For new readers, I occasionally write about pressing sartorial issues because of my renown knowledge of legal fashion, from haute couture to the latest in Nikes.  While my concerns are usually limited to lawyer attire, it would be irresponsible of me to ignore my responsibility as a counselor and the needs of potential clients.  To this end, I note Jonathan Turley’s post.

Columbus police have a video showing a man who failed in a bank robbery effort when he tripped over his baggy pants.

The baggy gunman entered the bank in the afternoon and assaulted two employees before fleeing with money. However, his baggy pants tripped him up and then the dye pack went off in the money. He proceeded to drop the bag and flee (as best he could) in his baggy pants.

The intersection of form and function has long been a problem for bank robbers.  Even Clyde Barrow struggled with what tie to wear, necessitating his partnership with Bonnie Parker.  But whereas that was merely a matter of taste, this fellow clearly succeeded in the splendor department.

Note the coordinating hat, bandana and jacket, demonstrating a great deal of thought on the part of this fellow, not to mention (and this will likely be missed by those of you who are not as astute as I) that the solid red field of his jacket looks spectacular on video.  Strips or checks would have caused some distortion, making in quite difficult to appreciate the thought that went into the selection of this outfit.

But then we have this:

Whatever was he thinking?  You can’t even SEE his sneakers, and I would bet money they are top of the line Nikes, probably with the red and brown swoosh that perfectly matches both his outfit and his semi-automatic weapon (just guessing on this one).

There is no question but that I support a young man’s right to wear his trousers in whatever fashion best suits his desire to express his personal sense of style.  He can look as stupid as he wants to look.  But there’s a big difference between selecting a style that mimics the manner of dress predominant in prison for lack of a belt and a decent tailor, and putting form ahead of function at those time when you’ve got someplace else to be.

And yes, those pants make his butt look fat.  And he can’t get away, either.

Over at Volokh Conspiracy, Orin Kerr conducted an impromptu survey about whether readers knew that cellphones transmitted locations to cellsite in order to know where to send calls.  The results (with an astounding 1600 responses, 95% understanding how cellphones work, at least in this regard) reflected either a particularly knowledgeable group of readers or the bias of conducting a survey which essentially asked the respondent, “Are you a moron or not?”  Still, five percent conceded they were.

Orin later explains the purpose of his survey.

The reason I asked, as some have figured out, is that one of the legal issues that arises in whether the Fourth Amendment protects cell-site data is whether users know that the information is transmitted. My own view is that as a matter of law, courts should assume that users of a technology understand the technology when the courts apply Fourth Amendment law to it. The Constitution shouldn’t safeguard ignorance, and even if it did, improving understanding over time means that any rule based on ignorance has a limited shelf-life. Further, past Supreme Court cases have presupposed understandings of the technology: In Smith v. Maryland, for example, the Court presupposed that people know how telephones work when there wasn’t actually any evidence in the case that this was true.

This is a significant, and troubling, issue, given that Katz’s reasonable expectation of privacy remains the threshold.  Whether an expectation of privacy is reasonable depends on what’s known, by us and by people generally, about the technology we use.  For those with some degree of tech savvy, the fact that cellphones communicate with cellsites on their own is hardly a shock.  For others, it’s just a thingy that lets you make phone calls without wires.  That it works matters.  How it works, not so much.

This becomes particularly problematic in law because judges, charged with deciding whether to suppress warrantless searches and seizures and issuing search warrants, are not required to have any particular degree of technological knowledge or scientific acumen.  Yet they do tend to suffer from the same irrational bias that afflicts the rest of us, they believe they are reasonable.

Some courts have concluded that reasonable people don’t know how cell phones work, and that they are sort of a magic box that secretly gives away location information. They haven’t offered any empirical support for this view: It is just offered as a guess of what reasonable people think. My intuition is that this guess closely matches what the judge thought before the judge had the case: If the judge saw the technology as a magic box, then that is how a judge will conclude a reasonable person would think about it.

In other words, the reasonableness of our expectation of privacy in technology is dependent on whether the judge understands how things work or thinks they are some sort of magic box.  While it’s not entirely clear, I suspect that Orin’s point with regard to cellphones is that if everyone understands that cellphones provide tracking information to their third party provider, there’s no reasonable expectation of privacy in that information. 

This strikes me as showing two discrete problems.  The first going to Orin’s point, that judges’ concept of reasonable is built on his degree of technological worldliness.  Given that we presume to be a nation of laws rather than men, who cares what each individual judge knows about technology?  Why should our rights be dependent on whether some 90 year old prefers an iPad or an IBM Selectric? 

Moreover, once a judge is taught the technology during a case, the entire world of reasonableness flips on its head, and suddenly the reasonable person knows all there is to know about technology, because the judge has finally learned something.  And this further presumes he learned and understood it correctly, which is likely a stretch.  This goes to Orin’s argument that a rule based on ignorance has a short shelf-life. 

Orin argues that preserving the right to be ignorant of technology offers little support for a rule.  The same is true of a rule based on cutting edge knowledge of technology.  The same is true of a rule based on technology at any moment in time, given that the amount of knowledge generally possessed today is likely to be significantly less than what’s known a year or two from now.  Tech changes far too quickly to be deemed static, as were other inventions of the last century which generally stuck around for decades, other than the 8 track tape.

So if the issue arose about how 4G works today, and whether it would be reasonable for a person to expect privacy from others on his 4G network (for example), the decision would be rendered in a year or two based on generally accepted understanding a year or two from now.  By that point, everybody would understand how 4G works, even though today most of us have no clue what 4G is, other than an advertising slogan.

Given what technology is doing to our privacy, which is essentially rendering it wholly non-existent, determining reasonableness in this fashion will eviscerate any expectation of privacy, no matter how strongly we believe that our telephone calls and emails and IMs shouldn’t be open to government inspection.  Other will know far better than I what technology is on the horizon, and how that technology, when viewed through the traditional Fourth Amendment lens, exposes our secrets to anyone with a password or backdoor. 

Like privacy?  Then we need a new set of rules that provide a different baseline for what’s ours and what’s not.  The traditional paradigm is dead, as nobody with even a half-baked knowledge of technology is unaware that every single thing we do passes through the hands of a third-party provider, with a dozen copies living on some server in the bowels of a building in a town we never heard of, abrogating every rule created in the quiet days when rum runners outran revenuers.  There’s no outrunning computers.

If Orin’s “technology neutral” approach prevails, we can take comfort in having a principled approach that just happens to leave no aspect of our lives private.  The good news is we have a rule.  The bad news is that the rule is that you have no reasonable expectation of privacy.  Now up against the wall and spread your legs.

Six counts carried the potential for death, and death it was on all six.  After three and a half days, 19 hours, the jury returned its verdict.  The survivor, Dr. William Petit, called it  “A verdict for justice.”  Someone else called it “absolute justice.”  It’s always about justice. 

There are a few things in this case that make it both difficult and pure.  There’s no doubt that Steven Hayes is guilty.  There’s no doubt that the murders of Jennifer Hawke-Petit and daughters, Hayley Petit, 17 years old, and Michaela Petit, 11, were horrible.  There is a great deal of support for the jury and its decision.  For many, this is a man who needs killing.

When and whether the sentence of death, to be formally imposed on December 2nd, will be carried out remains anyone’s guess.  For all I know, Hayes will live longer than I.  Some are asking if he can be put to death tomorrow.  Some relish in the visceral reaction to horror.  If they asked for volunteers to pull the switch, there would be no shortage.

Of the Connecticut blawgers, Gideon struck first

My only hope is that one day, we as a State can look back upon this and other sentences of death with a certain sadness coupled with the knowledge that those days are past us – that we no longer ask our citizens to stake their mental well being on the anguishing task of deciding the fate of another man’s life – that we are no longer in the business of adjudicating worthiness to breathe.

Until then, I mourn. For this morning, Steven Hayes was the only one with blood on his hands. Now it’s on all of ours.

Connecticut doesn’t put people to death regularly.  It hasn’t actually done so in 50 years*.  New York doesn’t do it at all anymore. Others do.  I’ve learned much about it from Ohio’s Jeff Gamso, who has stared at execution as the lawyer for the dead man walking.  Each execution causes him anguish.  He doesn’t have one to make his cause celebre.  But he also taught me that either way, execution or life without parole, it’s the death penalty.  The only question is how long it takes to complete.

Dr. Petit said :

This is not about revenge. that belongs to The Lord. This was about justice.

For those who believe that capital punishment is inherently wrong, that the state should never put a person to death, then none of this is true.  This is the fiction of justice that those who abide capital punishment wrap around themselves to feel comfortable with their decision.  But there are a lot of those people who have no issue with capital punishment in the right case.  This was such a case.  For them, there was never a doubt what the verdict should be.

But do we all have blood on our hands because of this verdict, as Gideon suggests?  It’s melodramatic, but so is just about everything surrounding this verdict.  To some extent, we have have always had blood on our hands, the blood of children murdered on the streets, starving to death, dying for lack of medical care, dying on drugs, dying in a shoot out with cops when trying to rob a liquor store with their teenage friends.  And when they die in the execution chamber. 

If we took a vote of the people of Connecticut as to whether the verdict of death for Steven Hayes represents Justice, my guess is that there would be overwhelming support.  According to Hayes’ lawyer, Tom Ullman, Hayes sought the death penalty and smiled when the verdict of death was announced.  Maybe he thinks this is Justice too?

I can’t say that I care deeply about what happens to Steven Hayes.  In fact, I really don’t care at all.  My interest is solely focused at the pure question, whether capital punishment is a proper sanction for society to impose.  Nothing about this case causes me to change my mind, and believe that capital punishment is the right thing for the state to do. 

And so I keep hearing that this is Justice.  Lots of people say so today. But it’s not my justice.  And there’s no blood on my hands today that wasn’t there before.

The opening confused me.

“The State Bars should get out of the business of regulating marketing because it is something they know nothing about.” – Larry Bodine

That jolted me out of my seat at the MyLegal Case for Social Media Conference last month

This was the opening salvo  from Conrad Saam, marketing director at Avvo.  My mind raced.  Was it possible that even Conrad had been pushed too far, pushed beyond the limits of marketing endurance, and forced to confront the absurdity of the marketers’ position that no one and nothing should stand in the way of lawyer marketing.

The rest of his post brought me back to earth.  Nope.  Not only was his jolt not due to the utter insanity of this proposition, but he embraced it, with both arms and at least one leg.

Across the legal industry there is a growing consensus that the regulation of marketing is causing much more harm than good.  While it was appropriate (and brave) to include a counterpoint to social media at the MyLegal conference by including a presentation from a state bar regulator; but I was aghast by the fear mongering put forth . . .

There’s no source for the opposition that there is a growing consensus across the “legal industry,” but I take Conrad’s choice of words to differentiate what he’s talking about from the legal profession.  If so, then he’s absolutely right.  The “legal industry,” those whose fortunes are made by selling from and to lawyers are at enormous risk of losing their lifeblood, and they are scared to death.  With good reason.

Their fear, however, translates to lawyers, as our right to free speech will likely depend on their persuasiveness and sensibility, not going totally nuts as reflected in Bodine’s argument that bar regulators should stay out of lawyer marketing.  Not a little, but completely. 

The problem is that marketers are neither persuasive nor sensible, and their voices (for some darn good financial reasons) will be the loudest, most strident and most persistent to be heard.  While lawyers are busy practicing law, marketers will be busy saving their gravy train.  And it will be lawyers’ right at stake.  If we had to pick a hero to protect us, I’m not sure it would be Larry Bodine.

My concern about the promulgation of rules, and their adoption by state regulators, is obviously self-serving.  I have a blawg.  It’s possible that draconian rules could put an end to Simple Justice, perhaps by requiring that all posts be approved by a committee before posting.  That would be the end of my posting.  So I have some reason to be concerned by what a bunch of ABA official-types who have no connection with social media will think is a great idea.

But then, these ABA guys, one of whom called his brethren “commissioners” during a recent conference call with Carolyn Elefant, which made him come off as pompous and official as possible, can read.  They see the lies being propagated by the marketers.  They know that lawyers with 12 minutes experience claim to have a stellar record .  Neither the marketers, nor the lawyers who love them, have demonstrated the restraint to stay anywhere close to the truth.  Worse still, they so blinded by self-interest that the honestly don’t see a problem. 

The reaction to deceptive lawyer marketing is revealing:

Frequently, ethics rules are brought about in the name of the (apparently extremely stupid) purchaser of legal services.  Do consumers really need to be protected from the opinions of other consumers about the quality of service?  Are they really so stupid that they think an online rating saying “Bill is the best lawyer” means that Bill is absolutely the best lawyer? As Carolyn writes:  “I am not aware of a single complaint by a consumer alleging that he or she was mislead or deceived about a lawyer’s quality due to customer rating sites.” Why does the legal industry, that already has an image trouble among the general populace, quash that same populace from saying nice (even great, wonderful, awesome, stupendous) things about the legal industry?

While Conrad addresses the specific concern at Avvo for consumer endorsements, the “stupid consumer” view, in one form or another is at the core of the marketers’ argument.  Lawyers lying is not, from their perspective, a wrong.

The argument is a strawman from start to finish, and the ABA “commissioners” will see through it in a flash.  The marketers will pound the table with this point, and persuade no one.  Rules will be made because it is unacceptable for lawyers to mislead and deceive about their qualifications, the quality of their services or promises of outcomes. 

My concerns span websites, blogs and other social media.  The content runs from completely non-self-promotional, such as anonymous, lawprof and public defender blogs, to substantive blogs which, despite the absence of any intention to promote, have some degree of inherent self-promotion merely by including a name, to blogs that offer both substantive content combined with intentional self-promotion, to flagrant and outrageous scumblogs that are pure self-promotion.  There’s a broad gamut out there, and they will all be tarred with the same brush if the arguments are left in the hands of marketers.

The argument that the consumers of legal services aren’t “extremely stupid” has the superficial appeal that even the moderately stupid embrace.  We’re not stupid, you know.  We can tell who’s who and what’s what.  Of course, if that was true, then there would be no reason for lawyers to lie, or hire marketers to help them to it better.  But they do because they believe that consumers are stupid enough to believe their lies.  That’s the whole point of marketing.  As marketing philosopher Seth Godin made clear, wine doesn’t taste better from $20 crystal glasses, and nobody with half a brain thinks listening to Baby Einstein tapes will make junior a genius.   We buy the bull.

It’s been my hope that by scrutiny, e-shaming, applauding the good and calling out the bad, those of us with vested online interests could convince lawyers to make the choice to conduct themselves honestly and with dignity.  I’ve been called a fool by the marketers, and shunned by lawyers who feared that their covert self-aggrandizement would be revealed.  What a surprise.  And so we have a bunch of guys who call each other by the pompous title “commissioner” who deign themselves qualified to make rules for a world they don’t know, and the clothiers of streetwalkers doing everything possible to outflank them.

Concerned, ethical lawyers are caught in the middle.  Being in the middle of two battling armies is usually the quickest way to destruction.  This isn’t a great place to be.   While the marketers have made their position clear, that they don’t believe that bar regulators have any business regulating online content, they do not speak for me.  The internet presents monumental issues for legal ethics, and lawyer marketing is an ethical quagmire.  But I do not want to lose my ability to express substantive ideas because lawyer marketers are leading the charge.  And I fear that they will do so badly, and my rights will be lost.

Update:  Kevin O’Keefe, head honco of Lexblogs, posts that the ABA Paper from Ethics Commission has no implications on law blogs.   After discussing the implications, Kevin notes:

Even if new ethics rules are passed regarding blogs, and that’s no sure thing, we’re likely looking at four or five years before we’ll see them.

Unless it takes less time.  But that’s how it looks through the eyes of a guy who sells blogs.  So maybe I’m worried about nothing.

Dr. Steven Milo is a 34 year old New York City liver transplant surgeon.  Not too shabby.  And yet, in the scheme of wealth and influence in Eagle Colorado, he’s a piker.  Not a criminal defendant without the juice needed to buy his way out of a prosecution, but the innocent victim of a hit and run who unceremoniously learned why he should have listened to his mother and become a Wall Streeter.  That’s where the real power is.

From the Vail Daily :

[52 year old Martin Joel] Erzinger, an Arrowhead homeowner, is a director in private wealth management at Morgan Stanley Smith Barney in Denver. His biography on Worth.com states that Erzinger is “dedicated to ultra high net worth individuals, their families and foundations.”

This is a position of great significance.  We know this because Erzinger drove his black Mercedes into Milo, who was on a bicycle, struck him and then drove away, leaving Dr. Milo on the side of the road in bad shape.

Milo suffered spinal cord injuries, bleeding from his brain and damage to his knee and scapula, according to court documents. Over the past six weeks he has suffered “disabling” spinal headaches and faces multiple surgeries for a herniated disc and plastic surgery to fix the scars he suffered in the accident.

Yet  Erzinger will be allowed to plead to two misdemeanors, a felony charging having been dropped.  District Attorney Mark Hurlbert explains why:

“Felony convictions have some pretty serious job implications for someone in Mr. Erzinger’s profession, and that entered into it,” Hurlbert said. “When you’re talking about restitution, you don’t want to take away his ability to pay.”

According to Milo’s attorney, Harold Haddon, they are “livid.”

“The proposed disposition is not appropriate given the shocking nature of of the defendant’s conduct and the debilitating injuries which Dr. Milo has suffered,” Haddon wrote.

The arguments made on Erzinger’s behalf, that the felony would end his ability to work in his chosen field, eliminate his ability to pay restitution, and thus impose a secondary, harsher penalty than would be the case when a person of lesser earning potential becomes a felon, aren’t exactly new ones.  On the flip side, the argument was likely that this was not an act of deliberate, heinous violence, but an accident, and the subsequent flight was merely an improper reaction by a man confused, who made the wrong decision.  All terrible, but not malevolent. 

What purpose would be served by saddling Erzinger with a felony?  No one will be safer.  No one will be saved.  It only makes things worse, and why do that?

To some extent, the arguments have some merit.  I know because I’ve used them myself, many times.  It’s a disingenuous argument in many respects, but we do what we have to do on behalf of our clients, even when we know that the same conduct by someone who wasn’t wealthy and successful would land him years in prison.  At least a felony conviction. 

But this doesn’t happen in a vacuum.  Had Dr. Milo been run down and left to die on the side of the rode by someone in a beat-up old pick-up, who’s occasional occupation was to trim bushes or mow lawns, the power and might of a surgeon from New York City might well have assured the driver a very long term of imprisonment.  The story would then be about how the victim’s juice caused the prosecutor to go hard on the defendant, who never meant to harm anyone and, but for his fleeing the scene in confusion and error, merely had an accident with very serious results.  That can happen.

It’s got to suck to be a New York City surgeon, a person who expects to have his interests and wishes treated with great respect and deference, and end up run down by a Smith Barney money man, one of the few with far more juice than him.

One natural reaction to a situation like this is outrage at another wealthy person getting special justice.  Of course, the same would be said if Dr. Milo was run down by the gardener and District Attorney Hurlbert put the defendant away for 20 years.  Then it would have been another rich victim using his wealth and power to impose his will on the system.  Ask the critics of Dr. William Petit about it.

Over at Crime & Federalism, this case has Mike Cernovich blowing off some steam. 

When it was reported that District Attorney Mark Hurlbert dismissed felony charges against a rich banker who slammed into a bicyclist, I wondered if Hurlbert had accepted a bribe.  Hurlbert has high political aspirations, and recently ran for State Senator.  Perhaps the rich banker promised  generous campaign contributions in exchange for dismissing felony charges?  It seems that Hurlbert  must be accepting bribes.  No other explanation makes sense.

Mike has long been highly critical of the power wielded by Wall Street, on government and the legal system.  It tends to get Mike a bit incensed when anyone from Wall Street gets a pass.

How can Hurlbert claim that a sociopathic banker must keep his job in order to pay restitution to the victim, when the victim himself doesn’t care about that restitution?  

Generally, we eschew the anger and outrage of the victims, and their families, or there would be an awful lot of cases seeking the death penalty.  Suddenly, the victim’s cry for “justice” must be heeded? 

This case has all the earmarks of special treatment due to Erzinger’s wealth, which must be pretty substantial for him to trump Dr. Milo, who’s no slouch either.  We hate special treatment, not because a defendant was treated well by a prosecutor, but because he was treated better than others, those without the wealth and power.  It seems like the rich always get a better deal.

Certainly we can’t blame Erzinger for getting the best deal for himself possible.  Doesn’t every defendant, and every defense lawyer, try to do the same?  So we’re left with Hurlbert, the District Attorney, as the villain.  The complaint is that he went soft on the defendant because he was richer than the victim. 

Indeed, Mark Hurlbert appears to have earned scorn.  Not because he went easy on Erzinger, but because of his outrageously harsh treatment of others for ridiculous offenses, like the prosecution of a woman for fraud for switching numbers in an amateur bike race, of the prosecution of a snowball thrower.  ExPat ExLawyer has followed Hurlbert closely and provides a litany of his prosecutorial discretion.

Whether it’s rank hypocrisy, a pathological abuse of discretion or, as Mike suggests, that Hurlbert is on the take, I can’t say.  But it’s clear that his erratic and inexplicable exercise of prosecutorial discretion has turned his office into a farce.  Given that he holds an elective office (and is seeking other, higher office as well), whatever explanation exists for Mark Hurlbert’s conduct as District Attorney must appeal to his constituents.  Perhaps they see him as compassionate, yet tough, in all the right ways.

H/T Keith Lee

The jury charged with deciding whether Steven Hayes dies quickly or slowly will be deliberating today.  It’s a Sunday.  They deliberated yesterday, Saturday, as well.  No one’s head exploded.

The murders in Cheshire, Connecticut were sure to capture enormous media attention.  They were salacious and horrific.  They involved wealthy white people.  The case has all the makings of a Lifetime movie, and no one with half a brain would have thought that this case wasn’t going to receive enormous attention. 

This isn’t a reason to complain.  People will be interested in what they are interested in.  You can’t force them to care, and can’t stop them from caring.  It is what it is.  Whining that it’s wrong is ridiculous. 

Has it received too much attention or the wrong type of attention?  Given that the media, for lack of anything meaningful to report, notes every time the survivor, Dr. William Petit, scratches his nose, sure.  But it’s inconsequential.  They have space to fill, and dedicating a slew of reporters of all flavors to the case means they have to come back with something to justify their paycheck.  Even reporters have to work for a living.

Jeff Gamso has provided a thoughtful explanation of the jury’s task:

First, did Hayes prove one of three statutory mitigating factors:  Was he mentally impaired?  Was his ability to obey the law impaired?  Was it unreasonable to imagine that what he did would pose a “grave risk of causing death”?*  How one proves such things is, well, less than clear.  On the other hand, as I’ve noted before (here, for instance), proof is what a jury believes, however it gets there.

In any event, assuming the jury doesn’t believe that Hayes proved one of those three things, it has to decide if the state proved any of the aggravating factors it charged.

And assuming they do (and you can trust me, they will), the jury has to decide whether Hayes has proved some non-statutory mitigating factor.  That is, did Hayes offer, in a moderately convincing way, some reason why the jury should spare his life?  

If so (and probably so), they come to the money question.

Do the aggravating factors outweigh the mitigating factors?

If they do, it’s murder.  If they don’t, it’s death in prison.

That the jury is still deliberating is quite extraordinary, given that it’s “death qualified,” meaning that it’s not disinclined to execution and begins from the premise that capital punishment is on the table.  For those of us who do not favor capital punishment, such juries begin their task with one foot in the execution chamber. 

When there is little to discuss, there’s a tendency for discussion to turn stupid.  Yesterday, Saturday, was such a day, when expressions of outrage were heard about Judge Jon Blue’s decision to have the jury deliberate over the weekend.  Such things don’t happen anymore. 

So what?

It’s wrong that this case is getting special treatment.  Maybe, but so what?  The intelligent answer isn’t that the handling of this case is wrong, but that the failure to give special treatment to every capital case is wrong.  In fact, every case should receive special treatment.  But if every case does, then it isn’t special. 

And this case is special, not because there’s something more inherently important about the wrong done a wealthy, white professional’s beautiful family, but because there are so many eyes watching.  Rather than complain about it, use it.  There was never a chance the case wouldn’t receive extreme media attention, making it an opportunity to discuss serious issues.  Instead, the sides lined up as they always do, playing to the mindless emotions of their respective teams.  Not a single mind was changed.  The volume was turned high, but the sound was all static.

Judge Blue doesn’t want this jury to bust.  He’s got one alternate, and she’s tainted herself by inappropriate attention to her libido.  He doesn’t want to be forced to use her, as that would open the decision to collateral attack.  He wants the chosen 12 to reach a verdict, and he knows that every day that passes offers a chance for entropy to take its toll.  Things happen, to children, parents, spouses, dogs, people, that could cause a juror to not appear.  If the jury was off for the weekend, two days would pass and things might happen to make Monday morning a problem.

There’s a cost associated with the jury deliberating over the weekend in the otherwise empty courthouse.  There’s a cost associated with having to retry the case that far exceeds the cost of weekend deliberations. 

Perhaps the most important concern for the judge is that all the eyes watching the case believe that the system worked, regardless of outcome.  If that means employing extraordinary measures, like weekend deliberations, so what? 

Deliberating on a weekend doesn’t favor one side over the other.  The jury doesn’t seem troubled by it, and after eight weeks on the job, they are likely pleased to return to their real lives as quickly as possible.  But the fact that they haven’t rushed to judgment suggests, given the horrific nature of the crime and the paltry evidence in mitigation, suggests that this is a good jury.  They could just as well have returned a penalty five minutes after their first meal.  They haven’t. 

The reality behind the quibbling over weekend deliberations is that the more onerous the deliberations are, the more likely a mistrial will be.  Then it starts over, as the evidence from the guilt phase is needed for the penalty phase, even though guilt isn’t at issue.  Anything that might scuttle the case, and delay a decision, seems like a good thing at the moment.

But don’t fault Judge Blue for doing his job, helping a jury that’s engaged in serious deliberations reach its verdict.  His job isn’t to scuttle the trial.  His job is to prevent that from happening, provided he can do so without prejudicing the defendant.  And he’s not.

In the longer term view, however, there will eventually be a decision made as to whether Steven Hayes dies sooner or later.  That’s inevitable.  Right now, there is a serious jury doing very serious work.  The system may suck, but that doesn’t mean the jury does.  That they remain out in a case with facts like this is a testament to their fortitude. 

Let’s not demean their effort by raising ludicrous issues to suggest that they’re being coerced, or rushed, or forced, and that they’re decision can’t be trusted.  Today will be the third day of deliberations on penalty, and that speaks volumes as to the seriousness with which they approach their task.

It’s a shame that the Nutmeg State has a death penalty.  It reflects poorly on Connecticut that there is a jury out today considering the execution of a human being.  Not because it’s Sunday, but because there is a jury considering the question of execution at all. 

Johannes Mehserle, the BART cop who killed Oscar Grant, claiming he meant to pull his Taser when he shot him instead as he was lying on the ground, handcuffed, surrounded by police officers, was sentenced.  According to the Los Angeles Times, Superior Court Judge Robert J. Perry realized that he wasn’t making any friends.

The judge finally issued an unusual apology, telling the courtroom that no one would be happy with his rulings.

“I well understand that my decision today will not be well-received by many people,” the judge said. “I’m sorry for that. But all I can say is I did my best.”

A curious mea culpa, given that his job was to follow the law and there should be no reason to apologize.  But his rulings indeed deserve more than the explanation that accompanied the sentence of two years imprisonment.

Los Angeles County Superior Court Judge Robert J. Perry said evidence in the racially charged case showed that the shooting was an accident caused when Johannes Mehserle mistakenly reached for a firearm instead of an electric Taser weapon he meant to use.

The former Bay Area Rapid Transit police officer faced up to 14 years in prison. But the judge sharply reduced the maximum possible sentence by dismissing a finding by jurors that Mehserle intentionally used a gun. Among the reasons Perry cited was that he failed to provide jurors with clear instructions on the gun allegation and that the evidence was insufficient to show that the officer used his firearm deliberately.

“The evidence that this was an accidental shooting and Mehserle did not intend to shoot Grant is simply overwhelming,” the judge said.

Here’s where the ruling and sentence get dicey.  Mehserle was convicted by the jury of involuntary manslaughter.  The key distinction lies in this part of the instruction:

An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

The jury found that the evidence supported this, the lowest of available charges with which to convict Mehserle.  Ken at Popehat parses the various charges and their elements.  The judge, however, held that the evidence was insufficient.  For what isn’t exactly clear, based upon the report, but the court’s language, that this was an accidental shooting, that “the officer used his firearm deliberately,” creates the confusion. 

If Johannes Mehserle, poorly trained BART cop, strapping on a Taser  in whatever configuration was available that day, merely had a tragic accident, and the killing of Oscar Grant did not result from a willful act, but a horrible screw-up, then he’s committed no crime at all and should not be sentenced, whether to two years or two minutes. 

You can’t have it both ways.

The convoluted explanation in support of Mehserle’s accident, which blames the “hitch” on the claim that BART officers are handed Taser holsters in varying configurations, and may thus not realize in the heat of the moment that they are reaching to their left side rather than right for their “non-lethal” weapon, ignores one rather significant problem: Their handgun is in the exact same place as always.  The one thing a trained police officer should know is where he straps on his gun every shift.  In other words, if he grabs for a Taser, no matter where the Taser happens to be that particular day, he should know that it’s not in the spot where his firearm always is.

But the same new professionalism that is held up as an explanation for why we need not scrutinize police mistakes the way we did back in the bad old days gives way to the old saw that cops are only human.  Indeed they are, and humans with guns are supposed to not use them to unlawfully kill other humans.  “Oops” is too facile a defense.

In holding the evidence insufficient as a matter of law, and rejecting the jury’s verdict based upon his own deficient instruction, then what is the purpose of Judge Perry’s sentence?  He says that evidence that this was an accident was “simply overwhelming,” a bit of hyperbole from my remove, but nonetheless his conclusion.  So wish Mehserle well and send him on his shackleless way.  Sure, there would be protests, perhaps even riots in the streets of Los Angeles, but that’s not a judge’s concern.  If the defendant committed no crime, then the defendant deserves no sentence.

But Mehserle was sentenced.  He was sentenced to two years in prison.  And Oscar Grant is still dead.  And the judge says it was just an accident.

Sometimes people die as a result of an accident, and there is no crime to be charged, no criminal to be sentenced.  That’s a perfectly reasonable outcome when a death occurs by accident.  Tragic results do not mandate that a crime occurred.   So which is it?  Did Mehserle commit a crime or not?  If he did, then the sentence should be predicated upon the legitimate sentencing factors.  If he didn’t, then he should be allowed to go home. 

Judge Perry got one thing right.  Nobody is happy.  Worse still, nothing about this case makes any sense.

Addendum:  The New York Times report of the sentence provides a bit (but just a bit) more information:

In making his decision during the highly charged, 3½-hour hearing, Perry threw out a gun enhancement that could have added as much as 10 years in prison and said there was overwhelming evidence that it was an accidental shooting.

The significance is unclear, but the Bay Citizen offers some additional information.

The defense argued that jurors were not told that a gun enhancement could only be applied if they believed that Mehserle used the weapon with intent. Perry said he was troubled that jurors may have been confused and incorrectly applied that enhancement.

While still leaving much unexplained, this offers a little greater insight into the implications of Judge Perry’s ruling.  However, it leaves the big picture, how there can be an unlawful killing caused by a gun that is criminal, but that the use of the gun, and hence the killing, is purely accidental.

Among the many things I’ve learned writing posts at Simple Justice over the years is that there are few people who, even though they may not be a lawyer, are so well-prepared, knowledgeable and thoughtful, that they should not be screwed with.  Minneapolis Police Sgt. William Palmer didn’t learn that lesson.

Joel Rosenberg, better known around these parts as Jdog, is such a person.  A few constants to anticipate with Jdog.  He will be exercising his Second Amendment right to bear arms.  As a firearms instructor and the guy who wrote the book, Everything You Need to Know About (Legally) Carrying a Handgun in Minnesota. he will know the law.  And most of all, he will not take kindly to a police officer who decides to make up his own law at Jdog’s expense.

Bill Palmer picked the wrong guy to play with.  From the press release:

Rosenberg and his wife, Felicia Herman, had arrived at the office by previous arrangement with the suspect, Palmer, to examine the first of several Minnesota Government Data Practices Act responses that Rosenberg has submitted to the MPD and the City of Minneapolis. In addition to his responsibilities as police spokesman, Palmer is also the MPD’s Data Practices Officer.

When Rosenberg removed his jacket, revealing one of the two lawfully-carried handguns on his person, Palmer leaped at him, laid hands on him without lawful authority or Rosenberg’s consent, and removed one of Rosenberg’s pistols, “sweeping”, or momentarily pointing it, at Rosenberg as he moved to unload it.

Having a gun pointed at you is never as much fun as it sounds.

Palmer admitted, in front of Rosenberg, two witnesses, and a video camera, that he had done so out of a belief that it was somehow unlawful for Rosenberg, a permit holder, . . . to carry in Minneapolis City Hall, and threatened Rosenberg with the loss of his carry permit — something that Palmer has neither the authority to threaten nor to do — and with arrest.

That it happened in the waiting room of Timothy Dolan, Minneapolis Police Chief, where Jdog was scheduled to review records of police misconduct makes this really awkward. 

“It’s really very simple,” Rosenberg explained. “Bill had no right to touch me at all, much less grab my gun, much less point it at me, even momentarily. I expect that the [Hennipen County] Sheriff’s Office will investigate, and act according to both the facts and the law.

Naturally, Jdog knew the law, that Sgt. Palmer’s blind assumption that it was somehow improper for him to carry his legal weapon in places where it struck Palmer as, well, improper, didn’t change the statute.  Darn those rights.

[Rosenberg] advised Palmer that Minnesota Statute 624.714 not only permits Rosenberg to carry his firearm there, but that Subd. 23 of that statute says (emphasis added):

No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.

But then, making up law as they go is a time-honored police tradition, begging the question: How long will the investigation into Sgt. William Palmer’s conduct take before they decide to give him a medal for his diligent response in the face of death?

I’m slowly coming to grips with the hard, cold fact that my use of social media may not be the norm.  Sure, I read the social media and marketing hawkers, and wonder why they murder all those words for nothing, and wonder why nobody else seems to notice that they don’t actually say anything.  So what if I read Jason Falls’ 26 Keys to Twitter Success and find myself asking, what the heck is “twitter success?”

Then I saw this video via Guy Kawasaki, and realized.

It never dawned on me that there are people out there who would need something like this.  Are you really incapable of controlling your drunken or drugged up impulse to twit?   If so, no rules for twitter success, whatever that is, will help you.  And make no mistake about it, you need help.

This may be the saddest commentary on the loss of humanity to technology yet.  And the social media marketers are rejoicing that even in your intoxicated stupor, you need the validation fix enough that you will risk vomiting on your keyboard before passing out.  

Is this rock bottom?  Somehow, I think not, though I can’t imagine how much worse it could get.

This title phrase, glommed from the non-precedential decision of the Third Circuit in State Troopers v. New Jersey, says way more than the court intended.  The case involves New Jersey State Troopers who went to law school on the public teet, gun and shield in hand.  Once possessed of a shiny new law license, they did what any new lawyer would do: They used it to make money.

Troopers in New Jersey have long been the subject of scrutiny for their incredibly high rates of stopping cars driven on the Turnpike by people of darker shades.  They were accused of profiling then.  Now, they just stop them to find out if they need a will, or maybe a house closing.  The State of New Jersey decided that its full time employees would no longer be permitted to moonlight as lawyers because of the potential conflict of interest.

The Third Circuit upheld the state’s decision.

[T]he District Court properly concluded that the state’s decision to single out the legal profession is rationally related to its ethical concerns. The Code provision prohibiting Troopers from outside legal practice is far from perfectly crafted. It is simultaneously overinclusive — in that it prohibits all part-time legal work — and underinclusive — in that DLPS employees are still permitted to engage in non-legal outside employment where the risk of ethical conflict is high. Nonetheless, the District Court did not err in concluding that the provision withstands rational basis review. “`Even if the classification involved . . . is to some extent both underinclusive and overinclusive, and hence the line drawn by [the legislature] imperfect, it is nevertheless the rule that . . . perfection is by no means required.”

The decision is clearly correct, on both its over and under inclusiveness points.  As for the practice of law, there’s no likely harm in allowing a trooper to do a simple will, unless the testator refuses to pay and he pulls his weapon.  On the other hand, there could be a huge conflict if the trooper does some traffic court defense in his spare time.  Less obvious is when the trooper suggests to opposing counsel that his client is committing perjury, and he’s duty sworn to arrest him for it. 

There could be some expectation that trooper/lawyers, like lawyers in general and troopers in general, should be expected to exercise a level of discretion that would enable them to make the decision to take or not, stay or withdraw, if a conflict arises.  Both positions require the exercise of discretion.  Apparently, New Jersey has decided that their troopers can’t be trusted to make the right choice.

But as the court also notes, they may be prohibited from moonlighting as a lawyer, but that doesn’t stop troopers for renting their state-issued gun and shield in a wide variety of other money-making pursuits.  Moonlighting is a fundamental perk of policing.  Between the nature of shifts, and the expectation of retirement while still young and virile, it’s taken for granted that a trooper will find a profitable way to spend his off hours.  And why not? 

The opportunity is too good to pass up, and while the salary and benefits (including law school well before the pension kicks in) may be sweet, it’s hardly comparable to a Wall Street bonus.  But conflicts abound.  Whether it’s security services, a natural, or carpentry, it never hurts to have the ability to arrest anyone who questions the bill. 

Why should New Jersey be allowed to restrict troopers from the practice of law when they allow them to moonlight otherwise?  This gave rise to the claim under the equal protection clause, dictating that “all persons similarly situated should be treated alike.” When the subject is not a member of a suspect class (and no, troopers are not a “suspect class” as used in this context), the test is mere rational basis.

However, plaintiffs have not demonstrated, as they must to overcome rational basis review, that no “`reasonably conceivable state of facts'” could support a rational basis for the revised Code’s classification.

The equal protection clause of the 14th Amendment to the United States Constitution strikes most people as embodying a very basic, very important right. 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Like so many “rights”, it sounds incredibly important.  Like so many rights, it’s so terribly weak in practice.  For “suspect classifications,” such as race, national origin and gender, the right has some bite.  For race, the test is strict scrutiny.  Gender gets intermediate scrutiny.  Troopers get rational basis.  In other words, any explanation better than arbitrary and capricious will suffice.

While many won’t feel great pain at the inability of troopers to practice law on the side, and may even feel a certain schadenfreude at the outcome, the law is tested through the worst of litigants.  Sometimes it’s our criminal defendants.  Sometimes its New Jersey State Troopers.  While the decision is curiously non-precedential, it remains instructive. 

The court characterizes the New Jersey prohibition as “far from perfect.”  This is hardly a ringing endorsement.  Had the court put its opinion in the affirmative, it would have said that it sucks.  The State of New Jersey took a baseball bat, closed its eyes and swung.  Fair or foul, as long as it comes anywhere near the ball, it’s a home run.  The promise of equal protection is so fragile that it’s essentially impossible to miss.

It’s not that laws must be perfect to withstand an equal protection challenge, but that they should be better than a whiff.  How difficult would it have been for the State of New Jersey to promulgate rules that would allow troopers to engage in non-litigation, with a required disclaimer?  Or how about prohibiting them from any outside employment that involves the use of a gun and shield?  There are plenty of ways to make this better, to come a whole lot closer to providing the constitutional promise of equal protection.

But “perfection is by no means required.”  And therefore, there’s no reason to strive for perfection, which guarantees that it will never be achieved.

H/T John Steele and Jonathan Adler