The details are pretty sketchy, and the source pretty partisan, so let’s assume the worst for the sake of argument.  Via Toke Signals, which should give you a clue about the sources perspective:

The home of Idaho marijuana activists Lindsey and Josh Rinehart was raided on Tuesday by Boise Police and Child Protective Services while Lindsey, Josh and their friend Sarah Caldwell, a fellow marijuana activist, were on a small trip to the mountains.

Lindsey and Josh’s two children were taken into “protective custody,” and because Sarah’s two children were also at the residence with the babysitter, they were taken as well.

It’s left unsaid what exactly the arrests might be for, but I would take a wild guess and say it probably has something to do with this:

“This happened yesterday, so now it’s a waiting game for hearings and to see if the state is pressing charges,” Frank said. “When the police raided the house they took several garbage bags full of evidence (Lindsey has MS) so charges are probably being filed as we speak.

Several garbage bags full of evidence can mean a lot of things. Let us assume that the evidence is marijuana, and the “several garbage bags full” means, say, a lot of it. Enough of it to make it a felony punishable by a term of years in prison.

The parents of the children taken are open supporters of marijuana legalization, leaders of the movement to make medical marijuana available in Idaho. 

Lindsey Rinehart is the director, chief petitioner and volunteer coordinator for Compassionate Idaho’s medical marijuana petition. She is also a core member of the Idaho HOPEFest Committee and of Idaho Moms for Marijuana. Josh Rinehart is Lindsey’s husband, director of Idaho NORML, and core member of Idaho HOPEFest and Compassionate Idaho.

Sarah Caldwell is executive director of finance in Moms For Marijuana International. She is also a founding member of Idaho Moms for Marijuana, founding director of Compassionate Idaho, Idaho NORML, and the Idaho HOPEFest.

They shouldn’t have been terribly hard for the police to find if they were inclined to hunt them down as heinous criminals. They’re names and addresses were likely all over the place. It’s one of the risks one takes when deciding to take a stand on an issue like the legalization of marijuana, where enlightenment comes one state at a time, one police department at a time. 

Why the Boise police chose that day to raid the Rhinehart’s home isn’t said, but the fact that they were away makes the timing curious. The fact that the only adult there was a baby sitter with the children too. And the fact that it wasn’t only the Rhinehart’s children, but the children of a fellow activist as well, seems especially interesting. 

In the scheme of grave injustices, one can argue which is worse. Is it the beatings or maimings?  Is it a killing or the humiliation of having an officer insert a hand into a woman’s vagina on the public roadside.  There are no shortage of grave injustices, and while most people believe the one they endured to be the most horrible, there is no real need to argue the hierarchy of which is worse. They are all wrong, and there is no reason to compete.

But this raid stinks of the deliberate intent to seize the Rhinehart’s and Caldwell’s children.  The cops came with Child Protective Services in tow. These activists didn’t hide in the shadows like the anonymous tough guys of the internet, but put their names to their beliefs and made themselves open targets in the War on Drugs.

It’s no stretch to suppose that the police knew the parents were off while the children remained behind.  Not alone. Not without care. But without a parent present to call a neighbor, a relative, someone to take custody of their children if the parents were arrested. 

That the police believe in their holy war against these heinous marijuana activists presents one issue, an issue with which a great many people disagree. But that they seized their children and hold them hostage as part of their battle plan is an outrage.  Forget the benign rhetoric used by the government when it comes to children, like the dubiously named Child Protective Services.  Forget the way politicians appeal to our emotion by tossing about the “do it for the children” argument whenever they want to crush another right or criminalize half the population.

The children of the Rhineharts and Sarah Caldwell were kidnapped by the police as a weapon in the war.  They are a bargaining chip to shut the activists down and put them away.  Had these children been taken by anyone else, there would be a thousand person hunt for their whereabouts. Instead, they will face a grueling battle with a system designed to impose a Puritan’s vision of proper child-rearing.

“They are heartbroken and just want their babies back,” Frank said. “Unfortunately, it’s a long, drawn-out process once CPS has them in custody.

“All three of these dedicated cannabis warriors are physically disabled, and receive very little to no income, and absolutely zero income from any of their volunteer efforts in cannabis reform,” Frank said. “They are all in need of help to retain both family law and criminal law attorneys.

They can fight the battle for marijuana reform. They should have realized that they risked arrest at any moment. This is the price of taking a stand.  But having the state kidnap their children and hold them for ransom wasn’t part of the deal.  Fight with the parents all you want, but leave the children out of it. Do it for the children.

H/T Radley Balko

In perhaps the most ridiculously insipid story to ever grace the pages of the ABA Journal, Debra Cassens Weiss writes about a law firm whose grasp of social media is so fundamentally poor that they are offering prizes for Facebook “likes.” 

The firm’s founders are trying to raise its visibility with a social media campaign that includes “thank you Thursdays” offering prizes for “likes,” the Daily Herald reports. One recent prize was a three-month membership at a local gym.

Some marketing guy from Avvo called me the other day, and I shut him down the same way I shut down most marketers: I told him I am so swamped with business that I couldn’t possibly take on one more case.

For example:  Avvo claims that my profile was “seen” by 1,566 “potential clients over the past 30 days.  I have no idea what it means to be “seen”:  Does this mean that my profile came up on 1,566 searches for a criminal defense lawyer in D.C. or Virginia?  Or that someone actually clicked through to my profile?

If I averaged 1,500 views a month over that time period, which is just under the number they say I had for the last 30 days, that would come to 63,000 “potential clients” who had seen my profile. And yet, as far as I know, I have not had a single person even contact me through my Avvo profile, much less decide to hire me.  “I found you through Avvo” is something I have never once heard.

At PrawfsBlawg, John Pfaff posts a graph that sucks the air out of the room.


We tend to address the explosion in prison population as a direct result of the War on Drugs, and it’s a foundational argument to end the war.  Pfaff raises some issues:

Today, the US is home to about 5% of the world’s prisoners population, but nearly 25% of its prisoners. Our prison-and-jail incarceration rate* of 756 (in 2011) is the highest in the world . The countries filling out the top ten (in descending order) are Russia, Cuba, Belarus, Belize, Georgia (the country—the state has a higher rate), Kazakhstan, Suriname, South Africa, Botswana, Israel, Ukraine, and Chile; Russia’s rate of 629** putting it in the number 2 slot.

Like all zombie ideas, the claim linking the War on Drugs to this explosion has some facial plausibility. The surge in incarceration and the War on Drugs started around the same time (if you use the Reagan Administration, not the Nixon one, as the starting point for the War on Drugs). And between 1980 and 2009, the number of prisoners incarcerated on drug offenses rose by approximately 1,175%! 

But like with all zombies, cracks in the argument become quickly apparent. Take the 1,175% number. In 1980, there were 19,000 drug inmates in state prison, a number which soared to 242,200 in 2009. And yes, that means there are more people in prison today for drug crimes than were in prison in 1972 for all crimes (around 200,000).

But in 2009, there were over 1.36 million people in state prison. And 242,200 is only 17.7% of 1.36M. So a lot of non-drug offenders were added to prison during those years, too—a lot more, in fact, than drug offenders.

Consider the following thought experiment. What would US prison populations in 2009 look like if in 1980 we released all 23,900 prisoners serving time for drug offenses (the 19,000 state prisoners plus 4,900 federal drug inmates) and proceeded to admit no prisoners for drug crimes in the subsequent years? Instead of rising 3.8-fold, it would have risen 3-fold. A difference, but not an enormous one.

In the Empire State, we refer to lawyers who are authorized to practice law as “admitted.”  Whenever someone used the word “barred,” my mind immediately envisions an iron gate making it impossible to get through.  As in, the lawyer was barred from any public place where pleasant people congregate.

In other locales, the word “barred” means that a person is admitted to the bar. Weird locales to a New York lawyer’s ear.

But what makes it even weirder is when the lawyer refers to those locales as the places where they find and represent clients, even though they are neither admitted nor barred.  That’s because lawyers, whether you like it or not, are only authorized to be lawyers in places where they have been barred. Or admitted, if you come from a place where people don’t talk funny.

This is a fairly fundamental aspect to being a lawyer.  Just as a cop is only a cop in the geographical area of his employment, authorized by law to make split-second decisions that elsewhere would assure him a murder charge, a lawyer can only practice law where the sanctioning authority says he can. Practicing law in places where a lawyer is unauthorized is a pretty clear wrong, much like raiding an escrow account because that new car is calling your name.  Even the ABA, in rule 5.5, admits as much, and they are certainly the last carry the torch of arcane ethical rules.

One would think that the disciplinary authority of jurisdictions where a person engaged in the unauthorized practice of law would take something so obvious pretty seriously.  After all, if they don’t keep a lid on who gets to hang around their jurisdiction claiming to be a lawyer, then what’s to stop anybody from doing so?  And if anybody can do so, then the public would be deceived and led to seek legal advice from people of dubious competence and devoid of ethics, and the bar associations wouldn’t get their dues paid. It would be a disaster all around.

Which led me to ponder the significance of this  description of a law practice.

She is barred to practice law in New York and New Jersey–but she lives in South Dakota with her husband and one year-old daughter. She services clients living everywhere from Bangladesh and Costa Rica to California and Florida.

As someone point out on twitter, people who were  critical of the Redditors who started wild accusations against innocent people for the Boston Marathon bombing should be similarly critical of the government for having wrongly arrested Elvis impersonator Paul Curtis on charged he sent letters to government officials, including President Obama, that contained the poison ricin.

It’s not quite the same thing, but the point is duly noted. The government was dead wrong. Curtis is completely innocent. Another front page accusation down the tubes.

From the New York Times :

This month, Mr. Obama; Senator Roger Wicker, Republican of Mississippi; and Sadie Holland, a Lee County judge, received threatening letters postmarked Memphis and filled with a white powder. Tests confirmed it was ricin, a poison made from castor beans that can be lethal.

The letters read: “Maybe I have your attention now even if that means someone must die. This must stop. To see a wrong and not expose it, is to become a silent partner to its continuance.” They were signed: “I am KC and I approve this message,” a phrase that Mr. Curtis had used on his Facebook page.

According to a senior federal law enforcement official, the authorities were first drawn to Mr. Curtis because the language used in the letters was strikingly similar to language he had used before in letters to elected officials.

When trying to find a needle in a haystack, you use whatever presents itself. Angry words, unusual phrasing, that leads investigators to an individual offer a pretty strong indication of the sender. And Curtis turned out to be an odd duck, aside from his chosen occupation.  He had a “long history of mental illness, including bipolar disorder,” according to his family and friends. Just the sort of person to do something, well, crazy.

Except he didn’t.

Mr. Curtis, a party entertainer who dresses and sings as Elvis, Prince, Johnny Cash, Bon Jovi and others, had been in jail since Wednesday. He said he had never even heard of ricin. “I thought they said rice,” he said. “I said I don’t even eat rice.”

On Monday, an F.B.I. agent, Brandon Grant, said that investigators had not found ricin or ingredients for making it while searching Mr. Curtis’s house or vehicle. The F.B.I.’s search of Mr. Curtis’s computer found no evidence that he researched making ricin, Mr. Grant said.

Last Wednesday, he was the ricin mailer. Seven days later, he was just another bipolar celebrity impersonator smeared in the media across the country who didn’t commit the crime.

Just as Curtis’ words in his Facebook account, like his letters to public officials, struck the feds as familiar, so too does his arrest, public smearing and subsequent release.  Richard Jewell, anyone?

But the system worked this time, right?  Charges against Curtis were dismissed and he thanked the prosecutors for cutting him loose.  So if Curtis was cool with his week in the government’s crosshairs, the media’s meat grinder, who are we (am I?) to make a big deal of this?

The problem doesn’t begin or end with Curtis, curious and colorful fellow though he may be.  Had the feds found anything that could remotely have been used to manufacture poison, or perhaps a weapon of mass destruction, defined by Congress as anything that goes “boom,” chances are that the prosecutors wouldn’t have been nearly as sanguine about dismissing the charges.  

More importantly, given the absence of any hard evidence that Curtis was the ricin mailer, might the government have taken a bit more time before arresting him in the first place?  Sure, high profile events call for immediate response, lest the people think the feds impotent and incompetent.  On TV, people are caught, prosecuted and sentenced before the hour is up, with commercials. The government wouldn’t want people to think any less of them in real life.

And having prematurely arrested Curtis, it becomes plain how the government’s efforts are directed not at following whatever investigative leads present themselves, but gathering evidence solely directed toward convicting the person they caught. Catch first, prove later. And if the wrong person is caught, that person not only continues to breath free air and think of new evil ideas, but can rest assured that any evidence pointing his way will be ignored or buried, since the one thing the government hates to do is find evidence that the person in custody is the wrong person. Stuff like that, like Brady, can really screw up the likelihood of conviction.

Still, Curtis suffered from being charged with a high profile offense.  Anything involving the President of the United States makes the papers.  But the investigation that led to his arrest, his mistaken arrest, bore the same hallmarks as the tools used by the government in deciding who the criminal is in other cases.  Except in high profile cases, they try to do it better because a lot of people are watching and they don’t want to look foolish.

In other cases, where there are no reporters asking questions and aside from the suspect’s family and a friend or two, similar investigative techniques are used but without nearly this much effort to get it right.  Nor is it likely that the government would have been quite as accommodating when its effort to find proof, post arrest, failed so miserably.  Instead, there was  always the tried and true method of pounding the rhetoric to make what little they had seem overwhelming, to smear the defendant with mental illness which proves nothing but prejudices him in the eyes of the public, and see whether they can slip it past a judge and even a jury.

Much to the surprise of many, chances are pretty darn good that even such a flimsy case would have been enough for a jury to convict. Contrary to surmise, juries tend to embrace the government’s position, because they wouldn’t prosecute if he wasn’t guilty.  Either way, Elvis would leave the courthouse, but this time he was lucky to head home rather than a metropolitan correctional center. This time.

Ken Anderson gets to have “Honorable” put before his name because of tradition, even in the caption of the probable cause order listing the offenses with which he is charged :

At the hands of the Honorable Ken Anderson, Michael Morton spent nearly 25 years in prison for a murder he didn’t commit.  Anderson was the prosecutor who put him there by concealing exculpatory evidence, and it wasn’t until DNA evidence exonerated Morton that Anderson’s fabulous life came crashing down.

Way down in the findings of fact, you come across this:

42. Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty. (RR 6:116:18-6:117:4 and RR 6:94:4-24).

43. Mr. Anderson consciously chose to impair the availability of the exculpatory evidence so that he could obtain the conviction of Mr. Morton for murder.

44. Thus, Mr. Anderson intended to prevent defense counsel from relying upon the Green Van Report and Kirkpatrick Transcript and his concealment of such evidence during the prosecution of Mr. Morton constitutes a violation of section 37.09 of the Texas Penal Code.

My pal, Tamar Birckhead, successfully defended shoe bomber Richard Reid.  By successfully, I mean that she kept him alive. When it comes to defending accused terrorists, even ones as ridiculously incompetent at their mission as Reid, success is defined differently.

When the media needed meat to grind out its media sausage, Tamar was an obvious choice.  She knew what she went through, what the experience of defending someone under the microscope of terrorism was like.  And having gone from federal defender to UNC clinical lawprof, she had the opportunity and curriculum vitae to do the job.

In the  Boston Herald’s initial salvo of handicapping the defense, Tamar led the quote parade with some thoughtful words:

“We know he’s 19 years old, we don’t think he has a criminal record or been in trouble before. There are a lot of people out there that seem to have warm, positive things about him,” said Tamar Birckhead, whose client, Richard Reed, tried to blow an airliner out of the sky but got life by copping a plea. “To predict he’ll get a life sentence is not unreasonable.”

… the baby-faced Tsarnaev can pin the Boston Marathon and last week’s deadly final rampage on his slain big brother and seek mercy as a kid who was easily swayed.

“If the younger brother can shed any light on the circumstances of the older brother’s alleged involvement,” said Jones, “that’s valuable information that the government would want.”

“Nothing about the outcome is assured.”

“This case is ripe for somebody who’s got the courage to stand up and talk about the system and the railroading of criminal defendants,” Fieger said. “He’s been denied the right to a fair trial. And America’s …cheering like it was some kind of sporting event. That wasn’t a very flattering image to the rest of the world. Cheering like they won the World Series.”

Harvard Law professor Alan Dershowitz, a member of OJ Simpson’s “dream team,” said, “The case will go down one of two ways. Either plea bargain … or he’ll want to become a martyr and he’ll admit everything, boast about the crime, seek to justify it and demand the death penalty.”

Yet another attempt to harness the magnificent power of the interwebz demonstrated conclusively that 1000 people can be just as wrong as one.  According to the Atlantic Wire, the reason the FBI release photos of the Tsarnaev brothers was to “fend off Reddit and the  New York Post.”

The social media site and notorious tabloid emerged as front runners in the race to distribute potentially useful but ultimately useless information in the early days of the investigation. The Post identified a Saudi suspect and reported 12 people were killed in the initial blasts. Both were not true. They then identified two people on their Thursday BAG MEN cover as F.B.I. suspects. That was also not true. Meanwhile, Reddit was on the case early looking at every picture possible trying to identify potential suspects. “I’d take thousands of people over a select few very smart investigators any day,” one moderator said of the Boston suspect hunting sub-Reddit. Except, they didn’t find a thing, and only helped add to the confusion surrounding the case. 

Reflecting the two greatest virtues of the digital age, speed and the power of crowds, both the sub-Redditors and the Post managed to screw up royally. Way to go.

As many of us watched the unfolding news reports following the Boston Marathon bombing, it was impossible not to recognize that reports contradicted each other from channel to channel, with breathless anchors trying desperately to fill air time when they had nothing to say. It wasn’t long before the Al Qaeda pundits were out in force, screen shots of Al Jazeera graced the tube and chicken little was screaming about the apocalypse.  A disgraceful display of irrelevance in the rush to pretend otherwise.

But the internet is better than that.  Where the mainstream media is impotent, the virtual citizenry was on the case. 

The F.B.I. wanted to limit the damage being done” to people being wrongly identified by Reddit or the Post or any other amateur sleuthing being done. Once they were able to identify which faces in the crowd were the suspects late on Wednesday afternoon, they had a decision to make. The fear was that if they didn’t head off the Internet’s Sherlock Holmes approach early, then all-out chaos would ensue during the investigation.

People who had nothing whatsoever to do with the bombings were outed and accused. Their names, faces, will be forever emblazoned on the internet as bombers who weren’t.  All because of religion that adores the brilliance of the crowd over actual thought.

This leaves us with two problems, the first being the harm done to those individuals who were accused of being the bombers but weren’t. It’s no small thing for someone to have half the internet accusing them of a horrific crime in perpetuity when there was nothing, absolutely nothing, to support such an accusation.  But hey, it’s the internet. It’s not like anyone believes anything you see there right? Not a future employer. Not an educational institution. Not a potential spouse. Nobody.

The other aspect is that no one is responsible.  When one person points a finger, at least you know who it is. When it’s the accumulated wisdom of thousands, who’s to blame?  The hive mentality of the crowd allows each participant to point to the guy next to him and say, “well, he said so, and I just went along with the crowd.”  There was once a time when the fact that a lot of people said something, thought something, was a less than adequate substitute for being right. Remember that whole earth is flat thing?

There is strength in numbers.  If a lot of people say so, then it must be, no matter how utterly wrong and baseless it is.  And the internet is nothing if not numbers.  You don’t know who these people are, what they know, how smart or stupid they are, how credible they are. You know nothing about them. You have no clue whether they have something worthwhile to offer or are blowing smoke. You don’t know.

And yet, thousands are thrilled to embrace any bit of stupid on the internet at the speed of, well, the internet.

Was it fun playing junior detective?  Was it cool to try to beat out the mainstream media?  You certainly got the Post to bite, even though that’s a bit like waging war against the French. 

But you hurt people who didn’t deserve to be hurt.  Is that what the crowd had in mind?  Are you proud of yourselves for that?

Like any tool, the internet offers vast opportunity to disseminate information in a flash and help to illuminate and inform, particularly where other media sources are invariably behind the time curve or bound up in whatever tangent some assistant producer thought visually appealing hours ago.

But like any tool, it can be used poorly, or be the wrong tool for the job.  In this instance, it was a bludgeon used to pound innocent people.  It was the wrong tool in the wrong hands, and harm ensued.  This is a warning for Redditors, or any other collective group of self-empowered digital detectives with more time than grasp. Crowds are not magic. Crowds don’t inherently know things. People who know things know things, and you aren’t one of them. 

The strength in numbers that comes from crowdsourcing not only magnifies the harm you can do, but covers the responsibility for doing such harm.  Yet everyone who hid behind the numbers is individually responsible for their contribution to digital stupidity and the ruin of an innocent person’s life.  For crying out loud, get a grip and remember that this isn’t a game for your amusement. 

You have no greater right to harm people than anyone else, so if you don’t have a clue what you’re talking about, shut up. Just because you’re part of the crowd doesn’t mean you have anything worthwhile to offer or that you bear no responsibility for doing harm.

Richard Pacheco was having a bad day.  First, he suffered a couple of seizures in his Bronx apartment. That was no fun. Then his girlfriend tried to help by calling 911 for an ambulance to get him to the hospital for medical treatment. That’s where Pacheco’s day got really bad. 

From the Appellate Division, First Department decision :

The evidence adduced at trial disclosed that, in response to an emergency 911 call from plaintiff’s girlfriend that he had suffered one or more seizures, two police officers, two emergency medical technicians, two paramedics, and several fire fighters arrived at plaintiff’s apartment to aid him. After the EMTs examined plaintiff and informed him that he needed to be hospitalized, he became uncooperative. His girlfriend testified that this was the result of another seizure. The police officers testified and other evidence indicates that plaintiff refused to go to the hospital, became extremely violent and agitated, and attacked the personnel trying to help him. The officers further testified that, while kicking out at them, plaintiff broke a dresser in the room.

Thereafter, six or seven responders were needed to restrain plaintiff, handcuff him behind his back, and strap him across his lap and chest into an EMT transport chair. The officers testified that while strapped in the chair, plaintiff still kicked out at them, tried to stand, and bit one officer’s arm and broke his skin. After the officers called for additional assistance, a police sergeant arrived who, after unsuccessfully trying to calm plaintiff down with words, subdued him with a Taser. Thereafter, EMTs were able to transport plaintiff from his upstairs apartment into an ambulance on the street.

“Viewing the evidence in the light most favorable to plaintiff and according [him] the benefit of every reasonable inference . . . we find that it was insufficient as a matter of law to permit the jury to find that the officers used excessive force” (Koeiman, 36 AD3d at 453). Here, given plaintiff’s repeated outbursts and the police officers’ testimony that he was emotionally disturbed, it was reasonable to taser him so that he could be hospitalized. Since the Patrol Guide of the New York City Police Department permits an officer to use a Taser to restrain an emotionally disturbed person who threatens injury to himself or others (Procedure No. 216-05 at 5), the officer’s action comported with acceptable police practice.

In determining whether the use of force was reasonable, the trier of fact must allow for police officers’ frequent need to make “split-second” judgments about how much force is necessary “in circumstances that are tense, uncertain, and rapidly evolving” (Graham, 490 US at 396-397). Other important considerations include whether the suspect actively resisted arrest and posed an immediate threat to the officers’ safety (Vizzari v Hernandez, 1 AD3d 431, 432 [2d Dept 2003], citing Graham, 490 US at 396).

Over at Popehat, Ken White provides a “Miranda round-up” following the Dzhokhar Tsarnaev deluge of all the posts and reports he found worthwhile.  It barely scratches the surface, which comes as no surprise given the vast interest that inevitably follows a news event of such epic proportions, but it’s necessary to exercise discretion under these circumstances lest one’s point be diluted and unworthy efforts find their way into the mix. My  own contribution didn’t make the cut, which is the price one pays for trying.

A comment to Ken’s post by Orvis Barfley (which I believe to be his real name)   caught my eye.

man, this is good stuff.  orin kerr and lawscribe knock it out of the park.  i wonder how long one should expect to need to read this blog before one can reasonably expect to pass the bar.  assuming one should want to, of course.