After the panel shuffled into the courtroom and took their seats, Judge Danny Fitzgerald called us to the bench and asked whether we had any problem with his excusing the potential juror sitting in the front row.  I turned around and saw.  There was Gerry Shargel, giving the “hi” sign from the Little Rascals.

The judge took for granted that there were no possibility that Gerry could serve, even though then-Chief Judge Kaye had eliminated the exemption for attorneys on juries in her effort to make jury service more palatable to the public.  I immediately argued that there was no reason to presume that Gerry wasn’t capable of serving on the jury.  The prosecutor said nothing.  The judge responded, we’re wasting his time since there’s no way that she (the prosecutor) would allow him on the jury.

“So let her eat a peremptory,” I reply.  “Come on,” the judge said. “Granted for cause.”  He called Gerry to the bench, we all chit-chatted for a minute and he was gone.  Poof.

Via Dr. Sunwolf, long-time criminal defense lawyer Tony Tamburello was chosen to sit as a juror in a murder trial.  Via the San Francisco Gate :

Tamburello, despite his history as an advocate, told everyone he could be fair.

“It’s unusual to see in a murder trial,” said deputy public defender Chris Gauger, who handles complex litigation and appeals for the office.

Prosecutor Asit Panwala did not object to Tamburello’s service, nor did defense attorney Kleigh Hathaway or Judge Garrett Wong. District attorney’s spokeswoman Erica Derryck said she would not comment about the decision to leave Tamburello on the panel, other than to note that all the seated jurors had said they could be fair and impartial.

An interesting choice, but probably a good one in many respects.  As noted here before, criminal defense lawyers are not proponents of crime.  We don’t think crime is good, or acceptable, or tolerable.  We defend people accused of crime.  A nuanced distinction, but a very real one. 

Questions that arise from this choice suggest that Tamburello will be inherently biased in favor of the defense.  Nonsense.  What he will be is not inherently biased in favor of the prosecution, not naturally inclined to have blind faith in the police.  If he’s to reach a verdict of guilty, it will be because the defendant has been proven guilty.  And if proven guilty, there’s no reason to believe that he won’t render that verdict.

On the other side, it’s suggested that Tamburello, as a criminal defense lawyer, will be able to “see through the tricks” that defense lawyers play on jurors.  Initially, the word “tricks” is just the pejorative term for challenging the veracity of witnesses, theory of prosecution and weight of the evidence.  There’s little doubt he will see through cheap tricks, but that cuts both ways.  He will not be swayed by appeals to prejudice, by assumptive argument, or by empty rhetoric.  Neither side will gain an advantage.

If there is any legitimate concern with having a criminal defense lawyer on a jury, it’s that he may well be viewed by others on the jury as an “expert”, capable of answering questions of law that would otherwise be put to the judge and whose opinion is given greater weight than that of other jurors.  His speaking skills, couple with his familiarity with the jargon of the law, may enable to him to be a more persuasive juror than others, capable of explaining his opinion better than other jurors who are unable to find the words to express their doubt or belief in the evidence. 

The fear is that a lawyer on a jury may, for no better reason than deference by other jurors, be given control of the verdict.  That means that it’s a jury of one with eleven helpers.  It could inure to the benefit of the prosecution or defense, since it can’t be assumed that he will necessarily side with the defense. 

Then again, it’s been my experience that most jurors take their service very seriously, and once in deliberations, are unwilling to give up their vote easily.  They believe that they have a personal duty and the execute that duty with sincerity, if not always intelligence. 

Would I leave a criminal defense lawyer on my jury.  Without hesitation.  My personal preference is to have a jury consisting of smart, thoughtful, questioning jurors.  I believe they understand what happens during the course of the trial better, they are better capable of processing the information that comes to them unexpectedly and without sufficient context, and they can understand arguments of a more complex, and less concrete, nature. 

I fear stupid people.  I never know what they’re thinking, how they’ve processed the information that appears meaningless at the time it’s shoved in their face, It’s impossible to know whether they comprehend an argument or are just bobbing their heads to keep them from falling against the rail.  Some criminal defense lawyers find it easy to communicate their points to stupid people.  I’ve never been comfortable with it.

So, Tony Tamburello is on my jury?  The panel is acceptable to the defense as well, your Honor.

I’m just shamelessly stealing this outright from Radley Balko . I can’t help myself.

The majority decision in Richards v. Florida would have passed unnoticed, despite its being a flagrant example of an outcome-oriented ruling that flies in the face of reason, standard practice and that annoying detail of evidentiary gatekeeping.  So what?  It’s not like it doesn’t happen all the time, right?

The facts are simple.  Richards was caught with a change purse containing 7 packages.  One package was tested and found to contain 3 grams of coke.  The other six packages, which look like the first, weren’t tested.  Richards was convicted of possession with intent to sell because only dealers have seven packages of cocaine.  After the guilty verdict, Richards moved for acquittal arguing that it was legally insufficient to assume that the contents of the other six packages were coke. 

The majority gave Richards a new title: Loser.  It was close enough, they said, that a “seasoned” copper said they looked the same, and that’s how dealers hold their coke, in change purses.  Why they didn’t just reverse and remand, with an aside that the chemist merely test the other six bags, is beyond me.  Easy enough to do.  What should have been done in the first place.  No brainer.

Nope.  Horseshoes played out in court.  Close enough for the win.

But dissenting Judge Farmer obviously studied logic, and wasn’t having any of it.

The State’s “expert opinion” may seem enticing to those energized by the ethos, empathies and emanations of the War on Drugs. But even based on long experience in arresting drug offenders, it is really a superficial ipse dixit glibly but speciously offered as a mythical expertise in distinguishing the interior chemistry of one powdery substance from another by plain surface sight.

No conceivable police experience supports an ability to infer that, because one container looks like another, the substance within each must be the same identical chemical compound. This fancied skill is really a universally recognized logical fallacy all dressed up for trial in a charade of specialized knowledge.[6] As opinion testimony, it is a conjured science straining to salvage a failed logic.

[6] Calling it “junk science” seriously debases the value of good junk.

Logical.  Funny.  Dare I assume also good looking?  Definitely in my eyes.

Judge Farmer goes on to present the equation:

Universally accepted principles of standard Logic hold it possible to validly infer that an attribute of a collective will be found within one of its particulars; thus:

All S is C.
X is S.
Therefore X is C.

But one cannot validly infer that — as the State would have us do here — because an attribute is found in a particular it is necessarily also contained within a collective; thus:

Some S is C.
X is S.
Therefore X is C.

The evidence of sale is 7 different, separately packaged, collectives — not one. The State’s attempt to extrapolate the test result for a single bag to all bags falls apart because it is rooted in this long accepted fallacy of composition symbolically illustrated above. See, e.g., Irving M. Copi, INTRODUCTION TO LOGIC (3rd ed.) 80-83 (1968). The inference is not rationally possible.

Don’t you just love it when logic is applied to law?  And isn’t it a shame that all judges aren’t required to take logic before taking the bench?  Just imagine the gymnastics judges would have to go through to affirm convictions if they were constrained to render decisions that were consistent with logic?

H/T Tannebaum

Quinnipiac University has managed to embroil itself in a bizarrely twisted lawsuit that’s likely to make feminists run in circles.  QU decided to get rid of its women’s volleyball team, arguing that cheerleading is a competitive sport for purposes of Title IX.  The plaintiff volleyballers rested their case yesterday, arguing that cheerleading is as much a sport as chess.

Chess players are pissed.  Winks players are also pissed, realizing that they’re next on the hit list.

Whether cheerleading is a sport is really not the point.  Having watched competitive cheerleading on television and in the movies, it seems to me that they do some extraordinarily athletic moves and, when competing, fight for the win as much as any other team.  It’s not just the sideline “U-G-L-Y” cheer.  But the denigration of cheerleading in the suit is required, since it would allow QU to sideline what is unquestionably a sport, women’s volleyball, and still make their Title IX numbers.  I’m putting aside, for the purpose of this post, collateral issues about whether QU otherwise fudged the stats.

Title IX, now 38 years old, compels colleges receiving federal funds to provide equivalent athletic opportunity for women as it does for men.  On its face, it’s both fair and right.  As if plays out, it’s a problem.

As with Title VII, prohibiting certain employment discrimination, Title IX has been tested via disparate treatment and impact analysis, the numbers game.  The way to avoid scrutiny is to keep the number of women involved in sports the same as the number of men.  As a result, colleges have eliminated many sports for men while offering them for women.  The law of unintended consequences cannot be denied.  Avoiding disparate impact begets disparate impact.

The reasons for this problem are fairly simple and straightforward.  First, teams cost money.  They don’t give those uniforms, cleats and pompoms away for free, you know.  Schools, therefore, maintain the sports that bring in money, like football and basketball, both via ticket sales and alumni support.  Not exactly in the spirit of amateur athletics, but abundantly practical.

These big money teams, however, have a lot of guys on the roster.  For the school to maintain them, they need to have the same number of women (nobody calls them coeds anymore, do they?) playing sports.  Not necessarily the same sport, but any sport.  The numbers are all in the aggregate. 

It’s not always that easy, however, to keep an equal number of women on teams.  Inexplicably, there aren’t always as many women as men who choose to play college sports.  Some are very zealous in their interest and desire, not to mention skill.  Others, not so much.  It’s more of a guy thing.

This is a recipe for Title IX disaster.  Colleges actively recruit women for sports, even the sports that don’t generate big bucks, while turning the boys away.  In a sport of particular interest to me, fencing, there are a wealth of women’s NCAA fencing teams, but only a handful of men’s.  There’s plenty of scholarship money for women fencers.  A grand total of three male fencers per year get free dinner coupons at the Olive Garden to fence.  Hence, “will fence for food.” Title IX equivalency is a one way street.

The combination of these two factors, cost and availability of sufficient female athletes, has produced some problematic results.  Men’s sports that don’t generate money are tossed, no matter whether there’s a great deal of interest or little, no matter that they are traditional amateur sports (as would typically be the case for non-money sports) that one would expect to see colleges fostering.

It’s not like anyone can force women to play if they don’t want to.  And they shouldn’t have to.  But then, nobody gets to play, even if there is money.

QU is trying to circumvent the system, by eliminating a low numbers, non-money women’s sport and replacing it with cheerleading, where there is greater interest and a better fit with the big money male sports.  It’s a nasty game to trade off women’s volleyball for cheerleading,   It puts the volleyball plaintiffs in the awkward position of having to denigrate competitive cheerleading to save their own sport.  It’s unfortunate that they are in this position, and no doubt there will be many other women who will decry their argument that cheerleading is not a sport.

Don’t blame the volleyballers.  Don’t blame the cheerleaders.  Blame Title IX, a nice idea that goes too far and defies reality.  As this case shows, it hasn’t served well for anyone, male or female.

The original story of Eric Wright, a hospital medic trying to get his stroking wife to the hospital quickly enough to save her life, was a nightmare.  Aline Wright, a cancer survivor and amputee, was stroking and her husband knew that survival depended on medical treatment as quickly as possible.  He did what he had to do to get her there, including running red lights.

Chattanooga cop James Daves saw this and did what he had to do.  And more.  From ABC News :

According to Daves’ written affidavit obtained by ABC News : The “defendant stopped [his car] in the ER entrance and jumped out and ran. Police made contact with Defendant at the passenger side of his vehicle and I grabbed the Defendant’s arm and he pushed me away scraping my arm with his fingernail. Defendant yelled and said it was an emergency…”

“Defendant pushed through the crowd and carried a female back into the emergency room and place[d] her in a room with no permission of the hospital staff,” the officer wrote.

Eric Wright has denied Daves’ statements.

“I never had any [physical] contact with the officer at all,” he said. And Wright said he did not enter a hospital room without permission. “In fact, I called the emergency room to alert them and let them know we would be arriving,” he said.

Ah, the old fingernail scrape.  Not quite a paper cut, but maybe it hurt like a machete?

The story takes some additional nightmarish twists and turns, from Wright trying to turn himself in as demanded by Daves and refused, only to have the cops arrest him at home the next day.  Then there was the $7,500 bond, since he was such an obvious flight risk.  He naturally was suspended from his job at the very same hospital because of his felony arrest.  All as his wife remained in her hospital bed, the two having been married only four days earlier.

Some asked whatever happened to the days when police cared more about someone’s wife and less about asserting their petty authority?  It’s not common sense, but priorities.  Saving a life trumps the fragile ego of a cop.  Then there was the question about the cop’s lying in his report to exaggerate the facts and manufacture a crime.  The fingernail machete.  Why did the judge buy into it?  Not merely buy into it, but enough so to impose bail?

But Turley followed up with this bit of news, that Police Officer Daves has been suspended with pay for an internal affairs investigation. 

“At this time Officer Daves has been put on paid administrative leave. He has been rellieved of all of his police duties until the completion of the internal affairs investigation,” Chattanooga Police spokeswoman Lt. Kim Noorbergen told ABC News.

Suspended with pay is a soothing way of saying on vacation.  It calms the public outrage by suggesting that the police aren’t totally insane.  The charges against Eric Wright have now been dropped, and spokesmodel Noorbergen feels just awful about the whole thing.

“We deeply regret this incident has occurred and hope to meet with Mr. and Mrs. Wright at their earliest convenience to discuss the events of June 16,” Noorbergen said, adding that an internal affairs investigation would continue and that the police department would also review policy and procedures to determine whether any changes should be made.

Need a new policy?  How about saving a life comes first?  How about not lying in charging documents?  How about fingernails aren’t machetes? 

But what, pray tell, are they investigating?  The Chattanooga police know what happened, as does anyone interested enough to follow the story. 

Every time an incident such as this occurs, the official position is to call a press conference and announce that they are investigating.  Its purpose as a crisis management tool is obvious, it delays interest until the rest of us have moved on to the next instance of outrageous police misconduct.  If they’re lucky, someone will die at the hands of a cop in another jurisdiction and this whole sorry affair will be forgotten.  Thank the Lord for short attention spans.  Thank the Lord that there’s always another cop doing something horrible somewhere else to suck the attention away.

And then everything returns to normal.  Daves goes back to his desk with a stern talk from his commander not to make them look bad again.  That’s the gist of the problem, drawing negative public attention.  Don’t make us look bad, you dope.  The only time the public is supposed to know we exist is when we’re heroes. 

The sad reality is that this crisis management technique works exceptionally well.  Aside from David Packman at Injustice Everywhere, the guy who actually does the boring heavy lifting of chronicling police abuse and misconduct, the rest of us (me included) move on quickly to the next nightmare.  The last one becomes merely an old post, as attention shifts to the newest, shiniest incident of police induced horror.

And we wonder why nothing seems to change?  Maybe it’s because they’re still investigating while Police Officer James Daves enjoys his vacation.  He might as well, as it won’t be too long before he’s back to the daily grind.

And we don’t even look similar.  From Davit Lat at Above the Law, reporting from the American Constitution Society, comes the revelation that Judge Richard Posner, noted intellectual and judge on the 7th Circuit Court of Appeals, doesn’t read boilerplate contracts.

Judge Richard Posner made one remark that stole the show at a panel about regulation at the recent American Constitution Society conference. We summarized his quip on Twitter :

Judge Posner at ACS panel: For my home equity loan, I got 100s of pages of documentation; I didn’t read, I just signed. #ACS10 #Posner #LOL

I bet he doesn’t use #LOL much either.  Neither do I!  Another similarity.  Coincidence?  I don’t think so.

A long time ago, I read through the contract for the alarm service for my home.  Every word of it.  It was painful, but inexplicably, I did it.  It was just a nightmare.  I started crossing off, marking up, changing and correcting it, line by line, to reflect the representations that were made to me by the alarm guy.  A couple of weeks after I sent it back to him, I received a certified letter informing me that they were terminating my alarm services.

I called up the alarm guy and asked why.  He told me it was because I had changed the contract.  But I didn’t change the deal, I explained.  The contract he sent me wasn’t the deal he sold me.  I just modified the boilerplate to reflect what he promised.  This is one of the reasons people hate lawyers.

The alarm guy calmly explained to me that he would do everything that he promised.  His word was his bond.  But I could either execute the contract as written or find another alarm company.  I decided to sign on the undotted line, and he’s kept his word for more than a decade since. 

Contracts are for lawsuit.  Contracts are what you refer to when arguing a cause to a judge or jury.  Handshakes and a look in the eye are all that honest people need to do business.  Contracts are prepared by lawyers.  Most are contracts of adhesion, where your choice is to sign or walk.  Walking isn’t always a real option.

We are besieged with boilerplate.  Buy a spatula and read the warning and warranty.  You would think it’s the space shuttle.  Who can be bothered with such nonsense?  We’re fully capable of picking out the handful of critical things contained in the contract, price, quantity, delivery, whatever, and the rest of it just falls to the wayside.  Life is too short to spend it on boilerplate.

Does this expose us to the castigation of judges and 3Ls?  Unfortunately, it does.  It never ceases to amaze me when a judge reams someone out for having failed to read the mandatory arbitration clause in his spatula purchase agreement.  You know, the clause that requires that Indonesian rules of procedure apply?  Heck, how many judges haven’t figured out that when the boilerplate is inside the shrinkwrap, you can’t read it until after the purchase is complete, and it thus can’t bind anyone to anything.  Of course, these aren’t circuit judges like brother Posner, so maybe they just aren’t that savvy with contracts.

Chances are pretty good that my failure (and Judge Posner’s) will some day come back to bite me in the butt.  I’ll take issue with something that was promised me, like the good I purchased will actually work for its intended use, and the judge will graciously inquire whether I bothered to read the clause that its intended use was to sell to some moron and make money for its manufacturer, as opposed to flipping my eggs over easy.  I’ll stand there, red-faced, and admit that I didn’t bother to read it.

The judge, now knowing that I have no clue what I bought into, will raise the Immortal Soul Clause.  Then it will be my turn to laugh.  Hah!  I don’t have one, so there!

Some criminal defense blawgers have been disturbed about what’s been happening in our little niche of the practical blawgosphere.  Mark Bennett gives it a name, the Happysphere.

If you are a blogging lawyer, and you want to be read by other bloggers, know that being read by other bloggers includes being taken to task publicly when you write something dumb or silly or ill-considered or even just vapid.

If you don’t want to be read by other bloggers, if you are blogging for profit or to build up your practice, please let me know now.

Simply put, but clear.  For a while now, new bloggers cry for the attention of those already here.  They want attention and recognition, but they only want it when it’s flattering and wonderful.  Sometimes it isn’t.  Then they cry, or worse.  Write something that’s anything short of adoration and they go bonkers.

You’ve come to the wrong place.  I’m not your Daddy.  I’m not here to support your marketing effort or overlook some insipid position, offered for self-aggrandizement at the expense of accuracy.  There’s some truly awful stuff written.  There’s some stuff that’s just wrong.  You come begging for attention, and then explode when it doesn’t coordinate with your self-promotional efforts?  Who the hell promised you that the blawgosphere was here to help you get business?

Here’s the bad news.  Not every post is a work of genius.  Not mine.  Not yours.  The blawgosphere, that place that you so desperately want to be a part of, was here before you came along, and it’s a challenging place.  You want the respect of your peers?  Earn it, just like everyone else.  You’re not entitled to a free ride just because you’re a criminal defense lawyer. 

There have been some rumblings by the disaffected that I’m the neighborhood bully because I think I’m so very important in the blawgosphere.  What a load of crap.  I’m a blawger, just like any other. I possess no magic powers to make anyone, anyone, read my posts.  I possess no magic powers to stop anyone from reading yours.  I make no claim to being any more important than anyone else, and indeed, I’m not.  Don’t project your insecurity, your obsession, onto me. 

I’m not responsible for your lack of readers or credibility.  You want more readers?  So write stuff that people want to read.  I’m no more a bully toward you than you are toward me.  If you think I’m wrong, then say so.  I won’t stop you, even if I could.  And if you do and I don’t make your post the center of my world, don’t whine that I’m ignoring you.  Sorry if I just don’t care, or want to spend my time sparring with every nutjob in the blawgosphere who decides to come after me with a 5000 word diatribe.  No one can diminish you except you. Don’t blame me for your insecurities.

You want only respect, appreciation and support?  Then go to the Happysphere.  You will be allowed to say mean things to the typical suspects, the police, prosecutors and Supreme Court justices, as they are the politically correct targets of criminal defense wrath.  But no one will tell you that you’re ugly, dress funny or (dare I say it?) wrong.  In the Happysphere, there is only the warm embrace of others who, like you, want to be loved. 

Simple Justice is not part of the Happysphere.  If you aren’t interested in being part of the blawgsphere, the one that Bennett describes, the one that was here before you showed up demanding attention and recognition, then let me know too so I don’t waste my time with you.  And then stay away, as I can’t promise you that what I write will fill that huge need you have for self-esteem.  I’ve already removed some who I’ve come to realize are not legitimate bloggers, but self-promoting shills.  You want off my blogroll?  I’m happy to oblige.  Just leave me a comment and consider it done.

If this makes you hate me, think I’m a monster, so what?  I am not your Daddy.  You don’t need my approval.  I am not here to coddle anyone.  And I’ve got no greater claim on prominence in the blawgosphere than you do. 

Just over a week ago, the Supreme Court’s decision in Holland v. Florida eked out a stingy ruling to allow equitable tolling to apply when a defendant, not due to any fault of his own, failed to meet the time limitations that Congress superimposed on the Great Writ of Habeas Corpus when the rest of us weren’t looking, our eyes preoccupied with the sight of the ruins of the Alfred P. Murrah Federal Courthouse.

In contrast, the 11th Circuit decision in Gilbert v. U.S. shows what a court can do if it respects the robust constitutionally protected right of habeas corpus.  The procedural background is quite extraordinary.  Ezell Gilbert was sentenced as a career criminal, despite his arguing that a prior weapons conviction wasn’t a “crime of violence.”  He appealed and lost.  He moved for rehearing and was denied. He petitioned for cert and was denied.  He brought a pro se 2255 (the federal habeas statute) and was denied, with both district and circuit courts refusing a certificate of appealability.  This is as end-of-the-road as it gets.

Then, the Supremes decide Begay v. United States, 128 S. Ct. 1581 (2008), holding that violent felony means actually violent, and not just theoretically violent, for career criminal status.  The 11th Circuit then rules that weapons possession doesn’t make for a career criminal, and in its decision actually reverses the holding in the decision on Gilbert’s appeal.  Everybody’s happy, except Gilbert, who is still imprisoned even though he would have completed his sentence but for the career criminal enhancement.  Talk about a set-up. 

From the new decision, via Doug Berman : 

The government’s position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government’s statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law.  The common law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is “in custody in violation of the Constitution or laws or treaties of the United States.”  See 28 U.S. C. § 2241. Fiat Justitia, Ruat Coelum.[FN7]

[FN7] “Let right be done, though the heavens should fall.” Branch. Princ. 161.

The court just did the right thing despite the fact that the machinations that Congress imposed on the Great Writ make it wrong.  This is an activist court.  This is a court that just told the “rules committee” to go screw itself.  The bean counters and hand-wringers were given the kiss off.

The 11th Circuit decided that this was just too unjust for it to stomach, and it didn’t.  God bless America.  At least this time.

The two most likely offenses to drive Avvo readers to call or write me are drunk driving and shoplifting.  As neither is the sort of case that has ever interested me, my familiarity with the frequency and  mindset of those charged is limited.  Since I now hear about them all the time, it seems to me as if it’s an epidemic.

And it may well be, given this article in the New York Times describing how shopkeepers are changing the way they deal with shoplifting.

First, suspected shoplifters caught by the store’s security guards or staff members have their identification seized. Then, they are photographed holding up the items they are accused of trying to steal. Finally, workers at the store threaten to display the photographs to embarrass them, and to call the police — unless the accused thieves hand over money.

“We usually fine them $400,” said Tem Shieh, 60, the manager, who keeps track of customers on 30 video monitors in the store’s surveillance system. “If they don’t have the money, then we usually hold their identification and give them a chance to go get it.”

This “method” of dealing with shoplifter is another Chinese import, from the land that brought us Maoist re-education camps.  There is absolutely no aspect of this that isn’t outrageous, from the store’s untrained “security guards,” fresh off duty at Dairy Queen, deciding that they’ve nabbed the perp, to what amounts to a private kidnapping, defamation, wholessale absence of due process, and ultimately reached extortion.  They fine them?  Who is a store to fine anyone?

New York State law allows “shopkeepers’ privileges” that fall somewhere between the prerogatives of the police and a citizen’s arrest. The law also details “civil recovery statutes,” by which retailers may use the threat of a civil lawsuit to recover substantial settlements for even minor thievery. But threatening to report that someone has committed a crime can be considered a form of extortion.

You bet.  How many stories can I take about a mother with a couple of kids running around the Gap being nailed as they pass near the door by a 22 year-old, who yells so everyone in the store can hear that she’s a thief?  Taken into a “back room” and told that they must sign a confession or they won’t be allowed to leave, while their kids are alone in the store. And that’s without the Chinese enhancements.

But this new twist, public humiliation plus risk of prosecution versus paying off the extortion money, is mind-boggling.  Naturally, that means that the police and district attorney know all about it, but are doing nothing.

Neither the Police Department nor the Queens district attorney’s office said any complaints about the practice had been received. But its critics argue that the accused shoplifters are deprived of basic civil rights and the usual assurances in public legal proceedings, like the right to a lawyer and freedom from coercion, and are not being held by adequately trained security officials with proper oversight.

After all, if no one comes in to proclaim they’re an accused shoplifter who’s been the victim of shopkeeper extortion, then everybody must be happy with the system.  For the moment, this scheme is predominantly used within the Chinese community, which carries its own issues.

Many accused shoplifters plead poverty. But they usually manage to come up with money to pay their way out of being publicly shamed and arrested, Mr. Shieh said, often after calling upon friends and relatives for the cash.

Fears of being deported often color their panicked responses.

These are easy targets, disinclined to fight or complain.  Perfect pickings for an extortion scheme.  But as word spreads, and certainly this article will help it to do so, shopkeepers and store managers everywhere will learn of this extortion twist, package it up with their already deeply disturbing, coercive, manipulative scheme.  The ramifications are staggering.

The obvious plus side is that it’s a way for someone who shoplifts to avoid prosecution, avoid entanglement with the criminal justice system and the potential for a criminal record.  It’s self-help, rough justice if you will, and to some minds, a quicker, more fitting resolution to petty crime.  Yet there’s neither balance nor limit, oversight nor safeguard from abuse.  This would institutionalize the private kidnapping and extortion of people at will, whether they are really shop-lifters or not.

For the moment, the going rate is $400 to pay off the kidnappers.  What happens if it grows to $1,000?  $10,000?  What happens if the seized shopper isn’t inclined to go peaceably with the program, and they get a good tuning up by the “security guards?”  What happens to the children, left on their own while Mommy is being coerced into confessing to a crime?

But as long as no one complains, there’s certainly no reason for the police or district attorney to care whether shopkeepers are kidnapping people and extorting money from them.

What?  Sorry, could you say that again?  Sorry, I still didn’t get that.

The realization that the beloved cellphone, whether crackberry, iPhone or the ancient relic strapped to the geeky belt holster, the plain vanilla phone that doesn’t do anything except make and receive calls, could leave a client believing I was on the way when in fact I had no clue what they were calling about became clear to me a long time ago.  The voice mail, with message obiterated by status, breaking up, left me clueless.  Just because you said the words doesn’t mean they could be heard.

When the phone call came in yesterday, the thing that made it different was that it was mano a mano.  I was there, on the phone, talking to a client I knew well.  He was in trouble, again.  He needed me, now.  And I had no idea what he was trying to tell me because the call kept breaking up.  He’s a great guy and a great client.  But no matter how great he is, I can’t help if I can’t hear him.

Let’s start from the beginning.  He speaks with an accent, which already requires a significant additional level of focus to make sure I know what he’s saying.  It’s a problem when we’re sitting in the same room, especially when he’s excited and speaks in rapid fire bursts.  He sometimes has difficulty with finding the right word, and I’m left to either question what he means or reinterpret what he’s saying so I get it right.   He’s not great with things like pronouns, and tends to use them rather than names, dates, the sort of details that are required to have a firm grasp of who did what to whom.

None of this is a problem, but just something to be aware of and get past to make sure I know what he’s talking about.  And then comes the cellphone.

As anyone who knows me is aware, I’m a Luddite when it comes to cellphones.  Leave a message on mine and it’s unlikely I will get it for a week.  I don’t turn my phone on unless I need to make a call, and I rarely need to make a call.  This isn’t to denigrate those people who live on their cellphones.  Plenty of my friends do.  It’s just not my thing.  Then again, I’m not all that big with landlines either.  Phones are for communication, not entertainment.  I say whatever it is I have to say, then get off the phone.

Like everyone else, I see the commercials on television for the latest cellphone gadgetry.  I know about 3G and 4G, though I didn’t know what it meant until my teenage son explained it to me.  I see the maps of cellphone coverage that blocks football games and the ones that fall into bowls of soup at diners, where calling someone in the middle of eating is apparently critical.  I get it.

Harsh reality, however, does heed television commercials.  Despite the glory of whatever number of “G”s are in fashion today, cellphones are still not perfect.  They break up, words get lost, there’s an echo, overtalking cuts off the other speaker.  They may be shiny and download a thousand songs in a millisecond (I wouldn’t know, but it could happen).  What they do not do is assure adequate communication in times of stress and crisis.

I feel foolish when I have to ask a caller three times what he’s saying, or tell him that I didn’t understand.  I’m frustrated. They’re frustrated.  Critical information can be lost or misunderstood.  In this business, every piece of information has the potential to be critical.  There’s nothing that I’m willing to lose in a conversation.   After three tries, people give up on trying to clear up the missing bits, the lack of comprehension.  They move on.  It could mean that a critical bit is lost.

Cellphones are perfectly adequate for calls that have no consequences.  If part of the conversation is lost, no big deal.  It can be picked up later, whether on a landline or in person.  There’s plenty of time to straighten it out if there’s a misunderstanding.  When it’s critical, however, the cellphone fails.

Sure, cellphones are ubiquitous and convenient.  We can call anytime, anywhere, anyone (except me, because my phone isn’t on).  But if you want to be certain, I mean truly certain, that the message has been communicated and received, clearly and completely, the cellphone will not do.

I finally learned from my client’s wife the details I needed to help.  It ended up being extremely urgent, but a relatively easy fix, and I took care of it with a few phone calls.  I used my landline to call someone else’s landline.  Our communication went as smooth as silk.  Problem solved.