At Techdirt, Tim Cushing does an excellent job of parsing the FBI’s no-recording-of-interrogations policy.  Tim always does an excellent job at spreading the word from the legal end of the internet to the geek side of life.  But what gives rise to this post isn’t Tim’s post, but the comments thereto.

In the past, I’ve explained the  proper response to police interrogation.  I’ve repeated the explanation in subsequent posts. Other lawyers have written similar things, though perhaps the  nuance is lost in translation. And yet, the message not only isn’t getting through, but non-lawyers are “instructing” other non-lawyers how to deal with police interrogations in a way that will likely fail miserably.

Why? Why do you not pay attention? Why must you, clueless non-lawyer who reads crap in the interwebz of varying quality, inform others about how to deal with things when you have no idea what you’re talking about?  Why do you listen to the other idiot who has no clue what he’s talking about? Why?

What am I talking about? This comment and this one.  And then there are the plethora of “just shut up” comments. Actually, they really aren’t so terrible, and there are some very good comments in there, but I’m exaggerating the problem in order to justify my repeating the stuff I’ve written in the past for those who weren’t around then and keep offering advice that is, how do I say this kindly, is less than precise.

The problem is that silence (as in, just shut up), is not an invocation of either the right to remain silent or the right to counsel. Silence is an invitation for the police to persist in the interrogation until, maybe, the silence ends.  Unfortunately, most people can’t “just shut up.”  Even if they can, it’s only for a brief period, after which the words of police interrogators cajoling them to help themselves, just clear a few things up so you can go home, whatever point in the Reid Technique they’re at, overcomes the three word warning and out comes the confession.

It’s not that just shut up isn’t good advice, but that it’s inadequate and takes your eye off the ball.

At the time police take you into custody, you have at least two (there are more, but that’s for another day) constitutional rights at risk.  You have the right to remain silent under the 5th Amendment, and the right to counsel under the 6th Amendment. These are separate rights, even though they are put at risk at the same time.

In order to invoke your constitutional rights, you are required to do something: invoke your rights.  What does that mean? You must make a clear and unequivocal statement to the police that you are exercising your rights under the Constitution.

Note that silence is no longer an invocation of rights, following the Supreme Court’s decision in Berghuis v. Thompkins.  There are so many things silence could mean, aside from, well, silence, and so just shutting up isn’t good enough anymore.  Besides, as the Berghuis case (and about a million others) have shown, even a fellow inclined to just shut up may eventually crack under pressure and cease his just shutting up. It happens. A lot.

Now for another nuanced detail that seems to confuse so many people. The police do not have to read you Miranda rights for you to be lawfully arrested, but you already know that. What may not be as clear is that the police do not have to read you Miranda rights until you are subject to a custodial interrogation. In other words, it doesn’t kick in until you are in custody. 

What does that mean? Custody means that a reasonable person would understand that he is not free to leave. To the Supreme Court, a reasonable person is one who has no fear of saying to police officers, “Gentlemen, as much as I enjoy your company and pleasant conversation, I no longer feel like engaging with you, so I will now be on my way,” without concern that they will thereupon be beaten, tased, tackled, kicked in the head a few times until their orbital socket is fractured beyond repair, or shot. I have yet to meet this reasonable person.

Nonetheless, you have these rights even if the police have failed to tell you so, whether because they will claim you weren’t yet in custody or they simply don’t want to. By realizing this up front, you will be empowered to assert your rights regardless of whether the police give you Miranda warnings. They are yours to use or lose.

The invocation of these two crucial rights must be made clearly and unequivocally. That means that there can be no doubt, from the words that leave your mouth, that you are invoking your rights.  This is how you do so:

I do not want to answer questions.

I want to speak with my lawyer.

Do I have to answer questions?

Do I need a lawyer?

I don’t think I should answer your questions.

I think I should speak with a lawyer first.

<crickets>

He lied. He made stuff up about Claude Suggs, that he was selling pot out of his home, in order to get a search warrant.  He was so careless, so cavalier about it, that he didn’t even give the minimum effort to make it look good, cutting and pasting from old warrants, leaving in the “cocaine” language even though this was for marijuana.  Baltimore Sgt. Dennis Workley was a liar.

“It was like a SWAT team. They had the big shield and guns,” Mary Johnson said. “They had weapons drawn to animals, people, babies.”

[Reporter Jayne] Miller reported there were irregularities in the affidavit Workley signed to get the warrant. In one section, he said marijuana was sold from the house, Miller reported. In another section, he said the house was used to traffic cocaine.

Miller said the discrepancy suggested that Workley cut and pasted text from another case.

And some judge signed it, discrepancies and all, a detail that appears to have faded in the mist from all subsequent accounts.  Workley wound up finding two $10 bags of pot, which did not make him happy, so they took a sledgehammer and destroyed the family’s Christmas presents.  That will teach them to not be not drug dealers. Two under for the baggies, both dismissed. Hardly worth dragging out the bazookas.

Without explanation as to how exactly the lies made it onto someone’s radar, Sgt. Workley’s perjury brought him prosecution for misconduct, and he was convicted.

And he was sentenced.

Workley apologized, saying in court he got lazy and cut corners in writing the warrant.

He faced 10 years in jail, but a judge determined he couldn’t think of a jail safe enough to house Workley so he will serve a suspended sentence and supervised probation.

Is there a “jail safe enough”?  Cops in prison face tough times, whether from the possibility of meeting face to face with somebody who didn’t care for the way they were treated when the officer was god, or just not happy with police in general.  There are a few people like that in “jail.” Prison too.

Or is it that jails just aren’t safe places for much of anybody, but when it comes to people who never wore a shield, the judge just couldn’t work up enough empathy to concern himself with the risks he imposed.  After all, do criminals deserve to be coddled in jails where their safety is assured?  Prison too.

Other prisoners aren’t always treated with kindness and gentility. Child molesters are universally despised in jail. Rapists aren’t well received in jails. Effeminate prisoners, those with slight builds, those who are less than capable of defending themselves, often find jails to be an unforgiving place. Prisons too.

The idea is that jail, not to mention prisons, aren’t supposed to be death sentences for anyone. Defendants are sentenced to a term of years, not to rapes, beatings and murder. Among the many duties the state has, keeping those in its care safe from harm is one. One that isn’t always done very well. Is that the judge’s point, that the jails of Maryland are incapable of providing safety to its inmates?  Prisons too?

The judge’s concern, while speculative, is understandable.  What it is not is acceptable. Among the primary legitimate purposes of incarceration, general deterrence is big. Huge.  And it’s especially huge for police, a group largely inclined to believe that no matter what they do, what laws they break, what people they harm, they will receive special treatment.

No matter how bad a cop may be, he will still get the special courtesy reserved for a cop. And only a cop.

The explanation often used by judges for sentencing a convict to a term of years in prison, usually a lengthy term that will leave infants fatherless for the duration of their formative years, families destitute, even employees without jobs when their employer goes down, is that they must send a message. They must. It is so critical that the message be sent that it justifies the suffering of innocents this time so that others are not harmed another time.

So too was a message sent by the judge, Baltimore City Circuit Court Judge John Howard, that Dennis Workley, former sergeant of the Baltimore police, leader of the SWAT Team that smashed Christmas presents with a sledgehammer, liar, cannot be sent to jail because his safety might be compromised.  Prison too.

The argument, likely made by Workley’s lawyer, is a sound one.  Workley would likely be at grave risk of harm if he was sentenced to jail. Prison too. While it would be a similarly sound argument for many other defendants, it’s highly unlikely it would meet the same reception. Child molesters simply do not get nearly as much understanding from judges as dirty cops.

So Workley doesn’t go to jail for his crimes. Not even prison.

Ah, the ego validation that blawgers so crave.  The email just arrived, informing me that SJ has been selected as one of the Top 30 Law Blogs of 2013! Woo hoo!!!  I want to thank the Academy…oh, wait.  It’s not from the Academy. Not the Pulitzers. Not even the ABA Journal.

It’s from Best Degree Programs dot org, that deeply meaningful website that sends out the weekly inane infographics because they love us blawgers so very much and want to help us. Just please, please, include the backlink.  But the infographic scam can only work so many times before the flawgers figure out that it’s really not a matter of deep appreciation, but just your basic backlink scam. 

And so, every once in a while, they put together a “Best of” list. It’s brilliant, as it plays on the foremost issue in the minds of so many in the blawgosphere: Do they love me? Plus, they give you a really cool badge.

Impressive, right? And you have to work really hard to eliminate the code that installs the backlink no matter how often you delete it, because there is nothing more important to being the best than good backlink code.

Then comes the real question, how many blawgers will bite on this scam and post their deep appreciation for the important recognition on their blawgs? Ego much? Validation? Patsy?

Besides  Lat at ATL (who fell for it once but was inexplicably left off the list this time) and lawprofs, who are honored by an award given by Busy Bee Nursery School, who will bite? I have some suspicions, and will check tomorrow to see which “winners” are humbled by the great honor.

But since making fun of such a transparent ego play isn’t enough to fill me up, it’s time for dessert.

While In San Francisco to speak at the monthly San Francisco LMA luncheon on Website trends (with Barbara Abulafia, Keker & Van Nest, Jeff Yerkey, Right Hat and Per Casey, Tenrec), my colleague Keith Wewe, another couple and I were hosted by  Elizabeth Lampert for dinner at Twenty-Five Lusk. 

[I have no clue who all these LMA attendee types are, but they must be impressive in the legal marketing world since the post’s writer, Deborah McMurray, felt them worthy of some butt-kissing mention.]

Twenty-Five Lusk features a dessert called “Textures and Chaos” that lists only four ingredients on the menu, but clearly had several more (as you can see by the photo below).  This photo can’t begin to communicate the plated disaster that was proudly delivered to our table. 

 
Perhaps, in a desire to elevate the participation among his team (and create a sense of inclusion), the chef tried crowd-sourcing to create this dessert – where each member of the kitchen staff added a favorite ingredient – and, voila! – Textures and Chaos was born.  The result was so poorly conceived and executed that I was inspired to write about it.  It’s not only seriously ugly, but the tastes were as cacophonous as 5 p.m. rush hour in New York.

Why do I ask you to endure this nonsense? Stay with me. There’s a payoff. I promise.

What can lawyers learn from this? 

Not to order dessert at Lusk?

Firm strategy should start back in the kitchen-equivalent (not at the dinner table) and be a thoughtful consideration of audiences, markets, geographic reach, competition, threats and opportunities that are just cresting over the horizon.  This positioning stake in the ground informs what practice and industry teams could do, and what individual lawyers on those teams can do.  When well-intentioned, but overly independent lawyers go off and create their own Internet presence with no regard for their law firm, they miss the most important advantage available to them – leveraging the investments (strategy, time, reputation and money) made by the mother ship.

When many lawyers in a firm do their own thing without regard for the firm and practice group strategies, the result won’t be far away from “Textures and Chaos.”

True ’nuff. So instead of a result like “Textures and Chaos,” you can shoot for the focused, cohesive if untasty result achieved by Best Degree Programs.



Bon appétit!

Without a doubt, Judge Shira Scheindlin has a way with understatement.  During closing arguments in Floyd v. New York, the stop and frisk trial finishing up in the Southern District, the court said the obvious aloud.

Observing that only about 12 percent of police stops resulted in an arrest or summons, Judge Scheindlin, who is hearing the case without a jury, focused her remarks on Monday on the other 88 percent of stops, in which the police did not find evidence of criminality after a stop. She characterized that as “a high error rate” and remarked to a lawyer representing the city, “You reasonably suspect something and you’re wrong 90 percent of the time.”

“That is a lot of misjudgment of suspicion,” Judge Scheindlin said, suggesting officers were wrongly interpreting innocent behavior as suspicious.

Yes. Yes it is. To the untrained eye, this might have been a foregone conclusion, Mayor Bloomberg and Police Commissioner’s adoration of the tactic notwithstanding.  And yet, the City remains adamant that the massive failure of a 90% error rate in what they contend to be reasonable suspicion is protected under the ancient legal doctrine of stercus accidit.

The problem is that despite the fact that the individuals stopped were almost invariably black or Hispanic, there has been no evidence introduced of racial slurs during the course of the stops, which the City argues reflects the absence of profiling or racial animus.  Judge Scheindlin wasn’t entirely persuaded.

In the absence of overt racial slurs, Judge Scheindlin repeatedly asked a city lawyer, would it be appropriate to infer that a police encounter was racially motivated if an officer stopped a black man with no apparent basis? “If the court were to conclude there was no fair basis for the stop, but the stop was made, there has to be a reason,” Judge Scheindlin said, suggesting it might be a fair inference to find that it was a race-based stop.

No, no, no, the City responded. Never, because that would be wrong. 

Much of the statistical testimony revolved around a single, stark fact: black and Hispanic people represent an overwhelming majority of people stopped, more than 85 percent most years. The city has long argued that this reflects crime patterns. City lawyers claim that the percentage of stops involving black individuals either mirrors, or is lower than, the percentage of violent crimes committed by black suspects.

After all, is it the fault of New York Police Officers that blacks are more “criminally”?   Except, of course, for the fact that 90% of the time the black and Hispanic young men stopped aren’t “criminally” at all. Most people would think that’s a problem, but not New York City:

Heidi Grossman, the city’s lead lawyer, cautioned Judge Scheindlin, “You’re speculating what the reason is.” She noted that an improper stop could have been a mistake or based on an officer’s misunderstanding of the law, rather than a racial motivation.

Though it apparently wasn’t said, the foundation for the argument is Hanlon’s Razor, never attribute to malice what can be adequately explained by stupidity.  In other words, New York’s Finest are too clueless and incompetent to be expected to recognize when reasonable suspicion doesn’t exist or that the law precludes their unconstitutional conduct, and they should therefore be forgiven their millions of trespasses.

While it’s called “Hanlon’s Razor,” the concept is also attributed to   Robert A. Heinlein, whose 1941 short story “Logic of Empire” includes the quote, “You have attributed conditions to villainy that simply result from stupidity.”  This, of course, leads inexorably to another of Heinlein’s quotes from his 1966 opus,  The Moon is a Harsh Mistress : TANSTAAFL.

It’s time for the New York City Police Department to pay the lunch bill. Check please.

When the caption of a 5th Circuit opinion by Judge Emilio Garza includes a police officer’s nickname, and that nickname happens to be “Taser Joe,” you have to find out why. After all, plenty of deputies use Tasers, so it’s not easy to stand out.

In Ramirez v. “Taser Joe” Martinez, Jim Wells County Deputy Taser Joe went to Reynaldo Ramirez’s landscaping business to arrest Ramirez’s sister-in-law on a warrant.  It being Ramirez’s business and sister-in-law, he questioned what Taser Joe was up to. Taser Joe was not pleased.

Ramirez claims the officers had their guns drawn and were pointing the guns at his employees, who were kneeling down. Ramirez approached Deputy Michael Teodecki, another Jim Wells County sheriff’s deputy, and asked him to explain what was happening. Teodecki said Martinez was in charge of the operation and did not disclose any other information.

Ramirez located Deputy Martinez and asked Martinez what was happening and why the officers were there. The two exchanged  profanities. Martinez yelled, “You shut your mouth or I will take you to jail!” Ramirez simultaneously yelled, “This is my business, ok?” twice. Martinez yelled, “Turn around and put your hands behind your back!” Ramirez did not comply. Martinez grabbed Ramirez’s hand and told him to turn around, but Ramirez pulled his arm away. Martinez immediately tased Ramirez in the chest.

The offense of Resisting Arrest is defined in relevant part as follows:

(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.

(b) It is no defense to prosecution under this section that the arrest or search was unlawful.

While caselaw holds that pulling away is resisting, the kicker is in subsection (b), that it is no defense to resisting that there was no basis for the arrest in the first place.  This flies in the face of the commonly understood belief that if a person has committed no crime, the police have no authority to arrest or use force to effectuate that arrest.  Silly people, thinking that there has to be lawful justification at the outset or what follows can’t be lawful.

What continually stymies people’s understanding of how criminal statutes work is their expectation that it will somehow comport with a logical progression.  As most any judge will tell you, the law demands you submit first and complain later.  Was Ramirez’s annoying Taser Joe with his insipid questions about why deputies were at his business pointing guns at his kneeling employees a crime?  Well, no. Not a crime at all, but the fact that he pissed off the deputy was more than sufficient to set in motion the chain of events that placed the burden on Ramirez to submit to arrest.  And his failure to do so, by pulling his arm away from Taser Joe, was a crime in itself, even though no crime occurred upon which the arrest could be justified.

There are no shortage of folks, myself included, who think this view of the relative authority of police to arrest for contempt of cop is not merely wrong, but more than sufficient cause for a citizen to defend his constitutional right to be left alone.  But neither the legislators who enacted this law, providing police with authority that bears no connection to reason and subjugates citizens to the craziest whims of police, nor the courts agree.  The notion is that protecting cops is the first priority. Protecting citizens from cops, not so much.

As if that isn’t bad enough, after Ramirez pulled his arm away, Taser Joe did what he does, he tased him.  Based upon the law that pulling away from a police officer attempting to effectuate an arrest, even if there was no basis for the arrest in the first place, is a crime, Taser Joe contended that he was entitled to one free tase.  Taser Joe, meet the line.

Therefore, accepting Ramirez’s version of the facts as true, the first Graham [v. Conner, 490 U.S. 386, 396 (1989)] factor weighs slightly against Martinez. Second, a reasonable officer could not have concluded Ramirez posed an immediate threat to the safety of the officers by questioning their presence at his place of business or laying on the ground in handcuffs. Pulling his arm out of Martinez’s grasp, without more, is insufficient to find an immediate threat to the safety of the officers. Third, as in the first Graham factor, according to Ramirez the only resistance he offered was pulling his arm out of Martinez’s grasp; he alleges several officers then forced him to the ground without resistance on his part. Viewing the facts of this record in the light most favorable to Ramirez, any reasonable officer in Martinez’s place would have recognized Martinez’s conduct was objectively unreasonable under the Graham factors.

While pulling an arm away may be sufficient to give rise to a crime, it isn’t sufficient to pose an “immediate threat to the safety of the officers” such that they can use force against him.  This is a curiosity, given that the act of Ramirez pulling his arm away is deemed sufficient “resistance” for arrest, a not-inconsequential intrusion into a person’s life and liberty, but insufficient to justify the use of a Taser. Sweet.

And it thus goes without saying that the second tasing of Ramirez, when he was on the ground, handcuffed and not resisting anything, was unreasonable and a flagrant violation of established law.  But then, why do you think they call him Taser Joe?

H/T  FritzMuffKnuckle and Courthouse News

“John Arnold” isn’t a household name, even though he’s made a ton of money as “a wunderkind natural-gas trader at Enron who later founded his own hedge fund.” Enron? Well, even Enron made some real money in its day, and Arnold was their killer trader. With more than he could ever spend, John and Laura Arnold have moved on to doing something worthwhile with their money.

From the Wall Street Journal :

Most billionaires tend to write checks to good causes they’re part of, hospitals where they were treated or universities they attended. These are the so-called “grateful-recipient” donors. Or there are donors who make sizable gifts to meet an obvious need in a community, such as hunger or education. But at a time when charitable giving in the U.S. is still down from its peak in 2007, the Arnolds want to try something new and somewhat grander. John says the goal is to make “transformational” changes to society.

The Arnolds want to see if they can use their money to solve some of the country’s biggest problems through data analysis and science, with an unsentimental focus on results and an aversion to feel-good projects—the success of which can’t be quantified.

What the idea lacks in immediate gratification it makes up for in scope and breadth.  Intransigent systemic problems tend to be ignored because the cost/benefit ratio sucks. Even if a fortune is dedicated to fixing such a problem, there is no assurance that any benefit will ever be derived. Sometimes, intransigent problems are just, well, intransigent.  But then, if you never try, you never know.

This is where the Arnold’s effort gets curious.

Along with obesity, the Arnolds plan to dig into criminal justice and pension reform, among others. Anne Milgram, the former New Jersey attorney general hired to tackle the criminal-justice issue, has a name for all this: She calls it the “Moneyball” approach to giving, a reference to the book and movie about how the Oakland A’s used smart statistical analysis to upend some of baseball’s conventional wisdom. And the Arnolds are in no hurry for answers. Indeed, they believe patience is a key resource behind their giving.

If the goal is to “tackle the criminal-justice issue,” what message comes from the choice of former New Jersey attorney general  Anne Milgram to lead the effort? Her relatively brief career in the law has ranged from New York prosecutor to New Jersey prosecutor.

Then again, this only matters relative to the gist of the criminal justice reform. If the question is how can we convict more people and send them to prison longer, it’s one issue. If the question is how can we prevent the conviction of the innocent it’s another.  The issue under scrutiny here is a bit different:

The Arnolds hired Milgram to analyze criminal justice, with the mandate to “take resources off the table for a while”—in other words, don’t worry about what the research will cost. She zeroed in on how, despite New York City’s success with the CompStat crime-reduction system, the influence of empirical data has barely trickled down to the local level. “It’s hard to think of an area that is less data-driven and analytical than local government,” Milgram says.

Huh?


In particular, she and Laura became fixated on how the country spends $9 billion to keep nonviolent, pretrial defendants behind bars, even though there is little data on the risks those accused pose to society. As Milgram points out, most baseball teams know more about their backup shortstops than judges know about pretrial defendants before locking them up at great cost to society and the accused. 


Oooh. Didn’t see that coming.  As for the “Moneyball” analogy to shortstops, well, it’s pretty darned poor.  There are a whole lot more criminal defendants than major league quality shortstops, and not every defendant has a relevant statistical record to rely on.  “So what team did you commit burglaries for in college, Joe?”

“It struck us as a uniquely bad mechanism to decide who should stay in jail,” says Laura, who also sits on the board of The Innocence Project, which uses DNA testing to clear prisoners on death row.
 Using data from more than 1.5 million cases, Milgram and her team created a risk-assessment tool for judges that will be tested in three jurisdictions later this year. The Manhattan district attorney’s office is planning to try a similar tool designed for prosecutors.

[Edit: This was omitted from the original post this morning. Sorry.] Risk assessment in pretrial bail/detention is relatively easy at the low ends and relatively pointless at the upper ends of the crime spectrum. At the low end, where poor defendants can’t make $500 bail, they sit until they plead to avoid spending the year awaiting trial. At the upper end, solid citizens who have no reason in the world to flee but for the seriousness of the charge, are held without bail lest the judge be impugned for letting some accused murderer out on the streets. It really doesn’t require a billion dollar study to empirically demonstrate that non-violent defendants pose no risk of violence if released on or without bail. 

But if this risk assessment makes any sense, it would seem to have far greater application to sentencing, a far larger systemic problem, than pretrial detention.  After all, at arraignment, everyone is presumed guilty, even though bail determinations don’t necessarily reflect it. After conviction, everyone is guilty. What then is the risk? What then is the sentence? That’s where some empiricism could do us a world of good.

Sentencing, as  discussed here numerous times, remains a black hole of empiricism, the last bastion of religion in the law. It can only be explained in broad, meaningless strokes, without any hint of justification for the length of time a defendant is taken from his family, or society is made to pay for his warehousing. It’s voodoo.

And yet, one can’t help but wonder what bases predicated the 1.5 million cases of data? On the one hand, Laura Arnold sits on the board of The Innocence Project, which suggests a concern for the wrongful conviction of the innocent, and in turn the use of weapons in the fight for convictions that lend themselves to the securing convictions at all costs.

On other hand, former New York County prosecutor Milgram has been chosen to take the lead. So Manhattan District Attorney Cy Vance is planning to try using a similar empirical tool? Is that offered to suggest that if it’s good with prosecutors, it should be good with the rest of us? Are prosecutors the bellwether for a healthy criminal justice system?

The outcome of this project may well prove to be beneficial to everyone, providing an empirical basis and maybe sentencing that will end the imposition of meaningless numbers that leave people who pose no risk of recidivism or harm to society behind bars for years, for decades.  But every effort at reform begins with a bias, and there is nothing in this article to suggest otherwise here. 

If anything, it’s particularly scary as it has the potential to offer what appears to be an empirical basis for what’s not done with eyes closed which may prove to be impossible to argue against in the future (unless you have a few billion to do a study of your own), and yet infected with the same assumptions about the bad guys that have given rise to such brilliant solutions as mandatory minimums, three-strikes laws, zero tolerance and life without parole for children caught with their shirt tails out.

So will money end recidivism? I dunno, but I do know that whatever it comes up with, there’s no one around willing to engage in a counter effort to dispute the results.

H/T  Stephanie West Allen

 

When news first broke of the killing of Hofstra student Andrea Rebello, the first reports had two distinct features: the reports were fundamentally wrong and they began with a lie, that she was shot by the masked gunman, Dalton Smith. A  bad smell permeated the news.

When the truth came out, that Rebello was shot in the head by a Nassau County police officer, the explanation was that the first two officers on the scene decided to enter the home, where the gunman, with Rebello in a headlock, pointed his gun at an officer. The unnamed officer fired eight shots, one of which struck Rebello in the head.

The next line of questions related to why a patrol officer would enter a house with a gunman and hostages.  The proper course of action would have been to secure the scene and await supervisors and hostage negotiators. The one thing you don’t do is play cowboy, enter the home and create an untenable situation. There was little chance it would end well.

Enter Excuses 2.0, via the New York Times :

Officers who arrived first on the scene believed that they were confronting an armed robber but knew nothing about the hostages, the police said. That gap in knowledge was critical, experts said, possibly leading to missteps that inflamed an already dangerous situation and ultimately led to tragedy.

Most critical, experts said, was the decision by the officer who ultimately opened fire to enter the home in the first place.

Only minutes elapsed from the time the police were summoned to the home on California Avenue about 2:30 a.m. Friday until the shots were fired. Hostage negotiators were summoned, but they did not reach the scene in time, said Deputy Inspector Kenneth Lack, of the Nassau County Police.

“The first time they knew there were hostages was when the officers were already in the house,” Inspector Lack said, citing details from a preliminary investigation.

Once inside the house, the officers had few options.

A former firearms trainer for the New York Police Department, who asked for anonymity because he maintained close ties with active-duty officers, said a situation like this one — an armed gunman pointing a weapon in proximity to a victim — was “the worst-case nightmare for cops.”

He said such situations required a balance between protecting the victim and the officers themselves.

“I would hate to be in that situation myself,” the former trainer said, “but the bottom line is if a police officer believes that his death or the death of a civilian is imminent, he is absolutely justified in utilizing deadly force.”

Where exactly the balance between protecting the victim and the officers protecting themselves came into play here remains unclear. The answer seems to be in not creating the nightmare scenario rather than having to pick who dies today.

Make no mistake, the gunman, Dalton Smith, bears primary responsibility for the course he set in motion when he decided to rob the home at gunpoint. But it’s the job of the police to come into a criminal situation and make things better, not worse.  And having taken a bad situation and turned it into the “worst-case nightmare,” the lies and excuses to deflect the mistake, the failure to take actions that would have given Andrea Rebello a chance at survival, can’t be ignored.

The officer who fired the shot that killed Andrea Rebello hasn’t been named. Indeed, it’s likely that he will be  scarred by what he did to this young woman for the rest of his life. His career with the police may be over, not because he will be fired for having acted improvidently, but because he can’t shake off the guilt of being directly responsible for the death.  The police will likely speak to the heartbreak of the police officer, the psychological trauma he will suffer for the rest of his life, to remind us that he too is a sympathetic player in this tragedy.

While this may be true, the suffering of the officer who killed Andrea Rebello won’t be nearly as deserving of sympathy as the suffering of her twin sister or her parents. The difference is that the officer had a choice of whether to enter the house. He gave Andrea Rebello no choice.  And the excuses to deflect blame from the police just make the suffering of the Rebello family worse.  It’s bad enough a cop killed Andrea Rebello. Don’t make it worse by making up excuses.

Having already taken charge of the op-ed page of the Times, I needed a new challenge. What better for a cutting edge guy like me than the Style Section?  Do I not know that the Louis Vuitton store is on 57th Street? Come on.

And so, I tackle the hard questions posed to  Philip Galanes in today’s paper, since he obviously isn’t really cut out for this style stuff.

My husband and I are preparing our wills. We have two adult children: a daughter who is more successful than we are, and a son, who has been down on his luck for years. He also has three young children to educate. Everyone, including our lawyer and close friends, tells us that we should leave our money to them in equal shares to avoid hurt feelings. But that doesn’t seem right. Our son needs the money. Still, we don’t want to hurt our daughter. What would you do?

Anonymous, Chicago

Stop listening to everyone. It’s your money, and they’re your children. Who better to walk this perilous tightrope than you, especially if we set up cushiony nets beneath you (unlike Burt Lancaster in “Trapeze”)?

Burt Lancaster in “Trapeze”?  Seriously. When I was a kid, that movie was so old it was on the  4 O’Clock Movie five days a week.  Come on, Philip, strap on those sock garters and spats and get out once in a while. But I digress.

So is your irony detector going crazy like mine? The anon questioner, who hasn’t bothered to make a will until her children were old and half-losers, has already raised their issue with the people who know them, know their financial sitch, maybe even knows their kids, and so they’ve decided to ignore people with knowledge in favor of a guy who writes for a newspaper and doesn’t know them from Adam. Minus 1.

And what does the newspaper guy say?  Stop listening to everyone. Oh, the irony alarm is deafening. Don’t listen to them. Listen to me? Anybody home?

Naturally, what caught my eye about this question was that it stands at the crossroads of law and feelings. So the old folks who never thought to make a will before are now struggling with how to take care of their loser son. Does it dawn on them, or Philip, that leaving him more than a half share might not be a helpful way to deal with it at all. How about a good smack in the face, a la Moonstruck?  Remember the old give a man a fish allegory? 

So they feel guilty about having failed their baby boy. With good reason, apparently, and so their parting message to their daughter, who worked hard and accomplished something with her life, is we don’t love you as much as your brother.

Bequests to children aren’t rational, even if the daughter says she gets the reason. It’s a matter of legacy.  If you hate one of your kids and want to get in the final smack, screw him in the will. Just remember that there is no going back afterward, so you better really, really hate the kid because the kid is for sure going to hate you.

The point of advice isn’t to confirm what the person asking wants to hear anyway. It’s to help them despite whatever really dumb thing they want to do.  When it comes to something like a will, there are a wealth of concerns that would never occur to a Style guy because he’s never sat in a room with the children of dead parents, trying to figure out why they did what they did. Experience suggests that things nobody wants to believe will happen will happen. They get greedy and needy. They get angry. They get spiteful and hateful.  They shouldn’t, and the testator didn’t think they would. But they do.

How do we know such things? Because this isn’t the first person who ever made a will. Now the big question: Is she leaving behind any Louis Vuitton bags?

So when should I move my stuff into Philip’s old desk?

For reasons that can best be described as a generosity of spirit combined with some internal pride,  Fishtown Lawyer Jordan Rushie posted about the things he did in his extralegal week.  He had a busy week.

Monday: Confer with FNA Board to discuss PTSSD grant, which involves a significant amount of money coming into the neighborhood for civic projects
Tuesday: 6:30pm – 9:00pm – Hosted an FNA Zoning community meeting to take a vote by the neighbors on a large scale residential development proposal.
Wednesday: 12:00pm – 5:30pm – Testified before the Zoning Board of Adjustment on behalf of FNA about proposed development along the Delaware Avenue Waterfront (the largest development ever proposed in Philadelphia), and its impact on the Fishtown neighborhood.
6:30pm – 9:00pm: Hosted a Fishtown Area Business Association meeting, which was attended by over 60 local business owners to discuss happenings in the neighborhood (and drink a few beers).
Thursday: Attend FNA General Membership Meeting to discuss happenings in the neighborhood with the community, including all of the things that happened earlier in the week.
Friday: Quizzo in my local watering hole, Luke’s Bar.
Saturday: 1:00pm – 3:00pm – Station table at the Trenton Ave Arts Festival for FNA.

Think about how many people you walk by on any given day without even looking up from your smartphone because you’re updating your Facebook status. Every one of those people is a potential future client, and you’re busy with cat pictures.

The handsome young couple down the corner, One-Eyed-Nick, Crazy Cat Lady, or even just your Friendly Neighborhood Postman — just say “Hello!” You’ll catch people off guard. You might even strike up a brief conversation. But more than that, these folks will begin to recognize you. While you might start off as “that weird guy who says ‘Hi’” every day”, over time you become “that criminal defense lawyer whose office is around the corner.”

A few years ago, I was encouraged to go to local business meetings, breakfasts, lunch groups, etc. And they all – yes, all! – had the following composition:

– Attorneys
– Real estate agents
– Insurance salespeople
– Mortgage brokers
– Random chick selling gift baskets

Nothing else.  They were pathetic gatherings where people whose businesses relied upon sales handed out business cards to each other.  Look at who your fellow bottom feeders are.

If you’re not a salesperson, you will not be a successful lawyer. If you’re uncomfortable shaking hands and schmoozing and networking and spending half your life working the room in sleazy gatherings, you will not be a good lawyer. Law is not about law. Nothing that makes you a successful lawyer is learned in law school.  You would be better off spending three years slutting around on a used car lot, because that’s how you learn how to snare people into deals they don’t need for prices they can’t afford.

An interesting post from Jonathan Turley :

There is an interesting lawsuit against an academic institution in Colorado. Spanish-speaking custodial workers at the Auraria Higher Education Center in Colorado are suing over the failure of the Center to give them instructions in Spanish — alleging that they have faced unsafe conditions over the use of English rather than Spanish. The case suggests that the use of Spanish can not only be legally required but that the use of English can constitute a type of unsafe workplace.

Blaine Nickeson, an AHEC vice president, said that the AHEC does offer some translations, but that it cannot be required to use native languages for all of its employees.

I cannot see how using English as the primary form of communication in the United States can be the basis for discrimination or an unsafe work environment. If schools are legally required to speak the language of custodians and other employees, can they refuse to hire non-English speaking employees or would that be a form of discrimination based on national origin?

“Too many things have happened to me there that I don’t even know how to explain it,” said Auraria custodian Bertha Ribota.

Ribota said she was injured at work because she couldn’t read a warning sign that was in English.

“If I could speak English I wouldn’t have the problems that exist,” said Ribota.

The same, of course, could be said of people who come to the United States to work, that it would be in their interest to learn English.  Of course, that’s easier said than done, and even if they do, they have to eat until they’ve achieved a sufficient level of mastery that they can read the sign that says “don’t stick your head inside machine while blades are turning.”

While Title VII of the Civil Rights Act of 1964 requires employers to provide “reasonable accommodations” in the cases of religion and disability, it does not require an employer to communicate with every employee in his or her native language.  The question isn’t whether it’s a good idea to do so, but whether the law requires an employer to do so.

Like Turley, I don’t see how it could work or be enforceable. If an employer has a staff that speaks 5 languages other than English (or make that 20, or 50), would the employer be required to have supervisors who speak those languages as well, signs for every language, perhaps translators working full time?

The alternative is that the law would have to allow employers to discriminate based on language, which implicates national origin, so that he could have staff speaking only one or two foreign languages, and then it would be relatively manageable to have supervisors or translators to manage the Babel.

But these are inherently burdensome on an employer and pretty ineffective means of dealing with the problem. What if your one Mandarin speaking custodian quit and was replaced by a Ukrainian?  The problems are endless.

The obvious “solution” is for foreign language speaking employees to learn English (or for everyone to agree to speak Spanish) so that there is only one language in the workplace, but that’s a fantasy solution, impractical as well. And yet who can blame employees for not wanting to get hurt?