the only way to describe them.  From Gary Gardner, a redneck farmer with a nasty mouth and a penchant for keeping a loaded rifle by every window, just in case, to Randy Credico, a carpet-bagger for justice from New York’s Kuntsler Fund for Racial Justice, who seems about as far out of his element as an ersatz comic impressionist turned racial freedom fighter could be. 

Most extraordinary is the manner in which Bean recounts the story of Tulia, providing what seems to be just raw description without the sense that it’s been colored to persuade.  Granted, Alan Bean and his wife formed the group Friends of Justice, integral to bringing the monumental, yet mundane, injustice of the Tulia drug stings to the attention of the nation.  And yet, there is no sense while reading this book that Bean’s description is anything short of factual, just a recitation of what happened, warts and all.

It would have been all too easy to turn Taking Out The Trash into a philippic, particularly since its author just happens to be a preacher.  Yet Bean resists sanitizing his friends or vilifying his opponents.  At it’s core, the story is one of entrenched racism and ordinary people comfortable in sacrificing the details of due process and integrity in the criminal justice system to rid their town of what they perceive to be a plague of drugs.  At the same time, Bean doesn’t devolve into blind hyperbole, conceding that the Tulia defendants are necessarily angels, but still deserving of humanity and fairness.

While not a theme of the book, it’s impossible to ignore the banal failings of the assigned criminal defense lawyers who failed to make that extra effort necessary to care for their clients.  Some happily assumed their client’s guilt, as part of the routine of selling defendants out before the check was cashed, while others tried but lacked the experience, and maybe the guts, to face down a hostile and callous system. 

Certainly the subject matter of the Tulia drug stings, the prosecution and conviction of these defendants and the fight to clean up the courtroom after a lying Tom Coleman “cleaned” up the streets, lends itself to a rant or two. Or thirty nine.  That Alan Bean chose to keep his narrative close to the vest, to let the facts do the talking for him rather than ram the moral of this sordid story down the reader’s throat, makes this book a fascinating and consuming read.  Be prepared, as once you start reading Taking Out The Trash, chances are you won’t put the book down until you’ve finished.

Much along the lines of Amy Bach’s Ordinary Injustice, the story of Tulia, Texas is disturbing in its depth and ordinariness at the same time.  Bean struggles to make the point that the “good people” of Tulia don’t perceive anything racist in their willingness to sacrifice 15% of their town’s black population to clean up the streets.  That testimony might not be entirely accurate, or crimes not exactly committed, doesn’t change their heartfelt belief that this is all for the best, something that just had to be done. 

The tendency to concern ourselves with instance of particular moral outrage, discrete and horrendous instances of what we perceive to be injustice, makes for higher profile and flashier stories.  While the scope of Tulia’s abdication of law in favor of order makes this story stand out, that Alan Bean, Carl Gardner and The Kikers, the Friends of Justice, were able to capture the interest and imagination of the outside world in the ugliness of some dusty backwater in Texas where a bunch of poor blacks were railroaded is a story of courage, personal risk and dedication to a cause that would otherwise have never made a ripple in the world of criminal justice.

Alan Bean tells an important story, and tells it in a way that draws a reader into a seat at Jazzie’s Cafe and forces them to feel the dirtiness and stench of the holding cell at the Swisher County Jail.  What distinguishes Taking Out The Trash is one’s sense that Bean has been an honest broker in the retelling of this sordid tale, and that despite the locale and feeling of dusty streets around you, it’s the story of how most people in this country feel about those tagged as criminals.  So what if the fine details of law are missed here and there, as long as our police take out the garbage, most good people are just fine with it. 

Thankfully, Alan Bean wasn’t fine with it, and wrote a fantastic book so that the rest of us wouldn’t be fine with it either.

* While the book is available at Amazon, you can also get a copy by  making a donation of $25 or more to Friends of Justice, the organization created by Alan Bean to fight for the rights of defendants and the integrity of the legal system.  It’s a worthy cause, plus you can get a great book as part of the deal.

When  Orin Kerr noted the unusual opinion out of Fourth District Court of Appeals in Florida in Ruiz v. State, it reflected the sort of exasperation with the system that those of us in the trenches have long endured.

Cases like this one call into question the fairness of some trial court proceedings. On the pages of the record, the story told by the police is unbelievable—an anonymous informant gives incriminating information; police surveillance uncovers no criminal conduct; the defendant is “nonchalantly” and “casually” approached by the police on the street; the defendant cooperatively leads the police back to his apartment to obtain his identification and invites the police inside, where a detective sees contraband in plain view, a fact certainly known to the defendant when he issued the invitation; after his arrest, the defendant tells the police about all the hidden drugs in the apartment.

Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. This case involves the search of a person’s home, but were the factors bearing on the voluntariness of the consent scrutinized “with special care?” Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement. The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.

Constrained by deference, the court had to accept the hearing court’s credibility determination, despite it’s belief, strong enough to compel the court to write this benchslap, and affirm the denial.  For every criminal defense lawyer who has presented a facial challenge at a suppression hearing of a defendant’s testimony against a cops, we know the frustration.  Absent extrinsic evidence, courts always back cops in a swearing contest.

My reaction to this decision was Reagan-ish, there they go again, another judge who took the easy path and avoided finding the word of a defendant was more credible than that of the police, and another appellate court that hid behind deference to affirm a ruling they believed to be wrong.  What else is new? 

It came back on my radar when I read a post about the Ruiz decision at Turley’s blog, There have been some changes over there, with former regular commenters now writing the blog posts so that Turley can keep the blog going without actually having to do the heavy lifting.  It’s unclear who these posters are, or where they come from, making their “take” on the subjects under discussion curious. 

David Drumm posted about the Ruiz case at Turley’s blog, and offers this reaction:

The testimony of the officers does not have the ring of truth. The prosecutors surely recognized this, yet they allowed to testimony anyway. That’s how the game is played. The trial judge played his part. It’s judicial theater and it mocks the Constitution.

Whether Ruiz granted consent or not is a finding of fact and that determination should have been left to a jury.

This sadly simplistic assessment does a disservice to the problem.  Aside from the lack of procedural understanding, that juries don’t determine the facts belying suppression, and thankfully so given that it would require defendants to testify at trial to vindicate constitutional violations, plus, given our chances with a jury believing a defendant over a cop, no evidence would ever be suppressed, his blame is misplaced.

The adoption of the “ring of truth” paradigm isn’t a reason to blame prosecutors, or even judges.  Trial lawyers understand that there is no magic red light that goes off over the witness stand when someone is lying.  The nonsensical belief that people can tell a lie from the truth befuddles the system, as if judges are imbued with mystical powers to discern truth from falsity.  They don’t know. We don’t know. Nobody knows.  We hear lies with such frequency, whether wholesale or merely colored truths, that we start believing that everyone is totally full of it.  Our clients lie. Our witnesses lie.  Our co-counsel lies and maybe we lie to ourselves. 

What do the judges know?  Some know that it all smells, but they don’t have the good to hang a lie on a cop.  When we give them that hook, and we happen to be before a judge with some gumption, we can get the right ruling.  But when the best we can offer is he said/she said, almost no judge will ever side with the defense.

Why?  “Ring of truth?”  Has he ever heard the preposterous stories our clients tell, the aberrational tales that strain even the most ardent supporters of the accused?  And yet they may well be absolutely true.  In fact, the more outrageous the tale, the more likely it is that it’s true.  After all, if someone was to make up a story, they would craft one that was more believable than the bizarre tale our clients tell.

Truth isn’t always clean, neat or normal.  Truth can be the one in a million shot, the ridiculous oddity that we would never expect.  They say “you can’t make this stuff up,” and we find that to be the case over and over.  It never bears the “ring of truth.”  It bears the ring of absurd.  Yet it’s true.

Life in the trenches bears no resemblance to life in the choirloft.  We conduct suppression hearings because we must, even knowing that offering two competing versions of the truth will do little to win over the judge.  It’s not enough that they know that cops lie, or that a defendant’s testimony has more “ring of truth” than the cop’s. 

Before a judge will find that a police officer lied on the witness stand, committed the crime of perjury by knowingly and materially testifying falsely, we need to give the judge something hard to hang his decision on.  Offering truthier testimony than the other side isn’t a good enough reason to condemn the cop.  Those of us charged with defending the accused know this.  We realize what we’re facing.

I recall a suppression hearing I had before a federal district court judge who went on to become the Attorney General of the United States of America.  The agents testified about their pristine and lawful conduct, ultimately procuring the defendant’s consent to enter his home and find evidence of a crime that he knew to be present.

The defendant, who was educated, smart and accomplished, notably in asserting his rights with federal agents based on his numerous prior experiences in dealing with arrests, searches and seizures, testified that he knew precisely what to do, asserted his right to remain silent and right to counsel immediately upon arrest, and in response to the agent’s request to enter his home, reasserted his right to counsel in clear and unequivocal words.

The judge, after hearing the testimony, asked me what I would have him do given the swearing contest based on this irreconcilable testimony.  I argued that we, the judge, defendant and I, were painfully well aware that this hearing would be a swearing contest between defendant and agent, but what would he have me do?  He knew the defendant was well-versed in the invocation of rights.  He knew that the defendant had long ago memorized the mantra that precluded any possibility that the agent’s testimony was truthful.  He knew that I would never have put the defendant on the stand to testify had there been any extrinsic proof.

But it was just the agent and the defendant in a car, by themselves, without camera or disinterested witness, and aside from the testimony of the defendant, there was nothing to offer.  It was ether sit quietly and let the court rubber stamp the agent’s version or fight.  There were no other options.

The judge looked at me as if I had just told him he was a fool.  Sure, the defendant’s testimony was more credible than the agent’s, whose version was so obviously tailored, so clearly sanitized, that it could have come out of a textbook.  And yet I gave the judge nothing with which to call the agent a perjurer.  Other than the truth.  The motion to suppress was denied, as the defendant and I fully anticipated it would be.

There’s neither magic nor evil involved.  This is the system that keeps us warm at night and allows us to sleep peacefully in our beds, knowing that there are good guys and bad guys, and that we need not think too hard about which is which because we will never really know.  This is the fight in which criminal defense lawyers engage every day.

Most of us remember our first kiss.  Not because it’s better, or even materially different, than our second or twenty-second kiss,  but because it’s our first.  Nobody remembers their twenty-second, however.  It fades into an amorphous mass. 

Radley Balko at  The Agitator has done yeoman’s work at noting and cataloging abuse by police, whether against those with the audacity to record police, raid the wrong house,  shoot a guy named Jose Colon in the process, Taser death or kill a puppy because, well, they can.  The “joke” about it, though it’s hardly a funny sort of joke, is that the response to each glaring mistake by police is that it’s an “isolated incident.” 

I similarly take note of these incidents from time to time, having done so more frequently in the past than I have lately.  Lately, these “isolated incidents” haven’t made it to the front page of SJ.  It’s not because they aren’t worthy, or important, but that it plays into one of my greatest fears about police misconduct and abuse.  My fear is that it happens with such regularity that we quickly become inured to it.

Too many brutal videos of police needlessly beating people and lying about it turn an outrage into the new normal.  The impact of seeing in living color, maybe even hi-def, police officers beat a human being whose “crime” is not jumping as high or as quickly as some pimple-faced cop demands can have a huge impact on those who have muddled through life believing that such things could never happen.  Like judges.

The hope is that by posting about such things, providing the opportunity for people to see the very things that they have spent a career denying to themselves ever happen, will be a first kiss opportunity for those in the system who need to know what we know.  The fear is that the impact will fade when it’s the twenty-second isolated incident, and they can go back to hiding from the ugliness to go about their business as they always have.

There isn’t much to write about another search warrant executed on the wrong house, burned to the ground by the flash bang grenade.  It goes from an outrage of carelessness, meant in the sense that the police simply don’t care enough about the potential for destroying the lives of innocents to get it right, to just another sad, unfortunate incident.  Sure, it’s bad.  It’s terrible.  But it happens, apparently all the time.  Just another collateral casualty in the same old war that’s been waged forever and ever.  Ho hum.

I admire Balko for his dedication to the cause of keeping these isolated incidents front and center.  He’s right to do so, and not let the harm done in the name of Order escape unnoticed.  Yet it plays into my greatest fears, that it immediately gets filed away as another isolated incident.  It’s impact is lost, and it dissipated the impact of the stories of harm and wrong that came before it.  It becomes part of the great amorphous mass of police misconduct.

Balko remembers the names of those he writes about, and even as the  New York Times reported yesterday that a New York City cop shot an old man named Jose Colon, apparently because there was no puppy available, his mind flashed back to another Jose Colon. 

Strangely, when someone first sent me this story last night, I actually thought it was an old story. I vaguely remembered writing about another New York raid involving someone by the name of “Jose Colon”. Sure enough. In 2002, a graphic arts student named Jose Colon  was accidentally shot and killed during a drug raid in the Long Island town of Bellport. According to police, that Colon was killed when an officer tripped over a tree root as the raid team approached the house. Police say he then fell into the officer in front of him, causing that officer’s gun to fire three times, striking Colon in the head as he emerged from the targeted house. Colon was not a suspect, and had no criminal record. The police found eight ounces of marijuana in the house.

It’s bad enough that the incidents begin to blur, but when the names get repeated such that one can’t distinguish today’s isolated incidents from those happening years ago, we can appreciate just how pervasive incompetents with guns and shields have become.

How do we get back the feeling of that first kiss?  How do we note these “isolated incidents” without their becoming stale and tiresome, a repetitive bore.  Each human being whose life is beaten out of him is worthy of our attention, our concern, but we’re subject to human nature and people tire of hearing the same story over and over.  How do we return to the sense of outrage that this happens, and continues to happen, in our midst and yet the people with the power to stop it don’t give a damn?

At the pace we’re going, it won’t be long before nothing on the internet, no story, no video, will shock us and move us to be outraged.  Then what’s left?

Update:   Jeff Gamso’s post today includes these words, which are particularly apropos here:

Too many and they blur.  Stalin knew.

A single death is a tragedy. A million deaths is just a statistic.

So it’s important to focus.  On the single death.