There is no question that Oakland police officers Omar Daza-Quiroz and Eriberto Perez-Angeles shot and killed 37-year-old barber Derrick Jones.  They claimed he dropped a digital scale as he was running away from them. They claimed they thought it was a weapon, so they shot and killed him.

Four witnesses to the killing saw nothing in Jones’ hands, but for the sake of argument, let’s assume the cops believe what they claim. So what?

Don’t try to make sense of it. It doesn’t make any sense. Dropping an object, even one mistakenly believed to be a weapon, does not give rise to a reason to kill under any twisted logic.  But then, Jones wasn’t the first person these cops killed. Nor was this the first time these cops were the targets of complaints for misconduct and excessive force. Most would see this as a problem for the cops, but as it turns out, it may prove to be their salvation.

From the East Bay Express :

In addition, records show that there have been 74 use-of-force complaints lodged against Daza-Quiroz alone. There’s also evidence that the Oakland Police Department, because of its failure to live up to court-mandated reforms, neglected to properly track the two officers. Nonetheless, a federal judge ruled last weekend that jurors in a civil trial involving the Jones shooting must not learn about the officers’ troubled histories or know of the department’s failure to correct their behavior.

In her ruling, US District Court Judge Yvonne Gonzales Rogers stated that showing the jurors the seven hundred pages of internal affairs complaints filed against Daza-Quiroz and Perez-Angeles would require a “tremendous expenditure of time.” The judge added that it “would essentially require mini-trials” for each complaint against the two cops, and could be “incomplete, confusing, and misleading.”

There’s just too much.  It would take forever, and who has the time to spend on a trial working over incident of excessive force after incident. Wrap it up guys, we’ve got people to convict, and we can’t waste a courtroom forever on cops.

The problem of a “trial within a trial” refers to allegations of misconduct which the officers deny, and would thus have to be proven, as if the cops were on trial for the collateral conduct within a trial for the primary cause of action for killing Jones.  It’s a problem in that it can tend to cause a jury to confuse the issues of liability for the action before them with liability for the acts of past violence. But it can also be kept under control with appropriate instructions.

Bear in mind, this is a civil action for damages for the death of Derrick Jones, not a criminal prosecution for his killing. The relative rights and constitutional concerns are very different, though a skeptic might think that the only real difference is that the defendants before Judge Rogers are police.  If this were a criminal prosecution, and the defendants weren’t cops, somehow the court would either find the time or figure out an alternative. Courts usually do.

The problem created by this ruling for the plaintiff is that they’ve pursued their case based not only on the killing of Jones, but the conduct of the two officers and the Oakland police department’s apparent refusal to either address the problem of excessive force within its ranks and comply with a decades-old consent degree to clean up the Oakland police.

Before Gonzales Rogers’ ruling this past weekend, Jenkins-Toney had based a substantial portion of her case on the theory that Jones’ death was “an unlawful shooting by two officers that have a high rate of using force during their contacts with the public during their relatively brief stint with the Oakland Police Department.” Perez-Angeles joined OPD in 2007, while Daza-Quiroz signed up a year earlier. The two officers were also involved in the fatal shooting of Leslie Allen during a car chase in 2008, and Perez-Angeles was part of the Tango Teams at the center of OPD’s crackdown on Occupy Oakland protesters in late 2011 and early 2012.

You’ve got to admit, that’s an awful lot of wrong for two cops who came onto the force within the last five or so years. Most cops go their entire career not drawing their weapon. These guys not only drew their weapons, but ended up wrongfully killing two people in their first few years on the job. It’s almost inconceivable that these officers could have racked up so many use of force complaints and killings so quickly, but it’s even more incredible that this ends up working to their advantage.

Of course, there is a fairly obvious alternative to address the concerns about the length of time it would take to present this evidence. The judge could have limited the plaintiffs to introducing, say, five or ten incidents rather than every incident. While that still would deny the jury the flavor of how violent, how out of control these officers were, and how their violence was tolerated, if not embraced, by the Oakland police, at least it would have allowed the plaintiff to make their case.  And it wouldn’t have given the cops a free pass on prior violence merely because there was too much of it.

But Gonzales Rogers ruled that jurors will hear nothing of OPD’s failure to revamp their procedures for dealing with problem officers, the Allen shooting, or the numerous internal affairs complaints against both officers. The judge also decided that documents from OPD’s federal oversight would be too confusing for a jury without expert testimony to explain their meaning, and under the terms of the consent decree, could not be used to prove liability in other lawsuits. “[T]he Court finds that admission of the Riders case documents would be more prejudicial than probative …. Admitting the documents alone, without any context or explanation of their meaning by any witness, has the strong potential to confuse and mislead the jury ….”

After all, nobody wants a jury to be confused or misled to think that the police aren’t doing a great job protecting and serving. And killing.  So rather than pare down the voluminous evidence of violence, the historic evidence of neglect, to a manageable level that serves to provide the jury with the background of the officers and the police department’s ignoring the “red flags” of their violence and potential for violence, let the jurors hear nothing.  That’s the solution when there’s just too much evidence against cops.

Someone posed a question a while back, if you could be absolutely guaranteed that you could commit a crime with impunity, what crime would you commit?  It was a great question, not because it provided the opportunity for people to opine on their favorite crime, but because it offered the opportunity for people to decide whether the only thing that stopped them from doing wrong, from causing harm, was the threat of punishment.

Just because we can get away with it isn’t a reason to do wrong.

Yet the lawyer who successfully won the right of a law firm, Cannon & Dunphy, to buy up adwords in the name of a competitive Wisconsin firm, Habush Habush & Rottier, has volunteer to argue otherwise at Kevin O’Keefe’s  Real Lawyers Have Blogs.  Kevin has earlier argued that regardless of the legality of this scheme, it was unseemly.  The lawyer, Ric Gass, wanted the chance to make his pitch, and he got it.

The purpose of my post isn’t to argue their position (that has been done in the briefs and submissions in both the trial and appellate court) but rather to comment personally and more generally on the issues.

Kevin’s objection to sponsored link marketing is essentially an objection based on its style and that to his taste it is “unseemly” to bid on a word that is another’s last name. Others, such as Eric Goldman at Forbes recently and Will Hornsby of the ABA (whom Kevin has dubbed “the king of ethics and lawyer marketing on the Internet”) disagree.

Lawyers will view the bounds of marketing and “taste” differently, oftentimes influenced by their area of practice. What may be seen as acceptable marketing to the general counsel of a major corporation is assuredly different from marketing in a personal injury litigation or a domestic relations practice. We each have and are entitled to our own “tastes” in the marketing of legal services, and we each have different marketing strengths.

Despite his claim that the post wouldn’t be a reargument of the legal points, that’s exactly what it was aside from his point about “tastes.”  It’s a smart argument to make, and leads me to agree with Kevin that Ric Gass must be a damn fine lawyer. You really can’t argue with “tastes,” any more than you can debate whether vanilla or chocolate is the better flavor.

The problem is that an argument over tastes skips over the primary question, whether we would commit a crime at all before deciding which crime it would be.  After being bombarded with some of the most insipid rhetoric I’ve been forced to endure in a couple of recent posts  challenging  marketing and futurists, it’s hard, no impossible, to be sympathetic to an argument that leads inevitably to the race to the bottom. 

This may come as a surprise to many non-lawyers, but most of us don’t use the limits of the law, or the resources available to us, as a substitute for our moral or professional conscience.  We do what we believe to be right simply because it’s right, not because we can’t get away with more.  We could sue over every slight, no matter how inconsequential, because it’s easy to draft a summons and complaint, yet we don’t.  And we can fashion our “tastes” to suit the greatest latitude that serves our pecuniary interest, yet we don’t.

This goes back to the two professions, both calling themselves lawyers issue, that there will be a group of lawyers who, after learning of Ric Gass’ success, will rush out and purchase the names of their competitors to gain a marketing advantage. Their taste is money, or at least the hope of it. They will do whatever the law allows to get it. Maybe some will do a bit more and see if they can get away with it.

To lawyers inclined to seize every marketing advantage, Kevin’s point, that it’s unseemly, is meaningless. To say it’s about tastes is convenient, but not really accurate. They have no taste. If they can get away with it, they will. Their taste is to take advantage of every opportunity to get business any way they can. 

They know that the public is still years away from realizing that nobody knows you’re a dog on the internet, so they create carefully crafted personas, omit any information that might cause a potential client to pause before calling them, make themselves look like Clarence Darrow incarnate, and then buy up every keyword or competitors name they can think of so that anyone Googling for a lawyer will see them first. This is their taste.

And it can’t be too wrong, given that such staunch defenders of the seemly, the ABA,  backs them up with posts that advise lawyers to forget about such archaic notions as client service and instead “invent the future.”

Inventing the future is great advice. The problem is that most lawyers are not predisposed to this kind of activity. With the possible exception of negotiation strategy, have you ever heard a lawyer say, “I’m not sure how this will turn out, but let’s give it a try and see what happens”?

More often than not, you see lawyers clinging to certainties rather than reaching for possibilities.

Some of us prefer not to blindly court failure when it’s a client’s life or fortune on the line, Few technologists have had to tell a client that they will spend the rest of their life in prison because we gave it a try and it didn’t work out. It’s not a matter of “taste,” but a matter of duty. The law is not a profession of free-wheelers for a reason; other people pay the price for our failures, and we do not have the right to condemn them on a whim.

But the law says that the low road is available to lawyers, and those with a sufficient lack of taste will take it. They will buy into the rhetoric of anything goes, and will tailor their tastes to suit their desire for money.  Once the limits of our professional conduct become a matter of individual taste, there are no limits.

So if you are guaranteed that you can get away with it, what crime would you commit? My answer is none. Your tastes may differ.

To celebrate one of the foundational victories for criminal defendants, Supreme Court Associate Justice Elena Kagan went to the Attorney General’s home at the Department of Justice.  She received no invitation from the Defender General, because there is none. And if there was, his home would be far less hospitable than the Grand Hall of the Department of Justice, a euphemistic agency given that it only houses prosecutors.

From the Blog of Legal Times :

Speaking before a standing-room only crowd in DOJ’s Great Hall with U.S. Attorney General Eric Holder Jr. and former Vice President Walter Mondale, Kagan said the provision of a “Cadillac” lawyer isn’t a right for poor defendants. But they should at least have a “Ford Taurus” defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.

While I love car analogies as much as the next guy, though neither automobile chosen by Kagan as examples are high on my list for fascinating discussion, the comparison was destined to raise hackles. And indeed it did.

Why are poor defendants relegated to a second class defense? Why a Ford Taurus when the prosecution gets a Stealth Bomber?  Why?  Her ultimate point was that indigent defendants aren’t even getting a Taurus now, and that’s inadequate.

“We don’t have the resources to make [a Cadillac defense] happen,” Kagan said. “And I’m not sure if we did have the resources that that’s exactly what we should want.”

But even a Taurus defense is hard to come by, she said.

So what is it that a Supreme Court Justice thinks defendants receive?  A Yugo defense? Maybe an Edsel? If a Taurus is required, and they are only getting a Pinto, do they get a Vega to make up the difference? The problem with analogies is they leave us with some vague sense of comparison without any meaningful standard.

But Attorney General Holder decided to help Kagan out but putting his idea of a good thing into the mix.

During the event, Holder announced $1.8 million in new resources to support criminal legal defense. Indigent defense is in a “state of crisis,” said Holder, who in 2010 launched the Access to Justice Initiative in an effort to make legal services accessible and affordable to all Americans.

A whole $1.8 million? That’s enough to buy a spark plug (at government contract rates) for every public defender in Brooklyn, staving off a “state of crisis” in the spark plug industry, but it won’t scratch the surface of getting poor defendants into Ford Tauruses. Not even old, broken down used ones.

Justice Kagan questions whether a “Cadillac” defense is what we want anyway. The only reason that I can think of for saying this is that it’s too expensive for the taxpayer, to give every indigent defendant a great lawyer with all the bells and whistles that money can buy. It’s a curious concern, given that the prosecution has the police, the option to charge and prosecute and the hearts and minds of the public and the courts.

But the analogy isn’t quite fair and isn’t really fitting.  Granted, Supreme Court Justices have no power of the purse to spread the wealth, divvy up the cars in the lot so that the defense and the prosecution are in relative parity.  They do, however, have the authority to wipe  Strickland v. Washington from the books. They could make the rule a right to effective assistance rather than ineffective, a threshhold that allows for a fouled carb to pass muster.

They can hold that a defendant was denied his constitutional right to counsel when his lawyer sleeps through his trial, fails to investigate, can’t be bothered to speak with his client, demonstrates no effective ability to mount a defense.  Are these the attributes of a Cadillac? More like a Ford Taurus with a cracked block, no breaks and a dead battery. See how anybody can use analogies?

Even A.G. Holder can contribute to the cause, given his proclaimed concern for the extant state of crisis, by ordering his underlings not to charge every conceivable crime given the allegations as presented by their vast army of law enforcers, without regard to proportionality, propriety, purpose. The feds do because they can, and they can because Congress has exempted them from the speed limit that applies to the rest of us by creating new crimes on top of existing crimes, raising the penalties to life plus cancer whenever an election is coming in the next two years and a story of a dead victim hits the papers.  But I digress.

Straining to understand why someone as smart as Elena Kagan would use such an ill-conceived analogy, one so obviously destined to criticism while being absurdly inadequate to make a valid point of the failure to provide even adequate representation to so many poor defendants, it finally dawned on me.  This wasn’t about poor defendants at all.

This was Justice Kagan’s homage to the American automobile industry, too big to fail and therefore worthy of billions of dollars that might, in some alternate universe, have gone to providing American citizens with competent representation. The only remaining question was whether the Supremes were adequately compensated for the product placement.

The United States of America has funds when it needs to drop bunker buster bombs on a desert despot who isn’t our pal any longer, and private enterprise that has run its products into the ground such that no one will buy them.  This nation is happy to leave the last breath of young Americans on foreign soil while sucking the last breath from other young Americans in solitary confinement for crimes they didn’t commit.  If this nation wanted to, they could provide every person hauled before a court with a lawyer, one with the time and resources to do a proper job, a Ford Taurus job.

But the United States of America is more concerned about the viability of the Ford Taurus then poor criminal defendants, and that, I submit, is how they got Elena Kagan to be the new spokesjurist.  Don’t be surprised to see a guy chiseling a new slogan in the lintel over the courthouse doors, Drive American.

If it happens every time, then it’s a “problem.” But if it’s the “exception rather than the rule,” then no problem.



From the Portland Press Herald, the Maine legislature’s criminal justice committee is reviewing the use of a prison restraint and the pepper spraying of a bipolar inmate to “to ensure it is an aberration and not an ongoing practice.”  What are the chances that the anyone will give them the real answer, “we don’t use it all the time; just when they deserve it”?

The inmate, Paul Schlosser, refused to go to the medical unit for a self-inflicted arm wound, suffers from bipolar disorder, a mental illness. What a surprise. So the inmate, spits at the guards, as mentally ill people sometimes do.  And the staff is only there to help, in their own friendly way, because corrections is a great place for dealing with people with mental illness due to their sensitivity to their needs. So what do they do?

But when one of the officers pins back Schlosser’s head, as his arms are being put into the chair’s restraints, Schlosser starts to struggle. When he spits at one of the officers, Welch sprays him with pepper spray, also called OC spray.

Schlosser becomes compliant and complains about not being able to breathe. One officer puts a spit mask on him, trapping the pepper spray on Schlosser’s face.

Welch tells him he must cooperate to avoid similar treatment. Schlosser is in distress for 24 minutes before he is allowed to wash his face.

An investigator’s report on the incident, obtained by the Maine Sunday Telegram, said Welch used a pepper spray canister that was intended for multiple subjects, 18 to 20 feet away.

Corrections Commissioner Joseph Ponte said last week the incident started out with the prison staff correctly trying to get Schlosser the treatment he needed despite his resistance.

Ponte said Welch’s behavior as the incident went on was troubling, but he determined, based on Welch’s unblemished record, that a suspension was appropriate and that Welch would not be fired.

Gerzofsky said the committee’s role is to make sure that incidents like the one involving Welch and Schlosser are the exception and not commonplace.

Rep. Mark Dion, D-Portland, House chairman of the committee and former sheriff of Cumberland County, which has the state’s largest county jail, said use of force to control or manage inmate behavior is part of a corrections officer’s duties.

The Judiciary Committee plans to hold a hearing Tuesday on a bill that seeks to prevent prisoners from filing protection-from-harassment complaints against corrections personnel.

“This process safeguards against harassment and retaliation by corrections personnel,” the statement said. “It should be obvious that this protection needs to remain in place even if used only a few times a year.”

At Above The Law, my fellow curmudgeon Mark Herrmann gives us a gift that us groundlings in criminal defense would otherwise never receive, the wisdom of star prosecutor Patrick Fitzgerald, who has left the government payroll to serve the clients of Skadden Arps.

We had the good fortune to have Patrick Fitzgerald — the former U.S. Attorney for the Northern District of Illinois who recently joined Skadden — speak to my company’s global compliance conference last month.

First, if you’re responding to allegations made by a whistleblower, don’t assume that you’ll avoid trouble by explaining that the whistleblower is nuts. Whistleblowers may often be nuts — it takes a certain personality to blow the whistle — but the fact that you’re nuts doesn’t necessarily mean that you’re wrong. Even a stopped clock tells the right time twice a day. It’s okay to explain briefly to prosecutors that the whistleblower is nuts, but the heart of your presentation must respond to the allegations.

So nuts doesn’t equal wrong? True, but not exactly new.  Maybe the white collar “specialists” at Biglaw never crossed a junkie snitch, but for the rest of us, this is pretty 101 stuff.

Second, for many corporate criminal investigations, the company’s misconduct may be less important than how the company responded to the misconduct. If you have a few hundred (or a few thousand, or a few tens of thousands, or more) employees working in your organization, then some of those employees won’t follow the rules. That’s inevitable, and prosecutors understand it. What distinguishes good corporate citizens from bad ones is often not the misconduct itself, but how the corporation responded when it learned of the misconduct.

Ah, now we’re getting a bit trickier. So the secret is to presume guilt before the government does (or just pretend, for the sake of pleasing the fine men and women in federal buildings) and throw a few people under the bus to satisfy their bloodlust?  Perhaps we could give this trick a cool name, like “when baby prosecutors say jump, corporate titans ask “how high”?

Third, Fitzgerald suggested providing a candid, comprehensive narrative when you meet with prosecutors. Too many companies, says Fitzgerald, hold their cards close to the vest, not wanting to give prosecutors information unnecessarily. That leaves the prosecutors to rely exclusively on the FBI’s version of the facts, which probably won’t paint the company in a great light.

The last thing a multinational corporation wants is to have a prosecutor rely on what the FBI says, so Fitzgerald’s solution is to confess to snatching the Lindbergh baby up front?

Finally, Fitzgerald said that many defense lawyers overplay the possibility that a conviction would cause the company to be debarred from doing government work, which would force the company into bankruptcy and leave thousands of unemployed workers pounding the pavement. Fitzgerald said that prosecutors do care about inadvertently crippling big corporate employers, but many debarment regulations are permissive.

One thing every corporate exec should know is that they can count on the kindness of the government to handle debarment from government contracts or bankruptcy. Prosecutors are sensitive people, and they would never be unduly harsh. They’re from the government, so you can trust them.

These words of wisdom probably cost Aon some big bucks, huge bucks maybe. After all, star prosecutors turned defense lawyer former prosecutor don’t come cheap.  This is a rare opportunity to obtain such insight, only offered to such high-fliers as Aon and the clients of a firm like Skadden.

So let’s review:  If your corporation and its executives become the target of a government investigation or prosecution, Patrick Fitzgerald tells you to take these steps:

Confess
Capitulate
Cop out
Cave in and trust the largesse of the government to provide your salvation
Comply

That’s about $10,000,000 worth of legal advice, courtesy of Fitzgerald.

But you didn’t commit a crime?  But the government prosecutors, none of whom have ever run a company, functioned in a corporate hierarchical structure, been responsible for the actual creation of anything, dealt with foreign cultures?

So what? You aren’t paying attention. The government can’t be wrong. The government can’t lose. It’s the government! Aren’t you listening?

Sadly, most boards of directors do listen, and embrace what Fitzgerald has to say. They don’t want trouble, and the easiest way out of it is to put as many millions (and maybe billions) of dollars on the table as needed to make their government accusers happy.  They will feel badly about having to take loyal, trusted, hard-working corporate executives and toss them mercilessly under the bus as a sacrifice to the prosecution gods, but your life is the price of capitulation, proving to the mighty prosecutors that you are cleansing your corporation of the disease.  So sorry about your family, your future, but they must save the corporate body by excising as many limbs as the government demands.

There is no room for concerns like innocence or that government prosecutors lack any grasp of the conduct in question.  Just be good, little corporate citizens and do as the government demands, no questions asked and no challenge offered.  Comply.

Patrick Fitzgerald is available for future speaking engagements, but you better have a whole lot of money to pay for his critical advice.  Then again, isn’t it worth it? After all, he’s a star.

Update:  I have learned that Patrick Fitzgerald’s talk to Aon was not a stop along the paid speaker circuit, but in fact given without charge.  This does not mean that he is available for federal defender offices and children’s birthday parties, but my assumption that this was a paid gig was wrong and it’s incumbant upon me to correct my error.

Fifty years ago today, the United States Supreme Court issues its ground-breaking decision in Gideon v. Wainwright, holding that an indigent defendant in a criminal trial has a fundamental right to counsel. Yet 50 years later, we find ourselves still waiting for the promise Justice Hugo Black made to Clarence Earl Gideon to be kept.

In anticipation of this day, a great many thoughtful articles have been written about the failure, chronicling courts today where defendants are routinely denied competent counsel, whether for the lack of any counsel at all, counsel sufficiently interested to be competent or counsel capable of being competent while carrying massive caseloads. Andrew Cohen wrote a brilliant piece for The Atlantic, and even the  New York Times captured the despair of the empty promise.

Listening in on a press briefing last week to Jonathan Rapping, head of Gideon’s Promise, formerly the Southern Public Defender Training Center, he noted that the empty promise can be attributed to a lack of funding, political will and systemic concern, all of which are clearly true.

It struck me that the failure of Gideon’s promise, as reflected in Rapping’s three roots, comes from one common source: the American public lacks any recognition that it is their rights, their life, at stake.

As the pseudonymous Gideon has pounded home at A Public Defender, every person in this nation is a mere unlucky step away from arrest and prosecution. We are a nation of overwhelming criminalization, committing three felonies a day, with an  incarceration rate dwarfing all others. Do people connect the dots? Do they care?

I asked a question of Rapping, whether there was any individual or group who spoke for the rights of indigent defendants on a national level.  He said there was not.

District attorneys have a national group. So do police. Even police chiefs have their own association, though theirs is international. Yet public defenders remain fragmented, small groups fighting daily for their survival, or individuals without any group connection at all. 

Granted, politicians rarely run for office proudly noting the endorsement of their local public defenders, though the Police Union endorsement is often displayed front and center. The reason is purely pragmatic, that voters support law enforcement, which they perceive to be meaningful to their lives. Public defense is at best an entitlement to some misbegotten poor criminal, and at worst a detrimental force in society that releases rapists and killers to harm good, hard-working, law-abiding citizens in their beds at night.

It’s not that we have lost the public relations battle, but that we have surrendered without a fight. 

Until the American people come to understand and appreciate what Gideon means to them personally, individually, and realizes that it touches their life or the life of a loved one, there will never be funding, political will or systemic concern. 

People who already share a concern for the criminal justice system may not appreciate that the vast majority of Americans neither know nor care about much of anything beyond the handful of issues that touch their daily lives. Until they, or someone they care about, finds themselves on the wrong end of an indictment, it isn’t important enough to them to take up space on the small plate of things they’re concerned about. It should be, as they learn when their luck runs out and they find themselves outraged at a system they’ve been told is the best ever created, but by then it’s too late. 

What is missing from this mix is an effort to grab the public’s heart and mind, to educate people as to the meaning of Gideon’s promise to them personally, to their children, their friends, their neighbors. Just as law enforcement has sold its merit to the public, so too must the defense of the accused poor.  Until the public shares a sense of personal need with the defense function and the representation of the poor, there will never be funding, political will or systemic concern.  The factory will continue to grind out justice as quickly and cheaply as possible, and there will no one to complain about it.

There are many leaders in the ranks of indigent defense, but no one has yet emerged as a national leader, a spokesman, a teacher. True, they are tied up in the trenches, fighting for crumbs, trying cases, trying to lighten the absurd caseloads of their offices. Who has the time to mount a larger effort when there are human beings marched in and out of courtrooms without meaningful representation?

Fifty years have gone by since Gideon. It’s time that the battle for the hearts and minds of Americans is joined. It’s time for a national coalition, a national leader, to emerge, to force the public to see that they are each a mere step away from being Clarence Earl Gideon. Until that happens, the fight in the trenches will never be on a level playing field, never be fair, never end, and the promise of Gideon will not be kept. Fifty years of silence is too long. Who will speak for Gideon?

Bruce Schneier, perhaps the foremost authority on internet privacy, has sad bad news.  It’s gone. The internet is now officially a surveillance state, and the shame is that we gave it away. From CNN :

The Internet is a surveillance state. Whether we admit it to ourselves or not, and whether we like it or not, we’re being tracked all the time. Google tracks us, both on its pages and on other pages it has access to. Facebook does the same; it even tracks non-Facebook users. Apple tracks us on our iPhones and iPads. One reporter used a tool called Collusion to track who was tracking him; 105 companies tracked his Internet use during one 36-hour period.

We’re staring down an apparent dilemma.

Increasingly, what we do on the Internet is being combined with other data about us. Unmasking Broadwell’s identity involved correlating her Internet activity with her hotel stays. Everything we do now involves computers, and computers produce data as a natural by-product. Everything is now being saved and correlated, and many big-data companies make money by building up intimate profiles of our lives from a variety of sources.

Facebook, for example, correlates your online behavior with your purchasing habits offline. And there’s more. There’s location data from your cell phone, there’s a record of your movements from closed-circuit TVs.

This is ubiquitous surveillance : All of us being watched, all the time, and that data being stored forever. This is what a surveillance state looks like, and it’s efficient beyond the wildest dreams of George Orwell.

We love computers. We love what computers have done for our lives. Whether it’s watching Youtube, chatting it up with our virtual pals or finding a pair of shoes, the computer is integral to our existence.  And as Schneier tells us, the computer knows everything about us.  We’ve told the computer everything about us when we let Facebook (or whatever your favorite may be) into our lives. 

And in return, we got some new shoes, a friend named Joe327 and hours of laughing at kitteh videos.

Was it worth the trade?  Society has responded with a resounding YES!!!  Most of us have known for quite a while that we’re leaving behind footprints that tell anyone interested in knowing all about us, yet continue to use the internet with abandon. We may have no real grasp of how all this technology works, but we know we’ve sacrificed our privacy for the convenience and fun of shiny gadgets.

To their credit, some technology companies  have refused the government’s efforts to hand over our deepest secrets upon demand. But it’s not exactly a foolproof method of protecting privacy, as businesses have other concerns than keeping our privacy ours.

This isn’t something the free market can fix. We consumers have no choice in the matter. All the major companies that provide us with Internet services are interested in tracking us. Visit a website and it will almost certainly know who you are; there are lots of ways to be tracked without cookies. Cellphone companies routinely undo the web’s privacy protection.

Fixing this requires strong government will, but they’re just as punch-drunk on data as the corporations. Slap-on-the-wrist fines notwithstanding, no one is agitating for better privacy laws.

Strong government will? The last thing the government wants is our privacy to be left intact. It makes law enforcement so much harder, when the total loss of privacy allows unfettered access to whatever information makes their case.

So, we’re done. Welcome to a world where Google knows exactly what sort of porn you all like, and more about your interests than your spouse does. Welcome to a world where your cell phone company knows exactly where you are all the time. Welcome to the end of private conversations, because increasingly your conversations are conducted by e-mail, text, or social networking sites.

And welcome to a world where all of this, and everything else that you do or is done on a computer, is saved, correlated, studied, passed around from company to company without your knowledge or consent; and where the government accesses it at will without a warrant.

Welcome to an Internet without privacy, and we’ve ended up here with hardly a fight.

Schneier doesn’t write this to make us feel bad, or stupid. He writes this because we’ve allowed ourselves to be screwed without putting up a fight.  This is a challenge to every computer user, emailer, kitten video lover, to stop giving our privacy away for free.

We’re done, but only for the moment.  We can become undone if computer users (read: everyone) stop enjoying the miracles of modern technology long enough to give a damn about modern reality.  Rather than vote for the politician who want to protect your guns or take them away, protect a women’s right to chose or outlaw abortions, protect a scientific education that isn’t dictated by someone’s bible, we can start demanding that our elected officials start protecting our privacy from our government.  We still get to vote, you know.

Schneier nails down two immutable facts: first, we are now a computer based society, and they are pervasive in our lives. This isn’t going away.  Second, technology knows everything about us.

We are still at the infancy of technology, and can still change the path we’ve gone down that offers up every aspect of our privacy for the pleasure of internet convenience.  The death of privacy and the joy of technology do not have to co-exist.  We’ve allowed it to happen because we were so transfixed by shiny gadgets that we couldn’t divert our eyes long enough to see the consequences.

But we have a long future ahead of us, and computers will be a part of it.  Unless you have no problem with the government knowing what porn you’re pulling up on Google when no one else is around, you better start caring about this issue and acting on it.  We do not have to give up privacy for the internet. We are not yet done.

Despite the amount of fodder that appears on these pages, I also have discussions with friends that aren’t in the public eye about the issues that concern us. One friend, Stephanie West Allen, who writes a blog called  Idealawg and often sends me emails to let me know about absurd conferences for lawyers that have absolutely nothing to do with law or serving clients, wrote something that gave me pause:

Aside: It’s true that not all the futurists are concerned only about new toys, and some are deeply concerned about the welfare of others and finding ways to overcome existing failures in the law to address unmet needs. But the demand that I murder 1,000 words to provide a comprehensive explanation that meets their detailed approval ignores the core of the message, mired in the same old shiny toy nonsense, and isn’t going to happen. If they want praise, they will have to give it to themselves. That they  demand I do it for them is absurd, and not going to happen.

While lawyers for the Aurora shooter, James Holmes, weren’t prepared to commit to a plea on his behalf, following Judge William Sylvester’s  rejection of motions relating to his coerced waiver of constitutional rights should he pursue an insanity defense, the court entered a “not guilty” plea on his behalf.  But Sylvester also added a needle to the mix :

If there was a way to bet the outcome, I would have gone all in that St. Louis Law School’s interim dean, Tom Keefe, would fail.

Keefe — a local plaintiffs attorney with no previous experience in academia — was appointed in August when former dean Annette Clark resigned after clashing with University President Lawrence Biondi over law school funding and autonomy.

Keefe immediately ruffled feathers when he told a reporter that he was not Biondi’s “butt boy” and announced that he would maintain his private law practice while serving as dean. Keefe is a longtime supporter of the law school and a friend of Biondi.

Keefe acknowledged that he was not a good fit for the job, telling the Post-Dispatch that he and the tenured faculty members were “like oil and water.” He also acknowledged making comments that others found inappropriate or that could be seen as sexual harassment.

“Our tears are not deep,” said the faculty member, noting that Keefe never really grasped how a law faculty functions, but did a better job at relating to students.

It is regrettable for the folks at SLU Law (faculty, students, staff, and alumni) that it has come to this.  At the same time, the episode provides a splendid example of how things can go wrong when a university administrator disregards the appropriate role of the faculty regarding a decision of enormous importance to a law school.