Much as I fought the anticipation of hating this book before even cracking the spine, I knew it was a losing battle.  After all, its primary author was Mark Geragos, whose only competition for biggest media whore ever was New York’s beloved mayor, Ed “How’m I doing?” Koch. 

Aside: Mayor Koch was available for comment, but no one asked.

The verdict shocked most of the country, but it did not surprise defense lawyers in L.A. Almost the entire defense bar believed that O.J. was guilty, but we also felt there was very little chance this jury was going to convict.

Eventually, we decided that “constitutional lawyer” was a synomym for “unemployed lawyer incapable of holding down a real legal job.”

In fact, in 2012, Ann Coulter gave a speech to a conservative convention in which she made a series of Clinton penis jokes. Fifteen years later! Fifteen years later and she still has Clinton’s penis on her brain.

Aside from the pleasurable schadenfreude of knowing that we hold a piece of turf on Castro’s island paradise, what purpose was served by maintaining a United States military base at Guantánamo Bay?  Certainly it offers a well-isolated locale for storing people we prefer not be close enough to good Americans to get a whiff of the scent of torture or hear the screams.

And isn’t that a good enough reason?

Only if you have the deep pockets to pay for the waterfront land.  The cost per prisoner at Gitmo would be far more than needed to put up an enemy combatant in the finest hotel on a leeward island for life.  And what are the chances that anyone would want to bomb a country who provided free room service, liquor included?  From  Reuters via Doug Berman :

The Pentagon estimates it spends about $150 million each year to operate the prison and military court system at the U.S. Naval Base in Cuba, which was set up 11 years ago to house foreign terrorism suspects. With 166 inmates currently in custody, that amounts to an annual cost of $903,614 per prisoner.

By comparison, super-maximum security prisons in the United States spend about $60,000 to $70,000 at most to house their inmates, analysts say. And the average cost across all federal prisons is about $30,000, they say.

Just one inmate from Guantanamo, for example, is equivalent to the cost of 12 weeks of White House tours for the public – a treasured tradition that the Secret Service says costs $74,000 a week and that has been axed under sequestration.

A single inmate is also the equivalent of keeping open the control tower at the Northwest Arkansas Regional Airport for 45 months. That control tower, another victim of cuts, costs $20,000 per month to run.

The $900,000 also matches the funding for nearly seven states to help serve home delivered meals to the elderly. Sequestration has cost Meals on Wheels a median shortfall of $129,497 per state, the organization says.

Or measured in terms of military spending and national security, the cost of four inmates represents the cost of training an Air Force fighter pilot – based on the Department of Defense’s figure of $3.6 million per pilot.

I barely finished my meal, when all of a sudden [ ? ? ? ? ?] and I heard a commotion, guards cursing loudly, “I told you, motherfucker …,” people banging the floor violently with heavy boots, dog barking, doors closed loudly. I froze in my seat. [ ? ? ? ? ?] went speechless. We were staring at each other, not knowing what was going on. My heart was pounding because I knew a detainee was going to be hurt. Yes, and the detainee was me.

After a half hour on the phone, first trying to navigate voice mail and then another half hour with customer service (why, if I press 5 for tech support, am I sent to customer service?) and finally tech support, I learned something: my smartphone’s operating system was upgraded to the point where it no longer did what I wanted it to do.  The tech support gal wrapped it up nicely in jargon, but the upshot was that the phone was improved to the point where it erased what I had put in and ceased performing the function I used.

I thanked her out of reflex at the end of the call. She responded, “no problem,” always a fascinating retort to failure, and hoped she had met my expectations of excellent service. Sadly, she did.

Yesterday, my dear friend  Carolyn Elefant was forced to admit defeat at the hands of technology.  She had planned to do a free webinar on 21st Century Practice, but the 21st Century didn’t cooperate.

I am so, so sorry that I have had to cancel today’s free webinar on how to launch and lift a 21st Century Practice. The immediate cause of the cancellation is that the Anymeeting.com platform crashed – my assistant, more than 100 participants and I were locked out of the site. I’ll trash the service thoroughly in a minute.  But first, my own   mea culpa – ultimately, I stand responsible for the failure because I should have had a back up plan.

Speaking at 1 Police Plaza,  Mayor Michael Bloomberg told New Yorkers the bottom line: Unless you agree to stop and frisk, you will not be safe.

“Look at what’s happened in Boston,” he said. “Remember what happened here on 9/11. Remember all of those who’ve been killed by gun violence and the families they left behind.”

The mayor described criticism of the police as politically motivated. “The attacks most often come from those who play no constructive role in keeping our city safe but, rather, view their jobs as pointing fingers from the steps of City Hall,” he said.

In other words, the naysayers are putting us at risk. I consider myself one of the naysayers, which means in the mayor’s mind, I play no constructive role in keeping our city safe. The battle lines are drawn.

In fairness, one of the core duties of the executive branch, and specifically the chief executive, is to protect the safety of the public.  Faulting the mayor for his focus on safety would be to misapprehend his role in government.  But the dichotomy drawn is a false one, and a guy as smart as Bloomberg knows it.

The options aren’t perfect safety versus totally unsafe.  Nor is the Chief Executive’s concern limited to providing perfect safety.  All of government, by definition as it exists by virtue of a Constitution, has responsibilities, but they are inherently limited by the same Constitution that creates the existence of government and provides for its authority.  So the duty is to provide for safety, within the parameters provided by the Constitution. 

Let’s be real.  Bloomberg’s argument resonates with people because fear is a base instinct.  Fight or flight. It doesn’t take higher order thinking, but natural reflect, to recognize and deal with fear.  People don’t like to think, as thinking takes effort and we’re a lazy breed.

There is no expedient to which a man will not resort to avoid the real labor of thinking.

–Sir Joshua Reynolds

And if we didn’t have those nasty rights reserved to the people, whether expressly or implicitly, the government could impose a far safer world.  It would be safer if the police could stop anyone they wanted on the street at any time for any reason or no reason to search for weapons or contraband.  Same is true if they could perform a “dynamic entry” into our homes in the middle of the night.  It may wake up a lot of otherwise nice people, but they would occasionally find something illegal and dangerous, and would save others from it. 

Safety from crime has always mattered. People value their safety over other people’s rights.  Not their own rights, perhaps, but other people’s for sure.  It takes a lot of thinking to appreciate why the rights of good people (like us) are preserved by affording and protecting the rights of bad people (like them).  Most people aren’t up to the task. Most people won’t even give it a try. Their head starts to pound and they either walk away or yell bad words at you.  It’s not a good way to make friends at parties.

The  New York Times editorial excoriates Mayor Bloomberg for his elevating safety over rights using arguments that appeal to ignorance and save the public from its need for thinking.

Mr. Bloomberg’s suggestion that the program has been responsible for historic drops in crime is also implausible. Crime has declined all over the country, including in places that have not used New York’s aggressively invasive techniques. Besides, if crime rates and street stops had a strong correlation, the murder rate would have gone up in 2012, when stops declined by about 20 percent. In fact, the murder rate fell in 2012 to an all-time low.

Correlation does not imply causation is the answer to a basic logical fallacy. Logic isn’t in fashion these days, however. “Crime is down,” is far easier to digest, and so do whatever it is you’re doing, mayor. It’s working. It must be. And if it’s not, who cares? As long as I feel safer, and it’s not me paying the price for it, we’re cool.

But the voices of the naysayers, people like me, threaten to spoil the safety of the others.

Mr. Bloomberg’s implication that the program’s critics are more interested in vexing City Hall than in keeping the streets clear of murderers was especially reprehensible. No one is opposed to using effective, constitutional means of fighting crime. The problem is that over the last decade the Police Department has shown utter contempt for Fourth Amendment guarantees of freedom from unreasonable search and seizure. And worse, these tactics have been used largely against young black and Hispanic men.

Criminal defense lawyers have long explained to our clients that we will zealously defend them within the bounds of the law.  We will use every means the law allows, but we do not go a step beyond what the law allows. I write this not to pat us on the back, but to show that the concept is hardly foreign to government or a constitutional democracy.  If we can adhere to such a rule, so too can the police. So too can a man as smart as Mayor Bloomberg.

But here’s the kicker. For all his efforts to protect us from harm, whether from people of color, or odd foreign names, or our own gluttony, we can be safer but never safe. There will always be a means for a person inclined to do harm to another person to accomplish his goal. Believing that if we pay the price for freedom by relinquishing liberty, we can make our world safe is a lie we tell ourselves so we can sleep at night.  

Mayor Bloomberg argues that we must accept the violation of our constitutional rights if we are to achieve safety.  

Mr. Bloomberg may never change his views. But his stubborn refusal to see the program’s dangers has not stopped three civil rights lawsuits from going forward in federal court and the City Council from trying to curb the use of tactics that have alienated minority communities from the police and made law-abiding citizens feel like criminals in their own neighborhoods.

To the extent there is any marginal safety to be gained, it will never be worth the price. No one is opposed to using effective, constitutional means to fight crime, and that’s as far as government’s authority extends. Think about it, even if it gives you a headache.

I don’t know how many times over the years I’ve used the punchline from  this comic by Peter Steiner of the New Yorker:  On the internet, nobody knows you’re a dog.  It’s perfect.  Yet, chuckle though so many do at the line, it rarely sinks in. And digital natives and emigres continue to believe because, well, we just can’t believe otherwise.

Thomson Reuters is a major player in legal publishing. It’s a legit company, well known and well regarded because it sells us stuff with the name “West” on it. And West is huge, having lined pretty much every lawyers book case and library since their first day of law school.  If you can’t trust Thomson Reuters, who can you trust?

Except…

Jim Romenesko reveals a bit of a quirk about Thomson Reuters writer Michelle Boatley, who was a mainstay legal journalist of their Australasian Legal Business publication.

A few years ago, Boatley was cranking out stories left and right — short pieces about law firm layoffs, merger deals, and firm expansions.

Then she vanished.

Fired? Tossed to the side by heartless editors? Nah.

The prolific legal writer was not real, but a creation of ALB bosses.

“The names were there to make it look as if the ALB teams were bigger than they really were,” one of my sources writes in an email. “Also, so editors don’t have to use their own names on certain stories (no particular reason).”

See what they did there?  Michelle Boatley had a Facebook account and a gmail address. That was all they needed to create a legal journalist out of thin air.  Want to make your publication look like it’s got a slew of reporters? Just stop by a few websites and, boom, fantasy becomes reality.  Because, as another line that fools embrace informs us, you are what google says you are.

One might have thought that only gutter-dwellers played this game of creating fictional personas on the web,  phony lawyers like David Blade or highly experience and deeply caring lawyers like, well, 90% of the baby lawyers in solo practice.  Or perhaps it’s just about  grabbing eyeballs for social media consequence using anything available, without regard to how monumentally stupid or worthless, because the only thing that matters anymore is to be a rock star on the internet.

But no, even the big boys like Thomson Reuters plays the game.

Of course,  why believe what bloggers have to say when you can rely on legit legal publishers, right?  And clearly everything you find on the internet is true, as everyone knows.  Except Michelle Boatley.

The great Jim Dwyer, for whom the New York Times should consider itself incredibly fortunate to have in its employ, didn’t let Ken Burn’s “The Central Park Five” go without notice.  It told the story of the five young men who confessed to a heinous rape of a jogger in Central Park, a crime that grabbed the anger of the city and gave birth to the word “wilding” in the minds of Sutton Place residents.

Except they didn’t do it, as DNA later revealed.

A fellow named Frank Chi watched the documentary and, apparently not a reader of SJ and unaware of the outcome, asked a relevant question: So what became of the prosecutor, Elizabeth Lederer?

Mr. Chi searched the Internet for the lawyer who prosecuted the case, Elizabeth Lederer. He saw that she was still an assistant district attorney in Manhattan, and is an adjunct member of the faculty at the School of Law at Columbia.

It didn’t sit well with Chi that these five boys were falsely convicted based in part on Lederer’s use of false confessions and false claims.

Ms. Lederer wrongly told the jury that hair found in the clothing of one of the boys “matched” hair from the victim, a seeming corroboration of the confused, rambling confessions. Even at the time, that overstated the evidence. More than a decade later, DNA tests would show that the hair did not come from the jogger.

She was not without significant responsibility for the debacle.  As District Attorney Robert Morgenthau later said

A comparison of the statements reveals troubling discrepancies. … The accounts given by the five defendants differed from one another on the specific details of virtually every major aspect of the crime — who initiated the attack, who knocked the victim down, who undressed her, who struck her, who held her, who raped her, what weapons were used in the course of the assault, and when in the sequence of events the attack took place. … In many other respects the defendants’ statements were not corroborated by, consistent with, or explanatory of objective, independent evidence. And some of what they said was simply contrary to established fact.

Who cared at the time? They were guilty. Lederer said so. Her supervisor, Linda Fairstein, was certain of it.  And if they were sure of their guilt, and the crime was heinous, and the City was outraged, that was enough. More than enough.  Except they didn’t do it.

Chi started a petition against Lederer to get her fired from her teaching gig at Columbia Law School, where her bio included the highlight of her career, the conviction of the Central Park Five.  The petition grew legs.

As of Thursday, more than 5,000 people had signed. “It snowballed,” Mr. Chi said in a telephone interview. “It really hit a nerve.”

And it should have hit a nerve. With an attention span that makes gnats jealous, this disgrace of the criminal justice system shouldn’t be forgotten, nor should the role of the participants in the fiasco be whitewashed.  It happened. We need to remember it happened, in homage to George Santayana’s admonition.

But true as that may be, it doesn’t answer the question of why pick on Liz Lederer.  Dwyer makes the point:

The petition against Ms. Lederer, in part, reduces her life in public service to a single moment, the jogger case. In fact, she has a lengthy résumé of unchallenged convictions in cold cases, having pursued investigations of forgotten crimes. No one lives without error. And designating a single villain completely misses the point and power of the documentary. The jogger case belongs to a historical moment, not any one prosecutor or detective; it grew in the soils of a rancid, angry, fearful time.

It was a bad time, a horrible time, when blind rage compelled a city to forsake reason and lust for blood.  And now that we’re beyond that moment when calm deliberation eluded us, where we can clearly see the terrible result of our knee-jerk demand for villains to blame, we shouldn’t repeat our error and focus our new rage on a new villain.

Yes, Lederer’s role in the conviction of five innocent youths shouldn’t be the highlight of her career, the piece she has chosen to include in her law school teaching bio as the aspect of her career her students should seek to emulate.  It’s the Paris Hilton Syndrome, the ugly desire for celebrity, even if it’s based on notoriety, to make a person stand out from the crowd, to “matter” in the only way anybody seems to these days, by connecting oneself to a high profile event.  It’s embarrassing standing alone, like a child screaming “look at me” to the grown ups, but it seems to be the preferred measure for lawyers.

Yet, Jim Dwyer is absolutely right when he writes, “no one lives without error.”  Liz Lederer’s life is not defined by this one disgraceful case.

My pal, Tamar Birckhead, who defended the monumentally goofy shoe-bomber, Richard Reid, whose legacy is the requirement that we go barefoot, if only for a few minutes, in airports,  made the same point in another context.

I’ve been occupied with putting myself out there (via print, radio & cable news) to share the message that even those charged with the most heinous offenses are still human beings, that we are each more than the very worst thing we have done, and that execution is morally wrong.

Tamar has been cable TV’s poster girl for lawyers defending terrorists, and gets her sound bite whenever there is a gap in the news cycle. Unlike Dwyer’s reference to Liz Lederer, Tamar refers to Dzhokhar Tsarnaev, the surviving Boston Marathon bomber.

See how that works?

Some will argue that neither the society, the media nor the courts will show such thoughtfulness to Tsarnaev, to be open-minded enough to recognize that this one event, horrible as it may be, isn’t the sum total of a human being’s life, as if he didn’t do good things too, have people who loved him, helped kittens.  Why then, they contend, should anyone be kind to Liz Lederer for her role in the Central Park jogger case, her role in convicting five innocent youths to be condemned to life in prison?

Because we are all far, far better off ending the cycle of anger and hatred toward others. As we hope for a larger vision for Tsarnaev, one that doesn’t demand he die for this horrible deed as if he did nothing in his life except this, we do better to apply the same beliefs to everyone, Liz Lederer included.

And Lederer removed the offending claim to celebrity from her Columbia Law School bio.

Much as the arguments made by former federal judge turned avenging angel for victims, Paul Cassell, usually come at the  expense of the constitutional rights of defendants (so what, they’re all scum anyway), he may be onto something this time.  Caution: Stopped clock ahead.

Via former NYLJ writer Dan Wise, Cassell rips the secret deal given long term snitch Felix Sater:

Sater’s 2009 guilty plea remained under seal until mid-March when Eastern District Judge I. Leo Glasser, who presided over Sater’s criminal case, ordered it to be made public.

The newly available plea made indisputable what was already widely known. Sater had been rewarded for his 11 years of cooperation with a lenient sentence—five years probation and a $25,000 fine. More significantly for Cassell, the sentence made no reference to restitution.

Restitution for what, you ask?  Only a $40 million stock swindle in 1998.

In written testimony delivered to a unit of the House Judiciary Committee, former U.S. Judge Paul G. Cassell, a professor at the University of Utah Law School, cited the Eastern District’s handling of cooperator Felix Sater’s guilty plea to having committed a $40 million stock swindle in 1998 as a prime example of why the enactment of a constitutional amendment protecting victims’ rights is necessary.

“Sadly,” he wrote, it is “my conclusion” that the Eastern District’s handling of the case, and judge’s granting of its request to shroud the plea in secrecy, “is hindering the public and this Subcommittee from learning how crime victims were treated in this case.”

But Cassell being, well, Cassell, this fairly obvious abuse of the system to benefit a government snitch is used to promote the bizarrely unrelated call for a constitutional amendment to “protect victims’ rights.”  You can bet that Cassell’s idea isn’t limited to only those defendants who sign on to become rats.

What happened in Sater’s sentence is hardly an example of the system at work, but rather the prosecution rewarding a particularly useful snitch for the “cooperation” he provided.  While most cooperators get negligible benefit, a rare few (like Sammy the Bull) get away with murder.  As it turns out, the government gets this weird myopia toward heinous crimes when the miscreant becomes their newest, bestest friend.  Suddenly, crimes worthy of death don’t seem nearly as horrible as they were the day before. It’s a miracle.

And when it comes to Sater, Cassell is right (wow, never thought I would write those words).  His $40 million swindle left a huge wake that the government apparently decided was okey-dokey with them.  But that’s not all. Oh, no. It gets worse.

The secrecy surrounding the Sater’s plea had been hotly contested by Long Island lawyer Frederick M. Oberlander, who in 2010 filed a derivative action in the Southern District of New York, claiming that Sater had used the secrecy afforded by the court’s secrecy regimen to perpetuate a $500 million real estate fraud.

Therein lies one of the great joys of being a world-class rat, gaining the love and devotion of an appreciative government for the gifts you’ve given.  If a $40 million scam wasn’t bad enough, add another $500 million to the mix.  Not bad money if you don’t mind being the government’s best friend.

So Cassell is quite right when he speaks to how the snitch-industrial complex allowed Sater to conceal his plea, evade the law’s requirement that restitution be imposed, and deprive the victims of his financial crime their hope of restitution.  And as it happened, the money Sater took has to be somewhere, though that somewhere isn’t in the hands of his victims.

But to bootstrap the problem of government cooperation and concealment into a plea for a general constitutional right for victims is where Cassell returns to his roots and abandons all reason.  Much as the forces of safety-first use the Boston Bombing to exempt anything connected with the T-word from anything connected to the C-word, Cassell conflates the abuse of government cooperation heaped upon victims with abusing criminal defendants by undermining their constitutional rights.  Do it for the victims.

And just to close the loop, the United States Attorney’s office for the Eastern District of New York had this to say about the Sater deal:

Robert Nardozo, a spokesman for the U.S. Attorney’s Office, said it would have no comment.

Of course not. If we don’t keep this stuff secret, how will they ever recruit enough rats to maintain a successful criminal justice system?

My pal and artistic muse, former Bronx Defender cum television maven David Feige, has an op-ed in the  New York Times that’s, well, quite brilliant.  Brilliant not just because he’s right, but because of the sheer simplicity of the idea. which could so fundamentally alter the dynamic of the criminal justice system to make it almost palatable.

Every year in New York City, more than a quarter of a million people are arrested and charged with misdemeanor offenses. The vast majority of those who don’t plead guilty right away are released without bail and ordered to return to court to fight their cases until they are concluded. But as William Glaberson reported in The New York Times on Wednesday, that can take a very long time.

Reducing the vast number of people charged with relatively minor offenses would go a long way toward easing this immense burden. But even without a shift in policing strategy, there’s one straightforward fix we can make: treat criminal cases more like civil cases by excusing defendants from appearing in court until the prosecution is actually ready to try them.

This happens even when prosecutors have advised the court in advance that they are not ready to proceed. The appearance requirement — which can cost a person weeks of lost paychecks and hours spent arranging child care — rapidly becomes onerous. As a result, more than 99 percent of those who initially want to fight the charges are worn down by the legal equivalent of “Waiting for Godot,” and eventually agree to plea bargains to end their cases. The same is true for misdemeanor cases in many other major American cities: the process has become the punishment.

So why not make criminal justice more civil? At least for nonessential proceedings, misdemeanor defendants who would prefer to let their lawyers do the work should be excused from having to appear in court. Or to frame it another way, courts should require a defendant to be present only when something substantive — like a negotiated disposition, hearing or trial — is really going to happen.

Judges already have the power to excuse defendants but they nearly always refuse to use it. A recent study by the Bronx Defenders, which provides free legal representation to poor people, found that vanishingly few judges would even entertain a motion to excuse a defendant — and among those few who did, even fewer ever granted such a request.

Most sitting appellate judges are reluctant to express an opinion about the negligible worth of a constitutional right in a newspaper op-ed, if for no other reason than they may well be called upon to decide an issue and, having already announced they don’t care much for the right, have conclusively demonstrated their bias. Not Seventh Circuit Judge Richard Posner.  Oh no, not Judge Posner.

From the Daily News :

This past Monday, Mayor Bloomberg said that in the wake of the Boston Marathon bombings, the country’s interpretation of the Constitution “will have to change” in order to enable more effective prevention of and response to terrorist attacks and other violence, such as attacks on schoolchildren.

All of which is to say that he wants concerns with privacy to take second place to concerns with security.

I strongly agree, though I’m not sure that the Constitution will have to be reinterpreted in order to enable the shift of emphasis that he (and I) favor. Neither the word “privacy” nor even the concept appears anywhere in the Constitution, and the current Supreme Court is highly sensitive, as it should be, to security needs. The Court can and doubtless will adjust the balance between privacy and security to reflect the increase in long-run threats to the lives of Americans.

Is this a return to textualism or a living Constitution?  Some (like me) would argue that privacy pervades the Constitution, like the Fourth Amendment’s protection against unreasonable searches and seizures, but Poser disagrees.  The word may not be there, but is it a stretch to conclude that the 1st, 3rd, 4th, 5th and 9th Amendments don’t relate, as the Supreme Court has held case after case, and protect our right to privacy?  Posner thinks so.

There is a tendency to exaggerate the social value of privacy. I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

While he may say so, I doubt he values his privacy as much as the next person. He doesn’t  value privacy as much as I do. Probably not you as well. The problem for Posner is his understanding of privacy, “a euphemism for concealment.”  What a negative perspective.

It strikes me that Posner is projecting when he defines privacy so insidiously.  Sure, there are things people prefer to conceal, like the occasional passing of wind when outside of polite company, but it’s not just a matter of hiding one’s embarrassment as it is not offending others.  No one wants to be in an elevator with a guy who feels it’s not worth concealing.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

All this may be true, but this ignores another side of privacy that has nothing to do with concealment. It ignores modesty. It ignores humility. It ignores the desire to preserve the sanctity of ones thoughts from being on public display.  It’s not that we can’t conduct ourselves well and properly in public, but that we are entitled to a quiet time when we aren’t on display.  It’s not that we have anything to conceal, but want the opportunity to indulge our peccadilloes, whatever they may be. 

For the most part, the op-ed makes it appear that Posner is only talking about video cameras on every street corner, every building, constantly watching our every public move.  The argument in favor of such surveillance is much like the argument for videotaping police in the performance of their duty.  They’re in public, where we are lawfully entitled to watch them, so no harm done.

But there is a difference. We are what the government euphemistically calls “private citizens.” The police, in contrast, are called “public servants,” also euphemistically.  Both words begin with “P”, but fall on opposite ends of the spectrum. While it may be true that our public actions are generally observable, it’s also true that there is no good reason to keep private citizens under constant surveillance. Our every movement isn’t anybody’s business.

Even so, if this was as far as Posner was prepared to go, there would be sound argument to allow it, provided one embraced the whole post 9/11 “everything has changed” rhetoric, particularly given that video caught the Boston Bombers.  This proves that if we were all bombers, it would make perfect sense.  But is that all Posner is talking about?

Civil liberties groups, notably the Electronic Frontier Foundation and the Electronic Privacy Information Center, of course do not limit their concerns to surveillance cameras. They worry, too, about governmental surveillance of people’s computer files and other stored data.

But I don’t think they appreciate that this is a two-way street. Surveillance technology used by our government is also used by our enemies. We must keep up; we cannot resign from the technological revolution.

The cameras on every corner appear to be the start of the death of privacy.  Your hard drive?  The cloud? Server farms in Maryland?  That’s where the really good secrets are hidden, and the government needs them to protect us from our enemies. Remember that technology train we all have to hop on or miss?  Nobody realizes that Judge Posner is driving that train.

If it came from anyone else, the police union would protest. But it came from the brass. The  New York Times reports on the defense of the NYPD in the trial of Floyd v. City of New York, before SDNY Judge Shira Scheindlin on the constitutionality of stop & frisk:

Ten percent of them were malcontents who worked as little as possible. Unless they are being paid overtime, officers seem to avoid writing summonses. Indeed, some police officers need to be weaned of the idea that they are paid to drive around in their patrol cars, eating doughnuts.

“I think we’re charged with trying to get the police officers to work, do the things that they’re getting paid for.”

In some precincts, Mr. Esposito noted, most enforcement activity, like ticket writing, occurred when officers were paid time-and-a-half overtime, instead of during their regular workweek.

“It’s a question as to why they can see activity when they are being paid overtime as opposed to not being able to see activity when they are on straight time,” Mr. Esposito testified.

Or is it not a question of “seeing activity” at all, but needing a make an extra buck and nabbing the nearest kid to do so?


Unofficial photo of support for New York City Police Officers from their brothers in California. Person on the left is undercover.

What is happening at this trial, where the police management has now verified the accuracy of almost every negative stereotype about police there is, from donuts to laziness to greediness to caring nothing about the public to putting their own financial self-interest above that of society, in a scorched earth war to preserve their authority to toss young black men at will, is that every myth built around New York’s Finest is revealed as a sham. 

Whether they win or lose, there is no denying the perception of police from their own that contradicts the carefully crafted image of police developed over the past 100 years. Are there great cops? Sure, but only 10%.  Good cops, yes, but they aren’t nearly as honorable, honest or motivated as they would have us believe?  Bad cops? Yup, we’ve got them too.  And which cop arrested the defendant? Which cop is on the stand? Which cop is telling the truth? 

And it’s only because there were enough lousy, lazy, worthless cops that they were forced to set “goals,” which are quotas with fewer letters. But it’s no big deal.

But perhaps the most defiant testimony came from Chief Michael Marino, who said that the “simple truth of the matter” is that the monthly quotas which officers complained about were quite low.

“The number I set was so low that I could do it in one day,” Chief Marino said about his time commanding a Brooklyn precinct.

“And reasonably do it without hurting anybody or picking on anybody.”

It would be easy without hurting anybody when done by a good cop, according to Chief Marino.  But they’re not all good, and so they do hurt people. They do pick on people. Because some think their job is to drive around in patrol cars eating donuts all day.

While I’ve had some harsh things to say about bad cops over the years, there is nothing I’ve written as damning about the general worth of police officers as this.  Don’t take my word for it. Take the sworn testimony of retired Chief Esposito.