Houston criminal defense lawyer Jackie Carpenter learned the hard way and tells her story.  It’s rough and poignant at the same time.  She handled herself admirably, in the face of a reality that never manages to find its way into the sanitized story that is told in a courtroom. 

Read what happened to Jackie  when she was seized by mistake.  And judges, read it twice.  Don’t waste this opportunity.

When Elizabeth Wurtzel argued that the bar exam should be abolished, I took it as the typical post-exam angst coupled with just a bit of sour grapes over her first-attempt failure to pass.  Then Ilya Somin took up the call at Volokh Conspiracy, and the issue turned into a real debate.  Richard Epstein jumped in to support the bar exam. John Yoo against it.

Up to this point, the various voices offered legitimate complaints about the bar exam, that it’s a failed predictor of success as a lawyer and little more than an exercise in memorization and test taking tricks.  It was argued that it remained as a rite of passage whose purpose was to exclude people from admission, to limit the number of lawyers and a manifestation of guild protectionism.

Underlying Ilya Somin’s view that the bar exam should be abolished was his belief that we need more lawyers, not fewer, to reduce the cost of legal services.  He similarly asserted that ABA control over accreditation of law schools be abolished as another guild control mechanism.

One glaring gap in Somin’s view stood out.  Does this mean that anybody who wants to be a lawyer gets to be a lawyer?  Does this mean that we leave it to law schools, run by lawprofs, to decide who becomes a lawyer, and how many lawyers society should endure? 

Maybe this debate has a chance of being re-connected with reality, as much of it bears little relation to the nuts and bolts.

The bar exam is not a good predictor of success as a lawyer.  But is that really its purpose?  The bar exam is merely a test of the absolute minimum scope of knowledge that someone entitled to hold themselves out to the public as a lawyer is required to possess.  And it’s an awfully low bar.  Sorry, Liz, but it’s just not that hard to pass.

Lawyers are licensed as generalists.  Once a lawyer, a person can take on any client, whether for litigation, civil or criminal, or transactional, or anything in between.  Despite the complaints that the bar exam tests lawyers in areas of law that they will never practice, the point remains that they are entitled to practice in any area of law, and hence should possess the barest minimum amount of knowledge about it.  The public assumes that the lawyer must have at least a bit of a clue, and rightfully so.  Why is it that lawyers and lawprofs find this too burdensome?

Then there’s the affectation of the elitists, that lawyers make too much money, reflecting a dearth of lawyers to serve society.  Very few get the Biglaw bonus check, while most toil pretty darn hard to make ends meet.  Maybe that can’t be seen from the Ivory Tower, but it’s clear from the trench view.  I strongly (vehemently, perhaps) believe that we have an absurd excess of lawyers in this country and need desperately to cull the herd.  Somin thinks the opposite.  While I understand the supply/demand point he makes, I cannot comprehend how dilution of competency serves the interest of society.

So in the absence of a bar exam, what would qualify a person to be a lawyer?  Graduation from law school would appear to be Somin’s answer. Great.  This would be completion of the very same legal education that practitioners have been arguing does little to nothing to prepare a person to practice law.  Does a course in “Due Process and the Ministry of Magic” equip a lawyer to represent a client? Does the overt coddling, grade-inflation and concern for the emotional well-being of the next generation of lawyers safeguard clients from the death penalty?  A heartfelt “sorry” as they push the plunger isn’t quite what Strickland had in mind.

Enter fellow New York criminal defense lawyer, Nathaniel Burney to the argument. 

Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer.  It doesn’t test judgment, reasoning or understanding.  More importantly, it doesn’t test actual skills that lawyers need to know — it doesn’t test to see if a transactional lawyer can put together a contract that does the job, or to see if a trial lawyer knows how to get his evidence admitted, or to see if an estate lawyer can craft a plan that will carry out the client’s wishes with a minimum of fuss.

Absolutely true.  Nathaniel urges an alternative:

Instead, the bar exam should be replaced with a series of exams for something along the lines of board certification in medicine.  You want to practice criminal law?  Someone’s life and liberty is going to be on the line.  You’d better prove you know what you’re doing, and get bar-certified to stand up in a criminal courtroom.  Or you say you want to be a transactional lawyer?  People’s assets and livelihoods will be at stake.  You’d better be able to prove you know how to put together a deal that does what the client needs, and get bar-certified.

It’s a sound idea, but doesn’t quite cover the situation.  First of all, outside of urban areas, lawyers tend to be general practitioners of necessity.  They simply don’t have the clientele demands that give rise to the degree of specialization that is the urban norm.  This leaves the handful of lawyers in a rural county in a pickle, and the handful of clients they serve unrepresented.

Moreover, there’s a gap between law school and specialized competency that remains.  Lawyers don’t spring from law school capable of trying a case.  They need to learn.  They need to gain experience.  This plan offers no opportunity for that to happen.  If the idea is that law school graduates have to apprentice until they can pass a competency exam, they are then at the mercy of getting jobs, competent masters to serve,  Would lawyers be required to serve as teachers of these newbies?  Where would the money come from to pay for these apprentices, since they wouldn’t be capable of earning their own keep, even assuming the lawyer had the business to sustain them.

It’s not that I disagree that the bar exam serves its function poorly at best, but abolishing it would make a bad situation worse.  To the extent that it serves as an incredibly low barrier to entry, at least it affords the public the most minimal protection against complete ignorance.  Adding to it certification in a speciality would go a long way toward providing the public with a more meaningful demonstration of qualifications.  Competence is a good thing.

Finally, Somin argues that certification, left in the hands of lawyers, will produce more of the guild protectionism that he finds objectionable.  So which fine group of non-lawyers should be tasked to judge competence?  That’s unclear.  Hard as I try, I can’t imagine any way to judge competence that doesn’t begin with a decision-maker who already possesses competence. 

To a large extent, the argument is normative, a relative weighing of priorities.  My priority is professionalism and competence in the practice of law, as opposed to easy and cheap access to people of dubious competence.  If there’s way to ascertain minimum knowledge before siccing the new lawyer on society, I’m all ears.  Just don’t tell me to trust the lawprofs.  That’s a non-starter.

It seemed as if things couldn’t get any worse for Police Officer Patrick Pogan, when his arrest of Christopher Long, a cyclist in the Critical Mass rally, for attacking him was covertly videotaped.  Only 10 days on the job and he was shown to be a violent attacker and liar.  He had a great future ahead of him on the NYPD.  Except for that video.

Finally prosecuted.  Finally convicted, though not of the vicious assault on Long, because cops have to be allowed some latitude in viciously harming people, but convicted of filing a false instrument.  And yesterday, Patrick Pogan was sentenced to life.  No, not life in prison.  Not life on probation, Not life in community service.  He was given a conditional discharge by Justice Maxwell Wiley, which is a non-sentence sentence that says, go back to your life and have a nice day.  You’ve suffered enough.

Not even Pogan’s lawyer, Stuart London, had the chutzpah to ask for a CD.  He asked for community service. The prosecutor asked for jail and probation.  The judge disagreed with both.

From the New York Times :

The decision by Justice Maxwell Wiley to give the former officer, Patrick Pogan, a conditional discharge, which means he will not receive any sanctions like jail time or probation, was a lighter sentence than even Mr. Pogan’s lawyer had requested. The lawyer, Stuart London, had pleaded for his client to receive a conditional discharge and community service. Prosecutors had asked for jail time and probation.

“The court is convinced that incarceration is not appropriate in this case,” Justice Wiley said.

No, there’s no follow-up sentence explaining why.  It ends there.

An appropriate sentence addresses a number of issues, some relating to the particularized situation of the defendant and others the broader interest of society.  Amongst the latter is general deterrence, the message to others that certain conduct will not be tolerated and will have consequences.  We see that in high-profile cases all the time, ranging from Bernie Madoff to Lindsay Lohan.  The media covers the case and the message is spread across the land.

Was Patrick Pogan the worst cop on the street?  Hardly.  But what he did was bad.  He was caught, and caught hard, breaking a basic condition of the social compact.  He wore a badge, carrying the imprimatur of governmental authority, and then used it to lie, to falsely claim that a person engaged in criminal conduct that never happened.

It happens all the time, right?  But it’s rarely caught so clearly, so obviously, so flagrantly.  He lied and got caught.  He is precisely what the integrity of the legal system cannot tolerate.  He undermines the faith that the legal system absolutely requires to exist.  The Big Shove hurt one man, Christopher Long.  The lie that went with it hurt all people of New York.

Pogan submitted 180-something letters in support to the judge, typical in federal cases but quite unusual in state court cases.  Federal judges discount this to a large extent.  London suggests that it had an impact on Justice Wiley, the theme being that Pogan was just a good kid who wanted to help people.  He probably was.  And lying on behalf of the police is certainly a fine way to help people.  So is viciously attacking a cyclist who the cops are told are evil.  Helping people is a relative concept, with a different meaning to a rookie NYPD officer than to, say, a non-cop.

This sentence sends a message.  Cops are above the law.  We already learned from the verdict that cops can viciously harm people and we will forgive them their excesses, since they have a very hard job to do and they can’t be expected to restrain their impulses to be violent.  We now learn that cops can lie to courts without consequences. 

In the old days, I would have thought that judges would be angered, maybe even infuriated, by an assault on their integrity by a lying cop.  I would have thought that judges would recognize this as a breach of the most basic principle of systemic integrity, one that destroys the faith needed if people are to see the legal system as anything other than a self-serving joke by the omnipotent government with its armed minions.  And I would be wrong.

Justice Wiley is a good judge, calm, deliberative and usually fair to the defendant at sentence.  But the message sent by this sentence is a clear one, and a bad one.  It’s not to say that Pogan needed lengthy imprisonment to protect the public or change his life.  He resigned from the police department and the publicity of this case must have been hard for him to bear.  Bummer, right?

Yet there must be a consequence when a police officer is caught, irrefutably, lying.  There must be a message that lying cops will not be tolerated.  Give him 30 days.  Give him probation.  Give him something.  The message must be that a cop cannot lie without consequences.

Instead, Patrick Pogan got life.  His own life, to live whatever way he chooses, as he’s now free to move on without consequence.  The message has been sent. 

No, not that rush.  The rush of being a drug-arrest stud, , Andrew Hawkes can make you the envy of your department, hauling in the “Mother Load!”*

Oh, baby, baby.  Just reading this stuff gets the juices flowing, Andy.  Tell me more, blue brother, tell me more.

Tip #3:   “If you really want to be successful at highway drug interdiction then turn OFF your radar.  DRUG HAULERS DON’T SPEED!”

 

 

 

Many rookie police officers often ask me:

 

Q: “Should I really turn off my radar?”

 

A:  “Yes! By looking down at your radar you are missing 

       indicators that are passing you by on the highway.”

Oh no, this guy knows all the tricks.  He can turn the lamest brown-bagger into Super Drug Interdiction Cop.  But what’s in it for me?

So what’s in it for me?

 

• Make huge drug busts like clockwork

• Stop wasting time on small time offenders

• Get recognized by your peers

• Do your part to protect our children

• Make a REAL impact in the war on drugs

• Earn the reputation as a top interdiction officer

• Get promoted up the ranks fast

• Help your department get media exposure

• Seize cash and vehicles

• Become a hard-core interdiction officer

• Feel the rush of finding the Mother Load!

Of course, another easy way to get media exposure is to shoot some mutt on the ground in the back when the cameras are on me.  Oh, you meant good exposure.  Never mind.

Just in case you thought only lawyers had to put up with the barrage of marketers trying to make a quick buck off your backs, I thought you should know that cops are now open game.  So if you’ve got anything you think you can sell to a cop who wants a quick promotion, a reputation as a top interdiction officer or just wants to feel the rush, the time looks ripe to move forward.

The good news is that drug-arrest studs won’t be wasting their time on “small time offenders,” which I believe is code for fellow cops.

* My wonderful editor, Marilou, can’t stand that I’m repeating Andrew Hawkes’ mistaken spelling of “mother lode” as “load”, and so she’s forcing me to write something so no one thinks she failed to correct it.  Don’t blame me.  It’s Hawkes’ spelling.

H/T Jeremy Richey

Nancy O’Malley, district attorney of Alameda County who prosecuted former BART cop Johanes Mehserle for the death of Oscar Grant, told reporters that the jury didn’t buy the weapons confusion defense.

She noted that the jury rejected Mehserle’s claim that he’d been reaching for his Taser, not his gun. Instead, the jury found Mehserle discharged his gun in a negligent and criminally reckless manner.

No explanation was offered as to what she meant.  Was she claiming he pulled the trigger accidentally?  Did he mean to point the Sig Sauer at himself rather than Grant?  Is she just rationalizing a verdict after the fact?   Who knows, but there’s nothing to suggest that there’s merit to her claim.

In the interim, Karl Mansoor sent over this fascinating post at Police One by retired Capt. Greg Meyer, who was the hired “use-of-force” expert on behalf of Mehserle at trial.  Meyer explains the scenario:

Mehserle loudly announced to the other officer, “Tony, get back, I’m going to tase him. I’m going to tase him.” Multiple witnesses (including at least one of Oscar Grant’s nearby handcuffed buddies) heard Mehserle’s “I’m going to tase him” announcement, and so testified.

At the time, BART did not issue TASERs and holsters individually to officers. They are rotated, shift to shift. Sometimes you get one, sometimes you don’t. When you get one, there are three different holster configurations at BART. Weak-side/weak-hand; strong-side/weak-hand crossdraw; and (the one Mehserle happened to have that particular night) strong-hand/cross-draw.

Mehserle’s (strong) right hand moved to his right side (instead of to his left-front, where his TASER was located in a cross-draw holster), and he partially gripped his handgun with his fingers. His right thumb moved back and forth in the air, in and out toward his own ribcage, inches above where the handgun holster safety was, consistent with the motion needed to undo the TASER holster safety strap if a TASER holster were there (which it was not); and totally inconsistent with undoing the Level-3 handgun holster — these motions are clearly seen on video.

For about four seconds, Mehserle unsuccessfully tugged at his handgun, then it came out.

From this description, two things are learned: First, that the Tasers used by BART officers were potentially holstered differently every shift, impairing a reflexive reaction to grab the right weapon.  Second, that Mehserle’s Taser was on the opposite side of his body from his gun.  The “Tony”, referred to in the quote, was BART cop Tony Pirone who punched Oscar Grant in the head beforehand and then “took a knee” on Grant’s head before Mehserle’s “struggle” occurred.

For those who haven’t viewed the video of the shooting lately, here’s another go at it for context.

Meyer also addresses the issue of an officer confusing his gun with a taser.  In my prior post on this, I argue that such stupidity “never” happens.  Commenters pointed to four instances where it did.  Meyer documented a total of six instances over nine years where officers claimed that they intended to use a taser but pulled their gun instead.  Note that Meyer says that there were seven instances, but the seventh is this one, which obviously can’t be included and undermines his point that weapons confusion was in fact the cause.  Clearly, Meyer simply accepts that officers’ claims with critical analysis.

While my “never” language was obviously hyperbolic, and assuming arguendo the claims documented by Meyer to be true, the incidence of “weapons confusion” occurring is ridiculously rare.  Consider that a meteorite is estimated to strike the earth every 30 seconds.  Add to that the fact that Mehserle’s taser was on the opposite side of his body from his gun, whereas every other alleged incident involved the Taser and weapon being on the same side of the body.

Meyer goes on to argue that BART officers aren’t trained to draw their Taser under high stress situations.  Whether this constitutes a high stress situation, however, is subject to dispute, given that Grant was face down on the ground, with Tony’s knee on his head, and Mehserle on his back.  That there was wiggle room for Grant’s arm may be argued to suggest that there was some theoretical basis for concern, but high stress?

But omitted from Meyer’s analysis is that officers are trained in drawing their gun in high stress situations.  Drawing a Taser under stressful conditions appears to be false distinction, as the training for one applies to the other, and the training for drawing his weapon should have been more than sufficient for Mehserle to have been cognizant of what he was doing.  The same rapid, under pressure, decision making that applies to his gun should have been sufficient to guide his use of a Taser, even if this is deemed a high stress situation. 

Moreover, Meyer makes no mention of the feel of the grip of his Sig Sauer as opposed to a Taser.  Remember that Mehserle struggled to get his gun out of the holster?  The same four second claimed in the struggle were the four seconds during which he should have realized that his hand was on the grip of a gun rather than a taser.

While Capt. Meyer’s “expert” arguments are well-crafted for the cause of exculpating Mehserle from the murder charge, they fall short of a well-founded argument that this was the one in ten million incidence of weapons confusion.  Clearly, it’s absurd to argue, as some commenters did, that this happens all the time.  I was wrong, however, to argue that it never happens.  Never say never.

It’s hard to imagine that Mehserle made the intentional decision to execute Oscar Grant in front of so many witnesses, though this imputes a certain degree of forethought to him, as well as an absence of arrogance that experience has shown too often comes with the shield.  However, the best I can make of this is that Mehserle was so utterly incompetent, so pathologically stupid, that it was fundamentally reckless to give him a weapon under any circumstances, and it was reckless of him to strap on a gun if he couldn’t tell that his fingers were around its grip.  As his fingers wrapped themselves around the grip of the gun, struggled to pull it out of its holster, lifted and aimed it at Oscar Grant, then pulled the trigger, Mehserle’s conduct demonstrated a conscious disregard for human life. 

Nothing in Meyer’s explanation serves to reduce this to a mere accident.

Via Turley, a Toronto police officer demonstrates how a deprived childhood impairs one’s adult sensibilities when it comes to threat perception.

Is that a camo scarf she’s wearing? Just asking. 

Jeanne Mundango Manunga was a woman scorned.  That should have been the first clue, but apparently no one bothered to give it much thought.  Instead, the police focused on her complaint.

Deputy District Attorney Mena Guirguis said that after Manunga and her former boyfriend stopped dating in 2008, she took out a pre-paid cell phone in his sister-in-law’s name, and started sending the threatening text messages to her regular cell phone.

Manunga then went to three different police departments on at least 19 occasions and claimed that the ex-boyfriend and the sister-in-law were behind the threats.

Manunga apparently sent hundreds of threatening and harassing text messages.  To herself.  And it worked.

They were arrested on false charges of making criminal threats and required to post thousands of dollars in bail. The sister-in-law was arrested three times, and spent some time in custody before she could gather enough funds to pay the bail on her third arrest.

Consider the scenario.  The ex-boyfriend and sister-in-law, obviously aware that they weren’t sending text messages, complain that they are being falsely accused.  The whole courtroom erupts into laughter as the judge sets bail.  What could possibly go wrong here?

Her scheme was uncovered when the victims went to the phone store, talked with the salesman and learned that Manunga had bought the pre-paid phone under the sister-in-law’s name, Guirguis said.

They reported that information to a Costa Mesa police detective, but by then a third arrest warrant had been issued for the sister-in-law.

During a follow-up investigation, the detective discovered that most of the threatening text messages were sent when the pre-paid cell phone was in close proximity to Manunga’s home or work, Guirguis said.

Notice that it was left to the defendants to investigate?  That’s because the police already had their perps in custody.  They were high-fiving, munching stale donuts and praising each other’s brilliant detective work.  Woo hoo, nailed them text message harassers.  Time to hand out the medals.  Even after the defendants’ investigation panned out, they were taken in on the open warrant, forced to await the “follow-up investigation.”  Of course, there can’t be a follow-up until there’s an initial investigation.  Details. 

The only problem, apparently, is that their victim was the criminal.  That doesn’t mean they won’t get medals, fortunately.

Not everybody is Mel Gibson.  Not every woman who claims to be the victim of threats and harassment is telling the truth.  Not every male is a manipulative nutjob.  After years of neglecting domestic violence, the pendulum has swung too far the other way.  Yes, it happens.  No, not always.  And no, the woman isn’t always right.

The most painful part of this story is how a scheme by a woman scorned was subject to no scrutiny whatsoever, and resulted in a man and woman being detained to sate the “victim’s” need for vengeance.  Crazy stuff happens.  It wouldn’t kill anybody in the system to do that little bit of legwork that would reveal the purported victim to be the criminal. 

It really can’t be this easy for someone to hatch a scheme and use the machinery of the legal system to her own advantage. 

H/TJustin Wilder

A while back, I begged blawgers to stand for something.  As blawging devolved into the amorphous “social media,” words were murdered with no greater purpose than to fill blank space.  Posts were pointless, lazy, meaningless, thoughtless.  Most of all, they were safe.  Bloggers who wrote to jump aboard the social media bandwagon wrote, well, meaningless garbage.

Jason Falls, who isn’t a lawyer but rather a social media type, posts that bloggers need to get out of their comfort zone.  His observations apply to anyone who wants to play in the social media sandbox.

The social media world is very much a bubble. And too much of one in my opinion. Consultants, practitioners, bloggers and enthusiastic agency types sit around in a big circle jerk telling each other how much they love each other’s blogs and hash-tagging the crap out of useless drivel on Twitter all day.

For every one practitioner who actually offers up useful insight that shows they live in reality, not righteousness, there are 25 more who expose their inexperience like a streaker in church. I feel bad for them, though I don’t condemn them. Good ideas have been known to come from people not wearing pants.

Oddly, Falls doesn’t really like lawyers much, as we tend to shine a little too much light on the emptiness of social media.  Falls, like self-proclaimed social media rock star and vapid twinkie, Tamar Weinberg, got all hot and bothered when we didn’t bow and scrape to their guru-dom sufficiently.  But that doesn’t mean that Falls doesn’t know his social media.

While Falls goes on to implore other social media gurus to break free of the “circle jerk” by telling people to get out there and use Facebook (hey, they are social media types, you know), his point is well-taken.  The blawgosphere generates its own circle jerk, pointless posts applauded by the Hallelujah Choir.  The posts say nothing and the applause for this crap is embarrassing.  You’re not fooling anyone.  You can do better.  And if you can’t, then what are you doing here?

Don’t tell me the excuses, that you’re afraid of alienating potential clients or saying something controversial that might attract negative attention.  Nobody wants a milquetoast criminal defense lawyer, and you can avoid the potential of negative attention by just a little bit of thought before posting something stupid. If you’re writing useless drivel, then no amount of love from your pals is going to make it meaningful.  For every person applauding, there are ten thinking, “what an idiot.”  Is that what you’re trying to achieve?

And what if you write a post that actually takes a stand, demonstrates some hard thought and means something, and others don’t like it?  For crying out loud, take a chance.  Posting crap because it’s safe is still posting crap.  Posting crap because you have nothing to say and just want to post is still posting crap.  Stop posting crap.   Or maybe you are clueless, and have no business posting online as if you’ve got something meaningful to say. Afraid to find out?

I’m no social media guru, but I’ve got a little experience doing this under my belt.  If you don’t have the balls to write something meaningful, then you’re just a teletubby on the internet.  Break out of your comfort zone and be a lawyer.  Show some moxie. Care about something enough to take a chance.

I get the distinct impression that Patterico doesn’t care much for Radley Balko.  I also get the distinct impression that he couldn’t care less about me.  Why?  Why is Balko worthy of hatred and vitriol, but me, I’m the dirt under his Patterico boots.  I feel so, so, used.

Patterico is busy trying to beat up on Radley. In the process, he pulls a quote from me that Radley used in one of his posts.

Re-reading the opinion yesterday, I noticed another problem with Balko’s post. He approvingly quotes criminal defense attorney Scott Greenfield as follows:

…in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth. They don’t care. They just don’t care.

Balko and Greenfield claim that courts will reject an appeal if it misses the statute of limitations, “even if the cause is concealment by the government” of evidence of innocence. Not so. As the Ninth Circuit decision itself explains, government concealment of evidence is a statutory exception to the statute of limitations:

So written, the statute establishes three “very specific exceptions” to the primary date for the running of the limitations period, that is, the date on which direct review becomes final. David v. Hall, 318 F.3d 343, 346 (1st Cir. 2003); Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (similarly contrasting the date on which direct review becomes final and the other “three circumstances”). Those exceptions involve state-created impediments, new constitutional rights, and diligent discovery of new facts. 28 U.S.C. § 2244(d)(1)(B ) -(D).

I’d say government concealment of exculpatory evidence would count as a state-created impediment.

Not even a link. Nothing.  Damn you, Patterico.  No love at all.  The problem, for me at least, is that he’s going after Balko for something I wrote.  How humiliating.  Am I not worthy of scorn?

But Patterico’s less then enthusiastic love of Radley has colored his reading.  I wrote that even where the statute runs due to, inter alia, concealment of evidence by the government, the defendant is screwed.  Patterico replies that the 9th Circuit decision in Lee v. Lampert “itself explains, government concealment of evidence is a statutory exception to the statute of limitations.”

Well, no.  Patterico, were he to knock off Alex Kozinski, might hold that, but the statutory exception which he first claims, but later extrapolates, to match his definition, is that which excepts “state impediments.”  While Patterico might believe that all government concealment should fall under that exception, Kozinski remains alive and well.  That’s problem number 1.  By the way, I’m all for Patterico’s definition.  If only he could convince the federal judiciary to join him in a rousing chorus of Kumbaya.  Alas, what’s obvious to Patterico remains elusive to judges, and therefore, defendants.

Second, there are a wide variety of government concealment issues, ranging from Brady non-disclosure to perjury to junk science and the like, that are best described as “soft issues,” in that they are interpretive.  State impediment issues generally refer to legislative, regulatory and administrative matters that prevent a defendant from getting to the church on time. 

Because I’m a criminal defense lawyer, I view the prosecution’s failure to turn over Brady material as government concealment.  A prosecutor would likely see it as an interpretive issue, whether it is Brady and whether it’s sufficiently material to require the turnover.  Some would say reasonable minds may differ. I don’t, but then it might be because Brady is the best joke Wild Bill Douglas ever came up with.  Now it’s possible that Patterico will agree with me wholeheartedly, that Brady should be disclosed, that the failure to do so is government concealment and that it should be part of the state impediment exception.  Are you with me, Brother Patterico?  Are you?

Unfortunately, I just don’t get to make this stuff up in the meantime, much as I would love to.  I’m no political pundit writing under a pseudonym trying to nail my political nemisis to the wall.  Heck, I’m just a trench lawyer who watches concealment of evidence, perjury and junk science used all the time to convicted the guilty and innocent alike.  I know it’s embraced by the courts, because it makes cases go smooooooth.  I know that it will never fall within the state impediment exception because, unless and until it’s conclusively revealed and put to good use, it doesn’t give the appearance of being much of an impediment at all.  If a court hasn’t held that concealed evidence was in fact concealed, then the argument wouldn’t even be addressed, no less upheld. 

It’s just another day in the trenches. 

So Brother Patterico, don’t blame Radley Balko for quoting me.  He just thought my trench lawyer notions were sufficiently credible to repeat (with a nice link, I might add).  Fellow criminal defense lawyers will likely understand exactly what I’m writing about, and agree without reservation.  You don’t.  You can’t see me right now, but I’m making a sad face. 

And I agree with you, Brother Patterico, that all government concealment should fall within the state impediment exception.  If only that were the case.  Until then, let me be worthy of your scorn and a couple thousand of your words.  After all, those were my words you went after.

Imagine living in a place where little, maybe nothing, more than being there is deemed sufficient cause for police to “stop, question, frisk.”  Some horribly repressive third world country?  Try the Brownsville section of Brooklyn.

From the New York Times :

When night falls, police officers blanket some eight odd blocks of Brownsville, Brooklyn. Squad cars with flashing lights cruise along the main avenues: Livonia to Powell to Sutter to Rockaway. And again.

On the inner streets, dozens of officers, many fresh out of the police academy, walk in pairs or linger on corners. Others, deeper within the urban grid, navigate a maze of public housing complexes, patrolling the stairwells and hallways.

This small army of officers, night after night, spends much of its energy pursuing the controversial Police Department tactic known as “Stop, Question, Frisk,” and it does so at a rate unmatched anywhere else in the city.

Since 2006, cops have made 52,000 stops in this eight block area, where about 14,000 people reside.  The putative purpose is to take guns off the street.  Thus far, they’ve come up with 25 guns.

The police use the typical claims for rounding up the usual suspects.  The pettiest of petty offenses.  The threat of a person entering a project because he doesn’t have a key. Or the perpetual favorite of cops.

Far more — nearly 26,000 times — the police listed either “furtive movement,” a catch-all category that critics say can mean anything, or “other” as the only reason for the stop. Many of the stops, the data show, were driven by the police’s ability to enforce seemingly minor violations of rules governing who can come and go in the city’s public housing.

That this is happening in America, in New York, in Brooklyn, is utterly amazing and outrageous.  The people who live in Brownsville (would you be shocked to learn that most are people of color?) suffer the indignity of being stopped and challenged at will.  In one instance, 20 officers surrounded a man who refused to let the police smell the contents of his orange juice container. 

It’s not that crime isn’t a problem, or that residents don’t appreciate having the police around.  It’s that there is no limit to what the police can do, and to whom they can do it.  This is tantamount to an eight block area where the Constitution is suspended, a war zone where anyone is fair game for a stop and frisk at will.  That “furtive gesture,” the most meaningless and abused excuse in the police lexicon, was used to justify almost half the stops renders the notion that anyone is free to be left alone a joke.

Despite the high crime rate, there is nothing to show that the stop and frisk tactics serve to reduce crime.  Indeed, it may well exacerbate the alienation of residents.

Law enforcement experts say that it is very hard, perhaps even impossible, to draw direct connections between the stop-and-frisk tactic and significant long-term crime reduction.

Certainly, some say that the New York Police Department has so far failed to convincingly link the explosion in the numbers of stops with crime suppression.

And some, from academics to the residents of these streets in Brooklyn, believe the stops could have a corrosive effect, alienating young and old alike in a community that has long had a tenuous relationship with the police.

Then again, so what if the football players at Thomas Jefferson High School are told to walk home wearing their helmets to give them a fighting chance against getting stopped by the cops for being black.  As long as this is happening in Brownsville, and not where we live, what’s the big deal?

Say, was that a furtive gesture?