Kenny and I went to the same small college at Cornell together, though neither of us remember the other at all.  We “met” about twenty years ago when we were both on a “blue ribbon”committee investigating government corruption.  We became fast friends when, at the first meeting, we sat next to each other and listened to the committee’s lawyer speak, explaining the committee’s purpose in a way predestined to assure our outcome.  I leaned toward Kenny and said, “I can name that tune in three notes.” He whispered back, “I can name it in two.”  That was all it took.

Kenny is a lawyer.  He’s one of those larger than life personalities, who seizes a room the moment he walks in.  He’s funny, crude and brilliant.  He’s got a memory like a steel trap.  When we play golf together, people think we’re brothers, which I like since they think I’m the younger, better looking sibling.  He’s a year older than I, and it isn’t often that people use the word “younger” around me these days.

Kenny has two sons, both nice kids, good kids, and quite brilliant.  Against his advice, both are in law school.  The good news is that neither plans to practice law or become social media marketers. Both intend to lead productive lives.

We hadn’t seen Kenny and his lovely wife for a while, as they are constantly on the go.  Last night, we finally had a chance to get together for dinner.  What’s great about a friend of almost twenty years is that, when you haven’t seen them for a while, it’s as if you saw them the day before.  You just pick right up where you left off, the bit of time in between disappearing immediately.  The women did all the requisite catching up on children and parents, and the men just talked about the inconsequential nonsense that men talk about and made jokes at each other’s expense.

The restaurant was a French bistro, fairly reasonably priced for the area with food that sounded as if you would find it across the Pont Neuf, but tasted like it was meant for someone who never stepped foot on Ile St. Louis.  I had the steak au poivre, assuming that it’s fairly hard to screw up steak.  Kenny had carré d’agneau under the same theory.  I drank two glasses of a horrible Shiraz from inappropriate stemware, while he drank vodka from a water glass.  We all had desserts, Kenny profiteroles and I bananas Foster.

We had a wonderful time, hugged and kissed and went home at a respectable hour.

I went to sleep quickly and was up by midnight.  It felt like the house was on fire, the thermostat at 100 degrees.  It was set to 58, though the temperature was ten degrees higher.  I was dying.  Got up to drink some water.  I wandered around the house for a bit, then turned on the television and watched a show I can’t recall.  I dozed and awoke.  It was one o’clock.  Rinse and repeat.

One of the things that happens to the body over time, at least to some of us, is that we can no longer eat large quantities of food, or rich foods.  Similarly, we fall out of practice with alcoholic beverages, especially red wine.  The tanins are killers.  Put them all together and it wreaks havoc on one’s systems.  It’s great going in, but the price you pay goes far beyond the check.

I’m exhausted this morning and can barely stand up, no less think.  There were a few things I planned to write about, but I won’t.  I can’t.  Not today.  I have a very busy day ahead of me and no clue how I’m going to muddle through.  I feel miserable.

I wonder how Kenny feels this morning? 

A couple days ago, I (along with a couple of other folks) stopped twitting.  At the moment, I have about 1100 twitter followers, and not the slightest clue why.  The content of my twits are largely worthless.  As far as I can tell, not a single thing I’ve twitted is worth more than a glance or, on occasion, a chuckle.  Your twits are no better.

This hiatus has allowed me to do some looking and some thinking.  I’ve spent some time reading the twits of others, following twitter “conversations” to which I wasn’t a party.  I put the word “conversation” in quotes because it’s used in the loosest of ways.  These aren’t conversations at all, as they are inherently limited, whereas a real conversation can range from the sublime to the ridiculous.  This is only the ridiculous.

It’s not that there isn’t fun to be had.  Some people can be quite witty in 140 characters.  Not always, but sometimes.  Most of us, however, are not that witty.  We may try to be, but we’re not.

There are also some troubling trends.  The indiscriminate collection of followers, the initial badge of twitter honor, was never taken seriously by serious people.  But I’ve watched serious people do something that strikes me as worse.  Twitter “friendships” develop that involve what the social media gurus like to call “authentic engagement,” where a surprising level of intimacy is achieved between people who know nothing more about each other than their twitter bio and twits reveal.  On the one hand, it shows a sweet level of empathy for others.  On the other, it seems as if it reflects the absence of any real life friendships.

People twit at each other all the time.  Some will twit all night long, until they finally sign off from exhaustion.  They inquire of each other about the intimate details of their life, and the others tell them the details.  This is all open to public inspection, though the details generally aren’t any more interesting than anyone else’s mundane life.  It’s all reminiscent of old friends superficially chatting, but without the old friends part and without the underlying basis for connection. 

It’s all the superficiality with none of the substance of real friendship.  And yet people spend their evenings, every evening, doing this.  These friendships crossed borders that would rarely be crossed in real life, with law students giving life lessons to old-time lawyers, and secretaries demanding the rapt attention of senior partners.  Do they not have spouses, children, friends, family with whom to interact?  Have we come to seeking, and finding, companionship in disembodied twits to fill the hole?

Another group that I’ve come to observe are the social media gurus.  Before, I would learn only of snippets, usually via Brian Tannebaum, who was paying far more attention than I ever considered worthwhile.  Instead, I set up a column in tweetdeck with the name of a young man whose recreated himself as a twitter expert when his law career fizzled.  I found his rise, and acceptance, as a social media guru rather astounding, and quite impressive, given his dearth of qualifications and the general silliness of his endeavor.  Still, if people want to buy pet rocks, who am I to stop them?

Following this column opened my eyes.  Not merely the volume of people on twitter who paid close attention to the most banal and, dare I say it, idiotic nonsense, but the identities of the twitterers.  From my remove, it seems as if this opportunistic crowd twits for no other reason than to announce approval and be embraced by the others.  No one, ever, twits anything but absolute approval.  Twit that you woke up this morning and got out of bed without falling, and a dozen will retwit it, adding their congratulations for the successful launch.  Someone will push the envelope by adding “you’re awesome!!!” 

Twits listing a passel of twitter names are the most common, as there is nothing better appreciated than having the twitter name spread far and wide.  Whether it’s the #FF, or something new to me, the ReadMeDaily that appears to be all the rage, reinforcing the-mutual-admiration-at-all-costs as the price of admission to this group.  Never have I seen such a meaningless circle jerk.  Never has anything so utterly inane been embraced by so many for no reason other than to be embraced.

There is no aspect of human existence so banal or trivial that it’s not worthy of a twit, and won’t give rise to someone twitting their congratulations in response.  It’s been explained to me that the reason for this is that some lawyers want to be loved by all others in the hope that they might refer them a case.  The social media gurus teach that people hire lawyers they like rather than lawyers who are competent.  Being liked merely requires liking others on twitter.  Any idiot can do it.

But any lawyer who refers a case to another lawyer based upon their twitter relationship should be disbarred.  Then beaten, tarred and feathered.  If this requires further explanation, please let me know so I can block you on twitter.

Granted, my observations are limited to lawyers and those whose occupations are related to the law, whether by their efforts or their desire to sell themselves to lawyers.  They maintain an obsession with numbers and superficial engagement, but what amazes is that they are well received, maybe even loved, for allowing anyone and everyone into their sphere who merely chooses to twit something nice at them.  Whether this is peculiar to lawyers I can’t say.  My experience is too limited to extrapolate, and my interest too limited to delve deeper.

I’m not sure what message to take from all of this, but I am disturbed by it.  It’s clear that some, more likely many, are so hungry for interaction that they will take it from anyone.  We don’t become BFFs with every person we meet in real life, so why would we do so with every person with a twitter account?  Yet most do exactly that.  If your bio says lawyer, then every other lawyer on twitter is expected to welcome you with open arms, follow you back, chat with you whenever you decide to throw a twit their way, and do so in a manner that pleases the happy twitterer.  It’s like another planet. 

Before some simpleton responds, “so if you hate twitter so much, just get out,” I add that I don’t hate twitter at all.  Twitter isn’t at fault here.  It’s just another technological marvel that allows people to communicate with others.  This is about what twitter tells us about ourselves, in the way we use this tool to compensate for the isolation technology has formed around us, the elimination of barriers between us and anyone who decides to touch us, the desperate need for intimacy, even if it means being intimate with disembodied names of unknown persons of dubious origins.

Most people don’t have a problem with any of this.  “It is what it is,” goes the uncontemplative twitterer.  My reason for sitting back and removing myself from the clatter is that I, along with some other blawgers to whom I owe a debt of appreciation for making me think, were twitting the other night about how the vitality of the blawgosphere has changed significantly since twitter became popular. 

We used to have rousing discussions on the blawgs.  They rarely happen anymore.  Synergies were created by blawging our nuanced disagreements about some complex detail in a case or trial practice.  No longer.  As one long-time blawger said, it’s gotten boring.  It seems like everything has been said and we’re just repeating ourselves for the benefit of the newcomers.  It’s not worth the effort.

We all agreed, however, that one of the problems was the dispersion of effort along the many formats available today.  Writing a cogent blawg comment is very hard work compared with a twit.  Engaging in thoughtful discussion requires thinking. Twitting requires nothing.  Twit “hi everybody” and people will twit back, “hi.”  The need for acceptance and approval is sated, and the community has embraced you to prove you are not alone and worthless.  The twitterer is happy.

It’s not as though I expect anyone to give much thought to the nature of what they twit, or how it may divert their energies from more difficult, maybe even thought-provoking pursuits,  No one would heed a curmudgeon when it comes to an appreciation of technology.  But my interest lies in things that make me think, wonder, question and challenge ideas. 

Twitter can be a fun toy from time to time, but it will never satisfy intellectual curiosity.  It’s just not built to do so, and there is no indication that those people enjoying twitter’s munificence day after day, night after night, really care.  

The ubiquitous video cameras, whether on lamp posts, concrete walls or cellphones of all “G”s, is beginning to make a dent, or so says Jim Pasco, head of the Fraternal Order of Police.  When Radley Balko first interviewed him, Pasco was on the offensive:

“Letting people record police officers is an extreme and intrusive response to a problem that’s so rare it might as well not exist. It would be like saying we should do away with DNA evidence because there’s a one in a billion chance that it could be wrong. At some point, we have to put some faith and trust in our authority figures.”

Needless to say, Pasco’s argument didn’t nip it in the bud.  The claim that videotaping cops violated their rights was the source of some amusement and much ridicule.  The public disagreed.  Demonstrating his ability to shift direction as the wind blows, Pasco moved on  to Plan B :

“The proliferation of cheap video equipment is presenting a whole new dynamic for law enforcement,” says Jim Pasco, executive director of the Fraternal Order of Police, the nation’s largest police union. “It has had a chilling effect on some officers who are now afraid to act for fear of retribution by video. This has become a serious safety issue. I’m afraid something terrible will happen.”

Tried and true, the appeal to fear is an implicit threat that has long served our boys in blue well.  Along with its corollaries (If you don’t appreciate cops, the next time you’re in trouble call a criminal.), this puts the screws to the good citizens by leaving the impression that when they need a police officer to save them with an immediate response, the officer may hesitate for fear of being videoed and the good citizen may, well, you get the picture.

This is an old chestnut that has proven useful time and again in the battle for respect and compliance.  As much as we may have lingering doubts about the police, we still realize that we need them and they serve a vital function in society.  And indeed, they do.  We need the police to do their job to protect and serve.  We need to support the police in doing their job.  We similarly need to keep them honest in the performance of their duties.

As the first comment to Radley’s post states, fear of “retribution by video” isn’t a bug, but a feature.  Pasco’s suggestion that the cops can’t handle the idea that their actions will be observed and judged is nonsense.  His suggestion that they won’t do their duty for fear of being second-guessed is their desperation play.  This isn’t an all-or-nothing choice, where we are constrained to accept police abuse and misconduct, or suffer no protection at all.

It’s telling that Jim Pasco has gone from the offensive to the defensive on this issue.  The rhetoric of rights has been rejected by the public, that police officers should be entitled to indulge their impulses without fear of scrutiny.  The notion that they have a right to be free of public oversight and, when appropriate, approbation, has been seen as nonsense.  They act on behalf of the government, and their authority belongs not to them personally, but to all of us.  If they exercise it poorly, they have no right to be shielded from consequences.

The implicit threat that they won’t be there for us when we need them is also nonsense, though one that has worked many times before.  The police are well-trained and well-equipped to perform a sworn duty.  They know the difference between shooting at an armed suspect and beating a hand-cuffed kid who mouthed off to them.  Indeed, as Radley points out,

We want cops second-guessing decisions that are second-guessable. If an abundance of video cameras helps that to happen, all the better.

If the police can’t distinguish the proper performance of their duties from abuse and misconduct, then they have no business being handed a gun and shield.  There will be close calls, and they will be subject to exacting scrutiny after the fact, but contrary to Pasco’s claim, no police officer will ever hesitate to act when it comes to protecting himself.  The first rule of policing remains unchanged, make it home for dinner.

The pervasiveness of video, combined with the seed of doubt in the minds of police officers when there is good reason to hesitate, gives rise to a corollary to the first rule of policing.  Maybe now, the citizen will have a decent chance of making it home for dinner as well.  That’s not a bug, but a feature.

Apparently, I’m not the only person who didn’t care for the tendentious animated video that seems to have grabbed so many by the collar and shaken them from their stupor.  Jack Whittington, a law student and self-proclaimed “Millennial Man” doesn’t care for it either.  In his open letter to the legal community, Whit says enough with cynicism.

It seems like from the moment that I entered into law school I’ve been told by people in the legal community how much of a mistake it was to go to law school, or how tough it was going to be to get a job, or how the debt and the sacrifice just wasn’t worth it. Stop, just stop it, stop it now.

Why is that, Whit?

I get it, bottom line I get it. BUT did it ever dawn on any of you that maybe, just maybe many of us that did decide to take the plunge into law school didn’t do it for the money, fame or fortune, but we did it because we want to help others and make a difference?

I see classmates around me everyday involved in legal aid, public defenders, and pro bono clinics that are doing the work because they enjoy it – not because they want the world to look at them and tell them what a great job they’re doing. I firmly believe that the Millennial Generation more than any other generation before us feels as a whole that we were put on earth to make a fundamental difference, and make the world a better place.

We don’t need the people that screwed it up for us in the first place telling us how wrong or misguided are efforts are.

Unwittingly, Whit has stumbled upon a critical distinction that’s too often missed.  I know, Brian Tannebaum has been trying to drive this point home, time and again, but without the half-naked photos and titillating discussion of pre-marital sex acts at Above the Law, the point isn’t disseminated sufficiently.

The video that offended you Whit, and offended me as well though likely for different reasons, was neither intended to make you feel badly about your decision to become a lawyer, nor was produced by Baby Boomers to tell you how wrong you are.  Forget about Susan Cartier Leibel’s misguided shrieking to the contrary.  She’ll say anything to promote Solo Marketing University.  The distinction is that you, and those who like you, who are going to law school because you want to be a lawyer, are not like the lost children, the losers, the entitled, the Slackoisie.

You write of law as a profession, and you are absolutely correct.  It is a profession.  It is not a ticket to automatic wealth and fame.  It is not a guarantee of a future of luxury and comfort.  It is not an easy path to much of anything.  It’s not the right path for most.  This is where we part ways:

As recently as 50 years ago, attorneys were viewed as pillars of the community, moral upstanding citizens that were seen as role modelS for civic duty. Now in 2010 attorneys are looked upon with disdain, mistrust, and sometimes open hostility. This must change. We must get back to the era of the lawyer being seen as model citizens rather than the ambulance chasing sharks that we are portrayed as today. How do we get back? I’m not sure, but I do know that deterring people from entering the legal profession certainly won’t help.

Deterring the wrong people from becoming lawyers is an absolute necessity.  These are the people who believe that their law school tuition guarantees them big money.  These are the people who think being professional carries no obligation to serve their clients when it conflicts with things they would rather do with their time.  These are the people who will toss ethics to the side, walk the streets in hot pants, lie to clients, courts and themselves, for a buck.  These are not the people we need as lawyers.

You assume, as the young so often do, that everyone is of good intention; You see the best in others, which is a very nice attribute.  Unfortunately, it’s not always accurate.  Even more unfortunately, all those selfish, malevolent old people were once young law students too.  Just like you, they were all full of dreams and aspirations, hoping to change the world for the better.  It didn’t always turn out that way.  That’s why so many acts in desperation, dissatisfied with their lots in life and willing to do anything to score their next fee.

I believe you, Whit, that you aren’t like that.  I believe you when you say that you want only to serve others, to fix what those who came before you broke.  I believe you when you call for others to go to law school, forgetting that they don’t all share your fervor, to bolster the effort of helping others.  I believe you, Whit.

But I have to ask you one question.  If all this is true, why do you spend your time listening to those challenging the greedy, selfish and entitled?  Does the shoe fit better than you want to admit?  If not, then who cares about silly animations that fail to capture either the problem or promise of being a lawyer, and just aren’t funny? 

Whenever someone asks me if they should be a lawyer, I tell them “no, don’t be a lawyer.”  I know that if being a lawyer is what they truly want to do, they will ignore me.  I know that anyone who heeds me doesn’t belong in this profession.  That, Whit, is how we’re going to restore dignity to the law.

Stanford law student Jon Abel was kind enough to send me an email to let me know that a post of mine was cited, and quoted to the extent that it infringed upon my copyright, in a brief before the Supreme Court in Premo v. Moore, argued October 12, 2010.  Sadly, it wasn’t cited by respondent, Randy Joseph Moore, but in the brief of amicus curiae, the Criminal Justice Legal Foundation.

The CJLF seeks to bring the constitutional protection of the accused into balance with the rights of the victim and of society to rapid, efficient and reliable determination of guilt and swift execution of punishment.

Great.  And written by my good buddy, Kent Scheidegger, who also happens to have a blawg called Crime and Consequences.  Kent and I don’t always see eye to eye, if you catch my drift.

In Premo, the plain English issue via SCOTUSBlog is:

When a defendant has pleaded guilty, but later challenges his conviction on the ground that his lawyer should have moved to suppress his confession, is he entitled to habeas relief upon showing that his confession was coerced?

Moore’s trial lawyer acknowledged that his failure to move to suppress the confession was a glaring mistake.  The CJLF cites to my post, Walking the Walk, concerning our responsibility to own up to any potential mistakes at trial rather than reflexively deny that we could have possibly been wrong.  It speaks to putting our obligations to our clients ahead of our ego and self-interest.  It gave the CJLF an opportunity to attack.

Kent calls my post “remarkable,” and not in a good way.

This post is remarkable in several ways. One is the view that an adverse result plus less than perfect representation are sufficient to establish ineffective assistance. Strickland is clearly to the contrary.

Well, that’s not quite what was said.  In fact, that’s not at all what was said.  The post addressed the factual underpinnings of ineffective assistance, and didn’t address whether the errors sufficed to meet the Strickland v. Washington test at all.  First things first: Until the defendant can establish that mistakes happened, there can be no application of the law to those mistakes.  Knowing that Kent realizes this, it’s a disingenuous argument.

More specific to the present issue, this post reflects a view that it is the duty of trial counsel to assist the attack on the adequacy of his own representation, even to the point of ridiculing those attorneys who defend the quality of their own work, calling them “children.”  While the author’s attitude is not universal, it is also not rare, particularly in capital cases.

While not nearly as disingenuous as his initial point, Kent has omitted the one critical factor that distinguishes the point: the truth.  Where trial counsel made mistakes, his duty to his client compels him to tell the truth.  Conversely, it precludes him from defending the quality of his work then it’s not the truth.  Of course, Kent is quite correct when he states that this attitude is not universal.  Sadly, the predominant reaction to a challenge to trial counsel’s representation is knee-jerk self-defense.  Apparently, the CJLF stands in favor of knee-jerk.  It would make for a good motto, “Defending knee-jerks since 1982.”

What makes this use of my post notable is that Scheidegger has taken a post that was clearly intended to implore criminal defense lawyers to be honest and accurate about their potential mistakes and used it to attack the concession by Moore’s trial counsel as to his error in failing to move to suppress Moore’s confession.  The gist was:

For this reason, courts have long known to take trial counsel’s with a pinch of salt.  “Self-proclaimed inadequacies on the part of trial counsel in aid of a client on appeal are not  persuasive . . . to hold otherwise would render complaints of inadequate representation ‘a “boudoir defense,” unchallengeable by the prosecution . . .’ “

Utter nonsense aside, given that no court will blindly adopt defense counsel’s admission of error as a per se basis to reverse for ineffective assistance, Scheidegger uses my argument for honesty to impeach Moore’s trial lawyer.  Pretty darn crafty, Kent.

For a while now, I’ve tried to impress upon social media users that the things they write online can be used against their clients in ways they might never imagine.  I preach caution and circumspection.  Many have reacted by telling me I’m no fun at all.

But I want to.  But I like it.  But it’s good for me.  Whether the egocentric trench menu twit or the self-promotional post about your latest big case, you are giving away information that belongs to someone else, someone who trusted you with their life.  I’ve heard all the argument to the contrary, both logic based and purely self-indulgent emotional, and it leads me to respond with one word: Bullshit.  It doesn’t matter how much you want to give information away.  It’s not yours to give.  It’s not yours to even potentially give.  It’s not yours to assess the risk of harm to give, as there is no risk of harm to your client that can justify your having a good ol’ time at your client’s expense.  None.

This social media is risky business, far more so than most realize.  Some think me paranoid, overly protective of the privacy of my clients as if there’s a federal agent under every rock.  They miss the point.  There doesn’t have to be a federal agent under every rock; just under one rock.  Just once.  And it doesn’t even have to be a federal agent, as it could be a Kent Scheidegger.

When I wrote the post that gave Kent fodder to shoot at Moore’s lawyer, I certainly didn’t think about the potential that it would be used in a brief before the Supreme Court of the United States.  Then again, there’s no reason why I would have,  And yet it was, and it was used in a way that was directly contrary to my point.  Please remember that this can, and will, happen. 

There’s nothing to be done to prevent the manipulation of content when it serves an adversary, but let’s not make it as easy as possible for the other side to use it against your clients.  I realize how hard it is to ignore the self-promoters and marketers, but real lawyers put their clients first.  And Kent, putting clients first doesn’t require sacrificing one’s integrity. 

If you start from the position that Miranda warning were meant for “us” and not “them,” and mix in a healthy dose of terrorism fear with a dash of blind faith in government, then Volokh Conspirator, former federal judge turned lawprof Paul Cassell seems to have done us a favor by clearing up the lingering question : Isn’t it time to codify the exception to Miranda for terrorists?

No need to sweat the details.  Cassell has his exception already laid out.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

From Cassell’s perspective, he’s covered all the bases.  After all, no right-thinking American would question whether terrorists, identified as any person a law enforcement officer arrests for “terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law,” deserve rights.  They’re terrorists, for crying out loud.  We should presume they know what cave Osama’s in, and where the next bomb will explode.  And really, between us Americans, they wouldn’t give us the time of day, so why give it to them?

Cassell’s exception contains two absolutely remarkable things:

1.  It creates an “automatic public safety exception,” meaning that the whole rationale behind New York v. Quarles, dubious to begin with, is tossed out the window.  Call someone a terrorist and get a free interrogation.  No imminent public safety concern?  No problem. 

2.  “Voluntary” statements, sans Miranda, “shall be admissible.”  In this context, it would appear that voluntary refers to statements that do not require a rubber hose.  The Reid Technique, obviously, does not render statements involuntary. 

It’s fairly easy to understand why, from the position of a person inclined to repose absolute trust in the government and to buy into the nonsensical fear mongering that’s been used so effectively to manipulate public opinion, this codification makes infinite sense.  It’s similarly easy to understand why those who are less inclined to turn over the keys to the castle to the G-men would be less enamored with this codification.

This exception begins with the codification of the presumption of guilt.  Arrested?  Close enough.  It then opens a hole big enough to drive a car bomb through, that the person arrested need only be “suspected” of a terrorist crime.  If that’s not enough, the terrorist crime could be one under 18 USC 113B or “comparable state laws,” like terrorist jaywalking.  Don’t laugh.  Notice how the word “terrorist” appears before every alleged “threat” lately?

But what’s striking is that this codification memorializes the failing of “remembering the rubric while forgetting the rationale.”  The public safety exception of Quarles, already a police scam if courts were so inclined, would be automatically disconnected from interrogation.  No issue of public safety at all?  No problem.  Terrorist claim = no Miranda, a simple equation.

The kicker is that the payback for a non-Mirandized arrestee, that the information obtained without benefit of warning, can’t be used in court, either directly or indirectly.  It makes some bit of sense to allow a public safety exception to provide for, you know, public safety, as opposed to obtaining a confession to make a conviction quick and easy.  Now it’s just a matter of quick and easy, no public safety necessary.  Very effective in the war against terrorism.  Not so effective in the war against the evisceration of constitutional rights. 

But hey, they’re terrorists!  They don’t deserve rights.  Everything’s different now.

A comment to Cassell’s post captures the essence of what this is really all about, from our favorite Justice:

I’m reminded of Scalia’s (piquant!) dissent in MD v. Craig:

The State’s interest here is in fact no more and no less than what the State’s interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.

Let’s get real.  The Constitution, taken with all those nasty rights used to provide viability to its proscriptions, can really get in the way of effective law enforcement.  Without this slavish compulsion to provide rights to bad people, imagine how much safer we could all be.  Don’t you want to be safer?  Don’t you trust law enforcement to do the right thing?  Paul Cassell does.

There is an animation going around the blawgosphere dealing with some confused, snarky, pointless advice for would-be law students.  I don’t like it and think it’s not merely wrong, but stupid and utterly unhelpful.  Rather than explain why this is so, as should be obvious to anyone with half a brain, it strikes me as far more valuable to address real concerns by offering this video of real people providing hard, cold, critically important thoughts. 

Animations are for kids.  This is real people.  Pay attention and learn something.

In 2007, Ronald Jabalee Jr. and Ryan Jabalee stood over the grave of their murdered parents, Ronald and Christine Jabalee.  As described in the Detroit Free Press :

Ryan Jabalee was heard crying or sobbing on a recording device set up by law enforcement at the gravesite of his murdered parents, . . . His brother, Ronald Jabalee Jr. — who is standing trial today in Macomb County Circuit Court in the October 2006 slayings — did not sound distraught.

There are few places where privacy is more obvious and expected than at a gravesite.  It’s where a person comes to terms with the deceased, and where one can immediately tell whether there is anyone within earshot.  Except when the police set up a recording device on the grave.

Defense attorney Stephen Rabaut said the device was installed without a warrant and that the Fourth Amendment goes beyond telephone calls and includes invasion of privacy.

“It’s eavesdropping,” he said, adding that Michigan has a law about eavesdropping.

The prosecution, as it occasionally does, disagrees.

Assistant Prosecutor Steven Kaplan disagreed, saying “there’s no privacy in public.”

What is particularly curious about Kaplan’s position is that it flies in the face of the argument proffered by police in their claims that they are entitled to privacy while threatening, shooting or beating suspects without cause.  Of course, Ronald isn’t a cop, isn’t on the public dole and maintains, and is entitled, as Katz v. United States provides, to a reasonable expectation of privacy.

But the gist of the prosecution’s point here, and one that is generally misunderstood, is that eavesdropping is not limited to tapping phones or computers, but extends to the use of any electronic or mechanical means of intercepting a communication that could otherwise not be heard.  In other words, if the police use a device of any sort to capture what they couldn’t capture otherwise, then it’s eavesdropping, and it requires a warrant with all the accompanying prerequisites to issuance.

Distinguishing this particular instance, however, is the troubling nature of the intrusion.  The brothers stood at the gravesite of their parents.  I would imagine that the police figured this would be a great place to put their mic, as it was very likely that the two would come visit the grave and, more importantly, do so together.  They could capture the brothers talking to each other, maybe discussing how one, the other, both, murdered the folks.  Perfect.

Yet the offensiveness of this intrusion can’t be ignored.  Is nothing sacred?  What (though this notion never occurs to cops) if they were wrong about one or both of the brothers having murdered their parents?  What if these two brothers came to the grave to express their love and mourn their loss.  Should the police have the ability to capture this moment?  Maybe they can play it at the next cop party for kicks?  Where does the desire to catch someone end and a bit of decency begin?

Notably, the police did not capture a confession, but they did get something that fit into their paradigm.  Ryan was sobbing.  Ronald, Jr., “did not sound distraught.”  Aha!  Gotcha.  You see, as cases are tried, one of the methods of proving the secret, hidden motives of people which prove that they committed an act no one saw is that they don’t behave the way police would have them behave.  Ronald should have sounded distraught.  No distraught equals killer.

Sure, it could be that Ronald was stoic.  It could be that Ronald, trying to be brave and bolster his sobbing brother, didn’t let down his guard and weep for his dead parents.  It could be that Ronald isn’t the most emotional or sentimental guy.  Or maybe Ronald was still in shock, needing years of therapy to come to grips with his feelings.

Doesn’t matter.  The cops will testify how Ronald should have been distraught, because that’s the way people behave when the visit the grave of their parents.  The defendant will never be allowed to put on a witness to testify to the contrary, because it would lack foundation unless Ronald testifies as to why he wasn’t sufficiently distraught to please the cops.  Of course, Ronald can’t be compelled to testify, and may be one incredibly lousy witness for any number of reasons wholly unrelated to the allegations, but that won’t change how the testimony plays out.  If Ronald doesn’t testify, then lack of distraught will equal guilty.

There should be no issue but that the recording of Ronald and Ryan Jabalee at the gravesite required an eavesdropping warrant.  It’s a no-brainer, and the prosecutors contention that the electronic interception of communications of a private individual is permitted because it’s not behind closed doors, or on a phone, is ludicrous.  One can only hope that the reason the cops eavesdropped without a warrant is that they didn’t believe any judge would have been callous enough to allow them to bug the grave.

H/T Bad Lawyer

If the Beav was a real person, he would have recited the pledge of allegiance and the Lord’s Prayer every morning before class, because that’s what we did back then.  Unless, of course, he was a real person in Texas, where he would have uttered an atheist pledge to the Republic of Texas instead.  The reason is that the Texas Education Code, §25.082, demands that its school children pledge allegiance to the state (§3100.101) rather than the Yankee federalists.

But some Texan screwed up and left out the critical words that distinguish a great democracy from the filthy communist heathens.  At the behest of Representative Debbie Riddle, who sharply refused to include the words “liberty and justice for all” in her amendment, the state corrected this omission in 2007.  From Lawprof Caroline Mala Corbin at Concurring Opinions :

A few days ago, the Fifth Circuit Court of Appeals rejected an Establishment Clause challenge to the Texas pledge of allegiance. In 2007, the Texas legislative added the words “under God” to the state’s pledge. In evaluating the Establishment Clause claim, the court relied in part on the endorsement test, which asks whether a reasonable person, aware of the history and context of the challenged practice, would conclude that the government was endorsing religion. The Fifth Circuit held that a reasonable person would “conclude that the pledge remains a patriotic exercise” and that the new version “acknowledges but does not endorse religious belief.” Most courts to decide the issue have agreed with the Fifth Circuit.

Whew.  Can you imagine what would have happened had the Fifth Circuit not ruled in favor of God?  Texas high school football teams would have started to lose games, even against each other, and the Cowboys would be in last place in the NFC East.  Fortunately for all, whether possessed of hat or cattle, the court cleared things up.  From Circuit Judge E. Grady Jolly (of the Mississippi Jollys):

The term God is adequately generic to acknowledge a wide range of religious belief, monotheistic and polytheistic alike. A reference to “God” may not reach every belief system, but it is a “tolerable attempt” at acknowledging religion without favoring a particular sect or belief. Id. We thus hold that the pledge’s use of the singular “God” does not favor a particular faith in violation of the Establishment Clause.

What?  You thought they were referring to Jesus?  No, no, no.  This is the generic God.  You know, the “one God fits all” God.  The one we can all get behind, unless of course we don’t believe in God or are believers in one of this crazy religions which don’t subscribe to an overarching deity. 

There can be no doubt that mirroring the national pledge and acknowledging the state’s religious heritage are permissible secular purposes. Acknowledgment of religious heritage, although religiously oriented, “is no less secular simply because it is infused with a religious element.” Freiler, 185 F.3d at 345. The same is true of the defendant’s mirroring rationale.

Texas, you see, just wanted to better “mirror” the national pledge of allegiance.  Except for that “liberty and justice” junk, which it didn’t want to mirror at all. 

Some benefit flowing from state legislation or policy to religion is permissible: “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Lynch, 465 U.S. at 683. Nor does the Establishment Clause forbid statutes whose “effect merely happens to coincide or harmonize with the tenets of some . . . religions.” Id.

Seriously, how much more indirect toward religion can you get than adding the words, “under God”?  I mean, it’s not like they added the words, “under God” or anything.  And the decision goes on.

The real problem, which the 5th Circuit did its absolute best to avoid, is that we have some historic basis, from way back when the entire Establishment Clause concern ran the gamut from Christian to witches, explaining why Christine O’Donnell now finds herself so confused,   Even the finest minds never considered going beyond the pale of the Judeo-Christian ethic, though within the narrow confines of their concerns, they made clear that this new government wasn’t to mix secular with religious concerns.

To straighten out the mess now, however, would require some fundamental alterations to historic positions.  And so the 5th Circuit held:

The pledge is a patriotic exercise, and it is made no less so by the acknowledgment of Texas’s religious heritage via the inclusion of the phrase “under God.” A pledge can constitutionally acknowledge the existence of, and even value, a religious belief without impermissibly favoring that value or belief, without advancing belief over non-belief, and without coercing participation in a religious exercise.

A steaming Texas cowpie, served fresh every morning to its students, courtesy of the Fifth Circuit Court of Appeals.

The initial reports told a story of 20 year old Danroy Henry, Jr., a Pace University football player, trying to run down cops as they arrived to stop a bar brawl outside Finnegan’s Grill at one in the morning. 

When a Pleasantville police officer knocked on the window, Mr. Henry started to drive away, striking the officer and tossing him onto the hood of the car. The car then knocked into another officer, the police said, who was trying to pull the first officer from the hood.

Meanwhile, the Pleasantville officer, who was still clinging to the hood of the car, pulled out his gun and fired into the car. Another officer then fired into the car, which came to a stop after it crashed into a parked police vehicle, the police said.

Mr. Henry and a passenger were shot, the police said. They were taken to Westchester Medical Center, where Mr. Henry was pronounced dead.

For obvious reasons, Danroy Henry didn’t get a say in the matter.  Fortunately, witnesses did, and tell a different story.  Rather than trying to run anyone down, it appears that cops knocked on the window indicating that Henry should move his car and he complied.  As he did so, other cops ran in front of his car, one with gun drawn.  What followed is known.

The police account makes no sense whatsoever, in that there is no reason in the world for Henry to try to run down a police officer, while it makes enormous sense that he would be directed to move his car out of the way.  At the same time, it’s easy to imagine that the officer who sees a car suddenly coming toward him, even if because the cop ran in front of the car as opposed to the car being drive toward the cop, thinks he’s at risk. 

By all accounts, there was a mass of people outside Finnegan’s, estimated at 150, and a gaggle of cops responding to the call for aid, estimated at 50.  Chaos ensued.

The officer who killed Henry, Aaron Hess, was from the Pleasantville.  Officers of the Mount Pleasant Police Department don’t get to discharge their weapons often, and may not be as prepared to fire, or hold fire, as officers who face threatening situations more regularly.  Whether this was a split second decision or mere accidental discharge is hard to say, and will likely never be known. 

The problem is that even before the smoke clears, the concern is how to explain what happened.  It requires justification.  The conduct of the police officers following Henry’s shooting is telling.

According to reports in the Boston Globe, after Henry was shot, he was removed from his car and handcuffed. When police realized that his wounds were grave, they began to administer first aid but did not remove the cuffs. Mount Pleasant Police Chief Louis Alagno said removing the cuffs would have been “a waste of time.” In total, police waited 15 minutes before giving Henry medical attention.

Curiously, one would expect an immediate call for medical assistance after the police shot someone, without regard to whether police “realized that his wounds were grave.”  Anytime police shoot a person, calling an ambulance would seem to be a fine idea.  The police aren’t usually required to make medical diagnoses before seeking aid.

That they pulled the shot Henry from the car and cuffed him is standard procedure, That they waited to get him aid, on the other hand, is not.  That’s the hiatus, the time used to get their story straight.  That’s where they ask each other, “what just happened?” That’s where they find the right words to express what the shot person did wrong and why the cop was justified in shooting him.  It took them 15 minutes to figure this one out.  It was a tough one.

Mount Pleasant Police Chief Alagno is trying to find a video of the scene that will show what happened.  It won’t matter.  If one exists, it will show a car moving forward, a cop suddenly in front of it and guns discharging.  It answers nothing.

Police Officer Aaron Hess likely regrets everything that happened that night.  It wasn’t his purpose to shoot a Pace University football player and kill him.  He just wanted to do his job and make it home to kiss his kids.  Chaos intervened.  Danroy Henry, another father’s son, is dead because he did what a police officer directed him to do.