Ah, the good old days when the maxim of “the law abhors a forfeiture” was still in vogue.  Then came in rem forfeiture, and the law started loving forfeitures.  It’s not like it’s  a big secret, and yet it still seems to take folks by surprise.

When Jimmy Tebeau bought the farm (no, in 2004, he actually bought a farm), it was only natural that it be the site of Schwagstock, a take-off of Woodstock for the member of the Grateful Dead tribute band Schwag.  It was also only natural that some fans might ingest substances with which the Drug Enforcement Administration would take issue.  From St. Louis Today :

[T]he U.S. Drug Enforcement Agency, the Missouri Highway Patrol and the U.S. Attorney’s Office filed a joint complaint in the Eastern District of Missouri asking to seize the 350-acre Zoe Farm, alleging rampant drug dealing and drug use at events.

According to its website, the farm, called Camp Zoe, is located 150 miles southwest of St. Louis near Salem and hosts a popular Grateful Dead festival call Schwagstock every year, as well as biker and pagan rallies and individual concerts. Once a popular summer camp for kids, the property was purchased in 2004 by Jimmy Tebeau, a member of the Schwag, a Grateful Dead tribute band.

Truckin’, got his chips cashed in.  Oddly, the investigation took more than four years to complete.  That’s a lot of investigation for the feds to figure out that people who go to hear the Grateful Dead tribute band get high.  Kinda like those prostitute busts that require the cops to go undercover a half dozen times, just to be sure.  The feds call it “interacting” with concertgoers, which in plan English likely involves the words, “don’t bogart that joint.”  Hey, a thorough investigation requires that the special agents be absolutely certain that the substantives involved are when they purport to be.  That’s just good police work.

But all good things come to an end, and the feds dropped the dime.

In the complaint, officials said investigators spent four years monitoring and interacting with concertgoers on the farm, witnessing drug use and completing open drug deals with participants during events. Officials allege that the owner and event operators were aware of the activity and “took no immediate action to prevent” the sale and use of cocaine, marijuana, LSD, ecstasy, psilocybin mushrooms, opium and marijuana-laced food.

I’m shocked.  Shocked!!!  No doubt true for all of us.  And Jimmy and the Feds too (hey, that would make a pretty cool name for a band, no?).

Of course, Jimmy wasn’t charged with a crime, because he committed no crime.  But that doesn’t stop the feds from seeking to seize the farm.  This is an in rem forfeiture.  The property itself was the instrumentality of the crime.  The farm offended the sovereign.  The farm must go.

Tebeau’s lawyer, Dan Viets, said the law is unfair and enables the government to bully innocent property owners and take land, money and homes nearly at will.

“One doesn’t even need to be accused of a crime, let alone convicted of one to be threatened with the loss of everything you own,” Viets said. “That’s the threat.”

No, it’s no threat.  It’s a free ride for the government.  The standard of proof is probable cause, not even preponderance of the evidence.  It doesn’t get any easier than this, especially when the agents hung around for four years toking on the evidence and soaking up the tunes.

Jimmy, unfortunately, found out about the double whammy as well.  Not only did the feds want his farm, but there’s also the money made from Schwagstock.  The income from the concerts offended the sovereign as well, but unlike real property which can’t go anywhere during the pendency of the forfeiture action, money in the bank can be taken out and spent.  You can’t have that, as it would deny the government it’s due.

Viets, who is representing his client pro bono, said Tebeau discovered this week that officials had cleaned out his bank account, yet he has not been served legal notice on that forfeiture.

“It’s pretty darn hard to hire legal counsel if you don’t have any money — and the government knows that,” Viets said. “It’s just heavy-handed and mean-spirited, and entirely uncalled for.”

That’s right, it’s hard to defend when the first thing they do is seize all the money.  It’s like going to war when the other side gets to take your weapons away before the battle.  It may be “entirely uncalled for,” but it’s how the feds roll.  And you wonder why they seem to get away with this all the time?  There’s no better play in town than asset forfeiture.

Keep truckin’, like the do-dah man. 

Sure, kid lawyers complain that there are no jobs around these days where they can earn enough to pay off their law school loans and have a little left over to buy some Four Locos and feel sorry for themselves.  Maybe they should  never have gone to law school in the first place, but they did and now they’re stuck.  Options?

SPECIAL ASSISTANT UNITED STATES ATTORNEY
(UNCOMPENSATED)
UNITED STATES ATTORNEY’S OFFICE
WESTERN DISTRICT OF MISSOURI

As noted before, there is nothing one can write that will serve to make people understand a point as well as their experiencing it themselves.  No matter how flowery or emotive, whether it uses wonderful or trite analogies, it doesn’t matter. It’s never quite real until it’s their real.  Thanks, Transportation Safety Administration, for making it real.

At mommy blog Our Little Chatterboxes, Author Erin writes about it.

She felt along my waistline, moved behind me, then proceeded to feel both of my buttocks. She reached from behind in the middle of my buttocks towards my vagina area.

She did not tell me that she was going to touch my buttocks, or reach forward to my vagina area.

She then moved in front of my and touched the top and underneath portions of both of my breasts.

She did not tell me that she was going to touch my breasts.

And it goes on.  Erin describes it as a sexual assault, a crime, and she will not be a “silent victim.”  As of this writing, Erin has 100 comments, almost all of which express outrage at the abuse she suffered.  What’s amazing is that the “sexual assault” of which Erin writes, perhaps a bit hyperbolically, went on person after person, day after day, airport after airport, but meant absolutely nothing to  her until she was the person touched.  It was in all the papers.  It was on television.  But it wasn’t real until it happened to Erin.  Now she’s been traumatized.  Now it’s too real.  The TSA touched her.

There there is this video, posted at WindyPundit, of a three year old girl.  What makes this video particularly interesting is that the little girl is the daughter of a TV reporter.

There are quite a few videos on Youtube, and new reports almost daily.  People who don’t fly much comment that they would never consent or acquiesce to this “tyranny,” as if no one ever thought about refusing before.   This fellow was turned away and threatened with a $10,000 fine.  Want to fly?  Have somewhere to go?  Then your choice is ogle or grope if you are one of the chosen ones.

Thanksgiving is coming.  Millions of Americans will be flying home to celebrate the holiday with their families.  For some of these millions of Americans, this will all become suddenly real, just as it did for Erin.  For others, they will feel Erin’s pain.  For still others, there is popular culture.

There are some truly bad people, but really not very many.  Most are pretty ordinary people who, for one reason or another, do bad things sometimes.  Some get caught.  Some need to get caught. Some get punished but the bad things they do, even if they aren’t truly bad people.  That’s how it’s supposed to work.

There’s a blog called  Bad Lawyer about many subjects, but primarily about a lawyer who did something bad.  It’s about to go dormant for a while.  Until next April, at least.  That’s because it’s time for Bad Lawyer to do his time.  Five months in.

Over the past few months, I’ve come to get a feel for Bad Lawyer.  He tells his own story, as he’s the “criminal under his own hat.”

My professional conduct deviated from the standards of the ethical attorney in the maintenance of my IOLTA account;  and, in the reporting of income and payment of taxes.  I rationalized that I would be able to “catch-up and negotiate.”  This was delusional on my part.  I thought to myself that I was not stealing from my clients, I was just taking from my allocated attorney fees.  While technically true, the rules mean something–if in fact, I could not pay may bills, keep the phones turned on and pay the secretary without cheating then I really had no business holding myself out as being fit to practice law. 

As the secrets of my incapacity compounded I was sicker, and less able to practice.  After 15 years of sobriety I relapsed, seriously oblivious to the connections between my unethical and illegal conduct and sobriety.  I thought my relapse related to my father’s dying–I recognize now that my father’s dying and the crisis in my family was just an excuse to medicate my more profound disorganization and emotional disorders. I was sick.

I am in extreme emotional pain, and the desire to go early is my recognition that I am not spending these remaining moments of freedom with anything but the heaviest of hearts.  My poor kids.  I can’t imagine what it’s been like for them this last couple of years. 

I will miss my children the most.  Despite the day to day disappointments and gnashing of teeth that parenting teenagers presents–they are the best things that ever happened to me, and they would not be in my life but for the willfulness of the BSL who demanded that we go out and fetch them from the universe.  My children are pure joy, smart, fun, loving and beautiful.

From the folks who banned toys in Happy Meals, the steamroller is still on the move.  From the San Francisco Examiner :

A proposed ballot measure for the November 2011 ballot – when voters will be electing the San Francisco’s next mayor – would amend The City’s police code “to make it a misdemeanor to circumcise, excise, cut or mutilate the foreskin, testicle or penis of another person who has not attained the age of 18.”

Doing so would result in a fine of up to $1,000 and up to one year in jail, according to the proposed measure submitted to the Department of Elections.

“What are you in for?”

“Taking tips.”

Putting aside religious traditions, it’s not nearly as crazy as it appears at first.  Are we not outraged at genital mutilation of young girls?  Why, then, is the surgical removal of a male baby’s foreskin any different?

The bill’s leading proponent, San Francisco resident Lloyd Schofield, explains :

Your support will help us to protect ALL infants and children in San Francisco from the pain and harm caused by forced genital cutting.   Damage ranges from excruciating pain, nerve destruction, loss of normal, natural and functional tissue, infection, disfigurement and sometimes death.

Despite the absence of specific support for its claims, it’s hardly a stretch to believe that the removal of a foreskin from a penis is an unpleasant experience.  If someone was inclined to do that to a man in his, say, 30s, without his consent, they might have a fight on their hands.

I suspect that circumcision is the norm in the United States today, though I haven’t done a personal inspection to support my suspicion.  There are some health reasons proffered for this, as well as aesthetic expectations that have become routine.  But then, are they really of sufficient merit to withstand the challenge of inflicting such pain on an infant?

There’s significant doubt that this bill can pass, even in San Francisco.  For many, it just points to the insanity that’s gripped this crunchy city in its efforts to micromanage its own Utopian vision.  And certainly, the creation of a crime for something done by nearly every parent within an hours drive from a moyel could present a serious prison over-crowding problem.  Would they build a bris wing?

But in the scheme of wild ideas for new crimes and a painless society, the rationale behind this one is far better than the elimination of toys from Happy Meals.  Thinking hard, why is circumcision of a male infant different than clitoral circumcision of a female baby?  We would take up arms to prevent this atrocity from happening to girls, but hand over our boys willingly?  Because that’s simply what we do?

Of course, even if these Frisco outliers were to ban it, I would be due a religious exemption.  No descendent of mine will escape the lesson of conformity on his eighth day of life. 

When such venerable and trusted institutions as the Better Business Bureau is revealed as a scam, selling an A rating for $395 (slightly more if you’re a terrorist group), you have to wonder just how empty are the claims that the internet serves the public interest by providing access to information at the click of a mouse.

As Ken at  Popehat subtly put it:

The internet is the world’s biggest shitty argument by authority. Kids try to source Wikipedia for their term papers. Politicians cite things their aides saw on sites with seizure-inducing crazy-man graphics. Snarky, self-satisfied bloggers act as if a hyperlink settles a point.

One would think, given the wealth of bad news that tends to appear here, on the telly, in the newspaper, that criminals never take a holiday.  Police, therefore, are constantly on guard to protect and serve, or at least have their guns at the ready to shoot the violent perps.  The truth is otherwise.  Via NY1 :

The New York City Police Department says 2009 saw the lowest number of police-involved shootings and shots fired since record keeping began in 1971.

There were 105 shootings and 296 shots fired last year, with only 68 of the nearly 35,000-member force intentionally discharging their weapon.

New York City is a big place, which is why it has more cops than some small cities elsewhere.  Yet fewer than 300 shots fired by fewer than 70 officers.  Quick, honey, sell the Smith & Wesson stock.  But it’s not just shots first by cops, but shots fired at cops.

Officers are also safer on the street, as 2009 was the first time an officer was not shot by a suspect.

The first rule of policing, as I’ve explained many times, is get home for dinner.  What?  Did you think it would something heroic and inspirational?  Well, it is, just not to you.  Foremost in a police officer’s mind as he straps on his gun is to make it through his shift unharmed.  Be reasonable.  It’s a job, not something to die for.  He’s got a wife and kids.  She’s got a husband and kids.  Not even a pension and gold shield will make up for leaving your children parentless.  Get home for dinner is a very good rule.

And it appears they are, indeed, getting home for dinner, provided they don’t crash the cruiser into a wall or shoot themselves.  Accidental discharges aren’t covered.  It’s unclear whether drunken, sex-crazed attacks are included, and with a 35,000 person force of both men and women, that sort of thing can happen.

But the concern is that a simple car stop will result in a driver pulling a gun and discharging it into the chest of an unsuspecting officer, whose hands are busy with a summons book and whose mind isn’t focused on the potential that any person, every person, could be the last she potentially sees.

What are the implications of this bullet dearth?

The NYPD says analysis has altered the way officers assess the need to fire weapons, with restraint becoming more of the norm.

If I had to guess at the meaning of this sentence, it would be that irrational or knee-jerk fear has abated, making cops less inclined to feel threatened.  But that’s not quite the message it sends.  Rather, it tells me that in the past, police were fear driven when assessing the propriety of shooting people. 

With the first rule of policing firmly in mind, they were more inclined to shoot first and think later.  It would take some quick thinking and a facile tongue to make sense of it later when questioned for public consumption, but the actions of police officer were swift and clear:  Shoot first and come up with excuses later.

And it’s not just cops.  According to the Wall Street Journal, the murder rate in New York City for 2009 was 471,   In contrast, the murder rate in 1990 was 2,245.  Those were heady days for criminal defense lawyers, by the way, as that number reflected a healthy, vibrant drug trade, which was great for business.  While the murder rate is up this year, currently at 464 with the holiday season ahead of us, always good for some familial disputes, it will still reflect a remarkably low historical rate.

While the lack of shots fired should bring comfort, its implications are less clear.  A kinder, gentler police force would certainly go a long way toward normalizing relations between police and citizens, perhaps easing the tensions that give rise to authoritarian impulses by those with guns and shield. 

On the other hand, it may also serve to bolster their sense of authority, reducing their fear that the person they challenge, question, even occasionally shove off a bicycle, will have the wherewithal to respond with force.  There being little evidence that police have become more finely attuned to civil rights, the lack of a sense of threat from the public may serve to embolden them to do as they will with us.

No one wants to see anyone hurt, police officers included.  But a little bit of fear, just a little, might help to remind cops that disrespectful behavior could have negative consequences.  Fearlessness could produce a cadre of armed men and women who believe they are empowered to do anything they want.  And they still want us to obey their authority.

I can’t explain quite why this struck me today, but David Drumm, one of Turley’s new elves, posted this song, the Kink’s Well Respected Man from 1965,   It struck me that this was something that others who may not have been around in ’65 might want to hear.

Chandler, Arizona criminal defense lawyer Matt Brown is one of those young lawyers whose epiphanies restores my faith that the next generation isn’t just Slackoisie, but has some great people who will do the heavy lifting demanded of us.  Matt posts about the “differences” amongst criminal defense lawyers, something that most either deny or refuse to see.

It’s strange to look at someone who’s doing something so vastly different from what I do and realize that to almost everyone outside of our narrow little field, we’re the same. Really smart people hire terrible, high-volume lawyers for their criminal cases. The difference between a lawyer who personally works every aspect of your case and a lawyer who farms your case out to an associate carrying a caseload that would make a misdemeanor prosecutor blush isn’t that clear to most people. A lawyer is a lawyer. A person whose career seems as foreign to me as a day-trader or a sales rep looks an awful lot like me to many people.

What does it feel like to stroll into court late and yell your client’s name to the gallery hoping someone responds? How does it feel telling a client the fee she’s paying you is for someone else to do the work? I guess people who do that don’t say they do that, so scratch that question. What is it like to not know the names of your clients and be able to talk to them about the things that matter to them? I don’t really care to know. An acquittal doesn’t mean an awful lot if you don’t know what your client’s going home to. The flip side I guess is that a guilty verdict doesn’t sting as much if you have no clue what your client’s losing.

What’s really significant about Matt’s post is that he connects dots that most of his contemporaries can’t or won’t.  There is a “feel-good” mantra around those criminal defense lawyers who engage in social media that we’re all on the same team, we’re all part of the same club.  We should be kind to each other, support each other.  We should write positive blog posts about each other. We should follow each other on twitter.  Isn’t that what we’re all here to do?

Sadly, no.  We’re not all on the same team.  We may all call ourselves criminal defense lawyers, but our teams are vastly different. 

Most of the criminal defense lawyers online appear to be caring, aggressive and smart.  We know because they tell us so.  They assert their self-assessment and challenge others to disagree.  Others are to accept their self-assessment and embrace them as one of the gang.  One big happy family of wonderful caring, aggressive and smart criminal defense lawyers. 

But as Matt notes, there are CDLs who don’t care, who provide terrible representation and who suck.  We all know them in real life.  We see them in court.  We hear them as they yell out the names of clients they’ve never met to plead them guilty to crimes they don’t understand.  These are bad criminal defense lawyers.

Isn’t it wonderful that none of these have ever touched a computer?

But they have, of course.  They promote themselves in websites and blogs.  They talk tough and sound like great lawyers.  Their self-assessment is that they are great lawyers.  They persuade clients that they are great lawyers, and that the clients should retain them.  They take the client’s money, far less than another lawyer would charge the client.  But to the client, both are great lawyers because they say so.  If you have a choice between two great lawyers, and one charges a fraction of what the other charges, who would you use?

The lawyers with their names on the side of a bus probably don’t share my philosophy on goals. The goal for them is clearly money. Many lawyers feel that way. That’s why salespeople regularly contact my office suggesting unethical fee-splitting agreements. I wouldn’t have to spend hours each week playing ethics whack-a-mole with my email inbox if desperate lawyers weren’t buying into all of the SEO and illegal referral scams disbarred lawyers keep forcing down our throats.

We’re not all in this together.  Some are in it for the money.  Some just don’t care.  Some don’t have the skills or desire to gain the skills.  Some will never have the skills no matter how strong their desire to acquire them.  Some are more dangerous to our clients than the prosecution or the cops.

And we are all on the internet.  And we all look superficially alike on the internet.  It’s easy to do, and all the others on the internet searching for the embrace of others will squint their eyes and pretend that we’re all part of the same gang. 

Matt softly notes the most disheartening thing about this lesson, that the lawyers who suck don’t realize they suck.  They don’t see what they do as purely mercenary, or inept, or scummy.  They believe that they are good people and good lawyers, who rationalize the poverty of their representation.  They not only want to be part of the gang, but sincerely believe they deserve to be.  That’s their self-assessment.

We are not all in this together.  Some are and some aren’t, but being a criminal defense lawyer isn’t enough. 

Marketing advocates argue that the internet levels the playing field, allowing solos to promote themselves like big firms, providing a benefit to the public by letting them know they exist and offering a means to find them.  Of course, the same is true of incompetent, lying, scum, which never seems to register with marketing advocates. 

The difference seems to be, based on my limited experience on the internet, that the incompetent, lying, scum turn to marketing and self-promotion earlier and harder than good lawyers because they need to.  And when their promotional niche fills up, they turn uglier and ever more deceptive to stand out to the public. 

Matt Brown has his eyes open and sees the differences.  Most of the criminal defense lawyers online, and especially those who populate twitter, following each other to twit their deepest criminal defense thoughts, love and support, are too blind, naive or foolish to see the dark side of these difference.  And they don’t see them in themselves as well as others. 

I’ve said it before and I’ll say it again.  Matt Brown is a very impressive young criminal defense lawyer. 

Despite all the argument and examples, few who haven’t been personally touched by the tragedy of the American criminal justice system care that it fails to meet its promise of “justice for all.”  I suspect that’s because few are touched by the system, seeing it as misfortune from afar, providing greater benefit to their lives than detriment.  It’s easier to overlook problems when they aren’t yours.

The Transportation Safety Administration, however, may have found a way to touch people who thought they were untouchable.  The TSA may accomplish what so many others before it have failed, because the TSA touches the lives of so many.  Rich or poor, powerful or weak, law-abiding or criminal, young or old; if you fly, they will touch you.

Years ago, I sat as arbitrator for a physician doing her residency in Manhattan who was traveling to her homeland in Palestine with her two young children.  She planned to fly El Al,  The airline had other plans.  She was stopped, separated from her two young children and detained.  She was frantic about her kids while she was forcibly held.  The only reason for El Al personnel to do this was that she was Palestinian.  They tried to wrap it up in fine rhetoric, but they simply profiled her and detained her.  Better safe than sorry. 

Although I’m Jewish, and some might suppose I have a bias against Palestinians, I was outraged at this woman’s treatment.  Forget about the award (I gave her everything she asked for, which was insufficient).  I told the El Al representative that this is America.  We don’t behave this way in America.  We don’t seize people, separate them from their children, just because we have the power to do so.  That if anyone should understand why unilateral fiat, might makes right, is wrong, it should be a Jew.  I told her that I was ashamed by El Al’s disgraceful conduct.

A few years before, I represented a person who worked as a security agent at JFK Airport.  This was shortly after the 1994 World Trade Center bombing, and before there was a TSA.  I asked her, half jokingly, what she would do if she found a bomb.  She told me she would run like hell the other way.  They didn’t pay her enough to die for the job.  She had no education, and it was a good job, better than the others she was qualified to do.  But it was just a job.

Many around the blawgosphere have been writing about the TSA since the new security screenings have gone into effect.  Some to describe them. Some to complain about them. Some to note the things that are  terribly wrong  about them.  No one cared about the Palestinian medical resident, other than her and me.  People are now beginning to care because it’s touching them.

This coming week, I will be traveling to Milwaukee with my son, who will be fencing in the North American Cup competition.  We travel with an expensive hardcase to protect his weapons.  The manufacturer of the case guarantees replacement of the clasps, specially made to allow TSA access, if broken.  Even though they are specially made for TSA inspection, they are regularly broken.

I have prepared a sign that I place inside the case asking very nicely that TSA agents recognize that the epees within are finely honed sporting equipment, and begging them to be careful, not to play with the weapons and to replace them in the case as they were originally packed.  When we arrive at competitions, the weapons are always damaged.

Our primary goal is to arrive at the competition with the weapons.  We hope to be relatively on time.  I always arrange for direct flights, for fear that the weapons will be lost.  I always plan for enough time to repair the damaged weapons, because the weapons always need repair after the TSA touches them.  One time, the interior of the case was filled with sticky, brown, cola residue that caused substantial damage.  Someone had spilled their soda into the case. 

There’s no one to speak to about this.  There’s nothing to be done.  It all happens out of sight by a person unseen.  We’re left to clean up the mess afterward, cursing but without anyone to hear.  As Ken at  Popehat posts, a former TSA screener  expresses her view of the situation:

Flying is a privilege not a right. As such, it can be and is regulated. Requirements can and are set up to ensure that everyone who flies is safe. If you don’t like it, then don’t fly. You may not be as concerned as the next guy about the safety or you may be more concerned. Point is the job of TSA is to ensure the entire traveling public is safe not just you. TSA officers don’t care what you as an individual want, they can’t, it just isn’t possible. You may be ok with lax security but what about the next passenger who wants thorough security?

Your right to privacy isn’t being violated at all. You always have the option to drive a car, take a train, grab the bus or start rowing a boat. You do not have to fly, you just want to fly. The minute you decide you want to fly then you have to accept that security is involved and you are going to have consent and submit to it period the end.

. . . .

Now if you want to fly, suck it up and accept that you have to submit to the security procedures. Yes you think they are stupid or unnecessary but TSA officers and TSA don’t care what you think. They try to make it all warm and fuzzy but they can’t because it is security not a trip to Disney World. Shut up and get in the scanner or don’t fly.