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Said The People Who Were Never Stopped or Frisked

The recording played in Judge Shira Scheindlin’s courtroom about “the right people” to stop and frisk made as much of an impact as one would expect, which in turn meant that it had to be scrutinized for whether it was one cop’s words, easily subject to misapprehension, proof of racism or, well, truth. Enter the Times’ Public Editor.

But one article – a Page 1 story last Friday by Joseph Goldstein – has caused a firestorm of criticism. It has drawn sharp and sustained protests from the Police Department and its legal department, and tough words from sources as diverse as the frequent police critic Leonard Levitt, a former Newsday columnist who writes the NYPD Confidential blog, and Heather Mac Donald, who frequently takes the Police Department’s point of view, writing in City Journal, a publication of the Manhattan Institute.

Her assessment: The Times’s article “has twisted the taped conversation into a poisonous indictment of the police.”

This meta-criticism begins from a curious place, one where a person has never tasted the dirty sidewalks of 168th Street and St. Nicholas Avenue for not obeying a cop’s command to stop and put your hands against the wall fast enough. Whether Heather MacDonald has ever done more than see uptown Manhattan through the window of a taxi is unknown, but no one who lives up there needed a taped conversation to tell them the risks they took every time they walked out of their homes.

There is a trial going on, and at trial, lawyers introduce evidence. Much of it will be testimony, but with millions of young black and Hispanic men available to tell of their experiences, it gets a bit redundant after a while. And so this tape recording of a police supervisor explaining to a beat cop that his job is to roust the “right people” matters.

Not because it proves the NYPD is racist. The pundits miss the point. What proves that stop & frisk is a racist tactic is that it’s used almost exclusively against young black and Hispanic men. The tape bolsters the fact that millions of New Yorkers know and can testify to.

Former newspaper writer and police critic, Leonard Levitt, is similarly dubious about the tape.

Mr. Levitt, for one, does not think it comes close. He wrote on his blog: “If federal judge Shira Scheindlin concludes that the NYPD’s Stop and Frisk is a racist policy she’ll need more proof than last week’s testimony of the 40th precinct’s commanding officer, Deputy Inspector Christopher McCormack.”

Well, of course. But there was “more proof,” even before the tape, and there will be more proof after. And after that. Plus, the issue isn’t so much whether Stop & Frisk is racist, but unconstitutional, though the two aren’t mutually exclusive.

But then Levitt goes to a very odd place of his own, one reflecting a curious internal conflict.

“The way The Times handled it just seemed unfair to McCormack,” he said, given that “so much of the violent crime in the city is committed by young, black males. You can yell and scream about the impropriety of what he said, but it’s true. And the victims are very often black, too.”

Mr. Levitt also noted that Inspector McCormack emphasizes – on the recording — that “99 percent of the people in this community are great, hardworking people, who deserve to walk to the train, walk to their car, walk to the store,” without becoming crime victims.”

We’ve been down this path too many times before to take another stroll in the debate over whether blacks have a greater propensity to commit crime. It’s not relevant, not to the issue of whether black and Hispanic youths are the “right people” or whether blacks are just inherently more criminal. The statistics speak for themselves :

In 2010, New Yorkers were stopped by the police 601,285 times.
518,849 were totally innocent (86 percent).
315,083 were black (54 percent).
189,326 were Latino (33 percent).
54,810 were white (9 percent).
295,902 were aged 14-24 (49 percent).

In 2011, New Yorkers were stopped by the police 685,724 times.
605,328 were totally innocent (88 percent).
350,743 were black (53 percent).
223,740 were Latino (34 percent).
61,805 were white (9 percent).
341,581 were aged 14-24 (51 percent).

In 2012, New Yorkers were stopped by the police 533,042 times
473,300 were totally innocent (89 percent).
286,684 were black (55 percent).
166,212 were Latino (32 percent).
50,615 were white (10 percent).

The Constitution prohibits the police from stopping a person, violating their constitutional right to be left alone, unless there is reasonable suspicion to believe the person is, was or is about to commit a crime. Whether the individual is black, Hispanic or white, there must still be a lawful basis for the stop.

The numbers, collected by the NYPD so as to negate any suggestion that someone else is fudging them, show that whatever basis the police are using to contend the authority to stop, it’s not working. The numbers show that it’s not working for blacks. It’s not working for Latinos. It’s not working for New Yorkers. And the numbers show that there are grossly disproportionate numbers of blacks and Hispanics being stopped.

So one supervisor, in the course of expressing his general devotion to the community, calls black and Hispanic youths “the right people.” It’s not a poisonous indictment of the NYPD. The numbers are a poisonous indictment of the NYPD. The tape recording of Inspector McCormack is just more evidence of what every 17-year-old black kid already knows: it’s no fun to be thrown against a wall and told to empty your pockets on the way home from school. It makes for a bad day.

How is it possible that so many young men, black and Hispanic, know the risks they take by just walking down the street while so many white people debate the merit of a single tape, as if there weren’t more than 533,000 New Yorkers last year, 89% innocent of any wrongdoing, 87% black and Hispanic, who had a worse day than they did?

Saved: 1; Lost: Everyone Else

The New York Times no doubt published the story of Denise Dallaire as heart-warming tale of justice gone right, the time when a few good judges prevailed against a bad system.

When Denise Dallaire was arrested at age 26 on charges of selling a few ounces of crack cocaine here a decade ago, she was sentenced to prison for more than 15 years. Last month, shackled inside the same court and facing the same judge, she received an apology and was set free.

That’s a wonderful thing. At least for Denies Dallaire. The Times calls the events that led to an apology and release “an exquisitely rare constellation” of events, and indeed, it was.

Ms. Dallaire was lucky enough to get herself noticed and for a technical flaw in her case to have surfaced. The result was a moment of courtroom drama and human redemption led by an 81-year-old judge eager to make amends for a decision he had long regretted.
“I felt bound by those mandatory guidelines and I hated them,” Judge Lagueux (pronounced la-GUEUR) said from the bench as Ms. Dallaire sobbed quietly and the room froze with amazement. “I’m sorry I sent you away for 15 years.

The next unlikely quirk was that Judge John Gleeson, the rarest of judicial birds who has put his career on the line to stand up for his belief that the astronomical sentences “advised” by the Guidelines, combined with the mandatory minimums imposed as a knee-jerk legislative reaction to the issue du jour, stumbled upon her during a visit to Danbury Correctional Facility. Talk about kismet. He was there for an annual visit, so he never forgot where they warehouse the people he sentenced.

Judge Gleeson then called a friend, Jonathan D. Polkes, at Weil Gotshal to take on Ms. Dallaire’s case pro bono. When a judge asks you to do a case pro bono, you do it. Had Ms. Dallaire written the same lawyer with the same request, would anyone have even read her letter? Polkes did the only thing available, request a presidential pardon, which had slightly less chance of working than someone winning the megalball jackpot weekly for the next four years. President Obama has been particularly stingy when it comes to pardons.

As part of the pardon process, Mr. Polkes sent the materials to Judge Lagueux to get his signoff. The judge was eager to help. He believed, however, as did the others, that a presidential pardon was unlikely. But he noted a procedural flaw in his original sentence. He told Mr. Polkes that if he could get the case back before him, he would free Ms. Dallaire on time served.

The article doesn’t say what the “procedural flaw” was, but it would be fair to guess that only a judge truly inclined to resentence would point it out and embrace it. Judges do not usually find such flaws sufficiently persuasive to tell a lawyer that he wants the case back before him.

Cutting to the chase, since there details are so lacking as to provide no insight as to the mechanics of getting Denise Dallaire back before Judge Lagueux, we arrive at the magical moment in the courtroom where the judge apologies for his original sentence and frees the now not-so-young woman before him.

Heart-warming? For some. For me, not so much. What this story reflects is one defendant saved from the belly of the beast, but it simultaneously reflects the fact the all the others, the tens of thousands for whom the “exquisitely rare constellation” of events didn’t occur remain in federal prison, and will spend the vast majority of their lives, if not the balance, waiting for the day that a judge like John Gleeson stumbles upon them.

There aren’t too many judges like John Gleeson. There aren’t too many judges like Ronald Lagueux. There isn’t nearly enough good luck to go around. The legitimacy of a system cannot depend on fortuitous events, one at a time, righting the wrongs of a system out of control.

Not to lack empathy toward Ms. Dallaire, but to remember that she’s just one of so many who have been sentenced to a future of pointless misery because it made for good politics at the time, and to highlight that there aren’t enough judges like John Gleeson and Ronald Lagueux to go around, this story of one success is a tale of a failed system. One win is good, but what of everyone else?

The Dorner Reward: Let’s Get Technical

The reward eventually reached $1.2 million, a very large sum given that there wasn’t any real need for an incentive to push people over the edge from covering up Chris Dorner’s whereabouts to ratting him out to the cops. It would be fair to assume that anyone who had knowledge of where to find Chris Dorner would have happily called the cops to let them know.

So why offer such a big reward? I offered a theory before his killing.

The latest word is that the LAPD has offered a $1 million reward for the capture of Dorner, together with re-opening his dismissal from the force and a promise that if he surrenders, he won’t be harmed. LA Police Commissioner Charlie Beck announced:
If you don’t, if you decide to try to take the life of another Los Angeles police officer or their family member, then you’ll have to suffer the consequences.”

Apparently, the message is that if they capture Dorner, they will kill him as punishment. This trio is really comprised of two messages, one for Dorner and the other for public consumption. The reward is for the benefit of the public, who hasn’t taken kindly to the LAPD shooting people for no particularly good reason. So they are offering a lottery. You gotta be in it to win it, and who couldn’t use a cool mil? It’s hard to imagine they would ever pay out a million dollars, but it’s the first sign of giving anything back to the community and it’s all they’ve got.

Even then, there was no real expectation that it would come to pass. While the virtue of offering makes for great public relations, the cost of actually paying out big bucks, after the headlines are over and the public has moved on to other, newer, interests is too steep. And so it proved to be true here.

As noted by the AP via Fox News, the great humanitarians who offered the huge rewards are dropping like flies.

An umbrella group for California police unions says it is pulling its contribution to a $1.2 million reward offered in the hunt for rogue ex-cop Christopher Dorner.
The president of the 64,000-member Peace Officers Research Association of California says the organization’s board of directors voted Thursday to withdraw $50,000 from the huge amount collected from more than two dozen entities.

How does that language strike you, “voted…to withdraw”? After it’s over, they say “never mind” and just don’t pay. But the cop group isn’t the only one. The City of Riverside pulled its $100,000 reward as well. Why?

Ron Cottingham says the conditions for the reward to be issued — Dorner’s arrest and conviction — don’t apply.

Got that? Dorner was killed rather than arrested and convicted. As if anybody thought the LAPD was going to let Dorner live and face trial, but that’s merely an aside. The “terms” of the reward was for information “leading to the arrest and conviction of Christopher Dorner.” Since he was neither arrested nor convicted, because he’s dead, they’re off the hook.

As tricky legal arguments go to escape liability for paying out the reward, after the huge public stink made over it, this isn’t the best around. When the claimants for the reward called the police to inform them of where Dorner was located, they provided information leading to his arrest and conviction. The language related to what lawyers call a “condition subsequent,” something that would happen after the fact. But it wasn’t such a condition, as the informant had no control over whether the condition would come to pass.

Forget that Dorner didn’t survive to be arrested, a choice made entirely by others. What if he had been arrested, tried and convicted? The informants have no control over a jury verdict. Would that have been sufficient to negate the obligation to pay? What if he was convicted, but he appealed and while the appeal was pending, Dorner died of a heart attack in prison, thus abating the conviction by reason of death. The deal is off? Or maybe a really far-fetched notion, that it was later determined that Dorner wasn’t the right guy, and they dropped the case. Nothing, right?

By providing the information that brought police to Dorner’s location, the informants did precisely what the terms of the reward required of them. They gave the cops information that led to Dorner’s arrest and conviction, if those conditions came to pass. That they condition subsequent didn’t happen, couldn’t happen because he was dead is irrelevant to what the informants did. They fulfilled their part of the bargain. They made the call and placed the police in the position of making the condition happen. Or not, as it turned out. But that fell entirely on the cops shoulders, not the informants.

The option now is for the informants, Karen and Jim Reynolds, who escaped Dorner in their Big Bear Lake condo, and Rick Heltebrake, whose pickup truck was carjacked by Dorner, to sue the various entities who were such big shots when they offered the money, and such sniveling weasels now that the time has come to pay the reward out. It’s likely that they never thought that calling the cops on Dorner was the prelude to a lawsuit against some cop group who liked to hold press conferences to announce how deeply they cared.

The public relations incentive of putting these huge reward numbers out there when the nation was focused on Dorner was huge. Now, it’s just a wasted expense that would be far better used to buy a new police tank, a stingray or some drones. Suddenly, the story turns on an irrelevant condition subsequent, as if they found a technicality that lets them off the hook. What they really mean to say is they have a colorable basis to reneg on the deal and shift the burden onto the claimants to spend the next ten years litigating the issue.

While we were all impressed with how dedicated and sincere these contributors to the Dorner reward were at the time it was on the front burner, we can now see how it plays out after-the-fact when they are expected to put their money where their mouth is. Are you surprised?

Making Mean Disappear

GW Lawprof Lawrence Cunningham has a book out about AIG’s Hank Greenberg, which he has been shameless pumping over at Concurring Opinions. This isn’t unusual over there, where the prawfs do what they can to bring attention to their efforts, and having put a great deal of effort into producing what they believe to be a good book, there’s nothing wrong with it.

But no matter how good a book may be, somebody out there is going to say something unpleasant about it. This is true of Cunningham’s book. This is true of the Bible. That’s just how people are, and it’s especially true when it’s a book about a person with as many enemies as AIG and Hank Greenberg. You would think that Cunningham, a big boy, would realize this. Not so, apparently.

Cunningham posted one of the whiniest screeds against what he claims to be phony book reviews ever to grace the interwebz.

Bad book reviews thus must be taken with a grain of salt these days. Especially for books addressing controversial topics, “reviewers” reflect what they believe about the topic. They do not engage with the substance of the book author’s argument or the content of her book.

It is easy to spot some such faux reviews, broadcast by inane headlines favored by the 1-star posters at amazon. But the more sophisticated versions are harder to detect. Writers make references to the book, giving a summary of its arc or stating the broad thesis. Yet they leave clues. Look for a snarky tone, particularly strident language, straw men, and hyperbole. Be especially skeptical of any review that cannot find one redeeming point to make about a book.

Or maybe the reviewer just hated the book? That’s not an option in Cunningham’s paradigm. Brian Cuban, who also has a book coming out shortly, gave the grown-up response to this childishness.

And so, it was a kerfluffle, a bit of infantile butthurt improvidently posted on the internet, to which a more mature, realistic reaction provided a much needed smack to suck it up. Publish things and people are going to love it, hate it, or think something in between. This is the price of publishing, and anybody who thinks that crying about the unfairness of it all, the angst of haters, needs a serious dose of reality.

But it didn’t end there. Instead of taking his medicine like a grown-up, Cunningham did the one thing that could make this worse. At his post, there were at least seven comments, most nicely explaining why his rant was less than persuasive. There were more comments that never made the light of day, mine among them, that weren’t attacking Cunningham, but were taken as vicious direct attacks. His reaction to the posted comments was off-the-charts personally antagonistic.

You won’t see these comments, however. After Brian’s post appeared, Cunningham deleted the comments that didn’t make him feel loved, even though they were hardly mean. Of course, mean is often defined rather subjectively by overly delicate teacups, and anything less than absolutely adoring or unquestionably supportive can be viewed as “mean” if you look at it through a peculiar lens.

I saw the comments. Brian saw the comments. The people who left the comments saw the comments. And yet Cunningham, days later, went back to make the comments disappear. This cannot be done, at least if one hopes to maintain a bit of dignity and integrity. You can’t reinvent the internet to make yourself appear less of a butthurt whiner.

Brian added an update to his post to alert readers of the post-hoc deleted comments:

** UPDATE 3/27/13 Yesterday, I was alerted to and confirmed that Professor Cunningham has apparently deleted the string of comment(s) in which he ranted about “bad reviews” of one of his books. Not sure it if was the result of this post. I leave it to the reader to determine how it affects his credibility.

Did Cunningham try to sanitize the post, silence those he perceived to be his enemies, by deleting the comments? Who knows. What is known is that this didn’t go unnoticed, and may well be the only thing Cunningham could have done to sink himself deeper following on a post of such dubious merit.

Thus, there are two takeaways from this butthurt post: first, that no matter how hard you work and how well you think of your own work, others will not like it. Suck it up. This is life. Second, that having made the mistake of publishing a butthurt rant about the problems of being a special snowflake, don’t try to undo the internet to clean up the mess.

There are people who will hate, whether because they’re haters or because, well, what you did (and what I did) sucks. If you can’t get over the fact that you can’t please everybody, then you can’t publish, whether a book or a blog post. There will be people who think you suck.

Get over it.

Obstruction of Something

On the back of a t-shirt they sell at the National Criminal Defense College in Macon, it says “I plead guilty to obstruction of injustice.” It’s what criminal defense lawyers find inspirational, but of course depends on which side of the fence makes you feel more comfortable.

The play on words relates to obstruction of justice, a curious charge given that law enforcement reserves the right to define justice to itself. Literally, as Brunswick, Georgia City Commissioner James Henry Brooks found out when he offered his distant relatives a reminder that they might want to avail themselves of their constitutional rights. Via CNN :

The arrest stemmed from a verbal exchange between Brunswick City Commissioner James Henry Brooks and the family of one of the teen suspects in the slaying during the suspects’ first court appearance on Monday.

According to his attorney, Brooks told the family of De’Marquise Elkins, 17, that they didn’t have to talk to police.

“What he was trying to do, at the point and time that he was approached here at the courthouse, was just tell these folks you have a right to remain silent,” Brooks’ attorney Alan Tucker told reporters Friday.

This bit of sedition bought Brooks an arrest for obstruction. Some people think that swearing an oath to uphold the Constitution ought to mean something. Others see it as just another crime in the making.

The underlying case is quite terrible, and the police no doubt would love to have some quiet time with the two young men they believe did it.

The child’s mother, Sherry West, has said that two teenagers came up to her in the street in broad daylight. One pointed a gun at her and told her that if she didn’t give him her money he would shoot her and shoot her baby.

West said that the teen fired at her, hitting her in one leg and barely missing her head. The teen, she said, then shot her baby in the face.

The police arrested 17-year-old De’Marquise Elkins and 15-year-old Dominique Lang for the crime. Other family members have also been arrested for hindering the investigation and tampering with evidence. The police want this two kids bad.

Brooks was released on $5000 bail for obstructing justice with the Constitution, and subject to a very disturbing condition as well.

Under the terms of his bond, Brooks is not allowed to have any contact with the victims, witnesses, potential witnesses or investigators involved in the investigation of the murder of 13-month-old Antonio Santiago, who was killed March 21.

While it’s normal for someone to be required to have no contact with victims, where the victims fear being harassed or potentially harmed, the idea that he’s forbidden from speaking to anyone else, who doesn’t have a concern about contact, is a direct affront to Brooks’ constitutional rights, not to mention what appears to be a judicially endorsed effort to prevent witnesses of learning that they are under no obligation to cooperate with the police against their will.

As is so often the case, when a terrible crime occurs, concern for the Constitution is proportionately reduced. The primary law enforcement concern is that nothing interfere with their collection of evidence to convict whoever they’ve decided is guilty. As much as this is wrong, this is how the police have long perceived their job. They’re responsibility is to catch and convict the bad guys. It’s the lawyers’ and court’s job to worry about constitutional rights.

That the courts are complicit in the police efforts, on the other hand, by sanctioning Brooks’ arrest and silencing him so that he never again utters a constitutional right to others, can’t be explained. At least not legitimately.

Judge Carton Has Left The Bench

It seems like only yesterday that Carolyn Elefant and Bob Ambrogi gave up the helm of ALM’s Legal Blog Watch, a daily roundup of interesting stuff happening in the blawgosphere. Then Bruce Carton stepped into the breach.

This was a good thing, as Bruce was one of the few guys who was able to maintain a sense of humor and relative decorum while grinding out posts on command. The idea of one person doing the work of two nearly sunk the ship from the outset, and I almost came aboard in with him. Fortunately for me, ALM was too cheap and clueless to make that happen, so Bruce sailed solo.

Today is Bruce’s last day. He’s weathered some rough seas along the way, with the blawgosphere often refusing to give up its secrets easily. Or to put it in more concrete terms, the vibrancy of the blawgosphere has slowly waned, leaving Bruce to work pretty damned hard to come up with great stuff when the worthwhile content of the blawgosphere just wasn’t there. Sure, there have been about ten million new “blogs” over the past couple of years, but nothing anybody would bother to read. Flawging crap aplenty, but substance became increasingly hard to find.

So Bruce came up with some shticks of his own. There was the brilliant Things You Can’t Do on a Plane series. And of course, who can forget the Lindsay Lohan mug shot updates, always a crowd pleaser. Bruce was always on top of cutting edge law with his Three Burning Questions posts.

But my personal favorite has always been Judge Carton Rules, and he has been kind enough to leave us with the complete set, suitable for citation.

Since February 2010, Judge Carton has been ruling on important matters here at Legal Blog Watch. As I wrote when I introduced Judge Carton,

No, Judge Carton is not a real judge and, like Judge Wapner, my rulings are not “technically” binding on the parties. But that has never stopped me from ruling before, see, e.g., MacStupid, aka MacGyver v. MacGruber, and it certainly won’t stop me here. Moving on.

My mission? To spare the parties to cases in which the outcome is obvious the time and expense of further litigation.

Think of the thousands, maybe millions, of litigants saved from the expense and embarrassment of crashing litigation defeat by Judge Carton’s wise dictates. Bruce is nothing if not a great humanitarian. If only anyone had heeded his rulings.

For me, Bruce’s departure marks yet another watermark in the glory days of the blawgosphere. He denies it, as if it’s just another transition to the next guy who will take the helm, but he’s wrong. Bruce was one of the giants of the blawgosphere, and while no one has as yet stepped forward to announce that they are taking his place, his loss as the voice of Legal Blog Watch will be sorely missed.

Thanks, Judge Carton. You did a heck of a job, and it was always fun to see what sort of craziness you found with each new post. You were a pillar of the blawgosphere, and it won’t be the same without you.

The Bad Sort of Stringray

There’s the fish. There’s the car. And then there’s the Stingray that few know about, the type in the hands of law enforcement who have a yearning to know where you are and what you’re up to. New to you? Mike Masnick at Techdirt explains:

Back in 2011, the WSJ broke a huge story about the frequent use by government officials of a technique for mobile device surveillance generically called “stingray” devices (technically, there are a few products used for this, only some of which are actually called Stingrays, but the name is now used to refer to all of them). The device works by pretending to be a mobile phone tower, so devices can connect to it, and law enforcement gets all your data. It’s basically a cellular man-in-the-middle attack, with law enforcement being that man in the middle. Yay.

As is often the case, the government has been quietly enjoying the advantage of having a stingray or two in its arsenal without the public being aware or attuned to yet another means to thwart privacy. This advantage extended to the courts, where the government is occasionally compelled to mention what it’s up to for the purpose of getting a warrant, but without giving too much actual information away.

Masnick writes about the case of Daniel Rigmaiden, who wanted to know how the government tracked him down. When the response finally came and revealed the stingray, the government explained that it had been approved. The judge found this curious.

In that case, we noted that law enforcement claimed it had a court order to use the technology, but the judge was confused, asking where were the warrants for the use of the device. The judge asked how it was possible that a court order or warrant was issued without the judge ever being told about the technology used in surveillance and was told, simply, “it was a standard practice.”

In other words, somebody signed off on what the government claimed to be “standard practice,” but which was in reality the use of a stingray, except the government never mentioned that piddling detail to the court.

So did the government lie? Well, not exactly, as the ACLU found out. In fact, it was indeed standard practice to artfully dodge the details and obfuscate what they were doing.

The ACLU filed a bunch of FOIA (Freedom of Information Act) requests to dig into this and newly released documents show that, indeed, it was apparently standard practice by the DOJ to be “less than explicit” and less than “forthright” with judges in seeking warrants and court orders to make use of this technology. Here’s an email that was revealed:
As some of you may be aware, our office has been working closely with the magistrate judges in an effort to address their collective concerns regarding whether a pen register is sufficient to authorize the use of law enforcement’s WIT technology (a box that simulates a cell tower and can be placed inside a van to help pinpoint an individual’s location with some specificity) to locate an individual. It has recently come to my attention that many agents are still using WIT technology in the field although the pen register application does not make that explicit.

While we continue work on a long term fix for this problem, it is important that we are consistent and forthright in our pen register requests to the magistrates…

The naïve among us will react to this by saying, “wow, they’re going to be in big trouble with those judges now!” Seriously? Have you ever read through warrant applications? Few documents are crafted so artfully as to convey an impression while actually saying nothing. Try pinning the government down on detail, on factual errors, on lies, on outright fabrication, after the fact, when litigating the propriety of the warrant application on the basis of the judge having been misled into believing that probable cause existed.

Warrant applications read like bad pulp fiction, leading the reader to get the distinct impression that they say something, and what they say is pretty bad, but if you try to parse the actual language, the precise words used, you find that there is precious little of substance behind it.

Vague references to standard law enforcement techniques combined with boilerplate provisos, equivocation and qualification make up the bulk of the application. But when it comes to the specifics, the words wiggle more than strawberry jello.

What happened here is that the judge was left hanging, the government making the court look a bit foolish for not knowing what the secret code word was when what they meant to say was “stingray.” But if they told the judge, then the defendant would know too. Can’t have that.

What makes the government’s concession here interesting is that it went so far as to admit it was being “less than explicit” in obtaining court approval of its use of the stingray. Count how many head rolled as a result. That’s right. None. But we take our government admissions of wrongdoing where we find them, even if the most to be gained is the schadenfruede of having the government forced to concede it fell shy of perfection.

Why, though, would I suggest that this won’t result in some judge, somewhere, taking some serious action against the government? This:

As the ACLU notes, this email was written three years after the Rigmaiden situation happened — suggesting that the DOJ has been getting away with this sort of thing for many years, without anyone digging in. The ACLU is now arguing that this should be a reason to suppress the evidence obtained via these devices, and will ask the court to “send a clear message” that it cannot hide the truth from federal judges in seeking rubber stamps to violate the privacy of the public.

Three years later and you still don’t know about stingray. It’s been going on for a while, and warrants still get signed, people still get intercepted, courts still get fooled and not a single head has rolled. The ACLU seeks suppression to “send a clear message,” but the clear message is already being sent. As much as judges don’t like being made to look foolish, warrants will still get signed, privacy will still be invaded and evidence will still be admitted. Because that is standard procedure, at least with this sort of stingray.

Avvo Answers: Shut Up and Put Down the Weapon

In my original, admittedly harsh, assessment of Avvo Answers, an effort by my dear friend Mark Britton to get eyeballs to his marketing website with the promise of free legal advice, my conclusion for lawyers was pretty clear:

Here’s the moral right up front: Don’t let incompetency or ethical challenges impair the desire for personal gain when it comes to a business model.

To the credit of the profession, most did the right thing in responding to a question posed at Avvo.

Can I pursue probation without verdict?

Asked 1 day ago – Pittsburgh, PA
The house I was staying at was raided. I am a student who was living in the dorms last semester, had a lease signed for a house beginning June 1st. Between then I was living at my friend’s house, and also my girlfriend’s house. Found in the house that was raided was 7lbs of marijuana, xanax, and five ounces MDMA. I was charged with everything possession of the three and intent to deliver marijuana and MDMA. The marijuana and xanax was in a safe and was not mine. I had no contact with it at all. Three ounces of MDMA belonged to me, however, lab tests will confirm that it is not MDMA. I believe it will come up as a synthetic cathinone. A warrant is out for the owner of the marijuana and xanax. I was told those charges will be dropped from me as soon as he confesses to owning them.

Lawyers have a special word for questions posed in this fashion. It’s called a confession. One might suppose that the young person asking the question would appreciate this, but then, this is all about getting free legal advice, and how can any lawyer provide competent advice without knowing the critical details, like guilt?

This person got nine responses from attorneys, all saying pretty much the same thing. Shut up and get a lawyer. As Charles Thomas added:

As my colleagues said, you should stopping so much info on this site. I just Googled the facts you gave and I found news articles about this bust (believe me, 7 pounds of weed is pretty Google-able).

Stop talking to anyone who isn’t your lawyer — that includes co-defendants, friends, parents, AVVO, Facebook, or Twitter.

One miracle of technology is that a person can pose a question on the internet and get lawyers to respond. Another miracle is that someone can Google the information and find out who just confessed to a crime. Cool, right?

This prompted Leo Mulvihill to offer some free advice at Philly Law Blog.

So if you’re a criminal defendant, or a potential criminal defendant, do the following:

Shut up.

Don’t post on about your case on the internet. This means Avvo, Facebook, Twitter, MySpace, Instagram, Grindr — WHATEVER.

Call an attorney immediately.

Did I mention SHUT UP?

Talking on the internet cannot help you. It can, and will, only hurt your case.

What does this mean for Avvo Answers? Everybody loves free. Most, however, do not love being convicted. Despite the sweet sounds of the Reinvent the Future of the New Normal Law choir, this is the ugly side of their beloved technology, the Utopian vision of everyone having the capability to pretend to be a lawyer, the false god of transparency.

The reality is that if you give a loaded weapon to children, they will eventually figure out how to use it. Chances are they will get hurt. You can hold hands and pray to the tech gods all you want, but it’s not going to make this confession go away.

Lying Liars, Bill Otis Style

When Gideon asked me if I had read Crime and Consequences lately, I responded that I only read it when I’m having way too much fun and need something to bring me back to a life of misery. So he pointed to a delightful post by Bill Otis with the not-at-all-hyperbolic title Lying, More Lying, and Millions Down the Perjury Rathole.

Otis begins with this bit of enlightenment, too obvious to Bill to require any further explication:

Anyone who has practiced criminal law knows that lying in court is epidemic. Almost all of it comes from the defense, either the defendant directly or his associates. This should hardly be a surprise: Since almost all defendants are factually guilty, their telling the unvarnished truth is the quick route to jail. Can’t have that!

Let me take a step back for a moment. I have practiced criminal law. I have done so for a while now, a bit more than thirty years. That ought to qualify me as one of the people Bill is talking about when he writes “anyone who has practiced criminal law.” And behold, we have agreement: Lying in court is epidemic. So far, we’re on the same page. Then comes the kicker:

Almost all of it comes from the defense, either the defendant directly or his associates.

Well, that may be the shortest version of Kumbaya ever, particularly given the qualification of “his associates,” making it all seem rather mobsterish. But there’s no need to argue the point of whether defendants lie (they do) or whether “almost all” of the lies come from the defense. Just as this is too obvious for sourcing by Bill, the falsity of this statement is too obvious for disagreement by the segment of humanity that prefers thought to simplistic bluster.

The message contained in this first paragraph of Bill’s screed is that truth, from the mindset of someone who believes in prosecution as a religious faith, is whatever they decide it is. In other words, Bill Otis knows the truth.

It’s not that he’s so blind as to believe that cops never lie. Even Bill concedes that it happens.

This is not to say that lying by prosecution witnesses is unheard of. Just recently, Chief Judge Alex Kozinski of the Ninth Circuit wrote a scalding opinion in Mike v. Ryan [sic] about a police officer who testified, without any corroboration and seemingly falsely, that the defendant had confessed to him. This is not the only episode of police lying, and such lying is unacceptable under all circumstances (as of course is the vastly more common defense lying). The system can’t and won’t produce justice on a diet of perjury.

He’s referring to Milke v. Ryan, the case where Armondo Saldate was able to make up confessions while making sure that there was no extrinsic evidence, like video, to show what really happened, and nobody in the legal system (which includes the prosecutors) seemed at all troubled by it. Don’t blame Bill for getting the plaintiff’s name wrong. It must have been brutally painful to spell out four letter. To use all five might have killed him. Can’t have that!

Reality to Bill Otis and his associates is that the outliers, the one in a million examples of a Saldate which only becomes unacceptable lying after some appellate judge says so, no responsibility attaching to the prosecutors who had at least as much information as Judge Alex and likely far more, change nothing. Cops tell the truth and defendants are liars. It’s an article of faith.

Putting aside the more existential question of what is truth, the practical answer is that the truth in a courtroom is whatever the net result says it is. Defendants who plead guilty have committed the crime, and the allegations against them are true. We know they constitute a legal truth because the defendant pleaded guilty. Sure, it may be a plea of convenience, but that doesn’t change truth.

Similarly, when a defendant, or his associates (I’m really getting to like that word), testify at hearing or trial, and their testimony conflicts with the testimony of an agent or officer, the anticipated outcome is that the judge or jury is going to accept the word of the guy with a shield. The set up dictates as much, one being an alleged criminal having an excellent reason to lie in order to avoid the consequences of his heinous conduct, the other being a trusted public servant who has saved kittens from trees. Who you gonna believe?

And that means the defendant, or his associates, is the liar. See how that works? The liar is the person who loses, and since defendants are predominantly the losers, they are predominantly the liars.

Unsurprisingly, Bill has a cure for the epidemic.

Lifflander [in this WSJ article, “The Economic Truth About Lying.”] echoes a suggestion I made for years when I was a federal prosecutor: That lying should not be tolerated as part of the boys-will-be-boys cheating we have come to expect from losing litigants (among whom criminal defendants are near the top of the list). The way to stop tolerating it is to start prosecuting it. When word gets around the local defense bar that your client has a really good chance of going to jail for an additional stint for perjury, the court will get — guess what! — less perjury.

Hear that? It’s the distant sound of Kumbaya. We’re getting closer to being in sync again. While Bill’s happy thoughts are that word will get around the “local criminal defense bar,” what if that same word spread from precinct to precinct? While no one will be shocked to learn that Bill came up with this idea when he was a federal prosecutor, his suggestion that the way to “stop tolerating it is to start prosecuting it” is an idea we can all get behind.

The only thing left to work out is his idea that only guys like Bill and his associates can distinguish the truth from lying. Anyone who wonders how it is that cops and agents can testify to pretty much anything, tailoring their testimony to fill in the nasty gaps or satisfy legal requirements that take far too much time in the field to manage, or just plain lie about the commission of a crime, without the slightest concern that a prosecutor or judge will challenge their testilying, it’s because there are prosecutors like Bill Otis for whom truth is an article of faith, and defendants are lying liars.

Future Crime, Redux

Via Nature, the international weekly journal of science, the latest version of the Philip Dick’s 1956 sci-fi story, Minority Report has emerged.

[N]euroscientists have found a way to predict whether convicted felons are likely to commit crimes again from looking at their brain scans. Convicts showing low activity in a brain region associated with decision-making and action are more likely to be arrested again, and sooner.

Kent Kiehl, a neuroscientist at the non-profit Mind Research Network in Albuquerque, New Mexico, and his collaborators studied a group of 96 male prisoners just before their release. The researchers used functional magnetic resonance imaging (fMRI) to scan the prisoners’ brains during computer tasks in which subjects had to make quick decisions and inhibit impulsive reactions.

The research shows that the amount of activity in the “anterior cingulate cortex (ACC), a small region in the front of the brain involved in motor control and executive functioning” correlated with the likelihood that a person would reoffend.

Men who were in the lower half of the ACC activity ranking had a 2.6-fold higher rate of rearrest for all crimes and a 4.3-fold higher rate for nonviolent crimes.

I assume that the use of the word “rearrest” was an accidental, perhaps even impulsive word choice, and what they mean to say is commit a new crime that doesn’t involve teak and guitar fretboards.

This isn’t the first time someone has come up with a way to bring this particular flavor of dystopia in the real world of the criminal justice system. In 2010, Wharton professor Richard Berk announced he had developed an app for that, which had been put to use in parole supervision to identify individuals likely to reoffend for increased supervision.

The ethical, legal and logical problems with such approaches are obvious. Action taken in anticipation of a crime yet to be committed can never be proven wrong, and yet the inchoate criminals will suffer consequences for something they didn’t do. But will such theoretical concerns prevent the implementation of the Minority Report?

The fear, of course, is that our society, and particularly our politicians, so adore a magic bullet solution to intractable problems that the chance of this software being turned from an aid to a pre-emptive excuse to imprison people for what they have yet to do looms large. If this program works, it’s the perfect candidate for a slide down the slippery slope toward Minority Report. Quick, easy, and unless you or your loved one happens to be identified as inchoate criminal, a risk most people are prepared to take to stop crime.

Bear in mind, its use, at least under both of these paradigms, applies to people already convicted of committing a crime. These are not the sort of folks for whom politicians or most of the public feel much empathy. Heck, most of the public would be happy to lock them away for life without any indication of a likelihood of reoffending. This just adds another layer of justification for perpetual sentencing.

“But it’s science, bro,” you say. Much as technology and science bring wonderful things to our lives, history (which is not science) teaches us that much of what science tells works perfectly hasn’t borne out over time. We are absolutely certain that today’s science is foolproof, and a generation or two later come to the realization that it was nothing more than repeatable voodoo.

We had vast experience with the reliance on “science” as a fix for all that ails the criminal justice system. From fingerprints to DNA, it’s been embraced as a way to remove the human element and replace it with a determination based on scientific certainty. We love certainty, and toss in the word science and minds shut down and a warm glow covers us as the responsibility for being right shifts to the prophets of empiricism. Of course, history has also shown that scientific certainty is anything but certain, as we continually learn how yesterday’s absolute certainty turns into tomorrow’s mistaken reliance on junk science.

At least the Kiehl study group recognizes that its ACC concepts isn’t ready to be marketed, as Berk has already done.

But the authors themselves stress that much more work is needed to prove that the technique is reliable and consistent, and that it is likely to flag only the truly high-risk felons and leave the low-risk ones alone. “This isn’t ready for prime time,” says Kiehl.

Wager adds that the part of the ACC examined in this study “is one of the most frequently activated areas in the human brain across all kinds of tasks and psychological states”. Low ACC activity could have a variety of causes — impulsivity, caffeine use, vascular health, low motivation or better neural efficiency — and not all of these are necessarily related to criminal behaviour.

For the time being, this remains an area worthy of further research, but that doesn’t mean someone in a government position won’t seize upon it as a magic bullet to be fired before aiming. And while Kiehl may find comfort in the notion that “it is likely to flag only the truly high-risk felons,” that’s the sort of rationalization that obscures the problem if you or your loved one happens to land in that imaginary group.

Adding the words “truly high risk” to a person who hasn’t done anything wrong, yet, brings little comfort to the person who has paid his debt to society and is nonetheless denied the opportunity to live out the rest of his life as a productive, law-abiding citizen. And when science says this works, will anyone care that the feared future crime never happened, or will that be our reason to applaud Kiehl’s contribution to our safety?

H/T Keith Lee