Good enough to put Debra Milke to death at the time, Armondo Saldate, Jr. was a cop who knew how to make a case stick.  His trick was simple, and played right into the hands of a flawed system. Set up the confession so no one but him hears it, then put a ribbon on it for the jury and make it a swearing contest between cop and killer. It’s a done deal.

Except Saldate’s history finally caught up with him, a mere 22 years after Debra Milke was sentenced to death for the murder of Christopher, her 4-year-old son, when a court finally took issue with the prosecution’s concealment of Saldate’s massive history of misconduct and deceit that was never disclosed at trial. You know the joke, Saldate and Brady walk into a bar, and nobody knows.

In his concurrence to his own majority opinion at the 9th Circuit, Judge Alex Kozinski writes of the trouble :

This is a disturbing case. There’s no physical evidence linking Debra Milke to the crime, and she has maintained her innocence since the day she was arrested. Neither of the men who actually did the killing testified against Milke. Roger Scott refused to testify because his “testimony would not be what he felt was the truth.” After spending many years on death row, James Styers continued to insist that “Debbie had nothing to do with it and thats [sic] the truth.” The only evidence linking Milke to the murder of her son is the word of Detective Armando Saldate, Jr.—a police officer with a long history of misconduct that includes lying under oath as well as accepting sexual favors in exchange for leniency and lying about it.

Judge Kozinski goes on to describe what he calls Saldate’s “unorthodox interrogation methods,” together with a litany of other misconduct. There is even a chart in appendix A to the opinion (pages 45 through 53) because it’s too much to follow otherwise,

Noting that Milke’s execution would be based on nothing more than the word of a liar, who studiously avoided any potential that his claims could be disputed by making certain that ordinary evidence, like a recording of her alleged confession, didn’t exist, Judge Kozinski wrote:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

As much as Judge Kozinski’s plain talk and clear grasp of the problem is refreshing, it’s strikingly inadequate.  You see, Debra Milke was convicted and sentenced to death in 1990.  The number of official hands this case passed through, from the date of her arrest to the grant of habeas corpus by the 9th Circuit Court of Appeals on March 14, 2013, is beyond counting.  Milke was the mother of a murdered 4-year-old who spent that time in a cell awaiting execution. And not until Judge Kozinski spelled out in excruciating detail the wrongs that happened did any cog in the wheel of our justice system give a damn.

This isn’t a success story.  Judge Kozinski’s opinion doesn’t validate the system. It condemns it, though he doesn’t go that final step, despite excoriating so many who could have stopped this outrage from happening, and concluding that the system and each and every one of the official participants, failed.  The system is a failure and cannot be trusted to determine guilt.

At  Popehat , Ken explained the failure thus:

She spent that time there because the criminal justice system — which is required to accord to people like Debra Milke a presumption of innocence — instead accords to people like Armando Saldate, Jr. a presumption of truth. The system — and at least some of its participants — give that presumption freely because Saldate and his cohorts wear a badge and a gun. They do so no matter how many times Saldate and his cohorts show they are unworthy of the presumption.

He notes that the cop, Saldate, and prosecutors who covered him up, will suffer no consequences. But what of the judges?  What of the jurors, the ones so many of you think will nullify bad law if only they knew of their power to do so? 

There will be no consequences for anyone, other than Debra Milke whose son is dead and life is lost.  And yet the system, the one that allowed and enabled this travesty to happen and be perpetuated for more than two decades, will emerge unscathed as well.

And tomorrow, the same players, cops, prosecutors, judges and jurors, will be asked to play their roles in what is euphemistically called the criminal justice system.  If insanity is doing the same thing over and over and expecting a different result, then Judge Kozinski should have said so. 

The reason I lay this particular problem on Alex Kozinski is that he is one of the few people with the power to alter the course of disaster who shows interest and willingness to do what every other player in this fiasco refused to do.  It’s all we’ve got, that one good man who calls out the wrong. Aside from Judge Kozinski, who 22 years later explained the error of Milke’s conviction, the only person who has yet to fail is the executioner. 

H/T Spencer Neal, Oregon law Center

For the handful of lawyers who are actually engaged on a regular basis in reading or writing stuff that shows up on computer screens, the announcement that Google will be killing its RSS Reader was big news. For those unaware, RSS means “really simple syndication,” and unlike many of Google’s efforts to push its way into the marketplace of other people’s good ideas, its RSS reader was, by any definition, a success.

The purpose of an RSS reader is to subscribe to feeds from blogs you read, have them all show up in the same place whenever something new gets posts, and be able to see what’s new without having to go to 10 or 50 or 100 different blogs to check. It was fast and easy, as the name suggests. Simple to use, and for a guy like me, allows me to see the content on 100 blogs in a snap to decide what I want to spend time reading. Without it, reading other blogs took a long time. With it, I could scan 100 blog posts in seconds. Which do you think worked better?

And Google decided to kill it.

Those who adore the future of technology as the future of everything were stunned. This can’t be happening, because it’s the center of the universe and all life depends on technology.  And BetaMax is how everyone will watch television.  Carolyn Elefant at MyShingle, who is far more optimistic about the benefit of every new-fangled idea than me, took a wider view.

So what can we learn from the demise of Google Reader? First, that blogging (at least conversational blogging rather than blogging for SEO) is on the decline (I know that my buddy Kevin O’Keefe will disagree – but hear me out.  GoogleReader grew out of Google’s launch of Blogger and provided a tool to make it easier for blogs to gain traffic.  Here, my experience is typical; as a long time blogger, I relied heavily on GoogleReader for new stories (particularly when I was pumping out ten to twelve posts a week during my three year stint at Legal Blogwatch.

Yet lately, I’ve noticed that many of the younger people who’ve passed through my office as interns or clerks over the past few years don’t use GoogleReader, relying instead on other services like email alerts or GoogleNews tools to track new events. But then again, many of the younger generation whom I’ve worked with don’t follow blogs much as all, save for the big kahunas like HuffPo or maybe (if they’re lawyers) Above the Law. Indeed, when I recently scolded newbies for not knowing how to blog or set up and track RSS feeds, I didn’t consider the possibility that as a blogger, I’d become passe and needed to be dragged into the 21st Century 3.0 rather than the other way around.

You’re wrong, Carolyn. Blogging isn’t dead, and reports to that effect are nothing more than the usual garbage hauled out whenever there’s a change to the ecosystem.The reality is that RSS never caught on with the real world; it’s not how actual, live, honest-to-goodness human beings find and read stuff online (notice how I did not say, “how people consume online content”). People either arrange for new articles to reach them by email as they are published or they visit the publication online.  Some use Twitter to get updates from sites they like.But the only ones who use RSS readers are those in the echo chamber of social media. Ask a client if they use an RSS reader and they’ll look at you cross-eyed.When I ask clients if they read blogs, they have no idea what I’m talking about. But if I ask them if they read a particular site that I know to be a blog, they claim that they do.Heck, even many other lawyers don’t know what the heck RSS or blogging is. We do because we’ve been doing it for longer than more grade-schoolers have been alive.The real world calls it,” writing,” or, “articles.” Those articles are posted on, “websites.”

I hate to be the wet blanket of the blawgosphere (well, not really), but the idea that there can be an ever-expanding universe of blogs strikes me as insane.  I recently figured out how to use RSS feeds to monitor the blawgs that interest me on a regular basis, and it has definitely helped to keep track of new blog posts.  But even so, it’s a bit overwhelming.  And I limit my interests to blogs that offer substantive content.  None of these pretend blogs that are only there to scream “hire me!” make the cut.  And still there’s just too much.

I believe that this type of overpromotion will end up smothering the blogosphere by its own (dead) weight.  Most of these new blogs will bring nothing to the blawgosphere.  They will sporadically post primarily self-hype of no interest to anyone, under the mistaken understanding that everyone who gets a blog gets business from it.  My notion is that too much garbage in the blawgosphere will drive away anyone who comes by for a look, only to find junk, crap and garbage (or what I would call “marketing”).

Following on EDNY Judge John Gleeson’s  scathing “expose” of the United States Sentencing Guidelines as to drugs in  Dossie and Diaz, SDNY Judge Jed Rakoff  offered his views at the National Institute on White Collar Crime conference sponsored by the American Bar Association in Las Vegas.

“My modest proposal is that they should be scrapped in their entirety and in their place there should be a non-arithmetic, multi-factor test,” he said.

What?  Death to the grid?  Return judges to their historic function of being judges rather than bean counters?

Rakoff argued that the “fundamental flaw” of the guidelines is they assume every situation can be distilled into a number for the purpose of then calculating a sentence. He called the numbers assigned to various situations “arbitrary.”

For those who don’t spend enough time pondering the merits of the Guidelines, or the affect they have on framing the concept of an appropriate sentence in a federal criminal case, the numbers in cases involving financial crimes are married to loss calculations, the amount of theoretical money involved in any way, with the alleged offense. Not, as one might suppose, the actual loss, or even a fair estimate of the potential loss, but loss in a way that can only get bigger and worse, designed in such a way as to make the loss caused by the theft of a nice pen come out to $1.7 million. A bit of exaggeration, but not much.

Rakoff said he is not opposed to tough sentences, noting that in 2009 he sentenced former lawyer Marc Dreier to 20 years in prison for running a $400 million investment fraud. Prosecutors had sought 145 years.

But he was concerned with “the irrationality of the guidelines, particularly in white-collar cases.”

“This blind emphasis on the loss calculation to the exclusion of everything else leads to bizarre results in case after case after case, Adelson being just one example,” he said.

While post-Booker sentencing allows judges to factor in the legitimate purpose as expressed in the parsimony clause, there remain two problems that pervade criminal sentencing: first, that the Guidelines still influence the general perspective of what constitutes the appropriate sentence, and second, that there are now a great many judges who have never experienced sentencing without the Guidelines, and have come to believe that the numbers, and the astronomically long sentences they push on judges, reflect some sort of meaningfully appropriate length of imprisonment.

In other words, if white collar defendants whose offense involved (under the peculiar definition of the loss calculations) $10 million, then 50 years is an appropriate sentence.  Why? Because the Guidelines don’t provide for life plus cancer. That a sentence of that length is outrageously long doesn’t occur to them, as that’s the sort of sentence the Guidelines have mandated throughout their legal and judicial careers. That’s what they consider a “normal” sentence for that crime.

Instead of focusing on numbers, Rakoff said the guidelines should instead be overhauled for a list of factors judges would be required to analyze in writing. They could weigh the factors however they wanted, and the sentences would be subject to a robust appellate review.

“But it would not result in this irrational and in my view terribly dangerous situation we have now where certain factors are just singled out, given artificially inflated numbers and then imposed directly or indirectly on judges,” he said.

Not surprisingly, a spokeswoman for the United States Sentencing Commission reacted by saying

the commission reaffirmed its view that a “strong and effective” guidelines system is the best way to achieve the purpose of the Sentencing Reform Act.

The purpose of the Sentencing Reform Act is to achieve consistency in sentencing, from judge to judge, district to district.  Of course, if everybody got 100 years regardless of the nasty details that comprise the factors that otherwise go into disposing of human lives, consistency would be achieved as well. After all, does anything matter more than consistency?

According to the San Antonio Current, the hospital staff was under the impression Diego Martinez had been hit by a motorcycle.  After all, how else to explain his injuries?

When his girlfriend tracked him down at University Hospital three days after the arrest, doctors mistakenly said Martinez had been “admitted because he was hit by a motorcycle,” and was in serious condition. McDaniel, the lawsuit charges, “knocked out all of [Martinez’s] teeth.” Martinez also suffered “nasal fractures, trauma to his chest and abdomen, swelling in his brain, and numerous bruises and lacerations to his head, chest, abdomen, and extremities.”

McDaniel’s report claims Martinez and his girlfriend passenger both exhibited bloodshot eyes, slurred speech, and were confused when he approached the vehicle. Both, McDaniel writes in his report, stepped out of the car when he went back to his cruiser to run an ID check.

McDaniel writes that he tased Martinez in the back when he refused the officer’s commands.

“I hand cuffed the driver and pulled him from the [west bound] traffic lane where he fell,” McDaniel writes. “Driver was bleeding from a lacerated upper lip and nose where he fell on the asphalt.”

Sound like a familiar story? If so, then the picture of Martinez afterward  may remind you of another as well.



What is the possibility that a fall on asphalt could knock out all of Martinez’s teeth, not to mention cause all the other injuries he suffered?

While the police report claims Martinez was injured during a fall, his attorney Christopher Gale provided the Current a letter by John Moore, a local cosmetic dentist who wrote, “In 30 years of practice and tens of thousands of patients I have never seen this much dental, skeletal, and soft tissue damage occur in single fall to the ground.” Martinez’s injuries “required an impact far beyond a fall to the pavement,” Moore wrote.

“It is in my opinion impossible for Diego Martinez to have sustained this much damage in a simple fall and the injuries were more consistent with multiple impacts to the nose and mouth.”

Multiple impacts to the nose and mouth? But “R. McDaniel” says nothing happened except a fall, following a well deserved tase. And why is the cop called “R. McDaniel” rather than  Robert or Richie or Raspustin? 

When asked whether McDaniel was still on the force or if he had a disciplinary history with the department, an SAPD spokesman told the Current the officer name and badge number, which McDaniel wrote on his police report no less than four times, does not match internal SAPD records. SAPD had yet to explain the discrepancy as of press deadline Monday.

So the reason we lack a first name for the office in question is that SAPD says no such officer exists?  Well, not exactly.  Even though the SAPD has yet to explain the “discrepancy,” recognizing that it’s a mere discrepancy when a cop fails to use his real name or shield number on his report, the SAPD has reached a conclusion as to a more important matter:

“The incident was fully investigated by the police department and the officer acted appropriately,” said City Attorney Michael Bernard. “The lawsuit is without merit.”

Whew. That’s a relief. Otherwise, one might get the impression that the horrific  injuries suffered by Diego Martinez, from having all his teeth knocked out to nasal fractures and cuts to pretty much every part of his body came at the hands of a San Antonio police officer who couldn’t remember his name or shield number correctly.  Now we know it was just plain, old vicious asphalt.  The people of San Antonio can sleep well again tonight.

Update:  Purely fortuitously, there is a  video on the KSTP website providing a vivid demonstration of the difference between the police definition of a fall and the way everyone else defines it.

H/T FritzMuffKnuckle

 

Yeshiva University’s vice provost, Lawrence Schiffman, hired a lawyer named Clifford Rieders from Pennsylania, who has some beef with an old post of mine about Raphael Golb being prosecuted for using sock puppets. Oh boy.  His lawyer sent out this email:

Law Offices of
Rieders, Travis, Humphrey, Harris,
Waters & Waffenschmidt
161 West Third Street
PO Box 215
Williamsport, PA 17701
…

E-MAIL TO: Eugene Volovh [[email protected]]
FROM: Clifford A. Rieders, Esquire
DATE: March 13, 2013
RE: Lawrence Schiffman
CC: Professor Lawrence Schiffman

Please be advised that the undersigned represents Professor Lawrence Schiffman, previously Professor of Hebrew and Judaic Studies, New York University, Skirball Department of Hebrew and Judaic Studies, now Vice Provost of Yeshiva University.

Dr. Schiffman’s name was the subject of illegal and criminal misconduct by Raphael Golb. Your website has been provided to me as one of the locations where the criminal postings occurred.

Please confirm that within five (5) work days of the date of this email the following will occur:

1. Complete removal of the blog material;
2. Removal of index entries on search engines;
3. Cancellation of fraudulent email accounts;
4. Removal of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him.

We will need your certification as to all efforts made to expunge the material.

I enclose as Exhibit 1 news release by the office of Manhattan District Attorney Robert M. Morgenthau announcing the arrest of the 49-year-old Raphael Golb for creating multiple aliases to engage in the campaign of impersonation and harassment relating to the Dead Sea Scrolls and scholars of opposing viewpoints. Mr. Golb was arrested on charges of identity theft, criminal impersonation, and aggravated harassment.

I am also enclosing as Exhibit 2 letter from Director, Witness Aid Services Unit, District Attorney of the County of New York, providing a temporary order of protection which the court issued in the aforementioned criminal case.

I am advised that Mr. Golb has been convicted and appeals denied. Unfortunately, there continue to be current blogs containing Golb’s fabricated story, as though Dr. Schiffman acknowledged or admitted some wrongdoing. I am enclosing not only a variety of sampling but also the platform, address and the blog as well as URLs.

Please contact me as soon as possible at …

He sent one to me.  He sent one to Eugene Volokh. I wasn’t impressed. Eugene wasn’t impressed. He wrote:

The e-mail from Mr. Rieders of course offers no explanation of how this is a “criminal posting[],” because of course it isn’t. Fortunately, I can tell that there is absolutely zero basis for the demand letter; other recipients of the e-mail might not be so lucky.

I generally do not publish letters sent to me, but unfounded demands such as this are an exception. This is especially so because demonstrating the unsoundness of the lawyer’s argument requires showing the entirety of the letter — both the particular language that the letter included (“criminal postings,” the demand for “[c]omplete removal of the blog material,” the demand for “[r]emoval of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him,” and so on) and what the letter didn’t include (any specific explanation for why the material would indeed be legally actionable).

Eugene is much nicer than I am.  Had he not calmly and succinctly explained the email’s massive failing, I would have been constrained to respond, bite me.  I am happy to say that because of Eugene’s parsing of the unfounded email, I can maintain my dignity, merely refer to Eugene’s response, and add, “what he said.”

So, what he said.  Asshole. I’m sorry. I couldn’t resist. Eugene would never use such language. I’m so ashamed.

Update: Apparently, the plot thickens.  Just as Rieders is busily trying to sanitize the internet of arguments that might favor Golb and not-so-much favor Schiffman, it turns out that the New York Cout of Appeals (the top court in New York) has  granting leave to appeal the affirmance at the Appellate Division.  And the Order was just granted a few days ago! What remarkable timing!

It’s not over yet, at least for Rapheal Golb.

Update 2:  Yet another twist, this coming from Eugene’s new post at VC :

I e-mailed Mr. Rieders yesterday evening to ask for a comment on the matter, but have not yet heard back from him; I’ll post his response if I do get it.

UPDATE: Mr. Rieders called back and said they checked shortly before sending the e-mail, and didn’t know of anything then about the highest court’s grant of leave to appeal, or even that the petition for leave to appeal had been pending.

In light of  Ken at Popehat’s having emailed Rieders, and receiving a response that Rieders knows nothing about any email and to get lost, Rieders response to Eugene emits an unpleasant odor.

While Eugene, lawprof that he is, may bend over backwards to avoid any possibility of suggesting anything inappropriate in the absence of conclusive proof to the contrary, none of this comports with the basic expectation that before a lawyer (not an academic, or a guy with a beef, but a lawyer) sends out an email making representations that Golb is guilty and all appeals have been denied, he would have made pretty darned sure that was accurate. To subsequently not only claim that he knew nothing of the pending petition for leave to appeal, but that it had been granted two days before sending the email, is a problem.

Is it possible? Sure. It doesn’t speak well of Rieders diligence or lawyering skills, but it’s possible. On the other hand, it’s impossible to reconcile his response to Eugene and his response to Ken.

Update 3: The story shifts a little bit more with Eugene’s “correction” to his own update:

UPDATE: Mr. Rieders called back and said they checked shortly before sending the e-mail, and didn’t know of anything then about the highest court’s grant of leave to appeal, or even that the petition for leave to appeal had been pending. I e-mailed this UPDATE to Mr. Rieders to confirm it with him (I’d read it over the phone during our conversation, but I wanted to check it in writing), and he thought this summary was inaccurate; I therefore thought that I’d instead just quote what he said in the return e-mail: “[A]t the time I sent you the email, there had not yet been any posting about the appeal which we explicitly checked for and the DA had not informed us that anything was pending at yet a second appellate level.”

Why Eugene felt the need to obtain Rieders secondary approval of the update is surprising. Either Rieders said it or he didn’t, and if he said it, then it doesn’t need to be double fact checked, and Eugene doesn’t need Rieders approval to write what he said. Weird.

Still, neither Rieders nor Eugene, for that matter, offers any explanation of why he would make an affirmative representation that was flagrantly false if he didn’t know it to be accurate?

Update 4: And shortly after the above “correction,” Eugene added this to his post:

FURTHER UPDATE: Mr. Rieders e-mails to add, “In the interest of integrity you should also state that this does not dilute our original message that impersonation is improper and those who aide and abet in impersonation may subject themselves to civil liability.” It is my pleasure to quote that.

It appears that things have no come full circle, it being wonderful to see Clifford Rieders show a sudden interest in integrity, even if he struggles to grasp the meaning of the word after having falsely denied he sent the original email to Ken, on top of having actually sent such a ridiculous, ignorant and outrageous threatening demand.

It’s also good to see Eugene reminded why he had a problem with Rieders in the first place.  I hope that message is what he meant in his “pleasure to quote that” phrase. I really hope so.

Kendra Velzen was prescribed a guinea pig for emotional support, and Grand Valley State University in Michigan agreed only to waive its policy of no pets in dorms, but refused to let her bring it to class or the cafeteria.  Per Walter Olson at Overlawyered, the college settled for $40,000, and agreed that could take the critter wherever she wanted.  After all, she needed it for emotional support.

Are you happy now?

Sociologist  Frank Furedi asks whether college students are young adults or toddlers.

Even worse – according to a new report – they are pursuing a carefree lifestyle and apparently lecturers are shirking from their duty of holding their students’ hands!

A survey of anxious school teachers condemns universities for actually believing that ‘that young people are adults and can fend for themselves’. Apparently undergraduates are biologically mature toddlers! ‘18-year-olds today are a lot less robust and worldly wise,’ warns the report.

The message communicated by this survey, and its claim that because undergraduates are far from ‘robust and worldly wise’ they need support to make a transition to university life, is that young men and young women lack the moral and intellectual resources for becoming self-sufficient people.

Maybe if we just give every entering freshman a guinea pig?

Regrettably, the constant questioning of the capacity of young people to cope with life at a university has the character of a self-fulfilling prophecy. If you constantly lecture young people that life on a campus is very, very stressful and that they really need support than it is not surprising that some of them will experience life through the prism of psychological distress.

As Furedi notes, until the 1990’s, college students would have rather stuck a needle in their eye than be seen anywhere near that mommies.  Today, every professor can hear the whirl of the helicopter blade overhead as students complain that their bad grade hurts their feelings. Teacher as bully, the new frontier, except that teachers hate being called mean names too, so their foremost concern isn’t to teach, but to be liked.

Before any  butthurt genius complains that it’s all his parents’ fault for years of breeding him as a delicate flower whose every whim must be indulged and whose emotional well-being is the driving force in society, at what point does the toddler take some responsibility for his own life and emerge as a young adult?

Sadly, it’s not upon entry to law school, where emotional distress continues to manifest itself.



Yes, life is hard, and the practice of law is hard. Your emotional well-being will be tested and, sadly, will regularly fail to meet the challenge.  Is the solution to give everybody a guinea pig?

Much to the chagrin of young lawyers, they don’t find much comfort here when it comes to that bit of coddling they so desperately seek.  They really hate it when they’re called entitled and narcissistic, not because they aren’t but because it makes them feel bad. It doesn’t have to be that way.

Are you the toddler Furedi is talking about?  Are you the professor enabling the toddler?  Are the parent who steps in at the slightest hint of emotional distress so that your darling baby will never have to grow up?

Ultimately, it’s up to the the young lawyer to decide whether his  feelings matter more than anything else. You’re entitled to feel whatever you want, and the rest of the world is entitled not to give a damn about your feelings.  You can wrap yourself up in your emotions and explain why society has failed to appreciate you, care about you, treat you with the respect your feelings require, but it isn’t going to turn you into a lawyer.  And you may feel that you’re a lawyer, a wonderful lawyer, a brilliant lawyer, but it isn’t going to help you to represent a client.  Hey, clients have feelings too, you know. But then, their feelings aren’t as important as your feelings, right? At least to you.

Or maybe you really don’t want to be a toddler in a lawyer’s suit, walking around the courthouse carrying a guinea pig?  It’s entirely up to you. Neither your parents nor teachers can force you to be a toddler forever.

No name given a mobster had more of an impact than the one the tabloids pinned on former New York City police officer Gilberto Valle: The Cannibal Cop.  In the courtroom of Southern District Judge Paul Gardephe, the jury found him guilty of conspiracy, the darling of the prosecution.

Valle had sick, disgusting thoughts, and naturally found others who shared his fetish for cannibalism on the internet.  One of the features of the internet is that it allows people to find and engage with other, like-minded individuals. It’s also one of its flaws, where there is nothing too awful that it doesn’t have its own chatroom. One of the takeaways for people who don’t share diseased fantasies is that there are plenty of people who do, and they can now get together to indulge themselves.

But conspiracy, except if it involves narcotics, is nothing more than evil thoughts. To make it a crime requires an overt act, a significant step in furtherance of the commission of the crime.  Valle’s defense was that as horrible as his cannibalism fetish might be, it was just fantasy on the internet among like-minded friends.  He only thought bad things. He never did bad things.

But as the United States Attorney for the Southern District announced in his post-verdict press release, the jury saw it differently:

Today, a unanimous jury found that Gilberto Valle’s detailed and specific plans to abduct women for the purpose of committing grotesque crimes were very real, and that he was guilty as charged. The Internet is a forum for the free exchange of ideas, but it does not confer immunity for plotting crimes and taking steps to carry out those crimes.

And what “steps to carry out those crimes” did Valle take? As summed up in Slate :

What exactly did the cannibal cop do? Here’s one thing: Last May, five months before the 28-year-old police officer was arrested by the FBI, Valle met up with a friend online. The friend suggested via instant message that they work together on a story. “OK, sounds fun,” Valle said. They began to craft a tale about a restaurant that cooks and serves human flesh.

In July, Valle had another chat with a different online friend—a man called “Moody Blues.” Their conversation flowed very well. Moody Blues, a male nurse who lives in England, pretended to be a connoisseur of cannibalism: He said he’d eaten lots of women and offered up his favorite recipes. Valle responded that he’d been working on a document called “Abducting and Cooking Kimberly: A Blueprint,” and promised to send it over. That Word file had a photo of his real-life friend from college, Kimberly Sauer, and a list of supplies that he would need to carry out a crime. It also gave a set of made-up details about the victim: a fictitious last name, date of birth, alma mater, and hometown.

Sick stuff, for sure, but criminal?  Bharara, in his post-hoc effort to explain that the internet doesn’t “confer immunity,” a nifty phrase that bears no connection to the crime, the defense or the culpability for thinking sick thoughts, was talking about this:

The government also claimed that Valle had done practical, strategic research for his crimes. He’d looked up recipes for chloroform, and downloaded photos of his victims to an “organized filing system” on his computer. He even went so far as to alphabetize the list of 80 women, and then he used that list to choose his targets.

Valle googled. So it wasn’t just some fetishists talking smack amongst themselves, but a fetishist who googled.  And as Bharara says, the internet doesn’t confer immunity, and the reason for this peculiarly twisted rationale is that the overt act was googling.  Because googling sick ideas that are part of some disgusting fetishist’s online fantasy is a significant step in furtherance of the conspiracy.  Some virtual friends, horrible fantasies plus googling, and you’ve got a conspiracy and a conviction.

Note the language used in the  New York Times to describe the crime:

The prosecutors, Randall W. Jackson and Hadassa Waxman, built their case around the chats and other online messages that Mr. Valle had exchanged with three co-conspirators and what prosecutors said were other concrete steps that he had taken to bring his plan to fruition.

The United States attorney in Manhattan,Preet Bharara, said the jury unanimously found that Mr. Valle’s “detailed and specific plans to abduct women for the purpose of committing grotesque crimes were very real.”

The facts haven’t changed, just the rhetoric.  By characterizing Google searches as “concrete steps…to bring his plan to fruition,” and “detailed and specific plans,” they became so to the jury.

As I’ve tried to explain many times, crimes are often proven more by whose adjectives are stronger, more scary.  While many people search for things of interest, curiosity or fantasy, an artful prosecutor can turn them into “concrete steps” to engage in real life acts that persuade a jury, even though the steps consisted of nothing more than typing words into the search line of a browser.

For all the sick thoughts that Valle indulged, he never took a real life step to harm anyone. IRL, in real life, is a line that almost every internet user appreciates, as it distinguishes what are mere virtual ideas to something real.  The conviction of Gilberto Valle was based on an overt act that consisted of nothing more than the virtual.

The rhetoric employed here blurs the line between thought and reality.  If you search recipes for how to cook a human being, is it in furtherance of a real life plan to do so?  Does a Google search suffice to take thought from the virtual realm to real life?  The verdict in this case says it does, and the rhetoric used by Bharara shifts the ease of searching crazy things for crazy and fantastical reasons to proof that the plan was to walk out of the house, kidnap a woman and eat her.

Is it possible that Gilberto Valle would one day act upon his sick fetish? Yes, though there has yet to be any rash of cannibalism resulting from these chatroom nuts. But if computer searches and chat room bravado is sufficient to establish that he has committed an overt act, then be very careful what you Google as a few adjectives are all that’s needed to convince a jury that the virtual indulgence in ideas are sufficient to prove you’ve taken “concrete steps” to commit a crime.

While intramural battles continue to be fought among legal academics over whether somebody slipped lawprof  Brian Leiter secret IP info to out commenters at  The Faculty Lounge who supported lawprof Paul Campos, the question bubbling to the surface is whether law professors, either the tenured flavor or the budding scholars, have any business being anonymous on the internet.



At PrawfsBlawg, Howard Wasserman questioned whether it was illegal, unethical or merely wrong for a blogger to disclose a commenter’s IP address so that an anonymous (meant to include pseudonymous as well) commenter’s identity would be revealed to his “enemy.”  This, in turn, devolved into a discussion about whether academics had any justification to comment anonymously at all.

The arguments lined up nicely in two connected comments:

Why would a law professor, tenured or not, want or need anonymity to discuss or even speculate about the law? Whatever valid purposes anonymity may sometimes (hardly always) serve, that seems like an illegitimate one to me.

Posted by: Paul Horwitz | Mar 9, 2013 9:05:02 PM

Why, Paul, because when I put my name to something it’s always well thought out (sometimes after years of research, discussion, analysis, drafting, and writing), and the comments sections (as opposed to posts) of blogs are places for quick opinions given with minimal research. The question for me is why anyone would want the computer record to forever be linked to the normal hiccups that are a natural part of conversations. To demand rigorous research for each comment would shut down the type of conversational debate that I believe blogs are best for. It’s one thing to say something off the cuff in oral conversation, where one corrects and laughs it off and moves on with only those gathered in a room remembering the imprecision, and another to have an almost eternal computer error of minor analytical glitches.

Posted by: AnonProf | Mar 9, 2013 10:06:50 PM

Radley Balko named names. The first name he gave was that of Sarasota, Florida, Deputy Dominic Fornal, who first gained nationwide attention from his magical ability that enabled him to smell the scent of marijuana at 35 miles per hour, making drug dogs jealous.

Despite Dep. Fornal’s exaggerated confidence in his own olfactory senses, he didn’t find any marijuana in the car. Well, at least not after those first several searches. After about 90 minutes, Fornal turned off the microphone on his uniform. Another deputy then miraculously found a burnt marijuana cigarette. Fornal then arrested the driver on DUI charges, even though the driver’s BAC was half the legal limit.

No discipline. The only change the department made was to remove Dep. Fornal’s dash camera. Which of course would make him even less accountable.

Ten months later, Fornal is back in the news.

At the accident scene that cost him his job, former Deputy Dominic Fornal allegedly poured a bottle of liquor into a woman’s purse and then dumped the remainder of the bottle onto the floorboards of her van.

Minutes later, Fornal allegedly described one of his coworkers, Deputy James Kathman, as a “dumb ass” to a state trooper.

You’d think a prosecutor interested in justice would just drop any case that turns on the word of a cop who even fellow cops have deemed to be a liar.

And you’d be wrong.

Prosecutors are showing no signs of offering any deals in cases involving Fornal.

They sent out at least one Motion in Limine Friday — a legal maneuver that asks the court to bar defense attorneys from raising Fornal’s past stops or from introducing newspaper accounts of his activities. While the motions for Fornal have been somewhat formulaic, the new version seeks to bar attorneys from mentioning “former officers.”

So not only is the office of State’s Attorney Ed Brodsky not arresting Fornal for lying in sworn statements, not only is his office not dropping the cases in which the charges hinge on Fornal’s sworn statements, but his office is actually seeking to bar jurors deciding the guilt of people charged with crimes from even knowing that Fornal resigned from the sheriff’s department in the face of an investigation into allegations that he has lied about prior arrests.

When I read the guest post by  Peter DeFillipis over at Turk’s New York Personal Injury Law blog, it was easy to understand why a PI lawyer would want a juror to be able to ask questions.  Even though the issue arose out of the Arizona prosecution of Jodi Arias, it offers a huge advantage to the plaintiff in a civil action to learn what the jurors are thinking and satisfy their concerns. After all, in a PI case, the plaintiff has the burden of proof.

But how does this translate to the defense in a criminal case?  Gideon ponders the question at A Public Defender.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.