Within minutes of President Barack Obama signing health care reform into law, the attorney general of Virginia (and maybe 13 other states) will file suit against the United States of American to block imposition of the mandate as being unconstitutional. The basis for this suit will be that the federal government has exceeded its authority under the commerce clause. I stand with the Virginny AG.
The argument that Congress has applied the commerce clause with Hamiltonian abandon such that it covers everything short of a dirty look between spouses under some ill-conceived theory that the air molecules moving through the lungs of Americans originated in some foreign state has long been troubling. Virginia says it’s unconstitutional. I do too.
No particular reason to mention at this moment that if Virginia prevails, every federal criminal law and regulation enacted within the past 50 years is also unconstitutional.
Orin Kerr, who is considering a new career as an oddsmaker in Vegas, figures that the chance of the Supreme Court holding health care reform unconstitutional is 1%. Maybe Mr. Negativity needs a little Vegas sunshine to shake off that Washington pallor. Forget the odds, Virginia. Go for it. Stand up to those usurpers in Washington. Don’t let them tell you that you can’t win.
Go Virginia! Fight, Fight, Fight!
Category Archives: Uncategorized
Bad Apples Shouldn’t Drive Systemic Change
While others have taken up arms following the New York Times article on the action by the New York Civil Liberties Union heading to the Court of Appeals, I’ve been (strangely?) silent. It’s not for lack of caring. I care. But the use of the anecdotal evidence of how contract indigent defender Patrick Barber failed, and failed miserably, to properly represent Kimberly Hurell-Harring, “a nobody in the courts,” proves nothing of the system. It proves that lawyers, on the whole, can be great, awful and everywhere in between.
The NYCLU brought suit to reform the New York indigent defense system, currently managed county by county, with vastly differing benefits and detriments. Taken from Gamso’s post on this matter:
“Every day, in courtrooms throughout the state, New Yorkers are denied justice simply because they are poor. Justice should not depend on your ZIP code or the size of your wallet,” said Donna Lieberman, executive director of the NYCLU. . . .
The class action lawsuit charges that a lack of adequate funding, oversight and statewide standards is denying New Yorkers accused of crimes their lawful right to competent, qualified and timely representation at all stages of the justice process, a violation of the U.S. Constitution, the state constitution and the laws of New York. Plaintiffs are defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who have encountered these problems. The plaintiffs seek reform on behalf of all defendants who are or will be charged with felonies, misdemeanors or lesser offenses and who cannot afford a lawyer.
Sounds good, but tries wraps up a plethora of problems with too neat a bow. The delivery of indigent defense in upstate rural counties is quite different than downstate counties or more urban areas. New York State isn’t just Manhattan, or Washington County. The problems encountered by Hurell-Harring in Washington County are quite different from those suffered by her counterpart in the Bronx.
There is no question that every defendant is entitled to “competent, qualified and timely representation.” The first two are supposed to be covered by the requirement that the law-talking guys who stand next to defendants are lawyers, duly admitted to practice law in the courts of the State of New York. Lawyers should not require someone sitting on top of them every second of the day to fulfill their professional responsibilities to their clients. They are supposed to be competent, qualified professionals, whether they represent the indigent or the wealthiest corporation in the world.
The reality, of course, is that it doesn’t quite work this way. Some are hacks. Some are just awful. Some don’t care and some do drugs or drink alcohol such that they fall down, literally. This isn’t an indigent defense fault, but a lawyer fault. Contrary to common wisdom (which I define as facile assumption), hacks are all over the place, and not limited to the ranks of indigent defense.
What the NYCLU suit is really all about is forcing the creation of a statewide indigent defender system, an idea which should be implemented and which has, if properly crafted, the potential to resolve many of the faults in the existing system. But this isn’t the way to do it.
The 3d Department was right to conclude that this was a political issue, and not one that the courts could fix under separation of powers. It involves many interests and concerns, with many difficult choices. While I trust the legislative process no more than anyone else, it’s still the means by which such things are supposed to be decided. For better or worse, and I anticipate the latter.
As for Kimberly Hurell-Harring, she got screwed by bad lawyering, or as we like to call it, ineffective assistance of counsel. The bad news is that no “system” will ever eliminate IAC, and anyone who believes that it will is living a fantasy. Only we, individual lawyers and judges, can take responsibility for the quality of our own representation and those around us. If we were to spend as much of our professional capital on quality rather than marketing, perhaps improvement can be achieved.
As for improving the system for indigent defense, I’ve no doubt that the NYCLU is right that we can do far, far better than we do now. But the solution won’t be found in some pathetic case from Washington County.
Cory Doctorow Learns The Meaning of Why
It’s never quite the same when the person sitting in the chair reserved for a defendant is someone you know. Suddenly, it’s all real and very personal. Where before it was merely bad, it’s now a disgrace. That’s how it always happens.
Peter Watts is a Canadian science fiction writer, who traveled across the border to help out a friend. On his way back, he had the misfortune of being targeted for a random search by one of the United State’s well-trained, disciplined and helpful border guards. Watts assumed, as do so many others, that this would be a relatively normal human interaction, where a person could ask a question when given confusing directions. Normal people speak to one another. Normal people ask questions. Normal people anticipate a reasonably respectful interaction.
But this wasn’t to be normal. This was a border crossing. This was an interaction with law enforcement officer backed by the might of the United States of America. When such an official says jump, there is but one question permitted: “How high?” Canadians may not be aware of the proper way to respond. Peter Watts apparently wasn’t.
His friend, Cory Doctorow, expresses the pain he felt when his pal was convicted of obstruction. He had the epiphany that comes from knowing the defendant.
Peter Watts is a Canadian science fiction writer, who traveled across the border to help out a friend. On his way back, he had the misfortune of being targeted for a random search by one of the United State’s well-trained, disciplined and helpful border guards. Watts assumed, as do so many others, that this would be a relatively normal human interaction, where a person could ask a question when given confusing directions. Normal people speak to one another. Normal people ask questions. Normal people anticipate a reasonably respectful interaction.
But this wasn’t to be normal. This was a border crossing. This was an interaction with law enforcement officer backed by the might of the United States of America. When such an official says jump, there is but one question permitted: “How high?” Canadians may not be aware of the proper way to respond. Peter Watts apparently wasn’t.
His friend, Cory Doctorow, expresses the pain he felt when his pal was convicted of obstruction. He had the epiphany that comes from knowing the defendant.
That’s apparently the statute: if you don’t comply fast enough with a customs officer, he can beat you, gas you, jail you and then imprison you for two years. This isn’t about safety, it isn’t about security, it isn’t about the rule of law.
It’s about obedience.
Authoritarianism is a disease of the mind. It criminalizes the act of asking “why?” It is the obedience-sickness that turns good people into perpetrators and victims of atrocities great and small.
It’s all about obedience. The law puts the power to command into many thousands of hands of people wearing badges, who can by their mere order turn a normal person into a criminal. There are, of course, rights mentioned with some regularity in court decisions, but these are best saved for the quiet of the courtroom to assert, as the border guards generally lack the specific interest necessary to have a discussion with a recalcitrant crosser to engage in debate. And they’ve got guns and shields to let people know that they must do as they are told.
The testimony at trial shows the problem quite clearly.
The testimony at trial shows the problem quite clearly.
When officers started searching through the vehicle’s trunk and bags in the back seat, Watts said he wanted to know what was going on and got out of the vehicle. He said he was irritated and under the impression officers were required to talk to him about what was happening.Peter Watts did what a person would do when dealing with a normal person; he asked “why?” He thought he was entitled to an answer. He thought the guard was “required” to respond. He learned otherwise.
“This is weirdness upon weirdness,” he testified.
Watts said an officer twice ordered him to get back into the vehicle, but he didn’t immediately comply. He said at least one officer grabbed his arm, and he pulled away in a “flinch response.”
Beaudry said Watts grabbed the collar of either his uniform or jacket, and it felt as though he was being choked. The officer said he broke free after hitting Watts twice with his elbow and once with his knee. Eventually, both got out of the vehicle and Watts was ordered to the ground, Beaudry said.
At that point, Watts took an “assaultive” stance, Beaudry said. When Watts didn’t comply with orders, Beaudry said he used his pepper spray and the author eventually sat down on the ground.
The testimony reflects the different views from each seat in the house. Movements become “furtive movements.” Standing becomes “assaultive stance.” The reflex of pulling away from an unwanted touching becomes resisting arrest. Asking why becomes belligerence. Normal people expect an answer to a fair question, to normal body movement, to being left physically unmolested. Border guards expect people to do exactly what they say immediately and offer no resistance in the process. Anything less is characterized as nefarious, threatening, even evil, by the mere addition of an adjective in front of it.
Had the border guard been civil, cooperative, polite, normal, this would never have escalated into a dispute. That’s the normal perspective. From the guard’s perspective, had Peter Watts just done what he was told to do without challenging the guard’s authority to do his job, this wouldn’t have escalated into a dispute. The law sides with the guard, since the guard does the dirty work of the law and the law tries to make his job easier in return by providing him with authority far beyond the limits of good judgment. Order is paramount, and would be put at risk if our boys on the front line don’t have our blind support.
Doctorow’s post about his friend demonstrates that he doesn’t have a great deal of knowledge about the mechanics of the legal system. That’s fine. He’s not American, and there’s no reason why he should. But he wants his friend to continue the fight.
So sad, and so naive. The system didn’t fail Peter. The system worked perfectly. It’s the expectation that the system exists to satisfy some existential concept of justice that causes the dissonance. Putting aside the axiom that justice is in the eye of the beholder, the system doesn’t exists to serve justice. The system exists to maintain order. Did you think otherwise?
The person who tipped me on Cory Doctorow’s post, Cathy Gellis, was appalled by the conviction. She wrote, “Thought point was to arrest the bad guys, not the good ones.” The vast majority of criminal laws in the United States are malum prohibitum, merely a choice between various behaviors where the government decides to make one choice, otherwise a perfectly fine choice, a crime. There’s no necessary moral taint connected to the behavior. Under other circumstances, the person who engages in such behavior wouldn’t be “bad”, except for the fact that it’s criminal to do so because a law says it is. And that’s all it takes.
Like Cory Doctorow, I agree completely that Peter Watts’ conviction is absurd and horrible. He was convicted for acting like a normal person under abnormal circumstances. He was convicted for lacking the understanding that when interacting with officials with guns and shields, one bows deeply like a supplicant, just to avoid irritating small minds.
Of course, there are many in the United States who would see his conduct as an affront the power and might of the border guard, who believe that any lack of total obedience to the command of a law enforcement officer is, indeed, evil. They adore order. Until it’s them or someone they care about in the defendant’s seat. And that, Cory Doctorow, is why.
Had the border guard been civil, cooperative, polite, normal, this would never have escalated into a dispute. That’s the normal perspective. From the guard’s perspective, had Peter Watts just done what he was told to do without challenging the guard’s authority to do his job, this wouldn’t have escalated into a dispute. The law sides with the guard, since the guard does the dirty work of the law and the law tries to make his job easier in return by providing him with authority far beyond the limits of good judgment. Order is paramount, and would be put at risk if our boys on the front line don’t have our blind support.
Doctorow’s post about his friend demonstrates that he doesn’t have a great deal of knowledge about the mechanics of the legal system. That’s fine. He’s not American, and there’s no reason why he should. But he wants his friend to continue the fight.
I don’t know if he will. He may decide to take his chances for a suspended sentence and forswear ever visiting America again, opting to be a writer instead of a professional litigant. I’d understand. But tonight, I’m understanding that dark place that so many of Peter’s books seem to come from. I think of myself, fundamentally, as a optimist and a believer that justice can and will prevail. But in the face of that jury’s decision, in face of the dishonesty of the officials, in the face of the absurdity of the statute, I feel like justice is a joke and hoping for it is a waste of time.
I’m sorry that the system failed you, Peter.
So sad, and so naive. The system didn’t fail Peter. The system worked perfectly. It’s the expectation that the system exists to satisfy some existential concept of justice that causes the dissonance. Putting aside the axiom that justice is in the eye of the beholder, the system doesn’t exists to serve justice. The system exists to maintain order. Did you think otherwise?
The person who tipped me on Cory Doctorow’s post, Cathy Gellis, was appalled by the conviction. She wrote, “Thought point was to arrest the bad guys, not the good ones.” The vast majority of criminal laws in the United States are malum prohibitum, merely a choice between various behaviors where the government decides to make one choice, otherwise a perfectly fine choice, a crime. There’s no necessary moral taint connected to the behavior. Under other circumstances, the person who engages in such behavior wouldn’t be “bad”, except for the fact that it’s criminal to do so because a law says it is. And that’s all it takes.
Like Cory Doctorow, I agree completely that Peter Watts’ conviction is absurd and horrible. He was convicted for acting like a normal person under abnormal circumstances. He was convicted for lacking the understanding that when interacting with officials with guns and shields, one bows deeply like a supplicant, just to avoid irritating small minds.
Of course, there are many in the United States who would see his conduct as an affront the power and might of the border guard, who believe that any lack of total obedience to the command of a law enforcement officer is, indeed, evil. They adore order. Until it’s them or someone they care about in the defendant’s seat. And that, Cory Doctorow, is why.
End The Franchise Tax
This New York Times editorial calls for the end of the post civil war disenfranchisement of those convicted of a crime.
Millions of ex-offenders who have been released from prison are denied the right to vote. That undercuts efforts to reintegrate former prisoners into mainstream society. And it goes against one of democracy’s most fundamental principles: that governments should rule with the consent of the governed.
One of the collateral consequences of a conviction in some jurisdictions is the loss of the right to vote. Interestingly, it’s not one of the consequences deemed worthy of discussion by the court during the allocution, falling behind immigration consequences and subsequent conviction consequences. Apparently, the perspective of the law is that it’s far more important for the defendant to know that any additional convictions will result in an enhanced sentence, which assumes that he or she is inclined toward recidivism, than the loss of his or her vote, where it’s a certain consequence.
Congress is considering a bill, the Democracy Restoration Act, which would entitle former convicts to vote in federal elections. According to the Times, the prohibition has significant racial undertones, from its inception to its current impact.
Congress is considering a bill, the Democracy Restoration Act, which would entitle former convicts to vote in federal elections. According to the Times, the prohibition has significant racial undertones, from its inception to its current impact.
Many of the laws disenfranchising former criminals date back to the post-Civil War era and were used to prevent freed slaves from voting. These laws still have a significant racial impact. About 13 percent of black men in this country are denied the right to vote by criminal disenfranchisement laws, more than seven times the rate for the population as a whole.The problem, if not fear, is that a vote in the hands of former convicts will be exercised in favor of liberals. After all, a conservative is a liberal with a mortgage (and there are few of those around these days since the housing bubble burst), while a liberal is a conservative under indictment (and there are more of those around these days since the housing bubble burst). If all of these former convicts were allowed to vote, the slide into liberal oblivion would be devastating. The love of democracy is colored by the sensibilities of the majority.
For those who enjoy a decent platitude, try “no taxation without representation.” When these once-criminals get a job, or a house, or a life, and pay taxes, they would seem to be every bit as entitled to express their beliefs as to how their money should be spent as anyone else. Given that foreign corporations are entitled to fund political campaigns, it can’t be too scary or Americans, post conviction, to do so as well, if only via their vote.
Of course, there was once a belief that any person who was convicted of an offense and completed his sentence had paid his dues to society. It was a proud moment, when we accepted the notion that a person could do wrong, but would not be a pariah forever. After sucking it up and paying, we would welcome him back into society and embrace him. This was before sex offender/jaywalking registries, but let’s put that to the side for the moment since there are far too many collateral issues involved that would muddy up the discussion. The point is that when the sentence was served, the con became an ex-con, and we believed in second chances.
Throughout this belief, though, laws still prohibited the ex-con from voting. Some punishments were never over. Now that we’re at a stage in society where no one is every forgiven anything, where there are no second chances and dues are never paid, it’s interesting that Congress has suddenly shown an interest in voting rights for a group for whom there is no widespread support or concern.
There appears to be no sound rationale for denying those convicted of a crime the vote once their sentence in completed, and there are many awfully good reasons to let them vote, as would any other taxpaying member of society. Yet there’s a funny smell about the sudden concern for the franchise of ex-cons in Congress. While this shouldn’t stand in the way of enactment of a law that should be passed, it would smell so much better if it was part of a more comprehensive concern for the welfare of those former convicts and their return to society as law-abiding, productive members.
The vote is an important part of this transition, despite its absence from the plea allocution. A job, a fair shake, even ending perpetual vilification of anyone convicted of a crime so that they can feed, clothe and shelter their children, would help as well. Maybe even more so than a vote.
Blinded By The Light
Health care will likely be a big topic today, now that the time for debate and discussion has passed. One blawger, who fortunately happens to be a professor of law on the side, hasn’t been particularly supportive. That would be Ann Althouse.
In a sad commentary on race relations, youth and penal-on-my-mind solutions, the story of a prank by a 16 year old at a Jersey Wal-Mart was the subject of a post, coincident with the date of the House vote on health care. The two bits have little in common, but for a sideshow to the health care debate about how members of the Congressional Black Caucus walking through tea partiers on their way into the capital were subjected to racial epithets and one member was spat upon.
Perhaps conflicted by the opposing Gestalt needs of the socially correct lawprof and the politically firm, Althouse decided to confront this news. Notably, her husband, former commentator at her blawg Meade, was there:
In a sad commentary on race relations, youth and penal-on-my-mind solutions, the story of a prank by a 16 year old at a Jersey Wal-Mart was the subject of a post, coincident with the date of the House vote on health care. The two bits have little in common, but for a sideshow to the health care debate about how members of the Congressional Black Caucus walking through tea partiers on their way into the capital were subjected to racial epithets and one member was spat upon.
Perhaps conflicted by the opposing Gestalt needs of the socially correct lawprof and the politically firm, Althouse decided to confront this news. Notably, her husband, former commentator at her blawg Meade, was there:
From what I heard — from Meade, who was there — the people at yesterday’s protest were unusually nice and friendly and well-behaved. Still, the Washington Post uses the term “angry protesters.” That’s a journalistic device to delegitimitize the demonstration by merging everyone into the few persons who said something racist/homophobic. That’s not fair and it’s not accurate, but it has been the stock MSM treatment of the Tea Party movement all along.
Starting from the “nice to Meade” perspective, and recognizing (as is no doubt true) that the media (denigratingly characterized as MSM by those who want to undermine its integrity ab initio) isn’t necessarily correct or perfect, Althouse makes the critical point that the entirety of the protesters did not call black congressmen names in unison. She does not discuss whether this is the nature of grass roots organization or a failure of proper rehearsal and/or adequate coordination.
Even if there were a few epithets tossed about, Althouse is nonplussed, per the greater evil defense:
There’s nothing wrong with showing anger at the thing that motivates you to protest. That’s what protests are for! The members of Congress have a lot of power, and they ought to have to hear the anger their exercise of that power is causing. It’s outrageous for them to pose as victims without very good cause. So what if some idiot said a bad word? That’s a trivial distraction compared to the power they are about to exercise in the face of such strong opposition to what they are about to do.
But it’s the spitting that gets her goat.
A member of Congress said he was spit on? Guards were right there. Was no one detained? Show me the person who was arrested. Otherwise, I’m assuming it’s a lie.
It would probably shock no one to learn that a member of Congress lied. It could happen. It’s happened before, and it will happen again. Whether or not a member of Congress was spat on isn’t the issue, at the moment, but rather the basis for Althouse’s decision to assume it’s a lie. If no one was arrested, then it didn’t happen.
One of her commenters makes an additional point that she should have been made.
One of her commenters makes an additional point that she should have been made.
Let’s see the video. In this day and age, just about everything is videoed. That way, those people can be singled out. If there’s no video of what was alleged, then I’ll have to call BS.
I can’t tell you how many of my clients have made the exact same argument. If there’s no video, then it never happened. And even if it did happen, it doesn’t mean that it reflects on the tea partiers.
There’s nothing new or surprising that this reflects the tone and depth of political argument, given that the earth has long been scorched beyond recognition by all partisans. But when the lawprofs simply manufacture their own reality, one has to wonder how they grade final examination answers which employ only logical fallacies to support their positions.
Althouse is, no doubt, a very smart lawprof, and I therefore must follow her lead. From now on, no wrong has occurred until someone is arrested, and no one can be proven guilty without a video. It works for me. And if anyone has an issue with this position, don’t tell me. Tell it to Althouse.
As for 16 year old with the big mouth and no brain in Wal-Mart, maybe Althouse would consider defending him pro bono. Given how it’s no biggie to call members of Congress bad names, this case should be a slam dunk for Ann.
I have no idea who was the source of any saliva and nasty words, but it’s important to realize how easy it is for someone who isn’t typical of the group or who is even its adversary to do things like this. It’s one of the oldest dirty tricks.It is indeed very important to realize this, because without irrefutable proof, if such a thing exists, then we are all entitled to craft our own reality and no counter-reality exists. And you can’t make us, because we’ve got an argument to prove that we’re right and your wrong. Or at least you can’t prove your right, which means we’re right.
There’s nothing new or surprising that this reflects the tone and depth of political argument, given that the earth has long been scorched beyond recognition by all partisans. But when the lawprofs simply manufacture their own reality, one has to wonder how they grade final examination answers which employ only logical fallacies to support their positions.
Althouse is, no doubt, a very smart lawprof, and I therefore must follow her lead. From now on, no wrong has occurred until someone is arrested, and no one can be proven guilty without a video. It works for me. And if anyone has an issue with this position, don’t tell me. Tell it to Althouse.
As for 16 year old with the big mouth and no brain in Wal-Mart, maybe Althouse would consider defending him pro bono. Given how it’s no biggie to call members of Congress bad names, this case should be a slam dunk for Ann.
Stupid and Offensive Do Not Equal Crime
Certainly many criminals engage in conduct that is stupid and offensive. It’s almost a hallmark of banal criminal conduct, decent fodder for jokes. But these two characteristics do not comprise the elements of an offense, even though they are the sort of things that make the public mumble, “there oughta be a law.”
Over the loudspeaker at the Wal-Mart in Washington Township, New Jersey, a 16 year old kid could be heard :
Over the loudspeaker at the Wal-Mart in Washington Township, New Jersey, a 16 year old kid could be heard :
”Attention, Walmart customers: All black people, leave the store now.”
What sort of upbringing would make a kid think this was funny? A sad reminder that racism is not dead. Black president or not, we’ve yet to get beyond it. Is this news?
And it’s appropriate that something so offensive, happening in a store with a history of being questioned about how it treats blacks, makes the news. This is a teaching opportunity. This is a chance for more discussion about relations, human beings, parenting. But it didn’t end there.
And it’s appropriate that something so offensive, happening in a store with a history of being questioned about how it treats blacks, makes the news. This is a teaching opportunity. This is a chance for more discussion about relations, human beings, parenting. But it didn’t end there.
The boy, from Atlantic County, was charged by Gloucester County authorities with bias and intimidation and harassment in connection with the episode last Sunday. If convicted, he could face up to a year in a juvenile detention center, officials said. His name was not released because he is a minor.
This dopes words clearly reflected bias. Had they not, no one would have ever known that this happened. Imagine how inconsequential the prank would have been if he had said, “everyone leave the store now.” Not even a chuckle from the dumbest skinhead. But harassment? The heat ended quickly.
“Witnesses said store officials took about 5 minutes before announcing that the statement was a prank and apologizing.”New Jersey law (N.J.S.A. 2C:33-4) provides that harassment occurs when someone:
Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm.
It easy to imagine some shoppers to be annoyed, in the generic sense of the word, by this prank. The language was offensive, though not course (I suspect they meant coarse, but this is Jersey). The kid didn’t announce who he was when he pulled this move, but then he didn’t actively conceal his identity either. They caught him on camera, and he was outed when he bragged about pulling it off.
No doubt people at the Wal-Mart were offended by this announcement. They had every right to be. And in a better world, that wouldn’t be limited to blacks who heard it, but to any right-thinking person in the store. Still, offended and angered by stupidity isn’t an element of the offense. If it was, most people would find their way into a jail cell at some point in their lives. Is there anyone who has done something stupid that angered someone?
Harassment statutes are deliberately vague and meaningless, as they are meant as a catch-all for conduct that people think should happen and have to be written in such a way as to cover a broad array of conduct. As bad conduct goes, this comes relatively close to something that, at least arguably, is covered.
But do we really want to put kids into jail, or even saddle them with a conviction, for pulling stupid pranks where no harm occurs? This remains a great teaching moment, both for the kid as well as the rest of us. Are we afraid he’s going to become a serial prankster, roaming from Wal-Mart to Wal-Mart, trying to sneak onto the announcement system?
If he does it again, throw the book at him. This time, let’s turn one incredibly stupid act into something positive. And that doesn’t include the standard prosecutor announcement that this kid’s going down. Every stupid and offensive act does not require a prosecution.
H/T Randazza
I Couldn’t Agree More (With Special Added Attraction)
That’s what people want to hear. It makes us happy. It makes us like you. It makes us friends. It’s validation. It’s what we’re looking for on the internet.
The proof of this came to me in a thousand ways, each of which was left here by someone who wanted me to leave up his comment so that the link to his website would remain in the little box, be noticed by Google or you, the reader, and would eventually help to make him money. He knew that by writing something that made me feel validated, the chances were good that I would approve the comment and post it. He played the odds. He played to my ego, my insecurity, my lingering self-doubt, my need for approval. Forget my stomach, validation is the quickest way to a man’s heart. I love you for approving of me.
Put aside that none of these comments received the appreciation their authors expect, or see the light of day. The more important point for the long term is what this says about the nature of the blawgosphere (and the blogosphere, for those who aren’t blogging lawyers). There are a bunch of schemes designed to get readers to read a person’s blog, all sub rosa as far as you, the reader, are concerned, from SEO to comment spamming, to telling others that you couldn’t agree more.
It’s like a big puppet show with Social Media Gurus, Marketers and Public Relations experts, pulling strings to turn lawyers into marketing machines. Where once we were mere lawyers, we are now marketing juggernauts on the internet. Just a few basic concepts will turn us from lone wolves on the prairie to a valued member of a tribe. Make others love you by telling them that you love them. Be authentic, which loosely translated means make other people believe you care deeply about them even though you don’t know them, you know nothing about them and you share nothing in common with them.
It’s really all very easy. Speak no evil. Say nothing to offend. Just tell them you couldn’t agree more. Within minutes, hours at the longest, you will make friends. They will invite you to join their tribe. You will find a home, where you can agree with others and they, in turn, will agree with you. The swell of validation will overwhelm you, and you will bask in the warmth of agreement, feeling wholly validated. Big group hug.
Some criminal defense lawyers prefer that I keep my posts on topic, writing about caselaw, trial experiences, tactics. Sorry, if this seems off topic, but it’s not from where I sit. Too many of you are allowing yourselves to be seduced by validation. There are other areas of the blogosphere that are so absorbed with self-promotion that they cannot bear to be questioned, no less challenged. The discussions range from “I couldn’t agree more” to “you are the most important person in my life and I love you more than life itself.” It’s so sweet. Is this what you want? Is this why you’re here?
I’m not going to name names, because my purpose isn’t to attack you but to persuade you to exist. There are blawgers who agree with everyone, wholly divergent positions notwithstanding. There are blawgers whose posts are so tepid, so devoid of substance, so safe, that no one could disagree with them. God forbid they write anything that takes a position, that means something.
I know why you do it. You want to be loved. You want potential clients to feel that love and want to retain you. You want them to pay you money so you can have a successful law practice. And the good people on the internet who sell sequined cellphone covers want a successful business too. Is that so bad?
And then there are trolls. People who are so filled with hatred and anger that they feel compelled to disagree with even your most tepid, meaningless, impossible to disagree with, post. You’re just trying to make friends, and they won’t be your friend. They won’t agree. They won’t validate you and contribute to the welfare of your tribe. Those people undermine your purpose, your goals, your warm and fuzzy glow of approval. That’s what makes them trolls, at least to you.
If you’re selling sequined cellphone covers, this is understandable. There’s really no pressing societal need for sequined cellphone covers. Some people like them. Some don’t. Some may even like them enough to buy one. But you’re a criminal defense lawyer. You signed on for a higher calling, one that involved the lives of real people and has the potential to help those people or add to their misery. We achieve that through discourse, for when someone posts about a Supreme Court decision and gets it all wrong, or about a trial tactic that makes no sense, someone may read that post and believe you know something. We engage in peer review so that stupid things don’t go unchallenged on the internet, as in the courtroom.
Have some pride in yourself. Stand on your own two feet. If you actually have something to say, have the guts to say it. If you have nothing to say, control the urge to make noise anyway. But if the noise comes out, be lawyer enough to face the challenge.
The internet is rife with naked gurus. Some are just the wastrels who happened to get here before you, and to whom you now look for validation. They have becomes chiefs of tribes only because they were a step ahead of their sycophantic followers, playing the game of agreement so that they will be allowed to join. Their intellectual vapidity, deception and fragile self-esteem is quickly revealed when you give them a poke. They crumble and cry. They know that this internet validation isn’t real, and they fear that their carefully crafted internet personas will crack and expose them to the internet world as worthless.
Being real means more than following the gurus’ advice to be “authentic”. Being real means that you will disagree with someone else’s assertion from time to time. Being real means that you have the fortitude and intelligence to question and challenge. While the rest of the internet may spend their days and nights trying desperately to sell sequined cellphone covers, we are trial lawyers. Think like a trial lawyer. Act like a trial lawyer. Write like a trial lawyer. Be a trial lawyer.
If you’re not behaving like a trial lawyer, and merely agreeing to be part of the tribe, then you might as well sell sequined cellphone covers, or Tony’s Pizza*, because you’ve already sold out.
* Special Added Attraction: There is always something new to learn on the internet, and yesterday was no exception. First, a twit came across my screen about @Rex7, renown for having accumulated more twitter followers than anyone else connected, however remotely, with law.
I was curious as to what this newfangled means of monetizing twitter followers was all about, and Amy Derby alerted me to a new venture, Sponsored Tweets. For a price, you can have celebrities twit your message, from real rock stars to social media rock stars. Remember Tamar Weinberg from these posts? Well, she’s available on page 2, selling her twits, as a “web celeb” and “social media rock star.” Not too many people get to be called “web celebs,” and I didn’t realize how important Tamar was in the internet. Imagine, I had a social media rock star right here, at my humble blawg. Want Tamar to twit for you? It will cost you $294.13.
Rex7 gets $174.38 for a twit. Good for Rex. I hope he makes some decent money. I would retwit his sponsored twits if it gets him a few more dollars. That would be a good cause. My only fear is that my RT would lose him some dough, and I wouldn’t want that to happen.
As George Bernard Shaw (though some attribute this to Winston Churchill) quipped, after getting a woman to agree to sex for a million dollars, “we’ve established what you are. Now we’re just dickering over price.” It doesn’t get more authentic than this.
The proof of this came to me in a thousand ways, each of which was left here by someone who wanted me to leave up his comment so that the link to his website would remain in the little box, be noticed by Google or you, the reader, and would eventually help to make him money. He knew that by writing something that made me feel validated, the chances were good that I would approve the comment and post it. He played the odds. He played to my ego, my insecurity, my lingering self-doubt, my need for approval. Forget my stomach, validation is the quickest way to a man’s heart. I love you for approving of me.
Put aside that none of these comments received the appreciation their authors expect, or see the light of day. The more important point for the long term is what this says about the nature of the blawgosphere (and the blogosphere, for those who aren’t blogging lawyers). There are a bunch of schemes designed to get readers to read a person’s blog, all sub rosa as far as you, the reader, are concerned, from SEO to comment spamming, to telling others that you couldn’t agree more.
It’s like a big puppet show with Social Media Gurus, Marketers and Public Relations experts, pulling strings to turn lawyers into marketing machines. Where once we were mere lawyers, we are now marketing juggernauts on the internet. Just a few basic concepts will turn us from lone wolves on the prairie to a valued member of a tribe. Make others love you by telling them that you love them. Be authentic, which loosely translated means make other people believe you care deeply about them even though you don’t know them, you know nothing about them and you share nothing in common with them.
It’s really all very easy. Speak no evil. Say nothing to offend. Just tell them you couldn’t agree more. Within minutes, hours at the longest, you will make friends. They will invite you to join their tribe. You will find a home, where you can agree with others and they, in turn, will agree with you. The swell of validation will overwhelm you, and you will bask in the warmth of agreement, feeling wholly validated. Big group hug.
Some criminal defense lawyers prefer that I keep my posts on topic, writing about caselaw, trial experiences, tactics. Sorry, if this seems off topic, but it’s not from where I sit. Too many of you are allowing yourselves to be seduced by validation. There are other areas of the blogosphere that are so absorbed with self-promotion that they cannot bear to be questioned, no less challenged. The discussions range from “I couldn’t agree more” to “you are the most important person in my life and I love you more than life itself.” It’s so sweet. Is this what you want? Is this why you’re here?
I’m not going to name names, because my purpose isn’t to attack you but to persuade you to exist. There are blawgers who agree with everyone, wholly divergent positions notwithstanding. There are blawgers whose posts are so tepid, so devoid of substance, so safe, that no one could disagree with them. God forbid they write anything that takes a position, that means something.
I know why you do it. You want to be loved. You want potential clients to feel that love and want to retain you. You want them to pay you money so you can have a successful law practice. And the good people on the internet who sell sequined cellphone covers want a successful business too. Is that so bad?
And then there are trolls. People who are so filled with hatred and anger that they feel compelled to disagree with even your most tepid, meaningless, impossible to disagree with, post. You’re just trying to make friends, and they won’t be your friend. They won’t agree. They won’t validate you and contribute to the welfare of your tribe. Those people undermine your purpose, your goals, your warm and fuzzy glow of approval. That’s what makes them trolls, at least to you.
If you’re selling sequined cellphone covers, this is understandable. There’s really no pressing societal need for sequined cellphone covers. Some people like them. Some don’t. Some may even like them enough to buy one. But you’re a criminal defense lawyer. You signed on for a higher calling, one that involved the lives of real people and has the potential to help those people or add to their misery. We achieve that through discourse, for when someone posts about a Supreme Court decision and gets it all wrong, or about a trial tactic that makes no sense, someone may read that post and believe you know something. We engage in peer review so that stupid things don’t go unchallenged on the internet, as in the courtroom.
Have some pride in yourself. Stand on your own two feet. If you actually have something to say, have the guts to say it. If you have nothing to say, control the urge to make noise anyway. But if the noise comes out, be lawyer enough to face the challenge.
The internet is rife with naked gurus. Some are just the wastrels who happened to get here before you, and to whom you now look for validation. They have becomes chiefs of tribes only because they were a step ahead of their sycophantic followers, playing the game of agreement so that they will be allowed to join. Their intellectual vapidity, deception and fragile self-esteem is quickly revealed when you give them a poke. They crumble and cry. They know that this internet validation isn’t real, and they fear that their carefully crafted internet personas will crack and expose them to the internet world as worthless.
Being real means more than following the gurus’ advice to be “authentic”. Being real means that you will disagree with someone else’s assertion from time to time. Being real means that you have the fortitude and intelligence to question and challenge. While the rest of the internet may spend their days and nights trying desperately to sell sequined cellphone covers, we are trial lawyers. Think like a trial lawyer. Act like a trial lawyer. Write like a trial lawyer. Be a trial lawyer.
If you’re not behaving like a trial lawyer, and merely agreeing to be part of the tribe, then you might as well sell sequined cellphone covers, or Tony’s Pizza*, because you’ve already sold out.
* Special Added Attraction: There is always something new to learn on the internet, and yesterday was no exception. First, a twit came across my screen about @Rex7, renown for having accumulated more twitter followers than anyone else connected, however remotely, with law.
when was the last time you tried one of Tony’s Crispy Crust Pizzas? – http://spn.tw/5FOh get one today! #mmm #TonysPizza #adRex, who is an unemployed law school graduate cum social media/twitter expert, found a way to monetize his collection of followers. I applaud his ingenuity. I applaud the fact that he’s doing something with what he’s got to earn some money. I said as much in a twit, but unfortunately, Rex must have thought I was making fun of him (I wasn’t) or is embarrassed that he’s forced to be a paid twit for Tony’s Pizza, and blocked me on twitter.
I was curious as to what this newfangled means of monetizing twitter followers was all about, and Amy Derby alerted me to a new venture, Sponsored Tweets. For a price, you can have celebrities twit your message, from real rock stars to social media rock stars. Remember Tamar Weinberg from these posts? Well, she’s available on page 2, selling her twits, as a “web celeb” and “social media rock star.” Not too many people get to be called “web celebs,” and I didn’t realize how important Tamar was in the internet. Imagine, I had a social media rock star right here, at my humble blawg. Want Tamar to twit for you? It will cost you $294.13.
Rex7 gets $174.38 for a twit. Good for Rex. I hope he makes some decent money. I would retwit his sponsored twits if it gets him a few more dollars. That would be a good cause. My only fear is that my RT would lose him some dough, and I wouldn’t want that to happen.
As George Bernard Shaw (though some attribute this to Winston Churchill) quipped, after getting a woman to agree to sex for a million dollars, “we’ve established what you are. Now we’re just dickering over price.” It doesn’t get more authentic than this.
Three Years of Bennett
When he first started, he was just a kid lawyer from Houston. Three years later, he’s a force to be reckoned with. It’s not just me saying that, either. Mark Bennett, the man behind Defending People, has made his presence known.
Today marks the third anniversary of Defending People, started a mere month (and a few days) after this blawg. Our paths have regularly intertwined during those three years, as we share agreements, disagreements, perspectives and dinner at Sammy’s Roumanian Steakhouse on the lower eastside. Happy anniverary. The place wouldn’t be the same without you.
Will Bernie Be A Crip or Blood?
It would come as no surprise that news of Bernie Madoff being beaten to a pulp at FCC Butner won’t cause a lot of people to lose sleep. There are a lot of people who remain very angry at Madoff, and a good shellacking is hardly a problem for them. In fact, some might complain that Bernie’s broken nose was misguided, and the pain should have been felt in a lower portion of his anatomy.
Of course, this is part of the visceral anger toward someone whose crime has harmed so many. Imprisonment isn’t supposed to include the occasional beating, nor worse. Initially, the United States Bureau of Prisons claimed that Bernie wasn’t beaten.
Of course, this is part of the visceral anger toward someone whose crime has harmed so many. Imprisonment isn’t supposed to include the occasional beating, nor worse. Initially, the United States Bureau of Prisons claimed that Bernie wasn’t beaten.
Madoff is currently serving a 150-year sentence in Butner, N.C. On Dec. 18, Madoff was moved to the prison’s low-security medical center for treatment. At the time, the Bureau of Prisons said that rumors of an assault were false and that Madoff suffered from dizziness and hypertension.
But that wasn’t the case, report Searcey and Efrati. According to an inmate at Butner, Madoff was treated for a broken nose, fractured ribs and cuts to his head and face. Another inmate who recently was released from Butner after serving time on drug charges also confirmed the assault, as did a third person familiar with Madoff’s situation.Not surprisingly, the BOP says that it “investigated” the incident, and Bernie denied that he was assaulted, ending the investigation. It must have been one of those spontaneous broken noses. Rare, but they do happen in prison on occasion. As does denial of assaults, if one wants to survive the return to the population.
The former inmate said the dispute centered on money the assailant thought he was owed by Mr. Madoff.
Since the BOP can’t protect Bernie Madoff, who will? Crips? Bloods? White supremacists? Forget for a moment that we’re talking about Bernie here, and consider what a lesser known prisoner experiences. Granted, federal correctional facilities are renown as being safer than state and local facilities, but the point remains. Prisons are not safe places. It’s hard to rehabilitate people who are more concerned with making it through the day without being beaten or raped. They tend to be preoccupied. Safety in groups becomes an imperative when threatened, and survival requires a certain amount of loyalty to the group.
The argument about punishment tends to focus on length of imprisonment rather than the nature of the experience. That this has happened to Bernie Madoff, regardless of whether your inclined to applaud the beating, abhor the beating or shrug your shoulders, isn’t the point. Defendants are sentenced to terms of imprisonment, not imprisonment plus beatings and rapes. It’s hardly “coddling” criminals to expect them to survive their sentence physically intact. And it’s surely beneficial to have them return to society without a gang tattoo to show for their survival.
No matter how hard you squint your eyes and think happy thoughts, it doesn’t change the fact that prisons can be very dangerous places. If that doesn’t bother you, it should. And as judges blithely come up with how many months or years are needed to fulfill the purposes of 18 USC 3553(a), and inquire what facility a defendant would prefer, perhaps they should ask what gang they want to join so they know what color accessories to bring with them that will best match their needs for survival.
Suppressing the Good Faith Search
Over at Volokh Conspiracy, Orin Kerr has done (as of now) a six part series of posts about the why the Good Faith Exception should not apply to a search that is lawful at the time it’s performed but subsequently held to be unconstitutional. The purpose of this series is to address the apparent conflict between the Supreme Court’s holdings in Herring, which Orin describes as a case with “language suggesting a broad approach to the good faith exception,” and Arizona v. Gant, which put the breaks on the common police practice of securing the defendant first, then performing a search incident after any potential threat is gone.
Before getting to Orin’s argument, a few words about the two cases giving rise to this mess are warranted. Herring , which approved a search and seizure based upon a negligent error in a warrant database, was characterized as the Barney Fife exception to the warrant clause. It would be funny, if it wasn’t held constitutional. The bottom line is that there is no remedial benefit to the exclusionary rule when the error was negligent, so while there may be a 4th Amendment violation, there’s no remedy. I am not a big fan of the Herring decision.
On the other hand, Arizona v. Gant ended the tyranny of Chimel, a decision that followed the rubric but forgot the rationale, or a search incident to arrest, though it left the door swinging open for an untethered evidentiary search, sans warrant, even though every conceivable basis for a warrantless search ceased to exist. But we take wins where we find them, and this was a better decision than it could have been.
Orin explains that the Good Faith Exception is misunderstood primarily because the name suggests that it refers to the officer’s subjective good faith.
While I agree completely with Orin’s outcome, I see two issues arising from his argument. First, it presents a bit of a problem in court, since federal judges are funny about being presented with an argument, particularly one as prolix as this, that requires them to answer a lawyer’s rhetorical questions. Second, putting aside an officer’s subjective good faith, searches that adhere to existing precedent at the time performed seem also to comply with objective good faith, and a subsequent change in law doesn’t change that.
Like Orin, the name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?
The better approach, at least from my perspective, is to cut loose the Herring rationale of pure deterrence in favor of reading the 4th Amendment as a right given the citizenry to be free of unreasonable search and seizure, and the exclusionary rule as the remedy due the people for a violation of that right. The only issue then is whether the courts, yesterday, today or tomorrow, conclude that the 4th Amendment has been violated. Return to the rule, that a warrantless search is per se unreasonable, and tether any exceptions to the rationale giving rise to them, as opposed to sliding down the slippery slope of “it’s just a few baby steps away from lawful search and it makes the cops’ job so much easier.”
Until we stop considering the 4th Amendment only from the perspective of good cop/bad cop, which presupposes that there is some inherent authority to search and that any limitation is the exception rather than the rule, we’re going to struggle with reasons why adherence to bad law is wrong. We’ve got a ton of bad law already, but it’s hard to blame cops for enjoying its fruits, and harder still to explain why the law would penalize cops for compliance with existing precedent.
The problem, of course, is that my view flies in the face of Herring, where the Supremes ignored the rights of the defendant in favor of limiting the exclusionary rule, and only remedy there is for a 4th Amendment violation, to those situations where the conduct was sufficiently deliberate that the exclusionary rule would serve as deterrent. In other words, Orin’s approach could be applied given the state of the law, while mine would require a change in the law. What else is new?
Before getting to Orin’s argument, a few words about the two cases giving rise to this mess are warranted. Herring , which approved a search and seizure based upon a negligent error in a warrant database, was characterized as the Barney Fife exception to the warrant clause. It would be funny, if it wasn’t held constitutional. The bottom line is that there is no remedial benefit to the exclusionary rule when the error was negligent, so while there may be a 4th Amendment violation, there’s no remedy. I am not a big fan of the Herring decision.
On the other hand, Arizona v. Gant ended the tyranny of Chimel, a decision that followed the rubric but forgot the rationale, or a search incident to arrest, though it left the door swinging open for an untethered evidentiary search, sans warrant, even though every conceivable basis for a warrantless search ceased to exist. But we take wins where we find them, and this was a better decision than it could have been.
Orin explains that the Good Faith Exception is misunderstood primarily because the name suggests that it refers to the officer’s subjective good faith.
The error is one of labels: “good faith.” Although the doctrine is called the “good faith exception,” that is a confusing label: The subjective good faith of the officer is actually irrelevant, as decisions from Leon to Herring have all emphasized. It’s more accurate to think of the so-called “good faith” exception as the “technicality” exception. The exception applies when the police violate the Fourth Amendment but the violation is a sort of technicality — the kind of violation for which exclusion would be an extravagant remedy.So far, so good. But the question that remains unanswered at this point is “why?” This proves to be more difficult, and Orin goes into a Socratic Q&A to make his point. Offering examples of subjective bad and good faith conduct by officers, and relying upon his assertion that subjective good faith is irrelevant as a given, he demonstrates that an officers desire or lack thereof to apply existing law creates logical conflicts if the Supremes determine otherwise during the pendency of the case.
Examples of such technical violations are minor defects in a warrant (Leon), knock-and-announce violations (Hudson), and reliance on negligent errors in a police database (Herring). These are minor, technical sorts of violations: Imposing the remedy of suppression is just too much given that the violation isn’t such a huge deal in the overall scheme of things. But the key is the nature of the violation, not the officer’s subjective state of mind.
While I agree completely with Orin’s outcome, I see two issues arising from his argument. First, it presents a bit of a problem in court, since federal judges are funny about being presented with an argument, particularly one as prolix as this, that requires them to answer a lawyer’s rhetorical questions. Second, putting aside an officer’s subjective good faith, searches that adhere to existing precedent at the time performed seem also to comply with objective good faith, and a subsequent change in law doesn’t change that.
Like Orin, the name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?
The better approach, at least from my perspective, is to cut loose the Herring rationale of pure deterrence in favor of reading the 4th Amendment as a right given the citizenry to be free of unreasonable search and seizure, and the exclusionary rule as the remedy due the people for a violation of that right. The only issue then is whether the courts, yesterday, today or tomorrow, conclude that the 4th Amendment has been violated. Return to the rule, that a warrantless search is per se unreasonable, and tether any exceptions to the rationale giving rise to them, as opposed to sliding down the slippery slope of “it’s just a few baby steps away from lawful search and it makes the cops’ job so much easier.”
Until we stop considering the 4th Amendment only from the perspective of good cop/bad cop, which presupposes that there is some inherent authority to search and that any limitation is the exception rather than the rule, we’re going to struggle with reasons why adherence to bad law is wrong. We’ve got a ton of bad law already, but it’s hard to blame cops for enjoying its fruits, and harder still to explain why the law would penalize cops for compliance with existing precedent.
The problem, of course, is that my view flies in the face of Herring, where the Supremes ignored the rights of the defendant in favor of limiting the exclusionary rule, and only remedy there is for a 4th Amendment violation, to those situations where the conduct was sufficiently deliberate that the exclusionary rule would serve as deterrent. In other words, Orin’s approach could be applied given the state of the law, while mine would require a change in the law. What else is new?