Reading a book written by a friend is a leap of faith, approached with trepidation. What if it’s awful? What if it’s not awful, but just not very good? But there is no real option, particularly when it is about a subject of deep concern and fascination for both of us.

And so there was never a question when Radley Balko announced his forthcoming book, Rise of the Warrior Cop, The Militarization of America’s Police Forces. I would read it. I would review it. I would be as critical of it as I would of any other book, and hope for the best.  Let’s get this out of the way up front: Every person who shares an interest in the relationship among policing, criminal justice and American society must read this book. And there is no one who can afford not to share that interest.

The book, published by Public Affairs and scheduled for release on July 9, 2013, starts at the beginning, taking us from the days when Americans policed themselves to the birth of the occupation of policing.  While I was well aware of  Radley’s persistence and acumen at chronicling current events, I never realized what a thorough researcher he is. The history of policing is remarkably impressive.

It’s critical to appreciate the history of policing, to understand that what we now see as normal and inescapable wasn’t always the case. For most of our history, this country did not have a group of people with shields and guns who wandered the streets ordering people about. The fall from grace, If you perceive it as I do, came fast and hard.

American attitudes toward police were built on images of Andy Griffith, strolling the streets of Mayberry to save random cats and, an allusion Radley employs, serving as guest umpire in the occasional baseball game. Good. Honest, One of us. This was the police officer upon whom we relied, and the one we pictured as we told our children that they were here to help us; they were our friend. 

Starting in the 1960’s, Radley takes us decade by decade down the road to perdition.  As he wears his libertarian politics on his sleeve, it came as no surprise that he gave the politics of law enforcement special scrutiny.  His hatred of Richard Nixon for manipulating the silent majority’s hatred of hippies and counterculture into the War on Drugs is palpable. On the other hand, there is no reluctance to blame Bill Clinton for his deceitful abuse of the COPS program, and its infusion of billions into the drug war a few decades later.

Radley is a surprisingly good story teller, generally low key in recounting tales of individual harm interspersed with broad influences that gave rise to putting heavy weaponry into the hands of children.  There are times when the narrative gets a bit breathless, trying hard to capture the confluence of political deceit on the part of some and ignorance on the part of others.  Then again, the alternative would be to simply call out the liars and morons for their contribution to a state of affairs that served to put a naïve American public at grave risk for such puny and transitory purposes as winning an election. 

What came as quite a surprise was Radley’s discussion of the start of SWAT, special weapons and tactics (notably not including the word “attack” because, well, that might upset people).  His description is not merely calm, but borders on sympathetic.  It reflects the balance of his approach, which is quite shocking in light of what we all know to come at the end of the story.

The book contains required caveat number 3, mentioned numerous times that this is not an anti-cop book.  And indeed, Radley pays homage to those within law enforcement who recognized the developing schism between police and the public that would lead us to blur the line between soldier fighting a foreign enemy on the battlefield and police fighting a domestic enemy on the streets of America, using the same clothing, weapons and attitudes.  The book has its heroes, though they pale in comparison to such moral scolds as William Bennett.

At the outset, Radley tries to develop a theme based on the symbolic Third Amendment, the quartering of soldiers, to show our tradition of not allowing a standing army in our midst to trump the sanctity of our Castles.  He returns to that theme from time to time, bringing it full circle toward the end. The theme seemed strained at times, and not really necessary to appreciate how government intrusion into our lives and homes has worked its harm. 

As anyone who has even a passing familiarity with Radley’s efforts at chronicling wrong door raids and puppycide would expect, the book infuses individual tales of horror throughout, with a special pounding at the end of story after story of what becomes of a police presence more concerned with using the toys in hand than showing restraint, thoughtfulness, concern for the fact that the people on the other end of their bullets are their fellow Americans.  Radley does not disappoint.

While the book, not surprisingly, provides an in depth look at the political forces and machinery at work in creating the militarization of police, it doesn’t dwell too much on the role of the cop on the street. Sure, there is the machismo and the great fun of wearing body armor and carrying assault weapons when serving a warrant on a medical marijuana user, but the focus is more macro than micro. 

It’s unclear what makes a guy who is otherwise a fine neighbor, a good father, a great fan of baseball perhaps, into a mindless killer of his fellow citizens.  Wearing a black jumpsuit and Kevlar helmet isn’t enough of an explanation for pulling the trigger on his assault rifle pointed at the head of a child. Even with Washington dumping tons of surplus military equipment on police departments with three cops, all of whom want to be on the SWAT team so they can be just as cool as the big city guys, there is a gap in what happens in the head of a police officer who looks into the eyes of another man’s child and decides that he’s going to end his life. How did that happen?

It’s impossible to fathom how any reader of SJ won’t read this book immediately. It’s a critical history of how we got from there to here, from Officer Friendly to the Lenco Bearcat in a town with no crime.  And why, once the toys are in hand, they must be used.  And they are used against us.  But this book needs to go much farther, as there is no person, not even a child, who hopes to survive life in modern America who doesn’t need to know that this nation wasn’t always at the mercy of an overly weaponized, seemingly omnipotent force.

If there is any hope of changing the course of the militarization of law enforcement, it will come from a greater understanding of why this was never meant to be the internal norm of this country, and that it doesn’t have to be.  Radley Balko has done an exceptional job of making the case.  Every person who hopes to preserve the integrity of his Castle from dynamic entry needs to read The Rise of Warrior Cop. Spread the word.

What does silence mean? It means Genovevo Salinas isn’t going home again. It strained hope to think otherwise, but the absence of sound doesn’t necessarily suggest the absence of thought.  When the plurality opinion in  Salinas v. Texas was announced by Sam Alito, however, any lingering hope was sucked out of the room.

Contrary to many, who saw the right to remain silent as one so fundamentally well-grounded as to form the default relationship between citizen and agent of the state, there  seemed little hope of that being the case after the Supreme Court’s misbegotten  Berghuis v. Thompkins decision, holding the post-Miranda silence is not an invocation of the 5th Amendment right. That non-custodial silence would be shown any greater significance, meaning, was hard to imagine. 

At Volokh Conspiracy, Orin Kerr provides an excellent, and much needed, history of the 5th Amendment privilege against self-incrimination, the most significant aspect of which is that it is a privilege against compulsion, “nor shall [any person] be compelled in any criminal case to be a witness against himself.” 

No one made Salinas agree to voluntarily answer the questions of police, though this point depends on a fantasy that ignores submission to the shield, law enforcement training designed to overcome independent choice and the overarching sense that refusal to cooperate will result in bad things, ranging from arrest for being uncooperative if not for the underlying crime to a beating from an officer whose commands aren’t complied with fast enough.  Judges refuse to acknowledge how regular people feel when confronted by police, and so rule based on the view from high on their bench.  Reality rarely touches the world of the Supreme Court justice.

Genovevo Salinas did indeed walk into a buzzsaw of questioning. He was asked questions, and he answered them. He was asked the question he didn’t want to answer, and he went silent. He looked down, he shuffled his feet and his silence told them what they wanted to know.

The question isn’t whether anyone made Salinas answer questions. To a judge, no one did. To anyone else, it’s not so clear. He wasn’t actively forced to do so, but the magic doesn’t have to require force. The mere refusal to be cooperative carries baggage, at least in the real world.

So when Salinas stopped talking, didn’t answer a question after having been otherwise cooperative, he wasn’t made to answer. He wasn’t compelled, in the legal sense. And thus, his silence gave rise to the argument that his failure to utter a denial was tantamount to his confession. His silence spoke volumes.

There is an argument to be made that there is inadequate probative value in silence, and that the prejudice far outweighs whatever inference can be drawn, but it’s a weak argument, one that depends on the discretion of the judge.  Such discretionary evidentiary decisions are hardly an adequate safeguard of constitutional rights.  So the line is drawn by the  Salinas opinion, and it requires pre-Miranda, pre-custody invocation of the right to remain silent.  While the decision doesn’t speak to it, it would be wise to assume that the invocation will be required to be as unambiguous as it would be post-Miranda.

As I’ve suggested before, the “advice” of the internet to “just say nothing” to police isn’t sound.  After this decision, it’s affirmatively wrong.  Silence can be used against you, and saying nothing may serve to incriminate a person just like speaking.  But that doesn’t help lawyers to advise people as to what they should do.  As Orin asks,

But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.

Officer, my lawyer has advised me that I am never to answer questions by the police, and since I am not a lawyer, I am constrained to follow my lawyer’s advice and refuse to answer questions.

Jeff Gamso raises a  troubling unintended consequence stemming from Texas’ financial generosity (meant in the most relative sense) toward the folks it wrongfully convicts. Well, at least toward the wrongfully convicted who  aren’t put to death before they can claim their compensation.

Meet Steven Phillips.

In 1982, Steve and Traci Phillips were starting a new business.  Traci was pregnant with their first child.  Life was good.

Then Steve was charged with a string of sex crimes.  Brandi Grissom in the Texas Tribune picks up the story.

In two trials in 1982 and 1983, he was convicted based largely on eyewitness identifications, despite his wife’s vehement protestations from the witness stand that he could not have committed the crimes.

He pleaded guilty to additional charges to prevent a third trial and a likely life sentence. She said she spent the next decade visiting him in prison, raising their son, sending money for items her husband needed, and hoping to find a way to get him out.

That’s what people do for the ones they love who are in prison.  But you know, those visits, the cash, the raising the kid.  Trying to make the child understand why Daddy isn’t home.  And the neighbors and the other kids at school and . . . .

In 2009, the state awarded him lump sum payments totaling more than $2 million, and a monthly annuity of more than $11,000. In total, his compensation package for the time he spent in prison is worth nearly $6 million, not including health care and education benefits he is also eligible to receive.

She’s now Traci Tucker, and she figures she’s entitled to a share. 

“He was a victim of a wrongful justice system, and his family was also,” Tucker said.

Which is certainly true.  And is how the judge who awarded her a bit over $150,000 looked at it.  Steve, of course, doesn’t quite look at it that way.  The $6 million he got was for what was done to him, not to them.  And while he appreciates her testifying for him, well, yeah.  But 24 years.  And she never came to visit all that often even before the divorce.

If the question was settled by who suffered more, Steve or Traci, then Steve would have to win. But that’s not the real question.  What is reflected by Traci’s claim and award is that the wrong done Steve touches other lives, and the harm is most real.  As Gamso notes, Traci and her family weren’t living the high life following Steve’s wrongful conviction. She lost a husband. Her children lost a father. They had no choice but live with the humiliation, the hatred, society imposes on the convicted, even when they’re innocent. 

Traci had to pay for the food, the roof over their heads and the shoes on the kids’ feet. Texas pays for the guy staring at walls and bars, day after day, night after night, for 24 years, when he should have been in the fresh air watching ball games and explaining why Tony Romo was never a franchise quarterback.

There is a whole lot of life we live, and it involves a lot more people than most of us think about.  Traci Phillips endured a decade of misery due to her husband’s wrongful conviction. Even if it wasn’t as bad as what he endured, she was no more deserving.

So what about Traci?

“This is an example of the law of unintended consequences,” said state Rep.  Rafael Anchia, D-Dallas. “We did not think about entitlement by spouses who had become divorced from these innocent men while they were in prison.”

So should we just add this to the list of things no one thought about when convicting the innocent?  It may not offer any solution, any help for Traci, but at least it’s not a strident defense of the system, imperfect but….

The shame now is that Traci and Steve went to war over this issue, as the last thing a guy freed from 24 years of wrongful imprisonment needs is more time in court.  Traci divorced Steve long before he was freed, whether because marriage to a guy, even if innocent, in prison forever isn’t nearly as much fun as she thought on her wedding day, or because they started to fight when the prison cell wasn’t big enough for the two of them.  Who knows why, but it’s hard to blame Traci for not standing by her man until the miracle of release happened.  It’s just too long a bet for someone to stake their life on, even if they’re the one on the outside.

The answer to the conundrum, of course, is not to convict the innocent.  But then we might leave a guilty person free, and nobody in Texas wants that to happen.

While awaiting Judge Shira Scheindlin’s decision on just how unconstitutional stop & frisk is, a voice from the side could suddenly be heard.  It wasn’t there during the fight to get Floyd v. New York to trial. It wasn’t there to offer support and evidence on behalf of the plaintiffs, but that was understandable, given how busy they’ve been lately.

The Department of Justice is a very busy agency, what with being  preoccupied with drone strikes against Americans and making sure the FISC appreciated all the National Security Agency was doing to protect us. At least it no longer has to explain the legal propriety of torture.

Last Wednesday, the DoJ suddenly had something to say.  It filed a Statement of Interest, which is what a vulture would file as it flew over a dying carcass if it only had thumbs. It’s simultaneously humble and, well, intriguing:

The United States takes no position on the fact-dependent first question of whether NYPD’s stop-and-frisk practices violate constitutional standards such that Plaintiffs should prevail on the merits of their claims. The United States files this Statement of Interest only in order to assist the Court on the issue of remedy, and only should it find that NYPD’s stop-and-frisk practices are unlawful.

See what they did there?  Who is the United States Department of Justice, the bunch of really hard-working, trustworthy guys under the guidance of the Attorney General of the United States of America, to offer an opinion as to the constitutionality of stop & frisk?  Don’t you admire their restraint?

Don’t jump to the wrong conclusion. It’s not like they don’t have an opinion. It’s just that they don’t want to stick their nose into somebody else’s business. After all, it’s not like it’s the Attorney General’s job to protect and defend the Constitution. Oh wait.

But they are now, even if belatedly, here for us. Despite the many critical things they do, like providing a secondary source of prosecuting drug offenders who are already subject to state penal laws and instructing American multinational corporations how to best conduct business around the world the American way, the DoJ has graciously offered to help the Court to ensure that conduct it refuses to call unconstitutional is performed constitutionally in the future.

It is the position of the United States that, should the Court find that NYPD’s stop-and-frisk practices are unlawful, the Court has wide discretion to enter injunctive relief aimed at bringing any practices it finds to be unlawful into compliance with the Constitution and other laws. The injunctive relief may include the appointment of an independent monitor for the limited purpose of assisting the Court and the parties to ensure that any remedy related to any adverse findings regarding stop-and-frisk practices is implemented.

After all, if you can’t trust the people who stood by and did nothing before, and can’t bring themselves to take a position now, who can you trust?

The  New York Times has an editorial calling this a “loud message to the NYPD.”

After years of sitting on the sidelines, the United States Justice Department has finally made itself heard in the federal civil rights lawsuit by New Yorkers who say the Police Department has been illegally detaining hundreds of thousands of people on the streets each year based not on suspicious behavior but on race.

In a statement filed in federal court in Manhattan on Wednesday, the Justice Department did not take a stand on the case, on which Judge Shira Scheindlin has yet to rule, but strongly endorsed the idea of enlisting an independent monitor to oversee Police Department reform in the event that she finds the stop-and-frisk program unconstitutional. That put the federal government squarely behind an idea that Mayor Michael Bloomberg and Police Commissioner Raymond Kelly have fought tooth and nail.

A curious juxtaposition of reality leads to an even more curious interpretation of the feds’ position. After noting how the DoJ stared at the problem for years and did nothing, it has suddenly appeared
as the body lie dying to “strongly” urge a federal independent monitor. 

The use of a federal monitor to oversee compliance by the New York Police Department is likely the best idea available.  Not because it’s necessarily a good idea, but because it’s better than every other idea, like expecting the NYPD to heed the ruling of the Court or just start respecting the constitutional rights of black and Hispanic youths because, well, they’re a swell bunch of guys.

The line to be drawn going forward, assuming (as I do without hesitation) that Judge Scheindlin will hold the stop and frisk program to be flagrantly unconstitutional, is a hard one to spot.  Police need only make easy claims, the furtive movement, the evasive glance, the fighting stance, that evades proof or testing, to justify tossing some kid against a wall and searching him at will. If the cops say so, then so it is. 

Sure, state and local judges might have a role in putting an end to flagrant violations, but that would require them to rule against police and not credit their testimony, which would mean they would get picked last for judicial softball games. How humiliating would that be?  Plus, nearly 90% of those searched never see a judge, because they have nothing on them to suggest a crime. So they walk away, thankful they haven’t spent a night in jail awaiting a dismissal and a lecture about why they should never commit a crime they never committed before.

So if the cops can’t be trusted to clean up their own act, particularly given their proclivity to adjust the rhetoric to suit their conduct and that undisputed fact that they just don’t see why they can’t toss a suspect at will anyway, who can?  Judge Scheindlin can’t become embroiled in every search. Who then? Who?

Have no fear. The feds are here to save the day, to offer up an “independent” person who will ride shotgun in every RMP, sit on the shoulder of every beat cop, making sure that the police of the City are every bit as respectful of the Constitution as the very special agents of the United States of America. Don’t you feel better knowing this?

A quick adventure down the twitter hole  over the merits of a Brit futurist named  Richard Susskind yesterday reminded me that the notion of depth of thought, attention span if you will, is on its death bed.  After some  brief mention over the past few days of #ReinventLaw, which is a gathering of the techno futurist faithful that predicts Anglo-American law will be done by machines serviced in India using commodity pricing from a Chinese take-out menu, I expressed my view that it ain’t happening.

The quick take on Susskind, for those unfamiliar, in his own self-promoting words :

In his latest book, Richard claims that legal institutions and lawyers are poised to change more radically over the next two decades than they have over the last two centuries.

The future of legal service, he says, will be neither Grisham nor Rumpole. Instead, it will be a world of virtual courts, Internet-based global legal businesses, online document production, commoditized service, legal process outsourcing, and web-based simulated practice. Legal markets will be liberalized, with new jobs, and new employers, for lawyers.

No need to read the whole book, I can just glance over the Cliffs Notes… I get it.

I don’t need to hear your whole pitch, just show me the summary slide… got it.

No, I already heard about your vacation… remember, I saw the Instagram feed.

Him, why would I go out with him? I read his match.com profile.

You’re probably smart enough to ‘get it’ merely by reading the 140 character summary of just about anything. But of course, that doesn’t mean you understand it, or that it changed you. All it means is that you were quickly able to sort it into an appropriate category, to make a decision about where it belongs in your mental filing cabinet.

You get it? No you don’t. Not yet. Because all you’ve gotten is a tweet.

Read the book. The whole thing. Use the product. A few times. More than a few times.

Immersed. It can change you.

Within the niche of criminal defense, there’s a subset of lawyers who do drunk driving defense. While they may technically fall within the larger niche, it’s a very different practice in that they are constrained to do high volume for low prices. There’s just no other way to survive as a drunk driving lawyer.

Which makes California DUI lawyer Christopher McCann’s monumental screw up more understandable.  I don’t know him. He may be a great DUI lawyer. Or not. I have no clue. But it’s clear that he’s engaged in every smarmy method of getting business the internet has to offer.  From using a  marketeer named Nader to do the guest post backlink scheme, to twitting DUi stories, to Youtube videos, to every  website gimmick known to marketeers, he’s there.

As a result, he’s attracted the attention of a few fellow blawgers, Brian Tannebaum,  Matt Brown and even Alfie Jordan Rushie,  McCann, in a misguided effort to impress upon those who were critical of his marketing methods (he called himself “Mr. McCann” in a comment to Tannebaum, as if he was a grown-up chastising a five year old), he made some mind-numbingly foolish assertions.  Most notably, that he was justified in engaging in these smarmy schemes because he was too busy to behave better, and that it was somehow Tannebaum’s duty to call him if he took issue with his sleaze rather than McCann’s responsibility not to engage in sleaze. 

With Matt Brown, it was worse. 

Your problem is you republish [Tannebam’s] link and insult me again, and put me in a false light, without looking into the fact that that other lawyer is falsely portraying what happened so he can crowbar me into a point he wants to make. I answer my own calls and do my own work. I write content. I just don’t have the time or know how to find places to publish it. I hired someone more knowledgeable than me to find websites that would publish it to get my name out there. That neither makes me a bad lawyer, nor a “scumbag marketer.” All that lawyer had to say was “no thanks.” I get requests all the time. Instead he hides behind a computer and insults me and my colleague who stuck up for me.

McCann doesn’t know Matt. McCann doesn’t know how the internet works. He thinks he does, and he projects his misguided grasp onto Matt, but he has no clue. Tannebaum could have just said “no thanks” to McCann’s “scumbag marketing” scheme, but he chose instead to take note of it. That’s Tannebaum’s choice, and when McCann engaged a marketeer to run amok on the internet under his name, that was the risk he took.  Had he known better, he might have acted differently, but it’s no one’s fault but McCann’s. 

You have insulting me by clearly portraying me in a false light. As a private individual, that is actionable. I demand you remove any reference to me from that post and my comment.

If you do so, I’ll leave it at that. If not, I am going to explore my legal options against you and your partner who is cc’d on this communication.

Another empty threat by another clueless lawyer. Not only does the provide greater insight into McCann than his marketing methods, but the internet tends to respond poorly to such methods. Even more poorly than it does to sleazy marketing schemes.

That’s where Rushie entered the picture, because the blawgosphere does not take censorious threats lying down.

Quite frankly, you’re acting like a school child whose feelings were hurt and now you’re throwing a temper tantrum. And while hurt feelings might make you very sad, and Matt Brown is a big mean bully who hurt your feelings, I’m sure you understand that none of it is actionable at law. As a lawyer, you know better, and you should be deeply ashamed of yourself for trying to engage in petty and baseless intimidation.

If these kinds of childish antics are your way of trying to build an internet presence, congratulations, you have succeeded. You have earned an online reputation for using scummy marketing tactics, engaging in censorious thuggery, and trying to intimidate young lawyers with frivolous SLAPP lawsuits because they hurt your feelings (while apparently not threatening Tannebaum with a lawsuit for, well, whatever reason…).

So Christopher McCann has managed to screw up his carefully crafted internet persona on just about every level possible. Had he left it alone after hiring some guy named Nader to do the guest post scheme on his behalf, this would have faded into oblivion. Had he realized that he screwed up, and that he was dead wrong to demand that the blawgosphere go out of its way to accommodate him and his expectation that all the other lawyers on the internet were engaged in sleazy marketing just like him, then apologized for his egregious errors, it would have dissipated over time.

But McCann screwed up, doubled down, then doubled down again. 

Yesterday I sent McCann an email to find out whether he had learned from this, whether he came to realize that it wasn’t the blawgosphere that had wrongly maligned him, but that he had handled himself poorly.  There were two reasons I wrote him.

First, maybe Chris McCann is a damn fine DUI lawyer. Maybe he knows his stuff, takes great care of his clients and defends them zealously.  It’s just that DUI lawyers need to churn to stay afloat, and marketing makes that happen.  Lawyers whose practice demands constant marketing tends to have a blind spot there, but it doesn’t make them any less competent as lawyers.  So all the hubbub over McCann’s sleazy marketing and incredibly poor manner of dealing with criticism may not reflect his ability as a DUI lawyer. Or not. I have no clue.

Second, maybe Chris McCann’s lack of understanding about why his marketing and subsequent behavior has served him so poorly reflects one of my gravest fears about the internet and the blawgosphere, that lawyers jump in blindly, taught by marketeers, schemers and futurists that this is how they ought to act. No one tells them that trying to bluster their way through their screw-ups is far more likely to give rise to the Streisand Effect than make anyone bow to their lawyerly will. 

For a long time, I’ve pondered whether lawyers will come to the web with the understanding that guys like Eric Turkewitz offer. But “there Are 181,000 Social Media ‘Gurus,’ ‘Ninjas,’ ‘Masters,’ and ‘Mavens’ on Twitter.”  What chance does a guy like Turk, or me for that matter, have against this swarm?  And what chances does a guy like Chris McCann have of learning how to conduct himself properly when there are 181,000 voices telling him to walk the boulevard in hotpants?

So Chris McCann got his butt kicked on the internet, when all he wanted to do was market the crap out of himself and bring in as many “leads” as possible. Does that make him a bad lawyer? No. No, it does not.  But it also doesn’t make him smart enough to know when to stop digging that very deep hole that’s about to crash down on his head.  Given the choice of the road to perdition and the path of apologia, he gets to decide which route is right for him.  He chose.  He chose poorly.

I tried to help, but he didn’t respond to my email. So much for trying to save Chris McCann from himself. Don’t make the same mistake.

It was hardly surprising that SDNY Judge William H. Pauley III held that unpaid internships were unlawful in Glatt v. Fox Searchlight Pictures.  It’s one of those concepts that don’t fall neatly into the world of law, like why football should be a monopoly or why waiters at Wo Hops should have to be Chinese. Yet they are.

There has to be something, some benefit, like college credit, in return for the hard labor of being an intern. And there have to be internships because there is no other way for young people to get their foot in the door, their first break.  After all, who would hire these kids, utterly lacking in any skill worthy of compensation? 

Aside from fetching coffee and carrying the trial bag, they’re a royal pain in the butt, always asking questions and expecting people to acknowledge their existence. 

There is an exception in the Fair Labor Standards Act that allows for internships, but its criteria require that an employer derive no benefit whatsoever from the intern, and in fact, that it suffers for their being present.  That’s an absurd burden, as merely fetching coffee confers a benefit on the employer and, seriously, why would any business suffer an intern who was nothing but a total drain.

And so, we have a paradox. Kids need a chance to learn, to show their stuff, to get some experience if by doing nothing more than observing how the real world happens.  Businesses are willing to let them hang around provided they neither get too much in the way and do those little things that contribute something. And bang, we’ve got a violation of law.

No doubt there are businesses that take gross advantage of interns.  After all, Skippy is all too happy to do whatever he’s told, hoping and praying that he will impress the crap out of someone and be found sufficiently indispensable to get a real job. If nothing else, when Skippy is ready for the real world, he’s got something to put on his resume other than Glee Club treasurer, which isn’t as impressive to potential employers as he may think.

Yet without internships, young people have few options available to get some insight into the real world of their chosen/hopeful occupation and to put some meat on the bones of their resume.  They need internships, because nobody is going to pay them to hang around for a couple of months to fetch coffee.

If interns are forced labor, slaves to the practical economy, then lack of internship opportunities means young people send out indistinguishable cover letters begging for a chance to prove themselves without any hope of offering anything of value besides their willingness to show up.

We need internships. We need unpaid internships. We need to give young people an opportunity to learn their craft, to impress potential future employers, to show they can do the job they hope to hold for years to come.  And if internships must be paid, they aren’t internships and the they aren’t worth it.

The Daily Beast covers whether Judge Pauley’s decision will have an impact, dissuade employers from taking on unpaid interns and put an end to the hopes and dreams of young people.

There are no hard numbers on how many unpaid interns are working in U.S. movie studios, fashion houses, and newsrooms. A 2008 study by the National Association of Colleges and Employers found that 50 percent of graduating seniors had an internship; it is estimated that as many as one half of them are unpaid. New York, Chicago, and Los Angeles are besieged by young interns at the start of the summer, especially in creative industries such as film, media, and fashion. “It’s places that have a certain appeal, a certain glamour, and so students and young people are willing to go through hardship to get their foot in the door,” said EPI’s Eisenbrey.

Is the pipeline over?  There are some who find the ruling legally uneventful, more of an invitation for big companies to fuss with the details to make their internships appear more legally compliant.  But that does nothing for small companies, who don’t have departments to handle such things, or for companies who really just don’t care enough to jump through those hoops. After all, who wants to invite a lawsuit?

With tuition costs increasing alongside student debt, would-be interns may start to decide that their services must be compensated. And the ruling this week comes on the heels of a number of cases about unpaid internships, including the Hearst case and another against talk-show host Charlie Rose’s production company.

Can’t you hear it now, interns grumbling about the value of their efforts?  It’s not enough that they get the opportunity to intern, but how they aren’t sufficiently “appreciated” once they’re on the inside?  Of course, if they’re not one of the lucky ones to land a gig, they will whine about how there aren’t enough unpaid internships to let them get their foot in the door. Logical consistency isn’t big among the young these days.

“Giving young people a shot to learn the ropes has gone off the rails,” said Ross Perlin, the author of Intern Nation, a critical look at the practice. “There are record levels of youth unemployment, people are saddled with debt, and there is a general sense of malaise and downward mobility among young people. These internships are just the straw that breaks the camel’s back.”

He’s got a point.  The problem is that the only things worse than unpaid internships for businesses that “abuse” their interns by expecting them to actually do something are no internships at all.  Just ask those kids sitting on the couch in their parents’ basement whether they feel sufficiently valued by their half-eaten bag of Cheetos.

Are unpaid internships wrong and abusive?  Perhaps. The alternative, however, is that young people find themselves with a lot of unpaid free time on their hands and no way to either learn or get a chance.  So Judge Pauley’s decision may well be a proper application of law, but this win for the intern is going to do an awful lot of harm to many who would give their left arm for the chance to get something to put on their resume.

And as graduation season comes to its conclusion, I wish all the graduates the best of luck in finding a suitable paid position now that your options just took a nosedive. It’s a problem on both sides, but sometimes the cure is worse than the disease.

The description, via Oregon Live, of the thief was fairly typical:

Hispanic man, late 30s, 5-feet-4 to 5-feet-6, with a thin build, wearing a cream-colored beanie, black jacket and carrying a black backpack.

Apparently, the use of the word beanie remains in fashion in Portland. It didn’t take long before the police had “one under.”

The person detained: Lisa Haynes, an African American woman in her late 40s who stands 4-foot-10-inches tall.

And no beanie.  Before you jump to unwarranted assumptions about the Portland police, they have an explanation:

[Lt. Vince] Elmore, drawing on his 23-year bureau career, replied that witnesses often get descriptions wrong.

So if an eyewitness’ description is considered sufficiently unreliable that the police feel free to disregard it, then there are two problems. The first is that Elmore now concedes that eyewitnesses are as worthless a source of proof as we’ve long contended, and the second is that they either provide no basis to stop anyone or a basis to stop everyone, regardless of appearance. See how that works?

He added that most people comply and give police their name.

Ah, there’s the rub. People who look nothing like the perp comply anyway, as the police believe they should in order to make their job easier and our world more, well, compliant.  Now your assumption is no longer unwarranted. Jump away.

The cops were looking for a guy who was allegedly rifling through some mailboxes, and came upon Lisa Haynes waiting for a bus.  The connection was immediate:

[Arresting Officer Gregory] Baldwin [who was training a rookie at the time] told internal affairs investigators that they stopped Haynes because she was wearing clothes that matched the thief’s: a black jacket, cream-colored hat with a black backpack. He told her to get off the phone and give him her name.

Hispanic man…black woman…close enough.  It wasn’t about the appearance really, but the expectation that when Baldwin asked for her name, a person minding her own business for whom he possessed no reason other than some pathologically ordinary clothing colors to address, she did not comply.  What? Everybody complies. A refusal creates suspicion, even where none could otherwise be found.

But then Haynes did the unthinkable.

Haynes said she told him she was waiting for a bus. “I didn’t feel comfortable telling him my name because he did not say why he was there,” she said.
She said the officer asked what was in her backpack. She said she called her son on her cellphone and told him she felt threatened by police. Her son asked if she was being arrested, and Haynes said she did not think so.
On her son’s advice, she grabbed her backpack to walk off. That’s when the officers grabbed her hands and struggled to handcuff her. Baldwin screamed profanity at her and placed her in the back of a police car, she said.

Baldwin was not going to have the rookie he was training at the time learn a dangerously bad lesson, that the First Rule of Policing can ever be ignored. When Haynes grabbed her backpack, it was more than any reasonable officer could bear, as Lt. Elmore from internal affairs later agreed. After all, you can’t have unarrested citizens touching their things and walking away from cops, except if you’re on the Supreme Court.

Their lieutenant, Vince Elmore, told the committee he exonerated the officers because they investigated the mail theft appropriately. He called the officers cordial and said “Ms. Haynes had no intention of cooperating with officers.”
When Haynes reached for her backpack, officers were concerned for their safety, Elmore said. They didn’t know if she was reaching for a weapon inside, he said.

There could have been a gun. There could have been a bazooka. There could have been something terribly dangerous in that backpack, and when Haynes put her hands on her own backpack to walk away, there is no way Baldwin, as a trained professional, could let this small woman ignore his commands.

Or, of course, the backpack could contain nothing threatening whatsoever, but what sort of cop is going to take that kind of crazy risk?  Not Baldwin, so according to Internal Affairs, he was fully justified in grabbing, cuffing and tossing Haynes into his cruiser. And so what if a little profanity was uttered? After all, she was a noncompliant threat to his life. Maybe.

But diminutive Ms. Haynes wasn’t taking crap that day, and “appealed” the IA decision to the Citizens Review Committee.

“The most egregious aspect of this case — the fact she was stopped — was not investigated,” said Briana Swift, a student at Lewis & Clark Law School who served as a volunteer advocate for Haynes before the committee.

Well said, and good to see a law student advocating so well for her client.

Committee members differed on what they found disturbing about the case. Some called the initial stop unreasonable, while others thought it was ok, but found the search of Haynes’ backpack and arrest improper. They all voiced disgust with the investigation.

While it might have reflected better on the committee had they recognized that essentially every action, every utterance, from start to finish here, was wrong and a flagrant violation of Ms. Haynes’ rights and the propriety of the officer’s duty, at least they all agreed something was very wrong here.

To add insult to injury, IA pulled old records on Haynes which said she called police officers “satan” in a 2011 encounter, just to show her propensity to be a cop hater. Even the Committee knew better than to buy into that:

“It felt like you were trying to tilt us,” [Committee Member Steven] Yarosh said.

Tilt? That’s one way to put it, I guess. So the committee leveled its firm judgment that this needed further investigation.

Haynes said she’s glad there will be more investigation.
“I want something done so this doesn’t happen to anyone else,” she said.

So all is well in Portland and small women are safe to walk the streets. Unless they don’t comply with the police or grab their backpack and attempt to exercise their right to walk away, in which case it’s about as likely to happen again as Voodoo Donuts is to mix bacon with maple.

H/T Spencer Neal

If they were at all gracious, they would have  waited for the ink on Maryland v. King to dry.  But no, that would be too much to ask.  In fact, they weren’t waiting for the Supreme Court to pull out the big ol’ approved stamp at all. They were already way down the slope.

From the New York Times :

Slowly, and largely under the radar, a growing number of local law enforcement agencies across the country have moved into what had previously been the domain of the F.B.I. and state crime labs — amassing their own DNA databases of potential suspects, some collected with the donors’ knowledge, and some without it.

These local databases operate under their own rules, providing the police much more leeway than state and federal regulations. And the police sometimes collect samples from far more than those convicted of or arrested for serious offenses — in some cases, innocent victims of crimes who do not necessarily realize their DNA will be saved for future searches.

These law enforcement agencies are no longer content to rely solely on the highly regulated network of state and federal DNA databases, which have been more than two decades in the making and represent one of the most significant developments in the history of law enforcement in this country.

The reasons vary. Some police chiefs are frustrated with the time it can take for state crime labs to test evidence and enter DNA profiles into the existing databases. Others want to compile DNA profiles from suspects or low-level offenders long before their DNA might be captured by the state or national databases, which typically require conviction or arrest.

“You wouldn’t mind giving us just a dab o’ DNA so we can exclude you from the list of people potentially going to prison for the rest of their natural life, would you?”

“No way, sir. Here’s my dab. If you need a bigger one, why I’ll do just about anything you ask. Anything to make you leave me alone, officer.  Anything.”

“Our take is that it’s good for law enforcement and good for the community,” said Doug Muldoon, police chief of Palm Bay…

Among criminal defense blawgs, SJ is a fairly well known, fairly well regarded, blog. Enough so that even the louts at the ABA Journal, the ones who think  Legal Rebels are the lawyers who use a white iPhone after Labor Day, included it in their inaugural Blawg Hall of Fame.  Pretty darned special, right?

The point isn’t to warm the cockles of greatness, but the hope that someone out there might stumble upon a bit of information that enlightens them, and illuminates the life we endure in the streets and the trenches at the hands of police, judges, the Law. All the very important and very self-important lawyers might see that regular folks aren’t enjoying them or life nearly as much as they seem to think.

Then comes a hard smack, a la Moonstruck, to remind me just how inconsequential SJ really is.

Gawker posted a video yesterday. It apparently just came on Max Read’s radar, and he thought it worth spreading.  No issue there, as it’s good that Gawker, with its far (by a magnitude) larger audience sees this video.  I learned about it when my buddy Radley Balko retwitted a twit by Julian Sanchez, @Normative, about the video.  I was unimpressed, it being old news and all.

You see, the whole megillah was about a video out of Vegas that was the subject of a  post here on April 30th. I would have thought, hoped maybe, that Balko had read my post, seen the video, and was just retwitting the video now on Gawker to aid in its broader distribution. That’s cool, though he might have mentioned that if others had kept their eyes open, they would have known about it months ago. But no big deal, so I moved on.

Later in the day, I saw a post from my other buddy, Elie Mystal.  Now much as I make fun of  Above the Law from time to time, I like Elie, and I’ve had  good things to say about Elie. The baby lawyers at ATL say mean things about him, and he deserves better.  Elie is interested in criminal justice stuff, so it’s not like my expectation that he might have seen my earlier post was totally out of the ballpark. But this, well, pissed me off.

There is a disturbing video making its way around social media today. It’s a six-minute Family Court video from August 2011 of a woman who complains that a marshal sexually assaulted her in a back room.

But it also means that Doninger has been sitting on the bench for almost two years since this incident, with no investigation, review, or punishment for her disgraceful behavior caught on video.

What kind of system are we running here? I get that bad people slip through the cracks. But it’s been two years and Doninger, this magistrate who literally turned her back on a woman who was molested in her own courtroom, still has a job?

Could we at least get somebody sitting in her courtroom tomorrow to make sure Doninger isn’t looking away as people are violated right in front of her?

Could we at least get somebody at blogs that post any picture of a female lawyer partially naked within seconds of its becoming publicly available to show even remotely similar concern for outrageous abuse?

If the issue was that the video wasn’t deemed worthy of making it onto ATL’s pages, perhaps ousting a very important bit of news about a law firm whose fired secretary told about how they used Starbucks coffee in the cafeteria, or the next whiny self-promoter who begs for a link to his post that no one would otherwise read, that’s fair. Just because I find a story, a video, to be worth sharing doesn’t mean anyone else has to.

But apparently that wasn’t the case here. Elie obviously found the video outrageous, and more than worthy of a post.  The problem wasn’t that it wasn’t significant, but that it only surfaced yesterday when Gawker suddenly discovered it. 

That it appeared here last April?  It’s like it never existed.

Next time you think SJ matters, or any other criminal law blawg matters, and that it carries such great influence as to move molehills if not mountains, remember that not even friends, pals like Elie or Radley, can be bothered with it.  If even they can’t be bothered, it’s hardly worth noting that it doesn’t make a ripple in the puddles of the really, really important people’s minds.

Say, did you see that really outrageous video on Gawker yesterday?  Now that’s what matters.