For eight months, Verdugo Hills High School student Jeremy Marks has been in a tough adult jail, facing years in prison for felony crimes he allegedly committed while videotaping a Los Angeles Unified School District police officer grappling with another student.

Jeremy Marks was an onlooker who touched nobody. But prosecutors piled felony charges on him, including making a “criminal threat,” and claimed that he called out the gang name of the Piru Bloods. The unnamed 15-year-old, who actually did fight with the campus officer — who struck the minor with her baton and sprayed him with mace — was quickly released. But Marks has been held for eight months in the tough adult Pitchess Detention Center.

Los Angeles County District Attorney Steve Cooley’s prosecution team says that Marks’ alleged calling out “Kick her ass!” amounted to an “attempted lynching” — defined under the law as trying to “incite a riot during an attempt to free a suspect from police custody.”

But videos shot and posted to YouTube by other students with cell phone cameras show that Marks was one of the quieter kids watching the incident. (Click here to view videos.) Marks can be seen in the YouTube videos using his cell phone camera to tape Robles as she repeatedly pushed the uncooperative 15-year-old smoker against an MTA bus.

Fraser wrote: “I am in a position to post bail for Jeremy so that he may spend Christmas with his family.”

Fraser explains, “When I was growing up, I spent several years in Germany — a country still traumatized by the Holocaust. One of the things I learned was that bad things can only happen if good people do nothing. I consider myself to be a good person, so I had no choice but to act when I saw something like this happening.”

Fraser also sent the family $1,500 for Marks’ defense attorney costs, which was matched by Google.

Neil Fraser put up $50,000, making a deal with the bondsman that it will all be returned if Marks appears as required.  Despite a hiccup, a juvie hold that had been erroneously left in place, Marks’ should have been released by now.  As of this writing, there’s no information that he hasn’t.  Or that he has.  But he will, and a high school student imprisoned for videotaping a cop beating a 15-year-old will be home for Christmas.

In the meantime, Fraser has gone shopping to make sure there are presents under the Christmas tree for Marks’ homecoming. His mother says two gifts have already arrived.

There’s no Santa Claus.  Neil Fraser is a very real person, who gave a Christmas present to another very real person, Jeremy Marks.

H/T Radley Balko

Nick Adenhart’s parents didn’t attend the sentence.  They sent a note instead, telling the judge, “There is no justice as long as Mr. Gallo is drawing a breath.”  They are partially right.  There is no such thing as justice.

The  LA Times article recaps the story that ended yesterday when Orange County Superior Court Judge Richard Toohey imposed a sentence of 51 years in prison on 23-year-old Andrew Thomas Gallo.  He is eligible for release after 49 years.

Toohey gave prosecutors what they sought: consecutive sentences on three second-degree murder charges and other felonies stemming from the April 2009 crash that killed Adenhart, 22, and friends Courtney Stewart, 20, and Henry Pearson, 25. Jon Wilhite, 24, survived the crash but sustained major injuries.

On the night Adenhart pitched six scoreless innings, Gallo was out drinking with his stepbrother. Just past midnight, he barreled through a red light in Fullerton at 65 mph and rammed his minivan into a vehicle carrying the four friends.

Gallo fled on foot and was captured two miles from the scene. His blood-alcohol content was more than twice the legal limit more than two hours after the crash.

“Not only was he driving under the influence, he was obliterated,” the judge said, noting that Gallo was on probation at the time for an earlier drunk driving conviction. “Mr. Gallo, you have devastated four families — really five families with your own.”

Ironically, Gallo’s brother was the designated driver.  Except he got drunk too.  Gallo made the horrible choice to drive home.  Drunks make bad choices.  He understood how bad a decision it was.

“You’re right — I am a horrible person, a drunk driver who took your beautiful kids away.”Gallo told Orange County Superior Court Judge Richard Toohey before sentencing. “They had big, bright futures ahead of them. And because of me, they’re gone.”

Treating a death caused by drunk driving the same as an intentional murder is all the rage.  Pun intended.  The family of the poor, wonderful young people who died were grief stricken, and think they will be comforted by Gallo’s imprisonment forever, if not the forfeiture of his life.  They will come to realize that it doesn’t help some day, but that realization will bring them no comfort.  Nothing will return the life of a lost child, no matter what caused the death.  There is no comfort to be found.  There is no justice.

In the face of a room filled with nothing but agony, Gallo’s lawyer, Jacqueline Goodman stood firm.

Everyone is pretending. Pretending that Andrew isn’t a good person, not an ordinary young man. Pretending that three sets of parents who held their babies in their arms and dreamed about their futures are any different from parents who, at that same time 23 years ago, on those very same days, held their first baby boy, Andrew, bounced him on their knee, and dreamed of his future, full of love and promise.
Pretending those innocent parents are not victims themselves. Pretending their pain is less relevant here.

Pretending that the victims were not themselves human– beautiful and yes, flawed. Pretending that Courtney Stewart’s mistakes did not exist, and that Andrew Gallo’s mistakes were intent to kill. We’re pretending that Andrew is on par with those depraved killers who look into the eyes of their victims and determine wilfully to take their lives. We’re pretending that 51 years to life will have any impact on whether a different young man or woman drinks, and then foolishly gets behind the wheel, believing, as they do, in their omnipotence, their immortality. We’re pretending that here, today, that we are somehow not taking another life with cold intention, in response to the loss of lives in a tragic accident.

Well I will not pretend.

Andrew Gallo is a good and gentle soul who never set out to harm another person, and who does not deserve to lose his life.

He comes from a good family– a military family, his own brother a marine. A family who, in deference to the pain of the parents of the victims, and without thought of their own sorrow, every day gave up the front seats in their son’s own trial to the parents of the decedents here. They quietly sat in the back, entered and exited last, even as their son’s taking was on display in slow motion.

And it is absurd to think that we can summarize in a few sentences the infinite value of any of these lives or the depths of sorrow at these losses. But the only way we might spare a life or several lives from a similar fate is to allow Andrew the opportunity to share the lessons he’s learned at such great a cost.

That would be a far greater and more fitting legacy to Henry Pearson, Courtney Stewart, Nick Adenhart, and Jonathan Wilhite. That in their names was dealt mercy and temperance and understanding instead of vengeance and blame. That in their names, others were spared their own lives. This would be the most fitting tribute to these extraordinary people. They would stand for forgiveness over blame.

My own father is dying. He saw me in court one time, and that was here, in closing arguments. My father is a recovering alcoholic. He had about 30 years of life-affirming sobriety. But it took him about 40 years to reach it. Fate denied Andrew as much of a chance.

Today Andrew and I know that we come into this battle to lose. The victory, sometimes, is in showing up. The victory is speaking truth to power. It is in speaking love to hate.

At this moment, my father is dying. Because I am in this hearing today, I may not be by his side when he passes out of this life and into the next. But know this: That I am profoundly privileged to stand next to Andrew Gallo. And in my father’s name, I proudly stand on the side of honesty.  Of hope and redemption over blame.

As she spoke these words, another man, Jeremie Cancel,  was sentenced on the other side of the country for the strangulation murder of a Pace University student, Kevin Pravia.  Cancel giggled as he was sentenced. He is eligible for release in 25 years.

The emotional desire to make the object of one’s pain feel it as well is understandable.  But Andrew Gallo was stupid, not venal.  Jeremie Cancel was venal, but an ordinary intentional murder isn’t the latest focus of society’s outrage, even when it’s so personal as by strangulation.  And Cancel’s victim didn’t throw a baseball with great velocity.

There is no justice.

Over at Above The Law, there have been a series of posts on the subject of  end of year bonuses for Biglaw.  This is a matter of huge interest and concern for young lawyers who are deeply dedicated to excellence and client service.

Since ATL tends not to concern itself with our little niche of the profession, I’ve decided to pick up the slack and post all the critical news about criminal defense law end of year bonuses.  An exhaustive listing follows:

Gizmodo reports that somebody (bodies?) decided to create a Facebook page to the effect that 23-year-old Triz Jefferies was the Kensington Strangler.  Was this for lulz, or because somebody had a beef with Jefferies?  Who knows.  It didn’t really matter why.  Facebook said so.

As a result of that Facebook post, “a group of people began sending text messages, posting flyers” and reposting the claim that Jefferies was linked to at least three murders and several sexual assaults. The man finally called the police and sought to clear his name after an angry mob gathered around his home:

Afraid of the crowds surrounding his house, the man submitted to a DNA test and was cleared in the case. He told police that he thought somebody was “trying to mess with me.”

Police are investigating who was behind the false information.

Police Commissioner Charles Ramsey reiterated the man’s innocence at a press conference today.

“He is not a suspect, he is not connected with this,” Ramsey said.

An angry mob gathered around his Philadelphia home, pitchforks and torches at the ready.  This could have been inches away from a lynching. 

Are you people completely nuts?

It’s one thing to accept Wikipedia as the font of all legitimate knowledge.  That only makes you stupider and conclusively proves your laziness.  But to be moved to the point of putting on a a coat, leaving your home and joining an angry mob in front of a house because Facebook said so?

“Everybody has to be very leery of photos of a wanted person on Facebook,” Lt. Ray Evers said. “Because of social networking and how big this fan page is growing … if somebody shared it with their friends, the multiplier effect … it’s pretty damning.”

Not damning, but damn dangerous.  This reflects nothing about Jeffries, who had absolutely nothing to do with any of this.  As for whoever put his name, address and image on Facebook, the question is whether they are pathologically stupid or deeply malevolent. 

But the biggest question is what’s happened to the brains of otherwise sensible people who see something on Facebook and, in a rush of heroism, join a mob.  Social media can be plenty of fun.  Less so if you happen to be the person about to be lynched by a stupid mob.

I’ve been trying to moderate my views on social media of late, as I know how much the Slackoisie love it to provide them with a pale facsimile of friendship to compensate for their lack of any actual human interaction, and how lawyers with practices that can’t feed their families use it to lie about themselves to pretend they are worthy of retention.  I’m not trying to make your lives even more pathetic than they already are.

But when people put stock in social media sufficiently to put some kid’s life at risk, whether it’s because Facebook said so, or some wiseacre on Twitter went on a rampage, then it’s time to spell it out for you.

People lie online.  People make jokes online.  Sometimes incredibly stupid jokes.  Sometimes incredibly harmful lies.  There is no one in the backroom fact checking. 

Over time, I’ve come to see a lot of nonsense online.  I’ve called some out.  I’ve let most of it be, mostly because it’s too pervasive and I’ve grown tired of trying to stop the waves from rolling in.  The best I can do is warn, though my warnings mean nothing to the social media sycophants who tout it as the new reality or the lawyers who have abandoned all dignity to feign sweetness and self-importance, to suck whatever pocket change they can find out of potential clients.

It’s bad enough that social media is the mechanism of choice for liars and scum.  Do not act upon your impulses.  Do not harm another human being because Facebook told you to.

The question has been asked whether the internet makes people stupider.  And then a story like this happens.  For God’s sake, grow up and get real.  The day will soon come when the internet generation is in charge.  When will you figure out that the place is rotten with lies and deception, and that nothing can be taken for granted?

For all your talk about how wonderful you are, how brilliant you are, how nice you are, you are the easiest generation to manipulate.  You believe every bit of nonsense someone puts out in social media.  How many people will get lynched before you wise up?

Chances are not too many readers here look to Pat Robertson for legal/political guidance.  While understandable, that puts us squarely in the minority.  The fact is that there is a big world out there with a lot of otherwise very nice folks who don’t see things the way we do.  We can wrap ourselves in righteousness for being more thoughtful and knowledgeable then the “masses,” but it’s a false comfort.  Majority matters.

From The Raw Story, the word is out that Pat Robertson supports the decriminalization of marijuana.

Count this among the 10 things nobody ever expected to see in their lifetimes: 700 Club founder Pat Robertson, one of the cornerstone figures of America’s Christian right movement, has come out in favor of legalizing marijuana.

Calling it getting “smart” on crime, Robertson aired a clip on a recent episode of his 700 Club television show that advocated the viewpoint of drug law reformers who run prison outreach ministries.

I’m constrained to admit that I have never watched the 700 Club.  Chances aren’t good that I will start now.  But I still recognize the significance of Robertson’s support.  There are a lot of people who do watch, far more than will read any word I write.  This is big.

I’m … I’m not exactly for the use of drugs, don’t get me wrong, but I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot, that kinda thing it’s just, it’s costing us a fortune and it’s ruining young people. Young people go into prisons, they go in as youths and come out as hardened criminals. That’s not a good thing.”

For decades, politicians and pundits, religious leaders and regular Joes, said that it was a good thing.  A necessary thing.  The sort of thing we must do if we are to maintain our American way of life.  And now it’s not a good thing.  That’s great.

Robertson has adopted the language we’ve been using for quite a while, promoting “smart” in place of “tough.”  For those of us who credit Orwell, such rhetorical shifts open critical doors to rational voices.  No longer is the knee-jerk reaction that anyone who uses drugs, no matter what type or quantity, so worthless and disposable a human that we should throw them away.

Like Robertson, and unlike many of my contemporaries, it has never been my belief that pot is a benign substance.  It’s an intoxicant, and a fairly potent one at that.  Smoke a blunt and I don’t want you behind the wheel of a car.  It’s never been the same social lubricant as a glass of wine.  Others disagree with me, and I can accept that my view may not conform with others who might expect a more liberal perspective.

But we do share the belief that smoking pot shouldn’t land a kid in prison. 

Years ago, a judge who sat in Part N (“N” for narcotics) in Manhattan told me that she won’t sentence a pot defendant to probation.  My lawyerly reaction was to argue that her stance of rejecting probation, that being within the realm of sentences the legislature deemed proper for a person who was convicted of smoking pot, exceeded her authority.  It wasn’t up to a judge to decide that the low end of available sentences should never be imposed.  She was unpersuaded.  She categorically refused to sentence a marijuana defendant to probation.

The depth of the belief that marijuana is a drug that demands imprisonment is something that advocates for decriminalization simply cannot comprehend.  Whether because of the gateway argument or Puritanical prissiness, a large swathe of society believed that anyone who used marijuana was very much a criminal, and very much deserved a long term of imprisonment.  This inability to accept the fact that this was an article of faith in much of society made it difficult to address. 

The arguments haven’t changed.  The rhetoric is the same.  The difference is that Pat Robertson is a person who, merely by his word, will change blind adherence to this article of faith.  His say so means more than any argument.

Raw Story credits the new conservative blog, Right on Crime, and gives a  shout out to LEAP, Law Enforcement Against Prohibition, for providing the impetus to opening Pat Robertson’s mind about the danger and damage of decades of tough on crime policies. 

While the notion of religious leaders dictating political positions to their adherents remains deeply troubling, as it just as easily works against sound policy even though this time it happens to conform with policy with which we agree, the reality is that we will never be able to spread the word more broadly or persuasively to a vast array of people who would never credit our thoughts.  We need a Pat Robertson to sign on.

It’s only one issue.  It has not yet broadened to an acceptance of rational criminal policy based upon experience and reason rather than blind rage and fear.  But given how hard the fight has been, and how little progress has been made, having the word spread by Pat Robertson is huge.  Let us give thanks.

There are few occupations that have a greater impact on the well-being of children than teacher.  It’s moving when a teacher, arguing for a pay raise, writes, “if you can read this, thank a teacher.” It’s so reminiscent of cops, arguing for a pay raise, writing, “if you don’t like cops, the next time you’re in trouble, call a criminal.” 

But teachers aren’t cops, despite the marked similarities in approach and rhetoric.  That doesn’t mean they don’t want to be, however.  Via Popehat, the story of  Oklahoma math teacher DeLynn Woodside who saw her moment and seized.  Carpe Student.

A 13-year-old was arrested Friday in Oklahoma City, accused of violating a little-known city ordinance that prohibits possession of a permanent marker in some circumstances.

Delynn Woodside noted the marker had bled through a piece of paper onto the desk and reported to a police officer that she also had seen the teen writing on the desk with the marker, the report said.

Woodside, a seventh-grade math teacher, made a citizen’s arrest on the teen, and the police officer transferred the student to a Community Intervention Center that houses juveniles who have been arrested. The name of the minor was not released.

As Patrick deftly explains, no crime was committed under this anti-graffiti law.

Oklahoma City Municipal Code Section 35-202, the statute under which DeLynn Woodside arrested this young man, has this to say about possession of sharpie pens:

No person may possess an aerosol spray paint container or broad-tipped indelible  marker on any private property unless the owner, agent, manager, or other person having control of the property consented to the presence of the aerosol spray paint container or broad-tipped indelible  marker.

But Roosevelt Middle School is a public school.  It even says so on the Oklahoma City schools website. It is therefore public property.  This boy has as much right to be there as Ms. Woodside.  More right in fact.  He has to be there, whereas Ms. Woodside can quit her job at any time.  While it’s true that Roosevelt Middle School may not be dedicated to public use, as with a town square, it is clearly not “private property”.

But then, is the issue here whether this kid’s conduct met the elements of an Oklahoma City anti-graffiti law?  Let’s assume, arguendo, that happy, harmless, law-abiding DeLynn is a seething volcano of hatred under her hefty yet pale facade, waiting for the opportunity to explode all over some hapless 7th grader.  Teachers aren’t immune from psychotic episodes.  Teachers get angry.  Teachers act improvidently, dare I say stupidly, on occasion.

Let’s assume that DeLynn had a very bad day and made a rash and foolish decision to play citizen cop and “arrest” her student.  We can even go a step further and assume that DeLynn had been awaiting the opportunity to make a citizen’s arrest, perhaps dreaming of a spot on the evening news for protecting school property from miscreant sharpie-carrying students, winning the praise of taxpayers and the adoration of pencil pushers.  Maybe even getting her own reality show.  Hey, you never know.  Let’s give DeLynn all this.

What of the sane adults at Roosevelt Middle School?  Are there not supervisors, vice principals, an unvice Principal, whose duty it is to keep one nutjob math teacher from wreaking havoc on a student and a school? 

Let’s take it a step further, and assume this student was a bad seed, the sort of kid who knew, KNEW, that his sharpie was bleeding through the piece of paper onto a desk.  Let’s assume it wasn’t the first time he induced sharpie bleed, nor was this the first desk that was defaced at the end of his sharpie.  Bad to the bone.

What of the police officer to whom DeLynn relinquished citizen custody of this miscreant?  No matter how far this student had pushed DeLynn, beyond the limits any 7th grade math teacher could endure, did the cop not think to himself that this was the time to inject calmer, sounder judgment into this already tense situation?

And let’s go yet another step down the path of righteousness and assume that the police officer, feeling the pain of a fellow public servant who has suffered far too much at the hands of this sharpie-wielding  thug, felt compelled to adopt her rage and fear and push the arrest.

What of the kindly folks at the Community Intervention Center, where the worst of child predators are taken for the protection of society and school desks?  What passed through the mind of the intake person who dutifully copied down the information provided by this brave officer about this student’s deliberate, persistent sharpie bleeding?  Certainly the inclusion of the word “bleeding” is enough in itself to shake up even the toughest of child jailers, and they don’t call it “sharp”-ie for nothing.

That there are people who suck on the public teat whose judgment is so dangerously bad, whose ability to exercise reasonable discretion cannot be trusted, who simply lose it at some point in their career, comes as no surprise.  Teachers, contrary to their rhetoric, are people, and there will be an occasional act that defies reason and propriety. 

And that’s why there are multiple layers of adults who come into play before any one nutjob teacher can cause too much damage.  At any point in the process, it would have ended had any of the many public employees demonstrated a modicum of thought.  This story might never have happened, spread about the school, city, country or internet.  The kid might have lost his sharpie and been sternly admonished to never bring a sharpie to school again.  Desks in Oklahoma could breath a sigh of relief, never to be bled upon again.

Was this the product of a string of idiots?  Perhaps every person involved suffered from some transitory psychosis, or pervasive lapse in basic reasoning ability?  Or was the the result of teachers, administrators and cops putting the interests, maybe the self-esteem, of their brethren public employee above their duty and the welfare of a 13 year old kid?

That this sharpie-wielder didn’t commit a crime makes the story that much more poignant, but that this child in Oklahoma City was subjected to arrest and custody and not a single thoughtful, sane, rational adult stopped this insanity before it reached the point of abject absurdity can’t be easily explained away.  Sure mistakes happen, but not like this.  And not to kids. 

“If you’re in jail, thank a teacher.”  Not quite the platitude one expects.

One can never be sure what you’re going to get when you buy a pig in a poke.  Or support a candidate for district attorney.  I supported Cy Vance.  So how’s he doing (with apologies to Ed Koch)?

From the Daily News :

After year in office, Manhattan District Attorney Cy Vance Jr. is coming in for some criticism from defense lawyers.

He’s too tough, they say.

Tougher than his legendary predecessor.

Not that he’s going to disagree.

“Yeah, we are,” Vance said of his office stiffening the terms of plea deals offered to criminal defendants.

Before running for Morgy’s old seat, Cy was a criminal defense lawyer.  Not quite of the trenches, but still he sat at the table furthest from the jury box.  The challenge was that he was painted as a criminal sympathizer who would turn the Manhattan District Attorney’s office into some get-out-of-jail-free zone.  Never having had such an expectation, I have no disappointment that it hasn’t worked out that way.

The problem that some defense lawyers are having is that the office has gotten tougher on plea offers, particularly for misdemeanors.  This makes it far harder to cut a deal, with defendants disinclined to do time because, well, they just don’t want to. 

More significantly, the harder stance on offers makes it a whole lot harder for criminal defense lawyers to make quick money.  It used to be that the volume practitioners, who would talk a good fight up front, take whatever the defendant had in his pocket, and plead them out as fast as they could, had a good gig going.  After all, defendants wouldn’t realize that the $5000 fee only bought them a quick plea, and the deal to probation didn’t seem to be a problem until they realized its implications for immigration or state prison time on their next bust.  They’re easy to lie to.

Harsher plea offers screw up the works.  Suddenly, those low rent fees aren’t sufficient to cover the cost of a real defense, at least for those lawyers who are capable of mounting a real defense.  When defendants are offered jail or prison, rather than the probation that their lawyers anticipated, and refuse to take it, the quick and dirty defense no longer works.  Bummer.

Vance says his main goal is to lower historically low crime rates. He’s going after guns and knife violence – but also zeroing in on the repeat misdemeanor offenders who drive it up.

One approach is to make sure the most serious nonfelonies are properly handled – and to do that, he needs to tackle a massive backlog of more than 10,000 pending cases in the lower courts, he said.

There is a tipping point between being appropriately tough and bogging down the system so badly that it collapses under its own weight.  While Cy’s office may not be particularly lenient, it similarly can’t be so harsh or inflexible that its demand are unfair, improper or unworkable.  For the time being, crime is at such historic lows that he can pretty much get away with anything.  The days of 20,000 indictments are year are over, and they can’t even make 5000 indictments anymore.  That leaves plenty of resources available to screw with petty offenses and “get tough on recidivism” talk.  Should demographics reverse the situation, such plans may turn out unworkable overnight.

In the meantime, the shift from big case focus that characterized Robert Morgenthau’s tenure to misdemeanor recidivism has to be viewed from the perspective of citizen as well as lawyer.  We exist in the city too, and for the most part enjoy the ability to walk down the street without being the victim of crime, small or large.  As lawyers, some may wish to enjoy the pliancy of a prosecutor who will give us that great deal that lets us out of the case in flash, as long as the fees is paid.  As people, we want to be able to make it home with that fee without being held up.

Is Cy Vance too harsh on plea offers?  I can’t say.  My practice isn’t based on volume, and I never enter into a case with the expectation that it will end with a plea.  The answer will ultimately come from the number of trials generated by defendants refusing plea offers, and the ability of the system to accommodate them. 

“We’re indicting many more misdemeanor cases,” said Vance of a push to get the worst cases before felony judges whose dockets are less crowded.

Vance tried giving assistant prosecutors who handled only felonies some lower-level cases to free up younger prosecutors for trial. The result: A 10% drop in the number of cases that are dismissed, including a 58% drop in drunken-driving cases tossed, Vance said.

But fewer dismissals – and a 129% jump in the number of trials – means the backlog is worse.

What will be curious is how the judges will adjust their determinations on what have sadly become routine denials of motions to address the burden of trials down the road.  When the expectation shifts from a denial leading to a plea, instead turning into another trial, the judges might suddenly find it advantageous to start taking motions seriously and tossing the garbage prosecutions that have traditionally been ignored. 

If it turns out that the offers are too harsh, and the judges let any garbage case go, then we’ll end up with another crisis in the courts, and cases dismissed under speedy trial and streets filled with recidivist misdemeanant.  One way or the other, the lack of reasonableness will bear out.

Until then, it’s understandable that a prosecutor hasn’t pleased every defendant or lawyer who has come before one of his assistants.  No doubt some are right to argue that offers are too harsh and unfair.  It’s inevitable. 

The question remains whether Cy still remembers that it’s ultimately not about numbers, but about people.  From his District Attorney perspective, those people include the ones walking around the city who don’t want to be the victims of crime as well as the ones sitting in the hallway of 100 Centre Street.  While he clearly isn’t the self-aggrandizing, deceitful, manipulative, grandstanding prosecutor that New York City endured under Rudy Giuliani’s reign of terror, he’s still got a ways to go to show that he can fill Morgy’s shoes.

Via  Orin Kerr and John Wesley Hall, a California Court of Appeals held that night vision goggles are a constitutionally acceptable means of seeing what you couldn’t otherwise see. in People v. Lieng.  In so doing, they distinguished nogs (that’s the cool thing to call night vision goggles) from thermal imaging, prohibited without a warrant in Kyllo v. United States.

The court explained its primary justification for concluding that use of nogs doesn’t constitute a search:

Kyllo is inapplicable to this case. First, night goggles are commonly used by the military, police and border patrol, and they are available to the general public via Internet sales. (U.S. v. Vela (W.D.Tex. 2005) 486 F.Supp.2d 587, 590.) More economical night vision goggles are available at sporting goods stores. (Ibid.) Therefore, unlike thermal imaging devices, night vision goggles are available for general public use.

Second, state and federal courts addressing the use of night vision goggles since Kyllo have discussed the significant technological differences between the thermal imaging device used in Kyllo, and night vision goggles. (See, e.g., People v. Deutsch (1996) 44 Cal.App.4th 1224, 1228, fn. 1; U.S. v. Dellas, supra, 355 F.Supp.2d at p. 1107; U.S. v. Vela, supra, 486 F.Supp.2d at p. 590.) Night vision goggles do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion. (U.S. v. Vela, supra, at p. 590.) The goggles merely amplify ambient light to see something that is already exposed to public view. (Ibid.) This type of technology is no more “intrusive” than binoculars or flashlights, and courts have routinely approved the use of flashlights and binoculars by law enforcement officials.

One of the mysteries of the law is how to value the loss of a body part.  It seems that the public assumes there’s a chart somewhere that puts a price tag on a limb, a finger, an ear.  The notion that a bunch of people are expected to sit in a room and, with no greater help than a couple of lawyers telling them that it’s the most/least consequential thing in the world, arrive at a number seems crazy.  And yet, that’s how it happens.

Via Eric Turkewitz at his ever-excellent New York Personal Injury Law Blog, and John Hochfelder’s very thorough  New York Injury Cases Blog, a 32-year-old single woman lost a breast to a modified radical mastectomy.  Except she didn’t have cancer.  Oops. Sorry. The jury was asked to value her loss.

 A Bronx jury found malpractice and awarded her $3 million for past pain and suffering and $3.5 million for future pain and suffering extending over 41.9 years.

The trial judge then directed a new trial as to damages unless the plaintiff stipulated to a reduced total award of $1 million.

And a divided panel agreed with the trial judge and set the limit for such a case at $1M. There was a furious dissent by Judge James Catterson, who agreed that while the verdict was excessive, also believed that the $1 million award substantially undervalued the emotional trauma of such an incident to a 32-year-old single woman.

Why the dispute? Because in the words of the majority:

The dissent’s suggestion that plaintiff must have suffered extreme emotional distress is not supported by the record.

Not supported by the record? There was no question that the woman lost her breast unnecessarily. The jury saw photographs. Some injuries are abundantly obvious. And yet, the majority simply accepted the defendants’ argument that there is no proof of future pain and suffering because the plaintiff did not testify extensively about her emotional distress. In other words, if you don’t state the obvious, the court will toss your verdict.

No doubt lawyers who do personal injury day in and day out are inured to the whims of judges screwing with their awards.  And it’s not hard to appreciate why judges need to rein in the jury that awards $10 billion for a broken finger nail. 

But this case not only smacks of micromanaging verdicts, but requiring plaintiffs to go nuts in creating a record of the obvious.  Is there any question about how the needless loss of a breast to a young, single woman will affect her emotionally?

In dissent, Justice Catterson wrote:

I agree with Ms. Williams that in reducing the jury verdict, the court undervalued the profound emotional and psychological damage arising from the loss of a healthy breast and the resultant severe disfigurement of her upper and lower torso, photographs of which are included in the record.

Profound? You bet.  So what exactly would the majority have demanded of her in the record to “prove” she suffered “extreme emotional distress”?  Is it possible they are that unfamiliar with boobs?

It’s common in personal injury cases that plaintiffs lawyers explain the obvious, that a person can no longer engage in normal activities as a result of an injury.  They will go through a litany of questions about the things the plaintiff will never again do in order to help the jury to appreciate the loss.  When it involves loss of consortium, they may put a spouse on the stand to humiliate himself by explaining in embarrassing detail the sex life he will never again enjoy.

But here, the record was sufficient for a jury to award $6.5 million dollars for the loss.  The jury understood what it meant to the plaintiff to lose a breast.  Everyone understands what this means.  Unless you’re a judge.

Moreover, the majority’s view that the plaintiff’s extreme emotional distress is not supported by the record clearly indicates that the majority has not viewed the photos in the record. Given the post-operative photos of the plaintiff, I believe any testimony by the plaintiff as to distress, for example, over not being able to wear a bathing suit; or of her fears of never finding someone to love or desire her would be simply superfluous, if not overkill.

My take is that the appeals court’s reduction of the award had nothing to do with the record, and everything to do with the majority deciding that 1 breast = $1 million.  They have to provide a rationale for their decision, though it doesn’t have to bear up to scrutiny.  Do these guys really think they have a firmer grasp on the significance of this loss to the plaintiff than the jury?  Even if one thinks the jury award was outside the realm of reality, was this monumental reduction justified?

Only if there’s a chart somewhere that says how much a breast is worth to a young, single woman.  What’s the value of a justifiable fear that she will never find love?  It’s got to be on the chart, somewhere.

For anyone who contends that the system is out of control, that jury awards are astronomical and it’s just one big lottery, ask yourself (or your significant other) what it would be worth to lose a breast to some surgeon’s monumental screw up.  I wonder if the thought passed through the majority’s head as they decided that it wasn’t worth much.

What’s the difference between Julian Assange and the United States of America?  One is a person and the other is fictional entity that exists only because of the acceptance of its citizens.  Roger Alford, a law professor at Pepperdine Law School, probably knows this, but if so, you couldn’t tell from his post at Opinio Juris.

Alford plays a trick on readers, juxtaposing a quote from his lawyers about the disclosure of statements in the Swedish case against him with quotes from Julian Assange about the purposes and methods of Wikileaks.  There is neither commentary nor discussion, but he posts this under a title that makes Alford’s point clear: Assange is a hypocrite.

At the Trial Warrior, Antonin Pribetic thoroughly, completely and irrefutably dissects the absurdity of Alford’s attack.

A false analogy does not a hypocrite make. The proper analogy is not between Wikileaks and Assange, but rather Wikileaks and the Swedish prosecutor’s office:

If some system A (Wikileaks) has some function X (transparency) and also some function Y (upholding the rule of law), and some system B (Swedish prosecutor’s office) has a function X′ corresponding to A’s (Wikileaks)  function X (transparency), then the system B should also have a function Y′ , that is analogous to A’s function Y (upholding the rule of law).

There is a fundamental difference between Wikileaks publishing military secrets obtained from a third party and Assange’s lawyers objecting to disclosure of the unredacted (and untranslated) excerpts of the sexual assault complaints to the media. This is particularly egregious in light of the fact that  Assange has not yet been formally charged in either Sweden or the U.K., while out on bail awaiting his extradition hearing.

Whether Assange is saint or sinner, and reasonable people may differ on that question, there can be no question about whether there is a societal interest in smearing an individual in any way relevant to disclosing governmental secrets.

The mechanics are no different than the routine reaction of the cops when they inadvertently gun down some poor schmuck on the street, and immediately run him to dredge up any wrong, real or imagined, in his past so that they can craft a lede about what a hideous human being he was, thus diminishing his worth to society and their culpability in his killing.  It plays well in Peoria.  Apparently, at Pepperdine as well.

It is unacceptable, however, to have a law professor engage in such a facially fallacious attack.  He can think that Wikileaks is a horror, a terrible thing and a blight upon the Nation.  He can hate Assange for founding Wikileaks.  He can believe that this is the sort of conduct that makes it impossible for an exceptional country to conduct its business on behalf of Mom and apple pie.

What he cannot do is proffer a false comparison between the secrets of a government and confidences of an individual subject to prosecution.  It legally unfair.  More importantly, it’s intellectually dishonest.

In response to comments to his post, Alford fleshes out his position.

If Julian Assange were not a hypocrite, he would welcome this transparency, even though his own reputation is severely damaged.  Of course, Assange has publicly endorsed government leaks at the cost of harm to others’ reputation–that’s just, in his words, “collateral damage.”  As Assange told the New Yorker :

“[S]ome leaks risked harming innocent people—’collateral damage, if you will’—but that he could not weigh the importance of every detail in every document…. by releasing the information he would allow judgment to occur in the open.”

Apparently the loss of reputation is fine in the pursuit of total transparency, unless it is his own.

Under my best case scenario, Alford may be intellectually dishonest, but at least he knows it.  His attempt to defend his position, however, takes that possibility off the table.  The argument attempts to equate government transparency with individual transparency, and Alford inserts the word “total” before transparency in order to manufacture his strawman.  This is too obvious, and too cheap, to ignore.  Nobody makes such a flagrantly shabby argument unless they really believe it to be valid.

Alford has revealed far more about himself than about Assange in his post.  In fact, he’s revealed nothing about Assange at all.  But he has brought his own ability to reason into question.  When levying a charge of hypocrisy, one should be awfully damn clear that there is merit to the claim and it can be supported.  It need not be a perfect argument, or above reproach, but it clearly has to be sound.

It’s rare for a lawprof to go so far out on a limb as to call a person a hypocrite.  They usually resort to their customary lingo, such as saying Assange is a less than admirable fellow, which is the lawprof equivalent of saying his the scum of the earth.  Perhaps this is saved for responses to their fellow members of the Academy, so they won’t have to cross swords when the meet in the hallways.  But Alford has come out swinging, call in Assange a hypocrite in his direct, frontal assault.  Having done so, he bears the consequences.

There is nothing in Alford’s post that supports the proposition that personal transparency and governmental transparency are, or should be, the same.  There is nothing to suggest that Julian Assange is a hypocrite.  There is, however, much to suggest that Alford lacks the intellectual capacity to be allowed to teach students how to think like lawyers, or to be capable of distinguishing between sound arguments are logical fallacies.

Alford’s academic credibility is “breaking like the waves at Malibu.” Is that okay with Pepperdine?