A question by my pal, Fritz, was raised by this story out of Chicago :

Court records show that the Army veteran was set to start a new job with the state, with solid pay and benefits, until Chicago police hauled him out of his house in his boxer shorts.

No judge had signed a warrant for [Frank] Craig’s arrest. Instead, police themselves had issued an “investigative alert” ordering Craig’s arrest for a robbery that occurred four months earlier.

The alert was based on detective work later judged so shoddy that it led to taxpayers reimbursing the innocent man half a million dollars for a false arrest that caused him to lose his job and the family home to foreclosure.

How, he wondered, could it be that police simply failed to obtain an arrest warrant and did as they pleased?

Critics say the internal police alerts, absent a bona fide warrant, sidestep constitutional protections. Officers act like judges, critics argue, in a process so open to abuse that the police-issued alerts are rarely allowed into the FBI’s fugitive database used by police across the country.

An Illinois appellate judge who was once a police officer recently called for alerts to be banned.

“It’s so easy for (police) to get a warrant. They should just do it right,” said that judge, Marcus Salone.

They should, but they won’t. They won’t in Chicago. They won’t in New York. They won’t where you live. The reason is quite simple: they won’t because there is no incentive to do otherwise. No matter how nice the authority conferred by an arrest warrant, there is no remedy for failure to arrest without one. 

Obviously, an arrest for a crime that occurs in front of the cops has an exigency component that explains why they don’t stop, call a judge and await a warrant as the suspect gets away.  Similarly, following a suspect in hot pursuit presents another situation where a warrant might get in the way.

But in the case of Frank Craig, arrested months after the alleged crime occurred, there is no impediment whatsoever to obtaining an arrest warrant.  There is also no penalty for not obtaining one. An arrest without a warrant is still an arrest. Complain as one might, it doesn’t mean that the person is unarrested, or falsely arrested. The arrest isn’t nullified and the defendant goes free. The defendant doesn’t get a walk. The penalty for police ignoring the opportunity to obtain a warrant of arrest is a big, fat, nothing.

If the police arrest a person in his home without a warrant, any evidence they find may be suppressed, and the statements may be suppressed, but if the cops aren’t looking for evidence or don’t care about a blurted confession, then that doesn’t matter. They got the body, and that’s what they came for.

The problem is an old one, a right without a remedy.  The Fourth Amendment may require a warrant for unreasonable searches and seizures, but the only remedy is suppression.  This isn’t going to help the defendant who is arrested without a warrant in the defense of his criminal case.

The courts say the Constitution doesn’t necessarily require a warrant to arrest someone. That’s particularly true of cases of hot pursuit when police witness a crime. But the leeway gets murkier the more time elapses between the crime and the arrest, especially when police want to arrest the suspect in his or her home.

Murkier? Well, yes and no. Is it wrong? Is it unjustifiable?  Is Judge Salone right that it’s just so easy to get a warrant these days that it’s inexcusable for police to arrest without one?  Of course, but until the law provides a remedy for a warrantless arrest, it’s all talk. Cheap talk at that.

What people fail to appreciate is that we have a plethora of rights and responsibilities that the Constitution and the law impose on government.  We just have no penalty for ignoring them. And so they are ignored. That’s how incentives work, with the police taking the route that is easiest for them when there is no down side to doing so.

But then, if there was a remedy, what would it be? Should murderers walk free because they were arrested without a warrant?  Should anyone arrested without a warrant get payment from the government for the violation of their rights?  What is the prejudice? Where is the harm?  How do we distinguish between the person who deserves to be busted no matter what and the person for whom a warrant should have been first obtained?

These are hard questions, and would give any judge a headache. It’s so much easier to just say “meh” and let the police arrest at will and deal with the consequences later.  After all, Frank Craig’s bad arrest netted him a half million dollars. Isn’t that good enough?

If I, in a car, struck a guy in front of me on a motorcycle, I would certainly be contrite if not a bit in fear of his being more than a little miffed at what happened.  But then, I’m not a cop.

What is fascinating is how the cop doesn’t miss a beat arguing that the fellow in front of him was not only in the wrong, but that what he did was illegal. There is no possibility that the motorcyclist was at fault, just as there is no doubt whatsoever that the cop who rear-ended him was. And yet, it’s hard to argue the point with a guy with a gun and a shield.

The officer, being particularly gracious that evening, agreed to let it go without ticketing the motorcyclist. What a great guy! It must have been the motorcyclist’s lucky day, especially since he had his video going.

While the motorcyclist likely had some damage to his bike as a result of being hit, at least the scenario ended better for the biker than this encounter. which cost Ottawa Hills Police Officer Thomas White ten years of prison.  One can’t help but wonder what the cop in the video above would have done if the motorcyclist had been less respectful and appreciative of the officer’s largesse.

Edit:  Police Officer Thomas White’s conviction  was reversed (in a 108 page opinion!) on the basis of improper instructions on the use of deadly force and mistaken belief.  Mike McCloskey’s paralysis from the waist down due to his being shot by White was not reversed.
 

This is a shameful navel gazing post about blawging and its love/hate relationship with other forms of social media. If it’s not of interest, don’t waste your time reading any further.

Following a post yesterday, there were a bunch of comments on twitter. I responded as I typically do, with my not-quite-subtle point that comments about a post would be better made in the comments to the post rather than twitter. There may also be comments on Facebook or any other social media format, but since I don’t bother with those, I wouldn’t know.

The reaction was also typical: it’s not up to me to dictate where others choose to comment. True. I can’t demand that anybody do as I want and leave their comments here rather than elsewhere, but that really isn’t the point.  It’s not about my dictating anything to anyone, but rather about my asking others who have made a choice to engage in a discussion to talk in the same room.

Blawg posts exist here. People who read the posts read them here. If they give rise to something worthy of their interest, that’s great, as one of the most valuable aspects of blawging is to engender discussion. But what’s the point in having a discussion about something here when the discussion is happening somewhere else?  It means that none of the people who read the post here know about the discussion, join in the discussion, learn from the discussion or even think about the discussion.

As my friend,  Nino Pribetic noted, it’s not as if the posts here are entirely unrelated to twitter. I use a feed that automatically twits a new post so that anyone who cares to know that I’ve written something will know about it and have a link available to read it.  He’s correct, that by using this automatic feed, I’ve voluntarily included twitter in the realm of places where my posts can be found.  Does this make it my fault? Perhaps, or at least to the extent I’ve inserted a different medium into the mix, I have no cause to complain.

Nino also suggested that there might be an element of comment trolling involved, meaning that my purpose was to seek more comment to the post.  He’s right and wrong. I don’t get paid any extra based on the number of comments (this is a snarky remark, since I don’t get paid at all for blawging), but then, there is an aspect of feedback that makes doing this more interesting most of the time. So the more thoughtful comments on the blawg, the more fun it is for me. 

The point is that anyone who feels that something written here is worthy of comment would do well for themselves and any other readers to have the discussion here, where the post exists.  To discuss it on twitter is to exclude other readers, to deny them your thoughts. Sure, the person’s twitter followers will see their twit, and perhaps they too will have read the post, but other readers won’t.  The best that can come of it is a mini discussion off to the side somewhere, where no other reader is able to hear.

And then, of course, there is the question of whether twitter, with its 140 character limit, is really an appropriate format to discuss much of anything. But given that it happens anyway, my guess is that ship has sailed.  Half the twits I read make no sense to me as people try to jam in what might be a comprehensible idea by leaving out as many words as possible and truncating their thoughts to the point of gibberish. Or maybe I just don’t get the shorthand.

In any event, my hope is to explain why I ask that comments to a post be left as comments here rather than elsewhere.  No, I can’t stop anyone from saying or doing anything they please, but I don’t have to encourage or enable it either.  And if you can bear the nightmarish captcha, do me a favor and leave your comment here. Is it too much of me to ask?

When James Holmes  shot up a theater full of people at the midnight showing of The Dark Knight Rises, killing 12 and wounding 58, in Aurora, Colorado, most immediately thought the dude had to be insane. Who else but a crazy person would commit such an atrocity?

But as any criminal lawyer knows, crazy isn’t legally insane.  Under Colorado law, which was changed in 1995 following the attempted assassination of Ronald Reagan by John Hinkley to toughen it up, the  burden is to show by clear and convincing evidence that the defendant suffered from genuine mental illness, and that he was unable to distinguish right from wrong. While this is a very tough standard, the difficulty doesn’t end there. It’s not enough that the defense offer its medical experts to show that Holmes met the legal definition of insanity, but that they offer up the defendant to the state for examination as well.

Larry Pozner wrote  an op-ed in the Denver Post explaining the problem:

My response to the email was typically skeptical. A company that was doing continuing education for physicians wanted to break into the legal market, and asked if I was willing to speak with them. It went on to push a bit too far, suggesting that it was in my interest to become involved with them as they were going to be the best CLE provider ever and would do wonders for my prestige.

So I responded by asking if they were a for-profit enterprise, and whether they were asking if I was so desperate to be hooked to such a prestigious enterprise that I would happily give up my time and reputation to make them money. A lot of lawyers do that, you know. It’s a marketing thing, where lawyers beg to be on television or speak at conferences, for free and on their own dime, so people think they’re important lawyers while the business putting on the show makes money off them.

But I received a reply that surprised me. Yes, they were a for-profit business, but what they really wanted was to ask me whether I thought it was possible to do quality CLEs online, and whether lawyers gave a damn about quality CLEs or just getting enough credits to make it past the guardians of the bar.  So I bit.

My view was old school, that CLEs had become a joke, particularly given that lawyers now get credit for such critical skills as “how to market” and “how to get the most out of your iPad.”  How many clients get all warm and fuzzy knowing that this is the sort of advanced training their lawyers deem critical?  The business model was to run counter to this slide into the gutter, to provide what they believed to be top quality education.  Would lawyers be willing to pay for it?

If the choice is crap versus quality, and the price point was essentially the same, my hope is that lawyers would flock to good quality CLEs rather than crap.  But there was a secondary question as well: The CLEs would be delivered over the internet, not in person.  Would this change things?

As it happens, I stumbled across a post by lawyer-turned-marketer/coach Roy Ginsburg at the Puddle who wrote a post about this very issue. While my normal modus operandi is to point out the superficiality and general worthlessness of the death of letters there, this was different. The same reader who would avoid anything remotely resembling depth of thought because it makes his head hurt would be the very lawyer to whom these CLEs were directed. After all, how would I know whether they want quality CLEs?  How would I know if they care whether the CLEs are live or memorex?  Plus, the title of this post comes straight out of Roy’s subheading.

Can Live Survive?

Plenty of older lawyers still prefer being in the same room with a qualified expert. Some younger lawyers, too, will prefer that format. But it won’t be long until the boomers retire and most CLE is provided online. If your bar association is now offering 40 live programs per year, that number will decrease every year going forward.

In a curious twist of rhetoric, Judge Patrick F. Dugan acquitted Philadelphia police lieutenant Jonathan Josey of assaulting Aida Guzman at a Puerto Rican Day Parade,  announcing “This is not a social media contest, this is not trial by video.”

For as long as I can remember, the argument was that a video of the conduct of an alleged crime was the gold standard, the thing every wished would exist, because otherwise trials relied on witnesses, who memories and motives were inherently suspect. If only there was a video.

And here there was. A video that went viral, and was scrutinized within an inch of its life.  When it was discussed here, it was in relation to the reaction of other police officers, who strained mightily to explain why Josey’s conduct was nearly as bad as every non-cop in the world thought it was.

The cops who came to Josey’s defense had two things in common: they had no issue with the fact that Josey smacked Guzman down and they had no doubt that he smacked Guzman down.  No one question what the video showed, but only that she deserved what she got.

Jonathan Josey was charged with assault for sucker punching Guzman. That wasn’t the plan initially, but pressure brought to bear resulted in Josey’s being charged.  At the three-hour bench trial, one would have expected the video to be damning. 

[Judge] Dugan, however, cited Josey’s testimony that the 19-year decorated police veteran was trying to swipe a beer bottle from Guzman’s hand and accidentally hit her. Josey said he acted in the context of an escalating melee in which some spectators were throwing beer bottles at police trying to arrest a driver doing “donuts” in the middle of the intersection.

The judge also cited other police testimony and character witnesses and an defense expert on police procedure who approved of Josey’s conduct.

This is where the judge ridiculed video and proclaimed this would not be trial by video.  The defense, that Josey did not intentionally sucker punch the woman who he believed sprinkled liquid on him, but was merely trying to swipe a beer bottle from her hands and accidentally punched her in the fact instead, might have been different than anything anyone else had ever seen in the video, but the judge made it clear: this would not be trial by video.

There are two possible reactions to a verdict like this. On the one hand, the judge who acquitted might be viewed as incredibly bold, standing up against the tidal wave of criticism across the country for having defied the nearly universal belief of those who don’t strap on their Sam Browne every day to face the maddening crowds.  After all, don’t we often argue that judges should succumb to popular will, which generally supports the conviction of any defendant who is portrayed as evil to the public.

But this time is a little different, because there was a video. And it was different because the defendant was a cop.

The other possible reaction is that the fix was in. Philly has a long and sordid history of police abuse of people of color, going back to the good, old Rizzo days, The City of Brotherly Love didn’t love the brothers very much. Or the sisters. Or the Puerto Ricans, or anyone else whose tint was a little darker than Frank’s. But Lt. Josey was black, showing how far Philadelphia had come with regard to race relations.  The question remained whether it had come as far with regard to police.

As might be expected, outrage followed the acquittal of Josey.  After all, the video of what happened was there for all to see, and the judge not only saw it differently than anyone else, but showed open disdain for the very sort of evidence that had invariably been held out as the best it can get.

Thoughts immediately turned to why Judge Dugan, “52, a judge since 2007 and a decorated Army captain who served in Iraq and Afghanistan,” didn’t see what everyone else did. A hook was soon found :

Does it matter that he’s married to a cop?

A chorus of criticism swelled Wednesday after word spread that Dugan is married to Philadelphia Police Officer Nancy Farrell Dugan, who has been on the force since 1997, city payroll records show.

She also attended Josey’s Feb. 12 nonjury trial, sources said.

While it might have been prudent for Dugan to have recused himself in such a controversial case to avoid the appearance of impropriety, there was no basis for mandatory recusal here. Judges always come to the bench carrying baggage, often from their careers as lawyer, their friends, their families, their connections, supporters and haters. The question is impartiality, and the answer is that a judge who feels that he cannot be impartial is obliged to recuse himself. Few judges feel that way, believing themselves bastions of impartiality, no matter how biased they may be.

That Judge Dugan slept with a cop shouldn’t be the bone of contention, any more than a judge who is married to a defense lawyer. Or prosecutor, for that matter. Had Dugan not been married to a cop, would his verdict have been more palatable?  The problem is bias is an affliction that pervades the bench and defies easy explanation.  It’s understandable that people feel the need for some extrinsic explanation for how something could go so wrong, but it’s wholly unnecessary. It can go this wrong without any outside explanation at all. It happens all the time.

Or more to the point, it doesn’t get any better than trial by video. That is not only enough of a reason to criticize Dugan, but a much better one. If a video of a cop sucker punching a woman in Philly isn’t good enough to convict, then no evidence will suffice.

My old buddy, co-author, of-counsel, fellow blawger at What About Clients? and muse, Dan Hull, is hanging up his disco shoes.

Labor of Love Ended. We’ll soon do a parting post about our 7.5 years. We can’t tell you how much the blog and our readership meant to us. It permitted us the honor to meet in the flesh–here and abroad–some vibrant and inspirational people, and to trade ideas about getting life and work right. Je vous remercie de tout cœur.

Erudite and urbane, intolerant of the stupid, the lazy, the cowardly, and occasionally  wild, the blawgsophere will be much poorer for his absence.  Having coined the phrase “slackoisie,” and drilled into our minds “ease of use” as a mantra for dealing with clients, Dan has done his job well.

Will there ever be another blawger to remind us so well of “sensitive litigation moments,” or that the only reason lawyers exist is to serve our clients?  Maybe, but not as well or as boldly as Dan Hull.

And What About Paris?

Attorney Eric D. Puryear was just a passenger in a car passing through Prairie Grove, Illinois, when the pickup in which he and his family were traveling was stopped by Officer James G. Page. His day got worse.

In October 2012, my wife, our daughter, and I flew from Iowa to McHenry, IL, in order to attend a birthday party and spend time with my wife’s family. As we were headed back to the airport, we drove through Prairie Grove, IL. I was seated in the front passenger seat of my brother-in-law’s pickup truck, which he was driving. My wife was seated behind me, and our daughter was in a car seat behind my brother-in-law. A Prairie Grove, Illinois Police Officer named James G. Page, Badge Number 8227, stopped the vehicle and claimed that he saw me not wearing my seatbelt. I was most certainly wearing my seatbelt, as I always do when in a vehicle (I’m a very safety-conscious person).

After running my ID, Officer Page returned it to me and began walking back to his vehicle, ending the traffic stop. I politely asked Officer Page for his name and badge number, as I wished to address this improper stop with the Village of Prairie Grove. In response, Officer Page demanded my ID again, stated that he would write me a ticket with his name and badge number written on that ticket, and proceeded to do exactly that. Myself, my wife, and my brother-in-law all observed that I was wearing my seatbelt throughout the trip in my brother-in-law’s truck.

Through Freedom of Information Act requests, I eventually obtained video from Officer Page’s squad car, which revealed that he pulled over several Ford pickup trucks in a row, as if he were looking for someone in particular and using pretextual reasons like a supposed missing seatbelt as an excuse for the traffic stops. I say that I “eventually” obtained that video, as the Village of Prairie Grove initially tried to say that it was unavailable due to an “error,” and it took my submission of multiple Freedom of Information Act requests to finally obtain that video. In court and under oath, Officer Page later admitted that he wrote me the ticket as retaliation for my request for his name and badge number.

Officer James Page has attempted to have Facebook remove the Prairie Grove Justice Facebook page that I created. This is one of many attempts that Officer Page has made to block my right to free speech and to attempt to stop my firm from providing free legal representation to those who he has wrongfully stopped. As expected, Facebook denied Officer Page’s meritless request. More information, including the emails between Officer Page and Facebook, can be seen here: http://www.pgjustice.com/facebook.html

At Puryear Law P.C. we have decided to handle Prairie Grove, IL matters (and Bull Valley, IL matters involving Officer James G. Page) on a pro bono (free) basis, in situations where a person has been wrongfully ticketed, charged, or had their civil rights violated. We cannot handle every case for free, and therefore select the cases where we believe our time is best spent to seek justice. Should your case be selected, Puryear Law P.C. will represent you without charging you legal fees for our services.

About five years ago, I wrote about how the same things that happen to other people  suddenly become real when they happen to you. Now that Eric Puryear has felt the sting of a false accusation, the smack of a cop who didn’t care for his failure to respect his authority, he has decided to do something about it. Good for him.

Some of the reactions to this have been less supportive.  After all, it was just a seat belt ticket, for crying out loud, not a killing or even a beating.  He didn’t spend days in jail, no less years in prison, for a lie.  And this is true, in the scheme of bad things that can happen at the hands of cops, this barely makes a ripple.

But as Amy Bach pointed out in Ordinary Injustice, it’s the little things, the millions of little injustices, that have made us “so accustomed to a pattern of lapses that they can no longer see their role in them.”  Maybe Puryear saw them before, but it’s different when it happens to you. The little thing wasn’t so little anymore.

Just as every prosecutor should spend some time in jail to appreciate what it means when she argues for the need to imprison someone, and every judge so she knows the suffering of the sentence, maybe every defense lawyer should be both the victim of a crime and the victim of police misconduct and lies, so we can know what our clients know. Eric Puryear now knows the feeling, and it has moved him to act.

Sure, this may not be the biggest instance of impropriety, or the worst pain inflicted by a cop on an undeserving person. But every bit of extra effort in the fight helps. By channeling his frustration into pro bono representation of people who had their rights violated in Prairie Grove, Eric Puryear is putting his anger and frustration to good use by helping others who might not otherwise have representation.

Every little bit helps, even if you never realize it until it happens to you.

When its door first opened, law professors were outraged. Both because of what it said, that law schools were indeed running a scam, and because of who said it, an anonymous lawprof. Or at least someone who certainly appeared to be a lawprof. The lawprof soon came out, and Paul Campos became an instant pariah.

When it first appeared, it was somewhat underwhelming from the standpoint of its revelations, despite the outrage it cause in academic circles, but it offered something that had never before existed: an insider validating the otherwise insane and childish rantings of the scambloggers.

Keep an eye on Inside the Law School Scam, as there may be revelations yet. And even if not, his recognition of the problems that compel discussion and redress may prove to be the start of a beautiful solution. As he offers in his post discussing Elena Kagan (who never stepped foot in a courtroom until she was appointed Solicitor General):

Someone should inscribe the phrase Fake It Till You Make It (in classical Latin naturally) on the façade of Harvard’s fancy new law building – and on that of every law school in America.

That explains an awful lot about the state of the law, and may be the most revealing, and important, thing exposed.

19 months and 499 posts later, it turns out that the core message of this blog – that legal academia is operating on the basis of an unsustainable economic model, which requires most law students to borrow more money to get law degrees than it makes sense for them to borrow, given their career prospects, and that for many years law schools worked hard, wittingly or unwittingly, to hide this increasingly inconvenient truth from both themselves and their potential matriculants – has evolved from a horrible heresy to something close to conventional wisdom.

Professor Campos:

I have a feeling you get a lot of e-mail messages like this, and you probably do not have time to respond to them all, but I thought I would give it a shot. I will try to give you an abbreviated version.

I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt.

After my clerkship, I went into private practice. I have taken more than 200 depositions, argued motions in court more than 100 times, conducted several multi-day trials, propounded and answered more discovery than I care to think about, and drafted countless briefs, motions, and pleadings…

I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.

I’m 41 years old, I’ve been out of law school for 13 years, and I do not have a book of business, so evidently, my career as a lawyer is over. I have a wife and 2 kids who need me to work, but I don’t know how to do anything other than practice law.

Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” 

I am a real, live lawyer with a J.D., a license, and years of experience. But no one will pay me to practice law anymore, and I don’t know how to do anything else. Yes, of course, big changes are coming to law schools and the legal profession, many reforms need to be implemented, and prospective law students need to be warned. It’s not that I am not interested in those things, but I have more immediate problems to solve. I have 2 kids, a mortgage, and 25 more years to work – I can’t waste time being angry at my alma mater, wallowing in my sadness, or pontificating about law schools and my profession. I need to find a way to earn some money SOON. Do you have any suggestions for someone like me?

No, not Simple Justice. A really   if you want to make oodles of dough on the interwebz
.


It already comes with tons of really cool, ready-made advertisements. Like this one:



Get it?  And don’t worry, as I’m sure they have releases from all those guys who look swell in orange for the commercial use of their image. Or this one:



It’s got everything. Sex. Ethos. Pathos. And the latest in men’s undergarments. Better grab it. And don’t let that whole ethics thing stand in your way. Forget about those pikers who merely claim to be the best. With a domain like this, you can  own the best defense. Page 1 of Google, here you come!

This is a hot property and somebody is going to make a fortune with this domain. Just throw in a video with a  girl in a bikini and you can order that new Mercedes you’ve been eyeing.

H/T David