While some lawyers who have chosen the more  avant garde 21st century Lawyer route of having a Virtual Law Office care little about such archaic details as the Code of Professional Responsibility, others, most notably Stephanie Kimbro, are deeply concerned.  The rules sometimes make it difficult for change, and for lawyers to do what’s best or easiest for them.

This is why I invariably turn to Steph when ethical issues arise, knowing that she won’t just shrug them off as the yoke of antiquity, to be ignored at her leisure.  While others argue that it’s their right to ignore the disciplinary rules, Steph may not like them any more than any other virtual lawyer, but she acknowledges and confronts them.

And so Steph did :

The NY State Bar Association Committee on Professional Ethics has published a new ethics Opinion 964 on April 4, 2013 that affects virtual law offices. (HT to  Niki Black for bringing it to my attention.)

The opinion is more related to lawyer advertising than virtual law offices, but it affects advertising for virtual, traditional and hybrid delivery models. The opinion was prompted by an inquiry from a lawyer who delivers immigration law services primarily online. Like many lawyers with virtual law offices, the lawyer rarely meets with clients in person and communicates using video conferencing and other digital methods of communication. Working from home, the opinion explains that the lawyer did not want to have clients coming to her home office. Accordingly, she preferred to use a PO Box or other mailbox service than providing her home address.

The issue arises from the fact that the lawyer, who works from home via her VLO, didn’t want clients “coming to her home.”  Steph explains why she doesn’t see the lawyer’s concern as unreasonable:

Being able to work from a home office and provide basic legal services through online delivery provides them with a way to get started in the legal profession. There are obvious security reasons for not wanting to give out your home address. My clients have 21st Century access to me, and frankly, that’s way more prompt and personal than your traditional 9-5pm street address and snailmail.

And, in a curious twist, she argues that it’s not as if the lawyer’s home address can’t be found anyway.

A virtual lawyer’s clients tend to be ones who can Google proficiently and find numerous online legal service options. They are smart enough to figure out that this is how you operate. And even if they aren’t, won’t that information be in your engagement agreement before any relationship is entered into? I can’t imagine a client who searches for me online, finds my website that says “virtual law office,” but then after seeing that really wants to drive to my house to meet me in person. That doesn’t happen. They want a virtual law office because they don’t have to go to an office. They have OTHER WAYS, modern methods, secure methods, of communicating with the lawyer.

After raising questions about this analysis, Steph asked me to explain why this was a problem.  At the most superficial level, it’s a problem because the rules say it’s a problem, and upon accepting our role as an attorney admitted to practice law, we commit ourselves to adhering to the Code of Professional Conduct.  But that’s not an explanation, and I owe Steph a more thoughtful response.

The rules exist for two reasons, the first being to set the parameters within which lawyers work, as a means of guiding our choices so that each individual lawyer doesn’t get to decide for himself what constitutes sufficiently ethical practices.  The second reason, however, is to protect clients from lawyers.

Steph’s analysis views the Virtual Lawyer from the perspective of everything working great. Her model client is knowledgeable, and both seeks and appreciates the alternative mode of practice.  Her model lawyer is competent, responsive and honest. Everybody is happy. Everything works great.  The only thing in the way are these damn rules.

But as many “consumers of legal services” tell us, lawyers aren’t always so wonderful, and neither are clients.  What about the lawyer who takes money and is never heard from again? What about the lawyer who provides inadequate, inaccurate, incompetent legal services, but insists their work is fabulous? What about the lawyer who assumes the responsibility of serving a client, but on the eve of the client’s need, can’t be found?

The rules exist for the bad times, not the good.  And even Virtual Lawyers can make mistakes, screw up, be grossly incompetent and unethical. This isn’t to say they are more or less so inclined, but no different than any other lawyer.  Stercus accidit. That’s where the rules come in.  So if the client can’t find the lawyer on the internet or by telephone, telex, smoke signals, Skype, whatever, and their need is to have something completed by tomorrow, where do they turn?  They may not want to pay the lawyer a visit, but they want to lose even less.

After some twitter discussion, Steph added:

UPDATE: After reading a couple comments about this post on Twitter, it seems to me a valid concern here is enforcement. How does the state bar monitor and enforce these rules. Yes, they have access to licensed lawyer’s contact information and some states do random auditing. Maybe the better discussion we should be having that hangs over all of these different tech-related ethics opinions is “How do we help the states to enforce the rules in an age where it’s easier for unethical lawyers (and those not even licensed to practice) to use the tech to hide and cover up the evidence?”  Part of this may be providing education to the state agencies handling enforcement about how the technology works and how to use it to handle online auditing and to track down folks who aren’t following the rules. This would be a worthwhile conversation.

This is why I like Steph so much, because she doesn’t hide from ethical issues.  But the question isn’t limited to bar enforcement of its rules, but to the actual needs of the maligned client.  The client whose lawyer disappears in the ether (with her money) and needs a document by tomorrow isn’t interested in how the bar can enforce its rules and discipline the lawyer. The client wants the job done, done right and done now.

So my short answer to Steph’s question is that the rules don’t exist to accommodate the wants of lawyers under the best of circumstances, but to protect the needs of clients under the worst of circumstances.

And Steph Kimbro is still my VLO heroine. Happy birthday, Steph.

When I read Norm Pattis’ posts, I mostly chuckle.  Even though he uses his keyboard primarily for self-aggrandizement, his efforts to promote the cause of whoever is paying him at the moment with a one-sided diatribe are more likely to fall flat than persuade. If a lawyer can’t put together a persuasive argument when there is no one arguing the other side, that’s pretty pathetic.

Then again, Norm’s new gig, aside from using his soapbox to let everybody know all the important work he is doing to give the impression that he’s a very important lawyer, is to make outrageous and ridiculous arguments that appeal to the people who eagerly await the new spring fashions in tin foil.  Whatever. Even the crazy and ignorant are entitled to counsel.

But it’s the disconnect, the hypocrisy, from post to post that gives rise to amusement.  Sometimes, he can spin his position from one side to the next so fast it will give a reader whiplash.  Sometimes, the arguments are so insipid that you can add a headache to the pain.  Yes, it can be very painful following Norm.  But when I saw that Norm had  taken up arms on behalf of the families who owned plots at a Hamden, Connecticut cemetery, who were ready to fight to keep the body of Tamerlan Tsarnaev from being buried there. it was more than any rational human being could take.

I’d like to believe that law has evolved beyond the point of thinking we need to punish inanimate objects. What could be more inanimate than the lifeless corpse of the suspected Boston Marathon bomber?

But plenty of Connecticut residents were enraged this week when a Vermont resident, Paul Douglas Keane, offered the use of one of the burial plots he owns in Hamden to the Tsarnaev family. Mr. Keane explained that this was his way of showing support for the forgotten, the despised and the oppressed. Everyone, he reminded us, is entitled to a decent burial.

Normally, I’d side with the likes of Mr. Keane. I earn my living on the dark side of the line separating the popular from the unpopular.

We don’t normally buy plots for perfect strangers. We purchase the right to bury a loved one, usually with the expectation that other loved ones will be buried nearby. Anticipating these expectations, a contract will typically specify the price of the burial plot, the rights to use plot for limited purposes associated with burial, and the obligations incident to ownership of a plot for such things as upkeep and general maintenance of the property. I doubt any contract for purchase of a burial plot anticipates that the owner might decide to use his plot to bury a reviled suspected terrorist.

Our argument was simple: Although the contract was silent on who could be buried in the cemetery, there were certain implied promises made to other plot owners when they purchased their property. Those promises would have been violated by turning the cemetery into a controversial theme park for the despised.

Plot owners in the cemetery had good grounds when they purchased grave sites to believe they were acquiring a resting place for themselves and loved ones. They also had good reason to assume that other members of the association were doing likewise. What would have provided them with notice that an out-of-state co-owner might decide to donate a grave site to the family of a notorious and hated man?

None, I say.

Following the tragic Sandy Hook shooting, one of the pre-eminent recommendations for student safety was the placement of police in every school.  Of course, many schools have had the experience of an officer patrolling hallways for years, offering some insight on what might happen if a police officer is assigned to work a school, spending his days roaming the hallways with no shooter in sight, day after day, with nothing to do. 

After all, the likelihood of an armed marauder entering a school is infinitesimal, while the police officer can get a bit bored and seek out some activity to occupy his trained, armed time.  What could go wrong?



At the Academy for Learning, a Dolton, Illinois school for special needs students, 15-year-old Marshawn Pitts walked down the hallway with his shirt tail untucked.  This was against the rules. Oh boy.

This video from 2009 presents a concern that ought to be considered, that keeping a cop cooped up in a school leaves a lot of pent up manly energy without an appropriate outlet. Enter special needs students, young children, your child, and a police officer in an environment that is replete with rules.  It’s a toxic mix.

Pitts was a learning disabled student in a school that, by definition, existed to provide an educational environment appropriate for him.  LD students occasionally have behavioral issues, having difficulty understanding rules or complying with them.  Whether dress codes, including things like keeping one’s shirt tucked in, are of such a serious nature as to mandate strict enforcement is a matter of personal sensibility, but the school had a rule.  Schools are allowed to have rules. Fair enough.

But is the rule worthy of such harsh enforcement as this?

A video, released to Pitts’ parents by the school several weeks after the incident, showed Pitts talking to the officer and a faculty member grabbing Pitts’ arm. Pitts pulls away and walks down the hall, with the officer and faculty member close behind. But the officer then slams him against the lockers and pins him on the floor — breaking his nose, according to Manzke.

The officer was taken to a hospital and treated for an eye scratch, Manzke said. But, he said, the officer was never charged with anything and an explanation for the incident was never provided.

But, the school said, “Unfortunately, the physical restraint of a student sometimes becomes necessary. In such instances, AFL and its staff are committed to employing techniques that are safe, effective and which conform to best practice standards.

Courts that handle civil matters are expensive. You have to pay for the judges, the staff, the guys in uniform who stand up and yell “all rise,” at least twice a day, plus pensions.  There’s that cool wood paneled room with the odd bench up front so that you know whose jokes to laugh at.  Yes, very expensive.  And still, they take forever to get anything done, because there is always a perfectly reasonable excuse to adhere to formalities that justify taking two years to answer the basic questions that explain why you’re there.

Then someone in LA (yes, I know it happens elsewhere, but this is a post about LA. Get over it.) came up with the really good idea that they could offer a different path. No robe. No big bench. But a free mediator who would help the parties to reach a resolution in short order, saving the litigants a ton of money and time.  No, not for everybody or every case, but for those who didn’t really want to spend the rest of their natural life dicking around a courthouse, alternative dispute resolution offered a viable option.

Via Vickie Pynchon, the folks who hold the purse strings in LA have decided that in this age of severe budgetary constraints, something must go.  So why not the quick, easy, free service?

In response to brutal budget cuts, the Los Angeles Superior Court is going on life-support at the same time as it abolishes programs that would make the delivery of justice faster, cheaper and more efficient.

Most startling of all court service cuts is the total shut down of all court-run ADR programs – including the free mediation services that settle thousands of lawsuits every year.

In an announcement posted on line at the end of November, the Court concluded its list of budget casualties by “encouraging” (read: begging) L.A. County lawyers to make fewer motions and pursue alternative dispute resolution processes (mediation, arbitration) in the private market.

See what they did there?  It’s not that they are against ADR, but just want to get the government out of the business of ADR and put it back where it belongs, in the private sector where the cost will be on the shoulders of litigants.  Even though free services are, well, free, and the cost savings of running free services is well, not much.

But this way, the administration of the court system can proclaim that they’ve cut services to prove their thrift and sensitivity to the fiscal demands of modern society.  What a great bunch of administrators.

As bad as the systemic problems with the criminal justice system may be, it’s got nothing over the civil legal system when it comes to delay, inefficiency and ineffectiveness.  It doesn’t have to be this way, if judges took charge of the conduct of litigation before them, stuck to the rule and imposed sanctions on lawyers who viewed the rules of civil procedure as marginally advisory.  But then, lawyers would whine incessantly about how they have a vacation coming up, their car got a flat and they couldn’t possibly advance their client’s cause without 32 rounds of games in responding to interrogatories.

The elimination of the alternative dispute resolution system is a huge step backward in providing society what the court system refuses, a speedy and inexpensive means of deciding dispute and reaching closure.  While some people refuse to ever admit they were wrong, or that the law doesn’t back up whatever insanity compels them to believe they have no duty to be careful or fulfill their contractual obligations, most rational people can appreciate that there are differing views, not necessarily unreasonable, but someone must ultimately be right and someone must be wrong.

These people don’t want to spend the next decade financing the lawyer’s kid’s college education or getting monthly bills for certified letters on a disputed issue that could have been wrapped up in a single phone call.  They just want their respective rights heard and decided, so they can move on to more important and useful endeavors.  This is what ADR does well.

But the LA legal system said something had to go, so why not make it one of the few things that works well, serves people and doesn’t cost much?  After all, it’s not like they could rid themselves of the guy in the robes who would never tell a lawyer to get his damn papers in within the time frame the law requires.  After all, if they did, who would sit on that cool bench?

H/T Stephanie West Allen

This video is already making its way across the interwebz, but the young man who made it, 12-year-old Jeremy Drew, could teach a master class in how to distinguish right from wrong, and how to properly shame a cop for impropriety.



No, a cop parking his motorcycle unlawfully on the sidewalk is hardly the worst thing ever done by a police officer.  Yes, there are actually legitimate reasons why a police officer needs to keep his vehicle close at hand in case of an emergency call while he’s inside the establishment getting a cold soda.

But then, if that was the officer’s rationale, he similarly could have explained why he engaged in conduct that would have been a certain basis for anyone else to get a summons.  He could have explained that there was no lawful parking spot, had that been the case, and he was constrained to park his police motorcycle illegally so that it was available to him in an emergency.  He could have. Instead, he chose a different path.

Why, he asks?  Because I have the right to.  My tiny heart melted right there.

“Are you a junior lawyer?”  Cool riposte, officer.  But not nearly as cool as “No, I just want to see your badge number.”

Having been outmaneuvered by this kid, the cop then resorts to the last bastion of the scoundrel, the implicit threat of asking for identification.  Without the slightest crack in his voice, the tenor and pitch steady and clear, the kid replies:

I’m a minor. I’m Jeremy Drew.

One of the hardest things for a lawyer to get over following the conclusion of a high-profile case is the realization that the media doesn’t really love you and you aren’t a star.  Some lawyers try to circumvent this painful epiphany by becoming a source of constantly outrageous and intellectually vapid commentary, usually to their embarrassment and notoriety.  They don’t care, as long as they can keep a bit of the spotlight on them.

And what are judges if not lawyers with curious psychological needs?  Well, not all, but some.  As it turns out, the judge who basked in the klieg lights of the Casey Anthony reality show couldn’t bear the lack of attention after the verdict was read.

So strong was Belvin Perry’s need to be a star that the daily sycophantic “yes, Your Honor, you are so smart, funny and handsome,” no longer satisfied his yearning.  So deep was compulsion to have the world look at him in admiration again that he threw  Canon 2 of the Code of Judicial Conduct to the wind as he donned his finest suit and the tie he selected all by himself from the Just Ties store on the internet and strutted into the Today Show studios and headed straight to make-up, stopping only briefly in the green room to see what donuts were offered.

And then he did the unthinkable.  Florida’s 9th Judicial Circuit Court Chief judge Belvin Perry, Jr., with a broad smile across his ample face, in the laconic voice affectation that only judges enjoy as anyone else would be told to get to the damn point already,  gave a tell-all interview to Savannah Guthrie about the Casey Anthony case.

Some of the highlights offered by the learned jurist, via Jonathan Turley :

He explained on the Today show that “[t]here were two sides to Casey Anthony. There was the side that was before the jury, where she portrayed the role of a mother who had lost a child, someone who was wrongfully accused, and then you could notice the change and transformation in her when the jury went out. She was very commanding, she took charge of different things, and you could see her sometimes scolding her attorneys.”

He then proceeds to describe meeting with her counsel and non-public conversations with her and counsel. He relayed how Anthony reacted to an offer for a plea of aggravated manslaughter: “I will never forget that day,” he said. “All of a sudden, you heard shouting coming from the holding cell, some four-letter words coming from the holding cell, and she was quite upset. So upset that one counselor suggested that she was incompetent to proceed.”

Perry further tells the public of his “surprise,” “shock” and “disbelief” at reading Anthony’s acquittal and that “[t]here was sufficient evidence to sustain a verdict of murder in the first degree in this case.” In other words, despite her acquittal, Perry wants the public to know that he thinks she murdered her daughter.

He also described the prosecutors as “better lawyers” and, in a backhanded compliment, described the lead defense counsel as a used car salesman.

Much as the concept of paying one’s debt to society is a quaint arcane notion for those who have done wrong (or not) and served their sentence, so too is the notion that acquittal or dismissal of criminal charges means people are returned to the place they should have been but for the mistake.  Ah yes, the good old days, when a person could walk away from a false criminal accusation to return to his rightful place in society. Gone.

Via the New York Times :

Across much of the country, sealing or clearing a criminal record after a wrongful conviction is a tangled and expensive process, advocates and former prisoners say. It can take years of appeals to courts and pleas to governors to wipe the slate clean. Even then, many felony convictions remain on federal databases and pop up during background checks or at traffic stops.

Clearing a criminal record can take years and cost thousands of dollars in legal fees, and differs widely state to state. Many require that defendants return to court to prove their innocence, a higher hurdle than showing that charges were dismissed or a conviction was overturned. In some states, a governor’s pardon is needed. It can be a complex process, which advocates say is made even more difficult by a lack of support services for the exonerated.

Of course, blotting out a criminal record does not solve everything. Researchers have found that high percentages of the wrongfully convicted slide into poverty or substance abuse as they struggle to rebuild a life outside prison. How do you explain a 10-year gap on a résumé? How do you answer a yes-or-no question from a prospective employer asking whether you have ever been convicted of a felony?

Rap music lyrics on the internet? A joke?  A childish prank never meant to hurt anyone?  If this was a Jeopardy question, the answer would be things that landed you in jail in 2013.  From the Christian Science Monitor,

“The bottom line is that the public wants to know, after the fact, why [an attack] was not stopped.… Most Americans are prepared to maintain a sophisticated watch on this without [government] overreach, but most Americans also feel if these things can be stopped before they begin, they want to see that happen,” says Michael Greenberger, a law professor at the University of Maryland Center for Health and Homeland Security.

“The greatest mystery in life is the human mind. We don’t know what other people do until it becomes known. Our job is to figure it out, but we need indicators to know something’s not right,” says Sgt. Ed Mullins of the New York Police Department, who is also president of the Sergeants Benevolent Association, the city’s second-largest police union.

Mullins sounds rather existential at this point, like our very own New York City police sergeant philosopher, pondering the wonders of the human mind.  Deep thoughts, indeed, until he brings it home:

Using a zero tolerance approach to track domestic terrorists online is the only reasonable way to analyze online threats these days, especially after the Boston Marathon bombing and news that the suspects had subsequently planned to target Times Square in Manhattan, Mullins says. The way law enforcement agencies approach online activity that appears sinister is this: “If you’re not a terrorist, if you’re not a threat, prove it,” he says.

And there they are, the two little words that the cognoscenti have latched onto in the past, wreaking havoc with out world and producing some of the most stunningly absurd outcomes imaginable.  But it’s simple and nondiscriminatory, requiring no brain cells to apply:  Zero Tolerance.  It’s ba-aack.

Now for Sgt. Mullins’ money line:

“This is the price you pay to live in free society right now. It’s just the way it is,” Mullins adds.

There it is. Freedom isn’t free. The price to live in a free society is to end to freedom of speech.  Don’t think too hard about it, as it will only compel an epic double facepalm. Isn’t it amazing how something as irrational as this can be uttered without shame?

This has proven very appealing in the past, the sacrifice of a right that most will never exercise and hence don’t value highly in the name of safety?  Some will explain it as a small price to pay, as no one needs to speak of violence or anger or hatred, and therefore its use as an advance indicator of violence has the potential to protect us from a scary threat at a very reasonable price. 

The problem, of course, is the assessment of reasonableness, the small price, is made by people who fail to grasp that the point of free speech isn’t to protect the mainstream speech that most of us enjoy and few of us fear, but the ideas on the fringe, the speech that takes us outside what your mother might say.

The case of teenager Cameron Dambrosio might serve as an object lesson to young people everywhere about minding what you say online unless you are prepared to be arrested for terrorism.

The Methuen, Mass., high school student was arrested last week after posting online videos that show him rapping an original song that police say contained “disturbing verbiage” and reportedly mentioned the White House and the Boston Marathon bombing. He is charged with communicating terrorist threats, a state felony, and faces a potential 20 years in prison. Bail is set at $1 million.

As D’ambrosio’s “error” timing, or the extent of his “disturbing verbiage”?  Or was there no error at all, but rather a test of fortitude in the aftermath of an unrelated tragedy?  Not having seen or heard his rapping, I offer no opinion on its quality or merit. But then, even if it sucked and was vividly violent in its images, so what? It’s a song. As  Tim Cushing pegs it, “being-a-lousy-rapper-still-not-a-crime.”

The threat (at least the one that appeared on Facebook), as reported by the Boston Herald, reads as follows. (For best results, fill in the blanks Mad Libs-style and spell “bombing” correctly.)

“I’m not in reality, So when u see me (expletive) go insane and make the news, the paper, and the (expletive) federal house of horror known as the white house, Don’t (expletive) cry or be worried because all YOU people (expletive) caused this (expletive).

(Expletive) a boston bominb wait till u see the (expletive) I do, I’ma be famous rapping, and beat every murder charge that comes across me!”

This was posted to D’Ambrosio’s Facebook page, which looks altogether similar to thousands of teens’ Facebook pages.

Yeah.  Cool rap, bro. This points to two facets of life in the digital age that need recognition, that law enforcement is scouring the deepest regions of the interwebz for keywords that set off alarms and send out SWAT teams to stop the next bomber, and perhaps the 10,000 others who will have to take one for the team to appease Sgt. Mullins’ zero tolerance policy. 

The second is the fear that music, or preaching, or simplistic platitudes, playing on the theme of youthful alienation and dissatisfaction, will radicalize the next person who will then shoot up a school, bomb a marathon, steer a plane into a tall building.  Unfortunately, there is some merit in these concerns, even if the appearance of increasing frequency of abhorrent tragedies doesn’t begin to approach the lives lost to wrongful police conduct, or even car crashes.

But Menckenian solutions have failed before, and have invariably come at a price too steep. The shame is we never seem to realize the value of what we give away in liberty for the pretense of safety until the loss has done its damage and become ingrained in our new societal norms.  And here we go, doing it all over again.

H/T Tim Cushing

Much as I would like to note that New York State Troopers are better trained, more open-minded in the performance of their duty and aren’t just dopes in cool uniforms, I’m afraid I can’t.  Meet the unidentified trooper from Troop F, who asks nicely while working the Charles River Lab Protest before resorting to unlawful restraint.



The good news is that his supervisor refused to back up his improper arrest for being filmed despite his having asked nicely.  The bad news is that he still hasn’t been taught how to wear his hat properly.  The problem is that the trooper, misidentified initially, has yet to be conclusively ID’d, and until he is, it will be impossible to alert him to his trooper fashion faux pas.

While he may have been alerted to his constitutional error, the hat issue remains unresolved. Don’t let this man go about his job looking like a fool. Help us to identify this trooper. Do it for the children.

H/T Carlos Miller PINAC

Former Chief Judge of the New York Court of Appeals, Sol Wachtler, came up with a lot of good law before he lost it, and one of his ideas has been the subject of much discussion lately.  Yes, Sol wrote the NY high court decision in Quarles, the public safety exception case that allowed the feds to question  Dzhokhar Tsarnaev without Miranda warnings.  The Supremes adopted Sol’s view for their own.

Don’t hate Sol for it. He was really quite a good judge, and a very decent guy before his life fell into the toilet.  If you look behind the Quarles decision, which didn’t involve “terrorism” or prolonged questioning, it made sense, even if it was a bit too outcome oriented for anyone who is more concerned with doctrinal integrity than nailing the bad guy. So Sol wasn’t perfect.  Still, his court held firm against a Supreme Court determined to undermine anything favorable to the defense in its own jurisprudence. Give him credit where due.

We haven’t heard much from Sol lately, but he appeared last weekend in a  Newsday op-ed to defend his honor for his finger in the Quarles decision.

Some 20 years ago, when I was a judge on the New York Court of Appeals, I wrote a decision in a case where the police were told that a man in a supermarket in Queens had a loaded gun. When Benjamin Quarles was apprehended, he had an empty holster and the police asked where the weapon was. After the suspect showed the police where he had hidden the gun, he was arrested and charged with criminal possession of a weapon. It was argued that his incriminating statement about the gun was elicited in violation of his Miranda warnings.

My opinion in that case, later embraced by the Supreme Court, created the “public emergency exception” to Miranda. It allows the police to interrogate a suspect before administering the warnings, in order to protect the public in an unfolding and potentially dangerous situation.

Not to endorse the reasoning, but note that Quarles dealt with a very discrete bit of information needed for safety, the location of his gun.  They knew he had a gun. They didn’t know where it was. It presented an imminent threat.  The case Sol decided not only had a very specific “public safety” question, but a very discrete answer: here’s the gun, exception over.

Mind you, the need to find the gun and the use of the statement against Quarles at trial are separate issues. That the importance of finding the gun exceeded the concern about giving Miranda warnings is completely understandable. So don’t warn. But lose the statement. That’s life in a constitutional democracy. But no, not this time.  Not anymore.

Tsarnaev was a very different case, and concern, than Quarles.  But even so, the un-mirandized statement should not have been an issue from a doctrinal point of view.

It should be understood, first and foremost, that the failure to give the Miranda warnings does not result in a case being dismissed. It only results in the inability of the police to use an elicited confession against the accused. Indeed, the overwhelming majority of successful criminal prosecutions do not involve confessions. And no confession would have been needed to try and successfully convict Tsarnaev of the heinous crime he is accused of in Boston. It’s hard to imagine a case where so much evidence of guilt is at hand.

This is basic to Miranda analysis, that the only remedy for its violation is that the statements can’t be used at trial. This is either a flaw or feature, according to your perspective. In your concern over the violation of constitutional rights is more important that interrogation at will, then it reflects a failure of the remedy, designed with the notion that the only concern in violating constitutional rights is its subsequent impact at trial.  There is no remedy that compels law enforcement to honor the Constitution just because it’s the Constitution. You know, sworn oath and all. Instead, it’s just an obstacle to circumvent.

But then Sol slams the Magistrate Judge who appeared to do magisterial judge-type stuff.

The federal magistrate who interrupted the interrogation to administer Tsarnaev’s Miranda warnings was well intentioned, but it appears to have been an unwarranted interference with an important investigation.

This contention reflects the sort of rookie mistake non-lawyers make all the time, and even though Sol technically falls into the non-lawyer category now, it’s hard to cut the former Chief Judge a break on that count.  But since  County of Riverside v. McLaughlin was decided in 1991, a year before his fall from grace, when he was still a lawyer, not to mention Chief Judge, he’s got no excuse for not knowing it.

In McLaughlin, the Supreme Court put some meat on the bones of Gerstein v. Pugh, holding that the Fourth Amendment required a defendant in custody to be brought before a neutral magistrate for a probable cause determination as soon as reasonably possible.  In McLaughlin, the Court concluded the systemic outer limit as 48 hours.  Tsarnaev was captured Friday night. The Magistrate Judge arrived at the hospital Sunday night. Do the math.

So while Sol may be (and the word “may” is used instead of “is” deliberately) correct that his beloved Quarles public safety exception was properly invoked to interrogate Tsarnaev, though he fails to address the duration of the questioning or its invocation in the absence of any basis to believe there was any imminent harm, like Ben Quarles’ missing gun, that was so potentially dangerous, his castigation of the Magistrate Judge comes at the expense of another constitutional right, not to be indefinitely detained without a judicial determination of probable cause.

And even if Sol, as the Chief Judge of the New York state courts rather than federal, he should have known that a year before McLaughlin, Supreme Court Justice Brenda Soloff had ruled that under New York’s more protective constitutional scheme, arrest to arraignment delay was limited to 24 hours.  The ruling was upheld in a  per curiam opinion in March, 1991 by a court whose Chief Judge was still Sol Wachtler.

It’s a rookie mistake to focus on one piece of the puzzle but ignore another, and Sol Wachtler is no rookie.