Up for argument before the Supreme Court next Wednesday is Kentucky v. King, raising the question of whether a search can be justified under the exigent circumstances exception to the warrant clause when the police create the exigency.  Oddly, the issue is framed thus:

Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?

Undercover police officers bought drugs from a suspect in an apartment hallway; the suspect then went into an apartment. The undercover called in the police to make the arrest, but the police did not hear which apartment the suspect entered. The police arrived in the hallway, but weren’t sure whether the suspect had entered the left apartment or the right apartment. They approached the left apartment and smelled marijuana coming from inside. The police knocked, announced that they were the police, and then heard something inside. After no one answered, the police forcibly entered the left apartment and found King smoking marijuana inside. The officers had chosen the wrong apartment: The person who had sold drugs had entered the right apartment. Nonetheless, King was then charged with marijuana offenses.

Yet again, ignorance by the police justifies more expansive conduct than would have been the case if they had heard which apartment the suspect entered.  Of course, if they failed to hear the undercover’s transmission properly, they could have just asked him to repeat it before acting, but nobody seems to be concerned with this aspect of the case.

Unusual for a Supreme Court case, the parties persist in a factual dispute as to what the officers actually did when the knocked on the apartment door.  The state argues that the officers “merely” knocked and announced.  The defense contends they knocked, announced that it was the cops and “demanded to let inside.”  The trial court found for the defendant’s version. 

Following the knock, announce and whatever, the testimony was that the officer “couldn’t tell what the sound was, but that the sound was ‘possibly consistent’ with the destruction of evidence.” 

Believing that they were in hot pursuit of a fleeing felon, that the felon had recently entered the left apartment, and that the felon was now destroying physical evidence of his crime of trafficking, the police officers entered the apartment.

Curiously, the greatest boon to warrantless police searches, the objective basis permitting such atrocities as pretext searches, disappears when subjective (I believed) bases serve the cause.

The law is already clear that police cannot manufacture an exigency in order to circumvent the warrant requirement.  The issue here is whether their knock, announce and whatever, constituted the creation of exigent circumstances, or just the sort of routine investigatory conduct that police do, mirroring what normal folks are allowed to do. 

After all, anybody can knock on a door and announce that someone is out there, so why shouldn’t the police be permitted to do so as well without rupturing the Fourth Amendment?  Anybody can knock on a door and ask (nicely) to speak with the good folks inside.  If the good folks inside aren’t in the mood to chat, they have the right to say “go away.”  The police have done nothing wrong, and nothing more wrong, than anyone else would be entitled to do.  They can’t be blamed for the occupants reaction to their knock.

Kentucky v. King is another in a line of cases that addresses the police under the fiction that they are no different than anyone else, and we are not merely entitled to, but in reality do, treat them no differently.  The phrase that immediately comes to mind is submission to the shield, the fact that most people will do as directed by the police for no better reason than their free will is overcome by police demands. 

While the factual dispute may seem critical to the legal analysis, it’s trivial in the context of the real world.  Loud banging on the door and screams of “Police” conveys as much of a message as is needed.  It really doesn’t matter a great deal what follows, as any non-comatose occupant should reasonably expect the door to come crashing down momentarily.

The justification for the claim of exigency is the reaction to the police mistaken choice of doors.  Noise is heard inside.  What noise isn’t clear, except that it could have been “consistent” with the destruction of evidence.  Does that mean “scurrying about,” or the flushing of a toilet perhaps?  Of course, such sounds are consistent with getting the kids, the dog, grandpa, out of the room before the police enter and start shooting.  Or that at the moment the police knocked, someone was on the toilet and would prefer not to be when their apartment is swarmed by black-jacketed SWAT officers.

In other words, following the police knocking and announcing, the only reaction that wouldn’t conceivably be “consistent” with the destruction of evidence is total silence.  Then again, if they listened at the door in advance and heard any sound at all, but only silence after their knock and announce, that too would be suspicious and spun into a justification for entry, as they were silently destroying evidence and trying to conceal their presence.  That makes them really shifty criminals rather than dumb, obvious criminals. 

Of course, the occupants could, upon hearing the police knock and announce, respond that they are coming to open the door and do so.  But then, the underlying premise is that they have the right to ignore the knock and announce, in the absence of a warrant.  So if the only “proper” course is compliance with the implicit demand for entry, they lose either way.  There is no right to ignore the cops at the door, as one would have if was anyone else.

This case thus really raises no issue at all, which means that its hearing by the Supreme Court can’t be good.  The fiction that reasonable people can simply ignore the police, parsing their words (and the volume of their delivery) for commands versus polite requests and taking the long view from the bench of how reasonable people behave when confronted with the shield is absurd.  Try exercising all those rights the Supreme tell us we possess to be free of police overreaching.  Just be sure to have your video camera at the ready and a fast uplink to Youtube.

Bear in mind as your dog/child/grandparent lies on the floor bleeding out that you can take comfort in embracing the same legal fiction as the Supreme Court of the United States, that you can honorably ignore the banging on your door of police without fear.  After all, that’s your right.

As President Obama resubmitted the names of judges to the Senate for its advise and consent,  one name was missing from the list, Robert Chatigny, the Connecticut District Court judge up for the Second Circuit.  He had this to say:

An assistant who answered the telephone at Chatigny’s chambers in U.S. District Court in Hartford, Conn., read aloud a statement attributed to the judge: “It was an honor to be nominated to the Court of Appeals, and I’m deeply grateful to everyone who supported my nomination.” The assistant said Chatigny had no further comment.

There may have been more words in his statement than supporters backing his nomination.  Being less than familiar with Judge Chatigny’s record, his being from the provinces and all, I looked to Norm Pattis for critique.  And critical he was.

Let’s set the record straight: Robert Chatigny’s nomination to the United States Court of Appeals for the Second Circuit, one of the most prestigious federal judgeships in the nation, did not fail because of excessive partisanship. It failed because Chatigny was temperamentally unsuited for the position. Chatigny is not a victim.

At the time of his appointment, he had never tried a case to a verdict — ever. Sure, he’s plenty bright. But smart lawyers are a dime a dozen. Lawyers with a feel for what a trial is and how to conduct one are far more rare. That is the sort of sense you cannot acquire merely reading a book or briefs.

And the  trench lawyer movement goes on. Unrecognized and unappreciated.  Next on the President’s list for the Second Circuit?

But instead of seeing this failure of a nominee as an opportunity to promote change and bring experience to the bench, the president is looking to the same old status factories for new judges. He has resubmitted Susan Carney’s name as a nominee for the Second Circuit. As I wrote month’s ago of this nominee:

“For all I know Susan Carney is one of the law’s gems, a legal genius of rarefied intellect and Solomonic wisdom. Her resume is certainly impressive. Harvard College. Harvard Law School. Federal court clerk. Counsel to the Peace Corp. Yale University legal counsel. She glitters.

“Yet for all that, I never heard of Carney until President Barack Obama appointed her for a seat on the United States Court of Appeals for the Second Circuit.

Norm summed up the problem in two words, “she glitters.”  Glitters.  Hardly an adjective used to describe anyone who has done time in the trenches.  Trench lawyers are dirty.  Trench lawyers smell funny.  Trench lawyers get blood on their hands from pounding on tables and beating on doors.  Their shoes have holes in their soles from too much walking.  Their suit jackets aren’t always well-pressed.  There may be a tiny drop of marinara sauce on their tie from working during lunch at a back table in the little Italian restaurant around the corner from the courthouse.

But one thing is clear.  Lawyers who work in the trenches do not glitter.

What they do, however, is understand what happens in the trenches when the glitterati make decisions.  The flawed assumptions of how people think and behave, the pretense that they say “play nice” is followed in letter and spirit, the sanitization of the trenches so that none of the muck is splattered on their clean, black robes.  They know that some people are evil and vicious, but that even bad people have nice children who deserve a chance in life.  They know that good people make bad choices, and not everyone who commits a crime deserves death.  Or, if the crime is really bad, death plus cancer.

But I suspect President Obama, despite his elite background, is aware of this.  His problem remains getting nominees past the Senate Judiciary Committee,  This isn’t to say that, if smooth sailing was assured, he would scrape the trenches for a pick.  But he’s struggled up to now, and it’s only going to get worse as Senators like Jeff Sessions, the bankers’ friend, flex their muscles.  It’s comforting to know that the Second Circuit, covering the New York and environs, is protected by the Alabama Republican.

While it’s fine to say that actual lawyer experience like, oh, trying cases or holding the hands of actual litigants would be a worthy factor in considering who should sit on the bench and issue the ruling that will alter the lives of so many, the baggage carried by trench lawyers has too many stickers, too many nicks and cuts, to satisfy the demands of partisanship.  In Washington, it’s all about compromise and consensus, which means that we’re doomed to ride a camel instead of a thoroughbred.

Chances are clearly better for Susan Carney than they are for Robert Chatigny, especially now that his name has been withdrawn.  And Norm is right, she glitters.  But she will never know the feeling of waiting for the jury foreman to announce a verdict, and no one cares.

In his  New York Times column, Stanley Fish closes with this assertion:

Perhaps the most amazing statement is made by Daniel J. Solove when he declares that “the law is hampered because it overprotects free speech.” The conventional first-amendment wisdom is that free speech cannot be overprotected, but that wisdom is put on trial by these thinkers.

“The inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Or, in other words, a writing or utterance says what it says independently of who happens to say it; the information conveyed does not vary with the identification of the speaker.

There are at least two problems with this reasoning. First, it is not true that a text’s meaning is the same whether or not its source is known. Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test? But if I manage to identify the note’s author — it’s a friend or an enemy or a known gossip — I will be able to reason about its meaning because I will know what kind of person composed it and what motives that person might have had.

In the same way, if I am the recipient of a campaign message supporting a candidate or a policy, my assessment of what I am reading or hearing will depend on my knowledge of the sender. Is he, she or it an industry representative, a lobbyist, the A.C.L.U., the Club for Growth? The identity of the speaker is part of the information and is therefore part — a large part — of the meaning. (“Consider the source” is not only commonplace advice; it is a theory of interpretation.)

But as judges love to say in reaction to objections to low quality evidence, it goes to weight and sufficiency, not admissibility.  The anonymous voice can be heard, but at a discounted price.  To the extent that the source matters, as it often does, the anonymity comes at the cost of credibility. 

The problem, the lawprofs explain, is that the great “marketplace of ideas” is turned into an echo chamber of fraud when any fool can post any lie at any time.

Cass Sunstein invokes this hoary metaphor only to call it into question. Rumors cascade, Sunstein explains, when someone relies on what someone else has said and then spreads a falsehood as truth. The Internet multiplies the effect exponentially: an “initial blunder . . . can start a process by which a number of people participate in creating serious mistakes.” Rather then producing truth, the free and open marketplace of the Internet “will lead many people to accept damaging and destructive falsehoods,” and unless there is “some kind of chilling effect on false statements,” the “proper functioning of democracy itself” may be endangered.

Certainly, knowledge is a core requirement of a functioning democracy, and no one would dispute that a lot of false information, crap knowledge, is spread across the internets.  That’s not to say it isn’t spread everywhere else we go for information, both anonymously and attached to specific names, like Hannity and Beck, who don’t appear shy at spreading their brand of ideas.

The scholarly answer of Saul Nussbaum, co-editor of the book, is to condition  Section 230 protections on internet publishers willingness to play supplicant to the aggrieved and sensitive souls who are stung by anonymous speech.

Saul Levmore (Nussbaum’s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or “to enforce non-anonymity” and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, “should allow the individual to find information to lead her to the person who committed the privacy invasion.” As it is now, with an expansive reading of Section 230, “the law no longer puts any obstacles in the way of the Sociopath” who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)

Notably, the obstacles Brian Leiter would place before the “Sociopath” are the same he would place before Publius and everyone in between.  Whether the anonymous internet author did wrong, and thus should be outed upon pain of sanction, would be left in the hands of the aggrieved.  The aggrieved isn’t necessarily any better a source of “truth” than the anonymous author.  Indeed, the aggrieved may be the worst source of truth around.

The classic solution, whether taken from Milton’s Areopagitica or Brandeis (sunshine is the best disinfectant), is that truth will correct falsity; lies will provoke counterspeech to correct them.  The academics complain that, for reasons unclear, this doesn’t happen on the internet. 

Conceding the merit of the complaints, together with the perception, if not the reality, that falsehoods and attacks spread smoother online than elsewhere, so what?  The scholars response is to differentiate speech into new classifications, more or less worthier of protection.

Yet faced with the problems posed by the Internet, they start talking about “low value” speech (a concept strong first-amendment doctrine rejects) and saying things like “autonomy resides not in free choice per se but in choosing wisely” and “society needs not an absence of ‘chill,’ but an optimal level.”(In short, let’s figure out which forms of speech we should discourage.)

No one could argue against “choosing wisely,” there being few poor choice advocates around.  But it raises some obvious questions: Who gets to decide what choices are wise, and one person’s “low value” speech is another person’s hidden truth. 

Whether described as slippery slope or road to perdition, this misguided attempt at institutionalizing the worthiness of speech, at the end of a club, will necessarily end up with internet publishers (meaning guys like me who have blawgs where people comment) taking the safe path of eliminating anything controversial or potentially antagonistic so that no feathers are ever ruffled, and no summons and complaint (or worse yet, indictment) ends up at my door.

This is a zero sum game when the determination of low value speech is subjectively left in the wringing hands of the well-meaning academics.  Most are too young to remember the censorship boards of the ’50s, making sure Harriet was never seen bedded with Ozzie to prevent lustful thoughts in children. 

Dan Solove, whose seminal work, The Future of Reputation, on internet privacy remains the best around, has a firm grasp on the many and varied problems free speech on the internet poses.  If anyone can appreciate the risk, Dan can.  But that doesn’t make this next step, that the first amendment “overprotects” speech a viable response. 

Speech can be nasty and harmful.  Speech can be frustrating.  Speech can be false, wrong and outrageously misleading.  But it remains speech, along with all the truly necessary and good speech that we want and need, and is similarly perceived by those who would prefer it silenced as nasty and harmful.  There is no middle ground based on what makes some academics or the aggrieved happy, and there is no such thing as speech overprotected. 

It sucks to be the undeserving target of an internet assault.  We all get that.  There’s just no alternative that won’t spell the death of speech.  Name your poison.

There’s an element of flattery in having someone else scrape your content, assuming that it’s not just some bot mindlessly taking whatever can be found in an RSS feed to fill the void of some scumbag marketer’s scam website, with copyright infringement statement still attached.  But it’s different when the scraping is done by a website that bears some simpatico relationship.

This happens, and sadly, with some frequency.  The proprietor of a website/blog that shares an interest in the subject matter of Simple Justice will see something here and say to themselves, that would do well on my site as well.  It’s an active decision. 

Sometimes, people will email me and ask if they have my permission to do so.  My reaction is generally that they can use a brief excerpt, though I would urge them to add something of value to what they use.  Merely copying and pasting is intellectually empty, it’s already here and there’s no reason to repeat it elsewhere.

Other times, however, it just shows up somewhere, without permission, commentary or added value.

It happened against yesterday, at a blog called Sex Offender Issues.  This isn’t the first time either.  There is no email of the owner(s), but one of those contact forms everyone hates.  I used it, sending them a nice request (no really, it was quite polite) asking them to remove my content and to please not scrape again.  That was yesterday.  Today, it’s still there.  It may be there tomorrow.  It may not.

The post includes a link back here.  It makes no mention of the author or original source, but it does have a link.  At the bottom of the page, however, there is a “fair use statement” that explains its “authority.”

This site may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of political, medical/scientific, economic, and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml and   http://en.wikipedia.org/wiki/Fair_use.

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

From the SFGate :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the St. Petersburg Times:

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

Then it gets ugly.

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

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

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

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

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

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

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

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

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

And the State of Florida wasn’t impressed either.

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

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

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

The  law prohibits impersonating someone else online.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is a double standard beyond comprehension to me.

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

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

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

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

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

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

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

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

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

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

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

What were you doing in January, 2004?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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