There’s something about a Wheeler and dealer who outsmarted Harvard.  Adam Wheeler, that is.  From the Boston Globe :

After two years of blending into campus life and racking up academic prizes and tens of thousands of dollars in grants and scholarships, Wheeler allegedly upped the ante: The 23-year-old senior applied for the prestigious Rhodes and Fulbright scholarships last fall using falsified credentials, including a fake transcript and work he plagiarized from a Harvard professor, said investigators.

He was wrong.  Very, very wrong.  But still, he almost pulled it off.  And he managed to make it to his senior year at Harvard without anybody saying, “hey you dolt, you don’t belong here.”  Come on, that’s got to be worth something.

No, I’m not promoting the idea that being a con man, a liar, a cheat is a good way to live.  But pulling this off is, well, impressive.  I mean, it seems like he’s got to have something on the ball, not to mention brass ones, to do what he’s done.

The Suffolk County district attorney will have a field day with this prosecution.

Wheeler was indicted yesterday on charges of larceny and identity fraud, among other charges. If proven, the charges — he is also accused of falsely claiming to have attended MIT and Phillips Academy and coauthored several books — suggest a student on a fraudulent quest for advancement at all costs, and raise questions about how he nearly got away with it.

“This defendant seriously undermined the integrity of the competitive admissions process, compromised the reputation of some of the finest educators and educational institutions in the country, and cheated those who competed honestly for what he fraudulently received,’’ Middlesex District Attorney Gerard T. Leone Jr. said in a statement.

What he’s seriously undermined is the belief that this can’t be done, that some kid who got tossed from Bowdoin College beat Harvard at its own game.  Absolutely wrong.  But some feat.  If he gets time, anybody want to bet he won’t find a way to become the warden before he’s done?

Sorry for this post, but in an internet with more marketing scammers than anything else, this kid stands out.  I’m so ashamed of myself.

Mike at Crime & Federalism posts about the 8th Circuit’s decision in White v. McKinley , calling it the “must-read” case of the year.  He’s absolutely right.  First:

In White v. McKinley, a wife falsely accused her husband of child molestation. The cop she was dating withheld evidence exonerating the husband. At least two prosecutors (Jennifer Mettler and Jill Kanatzar) knew that the cop was having sex with the wife, but didn’t disclose this information to the defense.

Not bad enough? Then:

White was tried three times in Missouri state courts for the alleged molestation of Jami. At his first trial, the jury convicted White of 12 counts of sexual molestation.

“White learned after the verdict that Tina White and the chief investigator of the alleged crime [McKinley] had been engaged in a romantic relationship. White also learned that the prosecution knew about the relationship for approximately one year but failed to disclose the information to the defense.” State v.White, 81 S.W.3d 561, 566 (Mo. Ct. App. 2002).

What happened in trial number 2?

White’s second trial resulted in a hung jury—11 jurors in favor of acquittal and one in favor of conviction. 

So like good little prosecutors (with full knowledge that their cop was schtupping the defendant’s wife/accuser), they tried him a third time.  After all, what’s an 11 to 1 for acquittal mean?  He could still be guilty, right?

But the part that I chose to focus on, notwithstanding the variety of outrages to choose from, is that White’s acquittal after trial number 3 meant that he finally was released from custody after 5 years.  Five Years!  Tom White spent five years in jail, through three trials, until he was finally acquitted.

Of the many decisions made by a judge during the course of a criminal prosecution, few are more arbitrary and capricious than the setting of bail.  While the 8th Amendment prohibits “excessive bail,” there’s no meaningful definition.  It’s just one person’s notion of what it should be, whether it’s because the judge knows that the poor man can’t make $100 or the wealthy man can make $1 million.  If the judge wants a person to stay in, chances are very good that he will.  If the judge wants to cover his butt, lest a defendant be released on bail and do something to embarrass the judge for being “too lenient,” that becomes the basis for making sure that bail is set at a number that gives the appearance of reasonableness while being just beyond the defendant’s reach.

There is one purpose, and one purpose only, for bail.  It is to assure that the defendant returns to court as directed and adheres to the conditions of his release.  It is not punishment.  It is not to protect society from the evil criminal.  It is not to vindicate the judge’s sense of “justice” or protect the judge from getting her mug on the front page of the New York Post.  At least it’s not supposed to be.

Lacking any basis to infer why the judge in White’s case would keep him in pending his third trial, particularly given the 11 to 1 to acquit after his second and the lying prosecutors after his first, it’s impossible to know whether this was a decision of malevolence or mere stupidity.  Either way, White lost five years of his life to this sham.  He will never get it back.  Did anybody really think that Tom White was going to flee the country and avoid prosecution? 

Is there any bar association president out there who wants to spout some platitude about how this is the best system there is?  I know you inspire me whenever I receive a dues notice.  Maybe your platitudes will bring Tom White some comfort, and make him forget about the five years of his life lost to his big win.

No one with a reasonably adequate education is unfamiliar with double secret probation, imposed by Dean Wormer on the naughty boys of Delta house.  It was a knee-slapper at the time, but its real life counterpart may not be nearly as funny.  Via Doug Berman, the Washington Post reports:

In April, the 53-year-old Beckwith left prison in Massachusetts and headed to a northern Virginia homeless shelter. Beckwith wrote to the Virginia attorney general’s office asking for help and was directed to Virginia State Police, which administers the sex offender registry. He wrote to the state police twice with no answer.

“I feel like I’m being set up to fail,” said Beckwith, who was convicted of having sex with an underage girl on a military base.

Unlike some states, Virginia doesn’t provide its 16,500 registered sex offenders with a list of restrictions on where they can live, work and play. Instead, registered offenders must search state websites to determine how to comply with laws meant to keep them away from schools, parks and other places where children could congregate.

Officials say it would be too costly to provide copies of the laws to all offenders and that the websites are sufficient.

Forget copies of the laws.  How about just a cheat sheet covering what they can’t do?  Just a clue as to what will send them back to prison will suffice.  Bearing in mind that the scope of defendants covered to sex offender registry laws is wildly, irrationally broad, including not only those who may present a risk of harm to children, but those who have never engaged in any act beyond being a normal hormonal kid, let’s not resort on autopilot to the “who cares, screw the sex offenders, they should all rot in prison forever” attitude.  Many, perhaps even the vast majority, aren’t sex offenders, in the sense that normal people would understand that phrase to mean, at all. 

Yet if they are never adequately informed of the limitations imposed upon them by law, how then are they supposed to comply? 

The Virginia response, that it’s too costly, is just sheer unadulterated nonsense.  Of the plethora of costs associated with locking them away, handing them a sheet of paper is the least of them.  Certainly, if it prevents harm to a child, it’s worth the nickel, right?

But there is an underlying sense that while this neglect, this double secret probation, dooms them to failure, no law-maker is losing sleep over it.  Whether it’s deliberate or simply the tyranny version of benign neglect, the ramification of sex offenders violating the terms and ending up back in prison smacks of an outcome that many people are happy to live with.  Oops.

For those who believe it bad enough that defendants who have completed their sentences, paid their debt to society as was once a notion that served to allow those who had committed a wrong to return to the fold, this twist is outrageous.  Not quite as outrageous as “civilly” imprisoning people in perpetuity after they’ve completed their criminal sentences, but outrageous nonetheless.

That we’ve lost all perspective when it comes to the underclass called “sex offenders” in this country has long been clear, but to affirmatively choose to withhold the limitations imposed on them, to make it a trick to comply, is not merely offensive, but counterproductive.  Unless, of course, you just want an excuse to toss them back in prison.

Serious trial lawyers have long believed intuitively that appearances matter.  Despite the fact that they are immutable and irrelevant, some people just look guilty.   This has been backed up by numerous studies over the years, but a new study out of Cornell, that ugly people are 22% more likely to be convicted than attractive people, suggests that it depends on whether jurors are more emotional or rational.

According to a recent study by Justin J. Gunnell ’05 law ’08 and Prof. Stephen J. Ceci, human ecology and the Helen L. Carr Professor of Developmental Psychology, more attractive defendants in court are less likely to be found guilty than less attractive ones. If there are damages, then more attractive people tend to receive higher rewards and in criminal cases, better-looking defendants receive lower sentences.

“We [already] knew about this phenomenon, so our question was: is there a specific type of person who’s more likely to do this?” Gunnell said.

In their report –– which will be published in the academic journal Behavioral Sciences & the Law and is titled “When Emotionality Trumps Reason” –– Gunnell and Ceci studied how individual information processing styles affect juror decisions.

The purpose of the study was to determine what characteristics made a juror more likely to be affected by an extraneous factor like attractiveness.  The study concluded:

“Information processing can proceed through two pathways, a rational one and an experiential one. The former is characterized by an emphasis on analysis, fact and logical argument, whereas the latter is characterized by emotional and personal experience,” the study said.

While this bit of information, and confirmation of our less than empirical beliefs, is good to have, its value is more as a novelty than substantive.  Regardless of the study, serious trial lawyers have always included the defendant’s appearance within the sphere of things to be addressed.  Ugly?  Make them look the best you can.  Tattoos? Cover them up.  Bad hair?  Get a really good cut.  Weird clothing?  Take them to Brooks Brothers or whatever clothier suits the need. 

The point is that no stone is left unturned, rather than we aiming for the cover of Elle.  To the extent that any oddness, weirdness, ugliness in appearance makes a person appear to be more guilty, or simply less innocent, we do what we have to do to eliminate the issue.  In one case, a defendant had particularly piercing eyes, a gaze so intense that it made people feel uncomfortable.  We had eyeglasses made with clear lenses (his vision was perfect) to soften his gaze and minimize the effect of his stare. 

As for the rational/emotional distinction, it’s neither easy nor reliable to expect to be capable of ascertaining on voir dire how any particular juror processes information.  We resort to gross generalizations based on answers to a few well directed questions, but as the study notes, the distinction is context sensitive.  Ask the wrong question to the wrong juror and end up with a wrong conclusion.  Hardly something to stake a person’s life on.

While there’s no doubt that the study reflects a very real concern, it’s ultimately of little consequence.  There’s never an excuse to neglect a defendant’s appearance at trial.  While it may not be possible to make a butt-ugly defendant appear beautiful, we can certainly do everything possible to make defendants appear their best.  To the extent it matters, we neutralize the ugliness and enhance the attractiveness.  To the extent that even rational jurors are subject to what the study calls the “unattractive harshness effect,” there’s simply no justification for ignoring it.

As much as we would like to believe that trials are rational creatures based on evidence alone, neglecting experiential reactions is just  foolish and unacceptable.  Leave no stone unturned, and that includes making the defendant look as innocent as possible.  If there’s going to be a conviction, let it not be because he looks guilty.

H/T Above the Law and Dan Solove.

Much will no doubt be written about the curious votes and finely honed statements of the two decisions handed down by the Supreme Court today.  In U.S. v. Comstock, the Court upheld a law allowing the detention in perpetuity of a defendant who has completed his sentence, but is believed to be mentally ill and a dangerous sex offender.  In Graham v. Florida , the Court held it’s a violation of the cruel and inhuman punishment clause to sentence a child to life in prison without parole for a lesser crime than homicide.

The former decision puts people in prison for what they have yet to do.  The latter preaches proportionality as a fundamental tenet of punishment.  No doubt a thorough reading of the decisions will produce provocative discussion, but a cursory reading produces mere confusion.  Is there a rational thread that follows through the court’s view of punishment?

From my seat, the Graham decision is wonderful, as it’s long been clear that the venality ascribed to children by over-zealous lawmakers is a disgraceful and disastrously wrong fiction created to pander to the knee-jerk anger of shut-in newspaper readers.  These are children.  They have the capacity to do wrong, but not the understanding.  They should not be given death over the long haul in prison.  It shouldn’t be for homicide, and absolutely shouldn’t be for whatever crime gets the lawmakers re-elected, short of homicide.

But how do we square the Court’s burst of rational thinking and conscience with the Comstock decision?  Did they forget the word “proportionality”?  When a defendant has served his sentence, paid his debt to society, how does switching the name of the punishment and holding the defendant in prison for the rest of his life make sense?

The proportionality argument, which incorporates the notion that eventual release serves as an incentive for a person to not commit the greater offense, and hence receive the more severe punishment, dies in Comstock.  The sex offender who will never be released if he lets the child live has every incentive to kill.  The one sane enough to refuse the incentive may still be subject to perpetual imprisonment.  Regardless, this approves of the idea of imprisoning a person for something he has yet to do. 

There can be no proportionality for a crime not committed.  There can be no rational end to something that a person never did.  Are there animals out there, sick and disgusting, who will harm children and who, if each of us were left to our visceral reactions, we would personally offer to exact a punishment, there’s no doubt.  But this is a law, an institutional response.  Once we break through the wall of imprisoning people for what we fear they might do in the future, where is the conceptual ledge that stops our slide?

Sure, the law offers some protections via due process, albeit with the lesser standard of clear and convincing evidence despite the open end of imprisonment.  Sure, the fear evoked by wild-eyed sexual predators is one that strikes abject fear in the heart of every parent.  Of course we do not chose to sacrifice our children on the altar of abstract notions of law.  But that’s why we have institutions, like the Supreme Court if not Congress, that are expected to protect us from ourselves, our collapse into panic and anger.  They are supposed to protect the worst among us from our tyranny.  They are supposed to be better than us, and make us better by their existence.

There isn’t any way to reconcile these decisions, as the thread between them seems never to meet.  Yes, children should not be treated as harshly as animals to appease the fear of adults who despise them from a distance.  But even adults, even the mentally ill, even those who are so hated by society as to be deemed unworthy of our slightest consideration, are supposed to be worthy of an opportunity for redemption. 

Taken separately, these decisions offer much to chew on.  Taken together, they offer no coherent penal philosophy.  Taken that they come from the same court on the same day, they offer no clue what we stand for.

Perhaps more thoughtful discussion later.  For now, nothing but confusion.

From St. John’s lawprof John Q. Barrett’s Jackson List :

The courtroom was jammed.  Most justices had told their law clerks to be sure to come to Court that day—but only that.  Many attorneys were present.  As people saw Justice Jackson, looking well after forty-nine days in the hospital, take his seat on the bench, a knowing murmur moved through the audience.  (In a courtroom alcove, Jackson’s family, one of his doctors, a nurse, his secretary, his law clerk and the historian who was taking Jackson’s oral history all were present, watching him closely and hoping for the best.)

The proceedings began with the admission of a very large number of attorneys—119 of them—to practice before the Supreme Court.  Former secretary of state Dean Acheson moved the admission of his son David.  John Lord O’Brian, another leading Washington lawyer (and one of Dean Acheson’s law firm partners) who years earlier had moved Robert Jackson’s admission to the Supreme Court bar, moved the admission of three lawyers from his native western New York State.  United States Senator John Calhoun Stennis (D.-MS) moved the admission of a constituent.  Department of Justice attorney Warren E. Burger moved the admission of three friends, two from his native Minnesota.  Another Member of Congress, Representative Roman Hruska (R.-NE), was admitted to the Supreme Court bar.  (In later years, Burger of course succeeded Warren as chief justice of the United States and Hruska, by then an elected U.S. Senator, defended mediocrity as a credential for appointment to the Court—a remark that lives in infamy.)

The Justices then began to read the Court’s decisions of the day.  Justice Clark read his opinion for the Court in United States v. The Borden Company, an antitrust case.  Justice Douglas then read his opinions for the Court in Capital Services, Inc. v. National Labor Relations Board, a case concerning an injunction against union picketing, and in United States v. Gilman, which rejected a government effort to seek indemnification from an employee whose negligence had created government tort liability.  Chief Justice Warren then announced the Court’s summary affirmance, per curiam, in United Shoe Machinery Corporation v. United States, a major antitrust case that had been tried in Boston.

As these somewhat boring announcements were occurring, reporters in the Supreme Court press room were told what many in the courtroom already understood:  the Court was about to announce its decisions in the cases concerning the constitutionality of racial segregation in public elementary and secondary schools.

At about 12:40 p.m., Chief Justice Warren began to read his opinion for the Court in Case Number One on that Term’s docket, Oliver Brown et al. v. Board of Education of Topeka, Shawnee County, Kansas, along with its companion cases from South Carolina, Virginia and Delaware.  In a clear, unhurried voice, Chief Justice Warren took about thirty minutes to read his opinion, which is not lengthy.  (Published the next day in newspapers, it filled less than one-third of a page.)  As he read, the other justices sat almost motionless.  Near the end of the opinion, Warren read the Court’s judgment:

We conclude, unanimously, that, in the field of public education, the doctrine of “separate but equal” has no place.  Separate educational facilities are inherently unequal.  Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

“Unanimously” does not appear in the Court’s written opinion.  The Chief Justice, nodding toward Jackson’s physical presence that day and the perhaps surprising votes of one or two of the justices who hailed from the South, added it extemporaneously.

Following his reading of Brown, Chief Justice Warren read his opinion for the Court in Bolling v. Sharpe.  It held, also unanimously, that the federal government’s racial segregation in the public schools of the District of Columbia violated the Due Process Clause of the Fifth Amendment.

At 1:15 p.m., the Court adjourned.  Justice Jackson, returning to his chambers, had a celebratory lunch there with his family, colleagues, doctor and nurse.  He then left early, heading home to Hickory Hill for the first time in seven weeks.

Back in chambers the next day, Justice Jackson received a note of good wishes from the Solicitor General of the United States, Simon Sobeloff. “It did my heart good,” he wrote, “to see you in your seat yesterday.”
__________________________

John Q. Barrett’s Jackson List has proven to be a constant stream of fascinating, inspiring and humanizing information about Justice Jackson, the Supreme Court and the law. If you aren’t a subscriber, you should be.  Especially for those who have lost faith in the ability of our courts to do right, to find their way after going astray, John’s stories of Robert Jackson’s life and times reminds us that as long as good, strong, brave, well-intended people exist, there is hope.

If you’re not on the list. get on the list.

The acquittal of kindergarten teacher Tonya Craft for the alleged molestation of three young girls is a victory, of sorts, provided you don’t demand too much of a win.  At the same time, it was big, ugly loss for Herbert E. “Buzz” Franklin, district attorney for the Lookout Mountain Judicial District.  Buzz didn’t come out looking very good.

While the DA handbook says that it’s impolite for a prosecutor to whine about a loss, Buzz tries to get as close to the line as possible in his post-verdict interview with the Chatanoogan.

Mr. Franklin said, “I was disappointed with the verdict in the Tonya Craft case. The state presented a strong and compelling case to support a conviction. However, the jury chose to acquit her and we must accept this decision. Unlike the defendant, the state has no right of appeal. However, we need not agree with the verdict.

The word “compelling” is always one of the prosecutor’s favorites.  It’s never been clear to me what exactly is meant in this context, since the jury obviously didn’t feel compelled to convict, but it makes their prosecution seem so much more reasonable, more necessary.  As if they had no choice but to serve justice by prosecuting false accusations.

Why then, since the case was so compelling, did the jury acquit?

“In most cases the media strives to present their coverage of criminal trials in a fair and even-handed way that serves to inform the public. In this case, a number of local reporters openly took sides and heavily slanted their coverage in favor of the defense.”

When the media condemns a person who is presumed innocent, they are fair and even-handed.  When the evidence doesn’t seem nearly as “compelling” to the media as it does to Buzz, the coverage is “heavily slanted.”  Fair is good.  Heavily slanted is bad.  But if the case was so compelling, was the heavily slanted media coverage enough to overwhelm the jury?

“Combined with the dynamics of the Internet blogosphere, it created an environment hostile to the state’s ability to receive a fair trial and portrayed the victims and their families in a negative light. This was an integral, purposeful and shameless part of the defense strategy. This will result in child victims and their supportive family members refusing to come forward for fear of a similar portrayal in the public.”

It’s the Internet blogosphere.  I knew it.  The collective blogosphere conspired to deny the state’s ability to receive a fair trial.  And you probably didn’t even know the state had a right to a fair trial, and here we are screwing it all up for the state.  Poor state.  How evil of the internet blogosphere to assert its vast power and rip the state’s right to a fair trial right out from under it.  Evil blogosphere.

Buzz goes on to present his rather uncompelling detailing of our evil doings, none of which bears much on the negligible detail of the failure of the evidence and manipulation of the children’s memories and testimony in this modern day witch hunt.  Apparently, the acquittal couldn’t have much to do with the fact that the prosecution’s evidence against Tonya Craft was just not as compelling as Buzz thought.

It’s highly unlikely that the blogosphere had anywhere near the influence on the outcome of this case as Buzz would like to believe, thus shifting the responsibility for this debacle off of his shoulders and onto the keyboards of blawgers everywhere.  No, the blogosphere can’t take that much credit.  The failure is his, and the success belongs to the defense. 

But it’s good to know that the blogosphere was there to help.  To the extent that the acquittal of Tonya Craft was a victory, it’s good to think of the blogosphere as a laboring oar in the effort.

H/T JKB

It’s only been two weeks since the video of the February raid by the Columbia, Missouri SWAT team went viral.  It caught fire because of the brutal, pointless, banal killing of the family dog, as cops in helmets and body armor swept into a home with a young child.  The one saving grace, if it can be called that, is that they didn’t shoot the child.  This time they did.

DETROIT – Seven-year-old Aiyana Jones was asleep on the living room sofa in her family’s apartment when Detroit police searching for a homicide suspect burst in and an officer’s gun went off, fatally striking the girl in the neck, family members say.

Her father, 25-year-old Charles Jones, told The Detroit News he had just gone to bed early Sunday after covering his daughter with her favorite Disney princess blanket when he heard a flash grenade followed by a gunshot. When he rushed into the living room, he said, police forced him to lie on the ground, with his face in his daughter’s blood.

First, the flash grenade, designed to stun and disorient the people inside the home.  That the neighbors told them there were children within, and the toys on the front lawn, meant nothing.  They had a warrant and they were going in. 

Assistant Chief Ralph Godbee said officers set off the flash grenade as they entered the apartment with their guns drawn about 12:40 a.m. Sunday with a warrant to look for a suspect in the Friday slaying of a 17-year-old boy. The lead officer’s gun went off after he encountered a 46-year-old woman inside the front room of the house and “some level of physical contact” ensued. Police do not believe the gun was fired intentionally, he said.

The story is that the lead officer bumped into Mertilla Jones, Alyana’s grandmother, and his weapon discharged.  There were three other children asleep in the house.  No word on why police thought this might be a good home to raid at 12:40 a.m. on a Sunday night. 

It’s unclear to Alyana’s father what had happened, as he was held on the floor for the next two hours, lying in his daughter’s blood, along with his mother. 

“I saw them (police) running with my daughter out of the house. They had my mother on the floor, and they just kept me there for like two hours,” Jones, 25, told The Detroit News. “I knew it was bad, and they probably had my baby at the hospital, because someone asked me if she had any allergies.

“Her blood was everywhere and I was trying to stay calm, but nobody would talk to me. None of them even tried to console me.”

There’s no mention in the story that police found whoever they were looking for, and you can bet your life that if there was anything to be said that could be used to justify their presence, or smear the character of the child killed, it would have been the first thing out of their mouths.  Instead,

“This is a tragedy of unspeakable magnitude to Alyana’s parents, family and all those who loved her,” Godbee said. “It is a tragedy we also feel very deeply throughout the ranks of the Detroit Police Department.

Not enough of a tragedy, however, to have made the Detroit Police think twice before their late night raid of a home with children inside, going in hot.  When a finger is on the trigger, bullets sometimes come out the other end.  That’s how it works.  And when there are children within, the bullets can strike them.  And when bullets strike children, even little 7 year old girls who like Hannah Montana and Justin Bieber, sometimes they die.  A tragedy?

If the police believed that a suspect was holed up inside the house, one known to have little children dreaming of their future, a couple of patrol cars parked down the street with their eyes on the place would have found him in the morning.  No child would have died so that the lobster shift could play storm troopers.

We often talk of worst case scenario.  The needless death of a puppy is very bad, but this is worse.  Godbee says that this tragedy is very deeply felt by the cops.  Deeply enough to rethink the raid on the next home filled with sleeping children in the middle of the night, and waste all that fine police gear and a search warrant? 

H/T Ed at Blawg Review

Update:  Via Jdog, this article from the Detroit News :

The police “were excited; they were on TV,” said Oak Park attorney Karri Mitchell, who is representing the family of Aiyana Jones. “They didn’t have to throw a grenade through the front window when they knew there were children in there.”

The attempted arrest of a murder suspect at a two-unit house on Lillibridge on the city’s east side was videotaped for an episode of “The First 48,” a reality crime show on the Arts & Entertainment Network, Detroit police spokesman John Roach. He was not immediately available this morning to respond to Mitchell’s allegations that the police operation was influenced by TV production values.

So here was their chance to be heroes on TV, and they were excited.  They wanted to use all the toys and be very dramatic, so the viewing audience would be so very impressed.  And, of course, there would be another fine show on the air to educate the public on the fine work of the officer and sell commercial time.  So many benefits, and such an inexpensive production, provided one didn’t factor in the cost of a 7 year old’s life.

Also confirmed is that there were two units in the building, and the murder suspect was found in the upstairs unit, while Alyana was killed in the downstairs unit.  Still no explanation for why the no-knock warrant would permit a search of both units rather than just the upstairs.

Update 2:  If appears that the family has retained Geoffrey Feiger, no stranger to a criminal courtroom, to represent them against the Detroit Police Department.  If that’s not strange enough, consider Feiger’s first allegation:

“It’s not an accident. It’s not a mistake. There was no altercation,” Fieger said. “The bullet was shot from outside the house.”

This is a huge distinction, suggesting the entire “grandma altercation” allegation to be a lie and cover up.  Though why a police officer would have fired the shot from outside is also inexplicable, but Feiger claims, if not a mistake, that it was a deliberate act.  He says he will file suit on Tuesday (why so quickly is also not clear, but likely to keep ahead of the news cycle and keep his face on TV).

In response, Assistant Chief Ralph Godbee said:

He said, “If Mr. Fieger has access to any evidence in this case, he must as an officer of the court provide it immediately to the Michigan State Police.”

There’s that “officer of the court” crap again.  If nothing else, you can always count on the cops for saying something silly to pander to public mispreceptions.

H/T Packratt at Injustice Everywhere .

When a story of how a pro se defendant wins something hits the stands, the groundlings rise to applaud.  Proof positive that lawyers are scum, unnecessary and part of a massive conspiracy of wealth redistribution.  Hah!  We don’t need you.

Every once in a while, however, a story appears that tells the other side.  From the NYT City Room Blog :

Every now and then we get a defendant who does not trust the system and deems himself best suited to play the role of his own lawyer in court — better suited, that is, than someone who went to law school.

One such case is playing itself out in a courtroom in Manhattan, where a man accused of killing his girlfriend in Chelsea could deliver his opening statement in his own defense as early as Monday.

As is the case in many instances in which someone goes pro se — legalese for representing yourself — this defendant, Robert Camarano, 62, seems ill suited for the job. Just ask Justice Carol Berkman, who criticized Mr. Camarano’s lawyer skills this week.

The reason it makes the papers when a pro se defendant succeeds is that it’s highly unusual, a rarity.  It’s man bites dog, since dog bites man is of no interest to anyone (other than the man who got bitten and the owner of the dog that did the biting).  Yet one story about the winning jail house lawyer and every Ironsides in an orange jumpsuit think’s he’s the next Cardozo.

So what did Justice Berkman have to say about Camarano?

“You don’t know how to ask a question,” Justice Berkman told him in State Supreme Court. “You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not. I do not say this to insult you.”

It’s the stupid speeches line that gets me.  Every lawyer on TV makes speeches, right in the middle of testimony, they don’t ask a question but make a speech.  And they always win too, so speeches must be a really good way to win.  Why don’t real lawyers know about this?

Justice Berkman was a former legal aid lawyer who became a judge before I became a lawyer.  She’s seen a lot.  Too much, some would say.  She’s suffered through a lot of bad over the years, and her tolerance for it has waned.  Some lawyers say that she’s turned mean-spirited over the years, nasty even.  But even if you think she should have been more charming in her manner of informing Camarano that he was digging his own grave, the fact remains that he was and she told him so.

It’s true, as many criminal defendants complain, that there are plenty of lawyers out there who don’t care, don’t put in the time or effort necessary to do their job, or who just don’t have the ability to perform.  That doesn’t mean that the pro se defendant does.  If it’s hard enough to do that so many who have gone through law school and practiced law still can’t perform adequately, what makes you think you can do it better?

The trick is finding the right lawyer, not taking over the reins yourself and praying that you will be the million to one shot at winning your pro se defense.  Yes, it sucks to be a criminal defendant.  Don’t make it worse than it already is.

Judges think that police detectives have a sixth sense when it comes to sniffing out a perp on the street with a gun.  Why?  Because in every case that comes before them, some cop, despite having no objective basis whatsoever (recognizing the “furtive movements” is a total sham offered to appease the search and seizure gods), came up with a gun.  Or drugs. Or something proving that cops are so special that they can smell crime a mile away.

This is the “availability heuristic,”  Mike at Crime & Federalism wrote about it the other day (and does so with some regularity).  Then Jeff Lipshaw wrote about it at PrawfsBlawg too.  And as someone who adores such concepts, I started giving it some thought as well. 

The availability heuristic is a cognitive bias that makes us believe that x is more or less likely based upon our last experience with x.  See Wiki entry. (“The availability heuristic is a phenomenon (which can result in a cognitive bias) in which people predict the frequency of an event, or a proportion within a population, based on how easily an example can be brought to mind.”)

Or as Lipshaw puts it, a behavioral psychology phenomenon where the “conclusion [is] based on the availability, not the correctness, of the data.”   One of the aspects of writing stuff here that’s come to bug me is that new readers, or the day tripper (the reader who comes upon a single post because of an interest in a particular case or issue) believe that nothing existed prior to (or beyond) whatever it is they’ve read. 

SJ has been around for a little more than three years, but during that time I’ve written more than 3000 posts covering a fairly broad spectrum of things and ideas.  Yet, I’m defined in the eyes of readers/commenters by whatever shows up on the front page, or possibly just above the fold.  If it happens to be in favor of, or critical of, something with which the reader agrees, I’m the cat’s meow.  If it happened to skewer a sacred cow, I’m the mean, crabby old man.  If it addresses a nuanced detail of a broader subject, they want to explain to me their vision of the broader issue.  As if I hadn’t written about it a dozen (or a hundred) times before in similarly nuanced detail.

The internet is a big place, with people of all heights and hair colors able to access a computer and come across posts of interest.  Some come here because they are criminal defense lawyers and have some interest in the subject matter.  Others just to see if they can grab some backlink juice for their hemorrhoid treatment.  Others to show how smart they are.  If you think there are a lot of comments that come across the screen, you have no idea of how many I trash in the process.  Some because they are just blitheringly stupid, and others because they are offensive or annoying, at least to me.

Newbies on the internet, and particularly in the blawgosphere, think they’ve invented the place in their first few minutes online.  Some are good writers, but lousy thinkers.  There are a lot of lousy thinkers out there, but they don’t necessarily see it.  Pretty much everybody thinks they’re brilliant, and to the extent that others don’t appreciate them, it’s because everyone else is stupid.  Maybe that’s my problem as well. 

To each new person who shows up here, it’s the dawn of a brand new day.  Nothing exists before they arrived, and they feel empowered to tell me what I’m doing right and what I’m doing wrong.  When I tell them to go fly a kite, they tell me what a jerk I am.  After all, from their perspective, they’ve done me a great favor by correcting the error of my ways by imparting their brilliance.  I’m not sufficiently appreciative.

It’s bad enough that people come here to try to jump on my soapbox and give their spiel.  Some, whether lawyers or not, write some incredibly banal crap, and I’m torn about whether to allow it, whether to call them on it or whether to ignore it.  For those who have followed my posts for some time, they know where I stand on many of these matters, but the person who doesn’t thinks my allowing some idiotic comment to pass without response suggests that I agree with it, or can’t muster response to it.  Mind you, stupid people find the stupid comments of other stupid people far more persuasive than others. 

It’s tiresome, trying to deal with the availability heuristic.  If I wrote less, it would be less tiresome, but I write what I want, and as often as I want, and on whatever subject I want, and then find myself having to deal with the detritus.  My reality is that I address conclusions based on this phenomenon when I feel like it, and ignore it when I don’t.  Of course, this gives rise to a completely new round of erroneous conclusions, based upon whatever my last reaction was, and just becomes increasingly tiresome.

Before you jump to whatever brilliant conclusion you believe to be justified by whatever it is you just read, without regard to the 3000+ things that I’ve written beforehand and about which you know nothing, do me a favor and make sure your fly is zipped.  I couldn’t bear to think that I ponder what to do about your brilliance while you’re walking around with your fly down.

Postscript to Norm:  Yes, Norm, I know this is self-indulgent, but I’m allowed the occasional wallow.   So give me a break.